Chattisgarh High Court
Ghanshyam Nag vs Suresh Kumar Netam And Ors on 8 September, 2022
-1-
N/AFR
HIGH COURT OF CHHATTISGARH AT BILASPUR
M.A.(C). NO. 627 OF 2015
Ghanshyam Nag, S/o Sahdev Nag, aged about 26 years, R/o
Akashwani Colony, Jagdalpur, P.S. Bodhghat, District Bastar (C.G.)
... Appellant
versus
1. Suresh Kumar Netam, S/o Late Patiram Nag, aged about 24 years,
R/o Naya Munda, Kabir Chowk, Jagdalpur, P.S. Bodhghat, District Bastar
(C.G.)
2. Kunjlal Netam, S/o Chamru Singh Netam, R/o Village Nagari, District
Dhamtari (C.G.). Presently R/o. Nayamunda, Kabir Chowk, Jagdalpur,
District Bastar (C.G.)
3. The Branch Manager, through: The United India Insurance Co. Ltd.,
opposite Anupama Talkies, Jagdalpur, District Bastar (C.G.)
... Respondents
For Appellant : Mr. Praveen K. Dhurandhar, Adv.,
a/w Ms. Ranjana Tiwari, Adv.
For Respondents No.1 & 2 : Mr. Santosh Bharat, Adv.
For Respondent No.3 : Mr. Dashrath Gupta, Adv.
Hon'ble Shri Justice P. Sam Koshy
Order on Board
[08/09/2022]
1. The instant Appeal under Section 173 of the Motor Vehicles Act, 1988
has been filed by the Appellant/Claimant assailing the Award dated
31.3.2015 passed by the Motor Accident Claims Tribunal, Bastar
(Jagdalpur) in Claim Case No.81/2014.
2. It is an injury case. The incident in the instant case is of 9.8.2012. An
accident occurred while the Claimant who was driving the Motorcycle
bearing Registration No.CG17-J/3786 was hit by a Bolero bearing
Registration No.CG19-T/0540. As a result of the said accident, the right leg
of the Claimant got fractured and he suffered certain disability, which led to
the filing of the aforesaid Claim Application before the learned Claims
Tribunal claiming compensation for the injuries sustained by him.
3. The learned Tribunal, vide the impugned Award, after considering the
entire pleadings and evidence which have come on record, had quantified
the total compensation payable to the Claimant at Rs.55,300/-. However,
the learned Tribunal held that since there was a head on collision between
the two vehicles involved in the accident, there was an element of
contributory negligence on the part of the Claimant as well and therefore
50% of the compensation was deducted on account of contributory
negligence. Thus, the learned Tribunal has awarded the compensation to
the Claimant at Rs.27,650/- with interest thereon at the rate of 6% per
annum from the date of filing of the Claim Application.
4. Contention of the learned Counsel for Appellant/Claimant is that
merely because the accident arose out of two vehicles coming from the
opposite direction that by itself cannot be a strong enough ground for
drawing an inference of contributory negligence on the part of the Claimant.
According to him, the head on collision or an accident from a vehicle
coming from the opposite direction can occur even in the event of the other
vehicle crossing over from the wrong side of the road and hitting the vehicle
coming from the opposite direction. That there is no material available on
record which has been brought as an evidence by any of the Respondents
before the Tribunal to show that there was some ground of negligence on
the part of the Claimant which has aggravated to the accident.
5. Further contention of learned Counsel for Appellant/Claimant is that
even otherwise the amount of compensation awarded is on the lower side
as there were two fractures on the right leg of the Claimant and the amount
of compensation provided is too meagre an amount. That a substantial
portion of the compensation amount has been quantified is towards the
medical expenses, as such, the Claimant has not received any
compensation towards the pain and suffering and other incidental expenses
that he has incurred.
6. So far as the finding of exonerating the Respondent No.3/Insurance
Company of its liability is concerned, learned Counsel for Appellant/
Claimant submits that the ground on which the Insurance Company has
been exonerated is not any further sustainable. Firstly, in the light of the
Judgment of the Hon'ble Supreme Court rendered in the case of Mukund
Dewangan v. Oriental Insurance Company Limited [AIR 2017 SC 3668]
on the aspect of the Driver not having a valid and effective driving licence at
the time of accident and, secondly, the issue of the vehicle not having a
proper permit already stands decided by this very Bench in M.A.(C)
No.992/2010 [Sheikh Sikander v. Rupendra Jain & Anr.] decided on
24.11.2017.
