Oriental Insurance Co. Ltd vs Mr. Karim Khan
2013 Latest Caselaw 348 Bom

                             1                                                      fa1255.10.odt




                                                                                  
                                                      
     IN THE HIGH COURT OF JUDICATURE AT BOMBAY,
               NAGPUR BENCH, AT NAGPUR




                                                     
                FIRST APPEAL NO.1255 OF 2010




                                   
     Oriental Insurance Co. Ltd., 
                     
     Through its Regional Manager,
     Nagpur Regional Office, 
     (T.P. Hub), Shukla Bhavan,
                    
     West High Court Road, 
     Dharampeth, Nagpur.           .........                APPELLANT.


              // Versus //
      
   



     1. Mr. Karim Khan s/o. Qasim Khan,
         Aged about 22 yrs., Occ. Nil (Now),
         r/o. Old Khalasi Line, Kader Jhanda
         Kamptee, Tah. Kamptee,





         Distt. Nagpur.

     2. The New India Assurance Co. Ltd.,
         Nagpur Regional Office, through
         its Divisional Officer, 5th Floor,





         Shriram-Shyam Towers,
         S.V.Patel Road (Kingsway),
         Nagpur - 440 001.

     3. Mr. Tushar s/o. Janardhan Sawarkar,
         Aged Major, Occ. Business,
         r/o. Plot No.19, Samata Lay-out, 
         Yashwant Nagar, Nagpur,
         Distt. Nagpur.




                                                      ::: Downloaded on - 23/12/2013 20:35:26 :::
                                2                                                      fa1255.10.odt

     4. Mohammad Ashik Khan Mohammad Kadir,




                                                                                    
         Aged Major, Occ. Business,
         r/o. Mahadula, Koradi, Nagpur.  .........    RESPONDENTS




                                                        
     -=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-
              Mr.D.N.Kukday, Adv. for the Appellant.
              Mrs.M.N.Hiwase, A.G.P. for Respondent No.1.




                                                       
     -=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-


                                          CORAM :  A.P.BHANGALE, J.

DATED : 16th December, 2013.

ORAL JUDGMENT :

1. Submissions at the bar were heard in detail and today

the appeal is listed for final orders.

2. The appeal was preferred against the Judgment and

Award in Claim Petition No.508 of 2007, dt.9.6.2010 passed by

the learned Member, Motor Accident Claims Tribunal, Nagpur

whereby compensation was awarded in the sum of Rs.20,00,000/-

payable jointly and severally by respondent nos. 1 and 3 on one

hand as well as respondent nos. 2 and 4 on the other hand in 50 :

50 proportion to the claimant with interest @ 7.5 % p.a. from the

date of petition till its realisation - inclusive of no fault liability

under Section 140 of the Motor Vehicles Act, 1988.

