The United India Insurance Co.Ltd vs Alpesh Harshadlal Mashruwalla& 2 ...
2017 Latest Caselaw 5798 Bom

 FA 197.06.odt                                1


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

                       FIRST APPEAL NO.197 OF 2006


 The United India Insurance Company
 Limited, 102, Sree Aurobindo Sarani,
 Calcutta-700 006, through
 The Regional Manager,
 Nagpur Regional Officer,
 Shankar Nagar Square,
 Nagpur-440 010.                      ..       APPELLANT
                                (Original Respondent No.3)


                               .. VERSUS ..


 1]     Alpesh s/o Harshadlal Mashruwalla,
        Aged about 23 years,
        Occupation-Diploma Holder,
        R/o. Railway Quarter, 43/18,
        Jogeshwari, Bombay-400 060.        (Original Petitioner)

 2]     Preetpal Singh, Aged about Major,    (Deleted)
        Occupation-Business,
        Resident of Shyamnagar Colony,
        Raipur (M.P.)                     ..     RESPONDENTS
                               (Original Respondent Nos.1 & 3)


                    ..........
 Shri D.N. Kukday, Advocate for Appellant,
 Shri P.G. Anandikar, Advocate for Respondent No.1.
                               ..........


                               CORAM : KUM. INDIRA JAIN, J.

DATED : AUGUST 09, 2017.

ORAL JUDGMENT

This appeal is directed against the judgment and

award dated 20.10.2003 passed by the Motor Accident

Claims Tribunal, Nagpur in Claim Petition No.130/1992. By

the said judgment and award, tribunal saddled the insurance

company with the liability to pay compensation of

Rs.5,50,000/- along with interest at the rate of 9% per

annum from the date of application within 45 days, failing

which to pay interest at the rate of 12% from the date of

application till its realization. Being aggrieved, insurance

company has preferred the present appeal.

2] Brief facts of the case may be stated as follows :

(i) Respondent is an injured in vehicular

accident. On 28.9.1991, claimant was proceeding with his

friend Sagar Gajanan Lakhe on motorcycle bearing No. BTB-

5454. Sagar was riding the motorcycle and injured was

pillion rider. They reached near Steel Sales Corporation and

stopped the motorcycle due to red signal. That time, truck

bearing No.MOT-9277 came from rear side and gave a dash

to motorcycle. Both Sagar and claimant fell down. Rider of

motorcycle died on the spot. Claimant suffered serious

injuries.

(ii) Initially injured was admitted to

Government Medical College and Hospital at Nagpur for four

days. As he was resident of Bombay, he was shifted to

Lincoln Nursing Home at Bombay. His right hand was

operated there. Then he was shifted to Jaslok Hospital,

Bombay.

(iii) It was the case of claimant that he

suffered 90% permanent disability. He was serving as an

Electronic Engineer with Weightronic Private Limited,

Bombay and getting monthly salary of Rs.2,500/-. Due to

disability, he could not continue his employment and was

required to remain without job, as disability has affected his

physical capacity to earn. According to claimant, disability

was to such an extent that he could not marry. He is being

maintained by his old mother. She is doing some petty

work. Applicant submitted that permanent physical disability

has caused serious inconvenience, disappointment,

discomposure, frustration, mental stress and loss of

confidence to him. He claimed Rs.4,50,000/- towards

compensation under Section 166 of the Motor Vehicles Act

including interest thereon.

(iv) The owner of vehicle was served with the

notice. He remained absent and application proceeded

ex-parte against him.

(v) Respondent no.3/appellant resisted the

petition vide written statement (Exh.14). It was contended

that two vehicles were involved in the accident and owner

and insurer of another motorcycle were also necessary

parties. A plea of non-joinder of necessary parties was

raised by insurer. Regarding occurrence of accident and

liability of insurance company to pay compensation, defence

was of total denial.

