Hareshkumar Mathuradas Lathia vs Abdulkadar Hussain Ibrahim And ...
2002 Latest Caselaw 931 Bom

JUDGMENT

A.M. Khanwilkar J.

1. This appeal takes exception to the judgment and decree passed by the Motor Accidents Claims Tribunal, for Greater Bombay dated 31-3-1986 in Application No. 834 of 1982. The appellant had filed an application for compensation for the injuries sustained by him in a motor vehicle accident which had occurred on 15-12-1981 while crossing the road. The taxi bearing Registration No. M.R.K. 7134 dashed against him and he was thrown on the hedge at a distance of about 10 to 12 feet. The taxi went towards the left side about 30 to 40 metres and stopped. The appellant had sustained injuries as described in the application. An application was filed claiming compensation in the sum of Rs. 3,00,000/- on the ground that the appellant suffered injuries due to the rash and negligent driving of the taxi driver. The application was contested only by the insurance company whereas the owner as well as the driver of the vehicle in question did not appear before the Tribunal. The Tribunal accepted some of the items as claimed by the appellant whereas discarded the claim with regard to certain items on the ground that no proof was adduced to support that position. The Tribunal by the impugned judgment eventually found that the taxi was being driven rashly and negligently which caused the accident on account of which the appellant suffered injuries. The nature of the injuries suffered was of partial disability. As a consequence of that finding and having accepted some of the items pressed into service by the appellant, the Tribunal found that the appellant was entitled for a compensation in the sum of Rs. 1,23,682.60 along with interest at 12% p.a. from the date of application till its realisation. The Tribunal however, found that the liability of the national insurance company shall be Rs. 50,000/- with corresponding costs and interest at the rate of 12% p.a. from the date of the application till its realisation.

This decision is the subject matter of challenge in the present appeal.

2. Only two points were canvassed before this Court. The first grievance made was that the liability of the insurance company was not limited to Rs. 50,000/- as held by the Tribunal but, was co-extensive with the liability with that of the owner and driver of the vehicle. The second contention raised is that the Tribunal has committed obvious error in restricting the claim regarding the future income only up to 10 years on the premise that the appellant had suffered partial disability at around 40%. Though the respondents have been served, but none appeared.

3. Having considered the submissions made on behalf of the appellant and examining the record and the judgment of the Tribunal below, I find no reason to interfere with in this appeal.

4. I shall now deal with the first point that arises for my consideration as to whether the liability of the insurance company was co-extensive with the liability of the owner and driver of the vehicle in question. According to the appellant, the liability was co-extensive with the liability of the owner and driver of the vehicle. In support of this, reliance has been placed on the decision in Hemant Madhukar Patil v. Shakuntala Arvind Bramhabhatt This decision obviously deals with the case which arose out of an accident dated 22-10-1989 whereas the new Act i.e. The Motor Vehicle Act, 1988 came into force with effect from 1-7-1989. The proposition examined in this decision is therefore, in the context of the provisions of the new Act. However, that judgment has no application to the facts and circumstances of the present case where the accident has taken place on 15-12-1981. Whereas this case will be governed by the old Act namely The Motor Vehicles Act, 1939. The Tribunal therefore, has rightly considered the relevant decision on the subject in particular of the Apex Court in the case of Sheikhpura Transport Co. Ltd. v. Northern India Transporters Insurance Co. Ltd. Applying the principle enunciated by the Apex Court in the said decision, the Tribunal in para 22 of its judgment has held that in the present case, from the insurance policy (Exhibit 26) it was clear that the insurer has agreed to pay only such amount as was necessary to meet the requirements of the Motor Vehicle Act, 1939 and by virtue of tion 95(2)(b)(i) of that Act, the liability of the insurance company will be limited to Rs. 50,000/- in respect of persons other than passengers carried for hire or reward (i.e. third party). This proposition cannot be doubted and therefore, I find no fault with the view taken by the Tribunal in this behalf.

5. That takes me to the second contention raised on behalf of the appellant that the Tribunal committed error in limiting the claim for future income only up to the period of 10 years on the premise that the appellant had suffered partial disability up to 40% and was to last only for 10 years. The Tribunal has adverted to the evidence of the doctor who was examined on behalf of the appellant. As a matter of fact, the said doctor Amrutlal Kantilal A.W. 2 has not deposed to the fact as to whether the injuries suffered by the appellant was partial disability or otherwise but, has only described the nature of injuries and the present state of health of the appellant. However, during cross-examination, the credentials of this doctor and as to the certificate issued by him was questioned in the following manner :

"I examined the injured on 18-4-1984 and the certificate was given on 26-11-1984. I was aware that the patient had met with an accident on 15-12-1981. From 15-12-1981 up to 18-4-1984, I had not seen the patient."

Notwithstanding this position, the Tribunal has relied on the certificate issued by the said doctor to hold that the appellant had suffered partial disability and has given benefit to the appellant on the basis of the said certificate. Be that as it may, the learned Counsel for the appellant has not been able to point out any statutory provision or for that matter, any precedent to question the correctness of the view taken by the Tribunal that in case of partial disability of 40% which can last for a period of 10 years, the disability at 40% can be taken for 10 years for loss of future income. The Tribunal has granted Rs. 48,000/- for future loss of income on account of that disability, on the basis of monthly earnings of the appellant to be taken at Rs. 1000/- per month and the disability can be taken at the rate of Rs. 400/- per month. Before the Tribunal, as is evident from para 14 of the judgment, the appellant had only argued that the appellant was entitled for disability at the rate of Rs. 600/- per month and not at the rate of Rs. 400/- per month as granted. Even that aspect has been considered by the Tribunal. If the disability was up to 40% then, the compensation can be 40% of the loss of monthly earnings of Rs. 1000/-. The Tribunal has granted compensation of the proportionate amount. It is relevant to note that the quantum of Rs. 1000/- determined by the Tribunal towards the loss of monthly earning is not questioned before me. Therefore, no fault can be found with the view taken by the Tribunal even in this regard. In the circumstances, the principle adopted by the Tribunal cannot be said to be unjust, unreasonable or without any basis.

Accordingly, this appeal fails, therefore, the same is dismissed with no order as to costs.