7. Learned Counsel for Respondent No.3/Insurance Company however
opposing the Appeal submits that there is a categorical finding by the
learned Tribunal that the Driver and the Owner of the Bolero vehicle at the
time of accident was not having an effective licence inasmuch as the
licence did not bear the endorsement to drive transport vehicle and that the
licence available with the Driver was only for driving a light motor vehicle.
8. Learned Counsel for Respondent No.3/Insurance Company further
submits that even the permit which was available with the Owner of the
Bolero vehicle was for operating the vehicle within the territories of District
Kanker whereas the accident in the instant case had occurred at
Nayamunda, District Jagdalpur.
9. The contention of the learned Counsel for Respondent No.3/
Insurance Company does not seem to be having sufficient force of law, in
the light of the Judgment of the Hon'ble Supreme Court in Mukund
Dewangan (supra) dealing with the issue of the Driver only having the
licence to drive a light motor vehicle.
10. So far as the issue of permit is concerned, undoubtedly, the Bolero
vehicle did have a permit. Though the permit was to operate the vehicle
within the territories of District Kanker but the place of accident is a place
adjoining. The said breach on the part of the Owner or the Driver of the
Bolero vehicle cannot be said to be a fundamental breach of the policy
conditions and cannot be fatal enough to exonerate the Insurance
Company of its liability, particularly when the policy which was issued was a
commercial package policy. Moreover, the Claimant being a third party, the
Insurance Company cannot be absolved of its liability indemnifying the
Driver and Owner of the offending vehicle.
11. The impugned Award therefore to that effect is set-aside/quashed,
holding that the Insurance Company shall be jointly and severally liable to
pay the compensation to the Claimant.
12. So far as the contributory negligence is concerned, it is also difficult
to presume that only because there was an accident that took place
between the two vehicles coming from the opposite direction, the Claimant
can be held negligent enough for the contributory negligence and
deducting the amount of compensation to the extent of 50% towards the
same. This finding of the learned Tribunal also lacks reasoning as no
proper justification for reaching to the conclusion of contributory negligence
is available either in the evidence or in the pleadings; nor is there any such
discussion made by the Tribunal while ordering for the contributory
negligence and deducting the compensation by 50%.
13. There are various instances where it is apparently found that the
accident between the vehicles coming from two opposite directions taking
place when one of the vehicles crosses over to the other side of the road
and hits the vehicle coming from the opposite direction. There is nothing on
record to prove this fact or otherwise, for the Tribunal to have drawn an
inference of negligence on the part of the Claimant. The finding of applying
the contributory negligence by the Tribunal in the impugned Award thus
also deserves to be and is accordingly set-aside/quashed.
14. So far as the enhancement of the compensation is concerned,
undoubtedly the Appellant/Claimant did incur fracture on his right leg and
he has also undergone treatment for the same. It could be easily inferred
that a person who sustains fracture would be under treatment/plaster for a
minimum period of at-least one and half month. The Tribunal has already
compensated the Claimant for the loss of income of two months. Further, it
is reflected that there is no loss of earning capacity or loss of income to the
Claimant as he has been restored back to the nature of work that he was
doing prior to the accident and has been earning the same income.
15. Nonetheless, the amount of compensation paid under the pain and
suffering and other incidental expenses incurred seems to be on the lower
side. Therefore, ends of the justice would meet if an additional amount of
Rs.14,700/- is awarded, in addition to the amount of compensation awarded
to the Claimant thereby enhancing the total compensation accordingly.
16. From the calculation as has been made by the learned Tribunal in
Paragraph-10, it reflects that the total amount of compensation calculated
by the Tribunal would come to Rs.65,300/- instead of Rs.55,300/- as is
reflected from the Award. There seems to be a clerical error in the
impugned Award in this regard. Therefore, the compensation quantified by
the Tribunal at Rs.65,300/-, by adding Rs.14,700/-, would get enhanced to
Rs.80,000/-.
17. Accordingly, the Appeal is allowed. The Appellant/Claimant shall be
entitled to get a total compensation of Rs.80,000/-. The entire
compensation shall be paid by the Respondent No.3/Insurance Company
within a period of 60 days.
Sd/-
(P. Sam Koshy)
/sharad/ Judge