(vi) From the rival pleadings of the parties,

Tribunal framed issues at Exh.22. Injured examined himself

as a solitary witness. Insurance company did not examine

any witness in support of its defence. Considering the

evidence and documents placed on record, Tribunal came to

the conclusion that owner and insurer were liable to pay

compensation to the tune of Rs.5,50,000/- particularized

under various heads in paragraph 10 of the Award.

Respondent nos.2 and 3 were directed to pay within 45 days

with interest at the rate of 9% per annum from the date of

application and on failure to deposit within time at the rate

of 12% interest per annum from the date of application till

its realization.

3] Appellant assails the impugned judgment mainly

on the ground that compensation awarded as per clauses

(iii), (iv) and (v) in paragraph 10 of the judgment is on too

higher side. The submission is that Tribunal has relied upon

disability certificate (Exh.39) issued by Medical Officer, Nair

Hospital, Bombay and the said certificate was not duly

proved in accordance with the law. Learned counsel

submitted that author of permanent disability certificate was

not examined and for failure to examine competent witness,

Tribunal ought not to have relied upon disability certificate

(Exh.39). In support of contentions, learned counsel placed

reliance on the judgment of the Hon'ble Supreme Court in

Rajesh Kumar alias Raju .vs. Yudhvir Singh and another

[2008 (6) Mh.L.J. 21].

4] The next submission on behalf of appellant is that

injured could not prove loss of future income and amenities

in life. In this regard, submission is that in the cross-

examination, injured has admitted that he did not meet

employer after accident and employer though met him did

not ask to join duty. It is submitted that in the absence of

any evidence to show that injured had attempted to join

employment and he was unable to perform his duties,

damages awarded towards loss of future income and loss of

amenities in life are not just, proper and too much on higher

side.

5] The third contention is regarding penal interest.

Learned counsel for appellant submitted that imposition of

penal interest is not statutorily permissible and, therefore,

Tribunal was not justified in imposing penal interest at the

rate of 12 % per annum. To substantiate the contention,

learned counsel relied upon the judgment of the Hon'ble

Supreme Court in National Insurance Company Limited .vs.

Keshav Bahadur and others [2004 ACJ 648].

6] Per contra, learned counsel for respondent-injured

submitted that disability certificate was issued by Medical

Officer of Nair Hospital, Bombay. The said certificate was

referred and proved by the claimant in his evidence and still

there is no cross-examination to that effect by the appellant.

It is submitted that in the absence of cross-examination

evidence of injured has remained unchallenged and the

Tribunal was right in placing reliance on the disability

certificate (Exh.39) to arrive at the conclusion that

permanent disability was to the extent of 90%. The learned

counsel submitted that in such a situation where there is no

cross-examination at all, non-examination of Medical Officer

would not affect the admissibility of permanent disability

certificate in any way as the injured has duly proved that he

suffered permanent disability to the extent of 90%.

7] The next submission on behalf of respondent is

that insurance company has admitted almost all the

documents, except permanent disability certificate which

ought to have been admitted by insurer, considering the

nature of injuries not specifically denied in the written

statement.

8] On penal interest, learned counsel submitted that

insurance company failed to deposit the amount within time

and injured has not received a single pie till date. It is

submitted that there is no bar in law to award penal interest

and the Tribunal was justified in imposing penal interest in

case of failure to deposit the amount within 45 days.

9] In support of the submissions, learned counsel for

respondent relied upon :

[i] Bimla Devi and others .vs. Himachal Road Transport Corporation and others, [AIR 2009 SC 2819].

[ii] D. Sampath .v. United India Insurance Co. Ltd.

And another, [AIR 2012 SC 544].

[iii] Rekha Jain .vs. National Insurance Company Limited and others, [(2013) 8 SCC 389)].

[iv] New India Assurance Company Limited and another .vs. K. Abdullakutty and others, [II (1994) ACC 233 (DB).