3 fa1255.10.odt

3. The facts which are stated are as under :

The claim was filed under Section 166 of the Motor

Vehicles Act, 1988 for a sum of Rs.35,00,000/- on the ground that

the claimant, who was B.E. in Chemical Engineering and who was

employed by Star Orchem International Pvt. Ltd. situated at

M.I.D.C., Butibori, Nagpur, earning a sum of Rs.9,500/- p.m. was

returning from his Company at M.I.D.C., Butibori to Nagpur with

seven co-employees by Tata Sumo bearing registration No.MH 31

Z-2621 (vehicle provided by the Company). The said Tata Sumo

was driven on Wardha road National Highway no.7 rashly and

negligently at a very high speed. While the vehicle was nearing the

petrol pump at Jamtha Fata, a truck bearing registration no.MH-

31 CB-867, which was exiting from the petrol pump, dashed and

collided with Tata Sumo vehicle. In the result, the claimant had

suffered various injuries all over his body, particularly on the

spinal cord as well as vertebral column. The claimant was

operated by Dr. Lokendra Singh and had to remain in hospital as

an indoor patient during the period between 17.1.2007 to

5.2.2007. The claimant, due to severe injuries suffered by him as a

result of motor vehicle accident, became permanently paralysed

4 fa1255.10.odt

and disabled. According to the learned Counsel for the claimant,

Higna Police had registered crime no.11 of 2007 against drivers of

both the vehicles Tata Sumo well as truck referred above for the

alleged offence punishable under Sections 279, 337, 427 of the

Indian Penal Code r/w. Sections 184, 119 (R) r/w. Section 177 of

the Motor Vehicles Act, 1988. Thus, according to the learned

Counsel for the claimant, the victim/claimant was a young

engineer, aged about 22 years and had just started his life with

prospects of dreams and anticipations for happy future life. His

dreams were shattered and as he became permanently disabled

even to follow his ordinary daily pursuits like passing urine and

stool etc. on his own, he was required to spend his remaining life

on wheel chair and became jobless. He also lost prospects of

enjoyment in his life as now he could not marry in life. He was the

only earning member of his family having younger brother and

sister and aged parents. Thus, his family life was ruined. Under

these circumstances, the claimant had claimed a sum of

Rs.35,00,000/- as compensation. The learned Member of the

Tribunal, who examined the evidence led before it, found that

Tata Sumo bearing registration no.MH-31 Z-2621 and Truck

bearing registration no.MH-31 CB-867 - both offending motor

vehicles which collided with each other due to rash and negligent

5 fa1255.10.odt

driving of drivers of both the vehicles respectively, equally

contributed to the accident as a result of negligence on their part.

In the result, therefore, the owner, the driver and the insurer of

both the vehicles were equally held responsible to share

compensation on 50-50 % basis along with 7.5 % interest

thereupon from the date of petition till realisation. The learned

Member of the Tribunal restricted the Award to the sum of

Rs.20,00,000/- although a sum of Rs.35,00,000/- was claimed. As,

according to the learned Member, a sum of Rs.20,00,000/-

required to be awarded as just and reasonable compensation on

the basis that yearly income of the claimant was considered as

Rs.90,000/- assuming that his monthly earning of Rs.7,500/- p.m.

only. The learned Member also considered loss of future income

by applying multiplier 17 to the yearly income of Rs.90,000/-

only.

4. The learned Counsel for the claimant submitted that

considering the permanent disability of the claimant and his

inability to spend ordinarily comfortable life, medical treatment,

medicines etc. and also non-pecuniary damages on account of

frustration in life, disappoint, unhappiness, discomfort and

inconvenience and loss of amenities in life bearing in mind the

6 fa1255.10.odt

permanent disability and existence of the claimant on the wheel

chair, the sum of Rs.20,00,000/- which was awarded was just and

reasonable amount and cannot be interfered with in exercise of

the appellate jurisdiction.

5. According to the learned Counsel for the appellant, the

amount awarded is excessive. According to Mr.D.N.Kukday,

learned Counsel for the appellant, Tata Sumo vehicle was insured

in the name of respondent no.4 under the liability only policy for a

private car and use of the said vehicle for hire or reward was

prohibited under the policy. This contention is met by the learned

Counsel for the respondent/claimant on the ground that it was

open for the insurer/appellant - Oriental Insurance Co. Ltd. to

plead and prove the fact alleging that the policy was limited as

"liability only" policy. Regarding the grievance of the appellant of

alleged breach of Insurance Policy, it is submitted on behalf of the

respondent/claimant that the appellant should pay the

compensation first and discharge its liability towards claimant

and then it may recover compensation paid from the owner of the

offending vehicle by raising such grievance before the Tribunal.

But, considering the nature of claim, the motor vehicle accident

and the facts and circumstances of the case, the compensation was

7 fa1255.10.odt

just and reasonable and minimum under the circumstances

considering the fact that the victim would now need medical

treatment continuously as also attendant, special diet etc.

6. Having considered the submissions at the bar,

therefore, and considering the fact that the petitioner has suffered

fracture at Dorsal 8 Vertebra with paraplegia which, according to

medical science, is 80% permanent disability, it cannot be said

that the compensation awarded was excessive in any respect. No

grievance in this regard was made by the New India Assurance Co.

Ltd. (respondent no.2) and I am informed that respondent no.2

has already discharged part of its responsibility by making

payment of compensation to the claimant. That being so, the

appellant can also discharge its responsibility by making payment

of compensation to the claimant and if at all, according to it,

owner of the offending motor vehicle was responsible for breach

of Insurance policy, it is open for the appellant to recover the

compensation amount paid for the owner/driver of the offending

motor vehicle - not by any separate or independent proceedings,

but in the same proceedings by making appropriate application for

this purpose to the learned Member of the Tribunal. In the result,

therefore, on merits, I do not find any valid and legal reason to

8 fa1255.10.odt

disturb the impugned judgment and Award. Hence, the appeal is

dismissed with costs.

The amount deposited in this Court, if any, be

transmitted to the Tribunal for disbursement to the claimant.

JUDGE

jaiswal