[v] Priti .vs. Chairman, U.P. State Road Transport Corporation and another, [2003 ACJ 289].

10] In the case on hand, total compensation awarded

to the injured as can be seen from paragraph 10 of the

judgment is as follows :

         i)     Damages      for     expenses Rs.35,000/-
                incurred on medical treatment
                and medicine.
         ii)    Expenses incurred on special Rs.15,000/-
                diet and conveyance.

iii) Damages for loss of past and Rs.2,00,000/-

future income.

iv) Damages for loss of amenities Rs.1,50,000/-

in the life

v) Damages for loss of Rs.1,00,000/-

expectation of life

vi) Damages for adverse effect Rs.25,000/-

on marriage prospects.

         vii) Damages       for   pain    and Rs.25,000/-
              sufferings of the accident.
                Total Damages :                   Rs.5,50,000/-



 11]            As the appellant has not challenged Clauses (i),

(ii), (vi) and (vii) above, the controversy is limited to the

compensation awarded vide Clauses (iii), (iv) and (v).

12] The moot question here is, whether applicant

could prove percentage of permanent disability suffered by

him. It can be seen from the evidence of injured Harshadlal

that after accident, he was admitted to Government Medical

College and Hospital, Nagpur for four days, then shifted to

Lincoln Nursing Home at Bombay and from there to Jaslok

Hospital. He had been to Nair Hospital for disability

certificate. He states that Orthopedic Surgeon from Nair

Hospital perused his medical papers, examined him, noted

the details of examination on a case papers and assessed

the disability of 90%. Accordingly, certificate (Exh.39) was

issued to him.

13] Admittedly, author of the certificate is not

examined. The question is, whether in the absence of

evidence of author, permanent disability certificate is

admissible in evidence. In Rajesh Kumar alias Raju

(supra), controversy before the Hon'ble Supreme Court was

regarding admissibility of permanent disability certificate

and the Hon'ble Supreme Court in paragraph 9 of the

judgment observed thus :

"9. The certificate in question in this case was obtained after two years. It is not known as to whether the Civil Surgeon of the hospital treated the appellant. On what basis, such a certificate was issued two years after the accident took place is not known. The author of the said certificate had not been examined.

Unless the author of the certificate examined himself, it was not admissible in evidence. Whether the disability at 60% was calculated on the basis of the provisions of the Workmen's Compensation Act or otherwise is not known. It is also not known as to whether he was competent to issue such a certificate. It even does not appear that the contentions raised before us had either been raised before the Tribunal or the High Court. The Tribunal as also the High Court, therefore, proceeded on the materials brought on record by the parties. In absence of any contention having been raised in regard to the applicability of the Workmen's Compensation Act which, in our opinion, ex facie has no application, the same, in our opinion, cannot be permitted to be raised for the first time."

14] In view of the above legal position, disability

certificate (Exh.39) should have been proved by the Medical

Officer of Nair Hospital, who issued the same. In the

absence of evidence of author of permanent disability

certificate, it cannot be said that the permanent disability

certificate has been duly proved.

15] It is interesting to note that as per medical papers

permanent disability is to the extent of 30% and 47%. In

this backdrop, it was incumbent on injured to examine

author of permanent disability certificate (Exh39). For want

of evidence, disability certificate is required to be kept out of

consideration.

16] Further question then arises is, whether injured

could prove the injuries, permanent disablement and the

extent of permanent disability by placing other material on

record. The evidence of injured shows that his right hand

was completely broken into pieces as truck had passed

through his right hand. The accident was so serious that

rider of motorcycle died on the spot. According to the

injured, he was admitted in the Government Medical College

and Hospital at Nagpur. He was inpatient for four days.

Discharge card (Exh.35) corroborates his evidence. He also

stated that from Government Medical College and Hospital,

Nagpur, he was shifted to Lincoln Nursing Home at Bombay.

He was under treatment of Dr. Manwani for about 10 days.

Exh.36 discharge card supports the evidence of injured. It is

also evident from the evidence of injured that from Lincoln

Hospital, he was shifted to Jaslok Hospital and remained as

indoor patient at Jaslok Hospital. Discharge card (Exh.38)

corroborates the evidence of injured.

17] So far as injuries are concerned, there is no cross-

examination of the injured. Even there is no denial in cross-

examination to the extent of injuries sustained by claimant.

In the absence of cross-examination and as evidence of

claimant has gone unchallenged, it can be safely concluded

that applicant has suffered injuries in a vehicular accident

resulting to permanent disability.

18] As regards compensation awarded towards loss of

past and future income, loss of amenities in life and loss of

expectation of life, contention of appellant is that injured

never approached the employer after accident to join his

duties and even employer did not ask him to resume duty.

The submission is that for want of proof compensation

awarded under Clauses (iii), (iv) and (v) of para 10 is

exorbitant and the same needs to be just and reasonable.

19] It is not in dispute that injured was an Electronic

Engineer serving with Weightronic Private Limited at

Bombay. He was processing his further studies is also not in

dispute. The evidence of injured that he was getting salary

of Rs.2,500/- per month is supported by salary certificate

(Exh.32) which has gone uncontroverted. In the light of this

cogent evidence, Tribunal assessed the compensation vide

Clauses (iii), (iv) and (v) of para 10 of the judgment.

20] The age of injured, as can be seen from the

application under Section 166 of the Motor Vehicles Act, was

23 years at the relevant time. Accident occurred in 1991,

Claim Petition was filed in 1992, the same was decided in

2003 and the present appeal is being taken up in 2017.

Applicant has now crossed 50. He has lost the important

long years of his life. He could not even marry and

remained dependent on his old mother despite having high

educational qualification at his credit. Thus, considering the

overall facts duly established by the injured, it cannot be

said that the order passed by the Tribunal is incorrect, unjust

or illegal.

21] So far as penal interest is concerned, the Hon'ble

Supreme Court in National Insurance Company

Limited .vs. Keshav Bahadur and others (supra) held in

para 14 as under :

"14. Though Section 110-CC of the Act (corresponding to Section 171 of the New Act) confers a discretion on the Tribunal to award interest, the same is meant to be exercised in cases where the claimant can claim the same as a matter of right. In the above background, it is to be judged whether a stipulation for higher rate of interest in case of default can be imposed by the Tribunal. Once the discretion has been exercised by the Tribunal to award simple interest on the amount of compensation to be awarded at a particular rate and from a particular date, there is no scope for retrospective enhancement for default in payment of compensation. No express or implied power in this regard can be culled out from Section 110-CC of the Act or

Section 171 of the new Act. Such a direction in the award for retrospective enhancement of interest for default in payment of compensation together with interest payable thereon virtually amounts to the imposition of penalty which is not statutorily envisaged and prescribed. It is, therefore directed that the rate of interest as awarded by the High Court shall alone be applicable till payment, without the stipulation for higher rate of interest being enforced, in the manner directed by the Tribunal".

22] It is clear from the above that penal interest

cannot be levied in default of payment of compensation

within a specific period. The contention of appellant to this

extent that Tribunal committed an error in awarding penal

interest in case of failure to deposit the amount within 45

days, therefore,, needs to be accepted and order of

imposing penal interest deserves to be set aside. So far as

rest of the order is concerned, it needs no interference as

compensation awarded by the Tribunal is found just, fair and

reasonable. Accordingly, the following order is passed :

ORDER

(i) First Appeal No.197 of 2006 is partly allowed to the

extent of imposition of penal interest.

(ii) The order awarding interest at the rate of 12% per

annum from the date of application till its realization is

quashed and set aside.

(iii) Rest of the judgment and order passed by the

Tribunal is maintained.

 (iv)           No costs.




                                (Kum. Indira Jain, J.)
 Gulande, PA