HONOURABLE JUSTICE G. SRI DEVI
M.A.C.M.A.Nos.1260 and 1626 of 2006
COMMON JUDGMENT:
These two appeals are being disposed of by this common
judgment since M.A.C.M.A.No.1260 of 2006 filed by the claimant
seeking enhancement of compensation and M.A.C.M.A.No.1626 of
2006 filed by the New India Insurance Company Limited, are
directed against the very same judgment and decree, dated
30.01.2006, passed in O.P.No.1504 of 2001 on the file of the Motor
Accidents Claims Tribunal (District Judge), Nizamabad.
For the sake of convenience, the parties will hereinafter be
referred to as arrayed before the Tribunal.
The brief facts of the case are that on 29.03.2001 at about 5.30
P.M., the claimant, one Dr.Ashok Reddy and the driver of the Fiat
Car bearing No.DL-2/CE-4245 were traveling in the said Car from
Hyderabad to Nizamabad and when they reached Ramayampet
Village, the driver of the Car drove it in a rash and negligent manner
with high speed and hit a tamarind tree situated adjacent to the
road, due to which, the claimant and other inmates of the Car
sustained injuries. The claimant sustained compound fracture to
right leg and six ribs were fractured and also received injuries to
head, both hands and both legs. He spent Rs.75,000/- for his
treatment. Therefore, the claimant filed the above O.P. under
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Section 166 of the Motor Vehicles Act, claiming compensation of
Rs.4,00,000/-.
The 1st respondent-owner of the Fiat Car filed written
statement denying the averments of the petition including the mode
and manner of the accident, age, income and vocation of the
claimant and also the treatment taken by him. It is further stated
that the person, who drove the Car, was holding valid driving
licence and the Car was insured with the 2nd respondent and that
there is no liability on the part of the 1st respondent as per the terms
and conditions of the policy. It is also stated that the claim is highly
excessive, arbitrary and out of all proportions and prayed to dismiss
the same.
The 2nd respondent-Insurance Company filed written
statement denying the averments of the claim-petition, involvement
of the Car in the accident, manner in which the accident took place,
age, occupation and income of the claimant, nature of injuries
sustained by him and also the expenditure incurred for his
treatment. It is further denied that the person, who drove the Car,
was holding valid driving licence at the time of accident. It is also
denied that the Car was insured with the Insurance Company
covering the risk of the passengers involved in the accident and
contended that the owner of the Car has not intimated the Insurance 3
Macma_1260_2006 and 1626_2006
Company about the accident. It is further contended that unless it
is proved that the claimant was involved in the accident and the said
Car was insured with the Insurance Company and the person, who
drove the vehicle at the time of accident, was holding valid driving
licence, the Insurance Company is not liable to pay compensation
and prayed to dismiss the petition.
Basing on the above pleadings, the Tribunal framed the
following issues:
1) Whether the accident has taken place due to rash and negligent driving of the vehicle bearing No.DL-2/CE-4245 by its driver?
2) Whether the claimant is entitled for compensation? If so, to what just amount and against whom?
3) To what relief?
During trial, on behalf of the claimant, P.Ws.1 and 2 were
examined and Exs.A1 to A7, Ex.C1 and Ex.X1 were marked. On
behalf of the respondents, no oral evidence was adduced, but Exs.B1
to B5 were marked.
After considering both oral and documentary evidence
available on record, the Tribunal came to the conclusion that the
accident occurred due to the rash and negligent driving of the driver
of the Fiat Car and accordingly awarded total compensation of
Rs.1,19,708/- under various heads, with interest @ 7.5% per annum. 4
Macma_1260_2006 and 1626_2006
Challenging the same, the present Appeals came to be filed by the
claimant and Insurance Company.
Heard the learned Counsel appearing on either side and
perused the material available on record.
The main ground urged by the learned Counsel for the
claimant is that the compensation awarded by the Tribunal is on
lower side. Though the claimant has spent Rs.3,00,000/- towards
medical treatment, the Tribunal has awarded only a sum of
Rs.64,708/-. It is also contended that though P.W.2 has stated that
the claimant has sustained 40% disability, without considering the
same, the Tribunal has awarded only Rs.50,000/- towards disability.
It is further contended that amount awarded under the head of pain
and suffering at Rs.5,000/- is meager as the claimant took treatment
for a period of four months. It is also contended that the Tribunal
ought to have awarded adequate amount for future treatment as the
claimant has to undergo another operation for removal of the plates
and screws. Therefore, he prayed to enhance the compensation
awarded by the Tribunal.
Per contra, learned Counsel appearing for the Insurance
Company submits that the claimant was an inmate of a private car
and the risk of such person is not covered by the policy since it is an
'Act Policy'. In order to substantiate the said fact, he relied upon 5
Macma_1260_2006 and 1626_2006
the decision of the Apex Court in Ramkhiladi and another v. United
India Insurance Co. Ltd. And another1. It is further contended that
the claimant is not a third party, but he was an inmate of the car and
as the policy is an 'Act Policy', the insurer is not liable to indemnify
the owner of the vehicle. Therefore, prayed to allow the appeal
filed by the Insurance Company by exonerating the liability of the
insurance company.
A perusal of the material available on record, the accident in
question is not in dispute, so also the involvement of the offending
vehicle insured with the insurer.
In order to award compensation in case of personal injuries,
the Apex Court in Raj Kumar Vs. Ajay Kumar and another2 held as
under:
"5. The heads under which compensation is awarded in personal injury cases are the following :
Pecuniary damages (Special Damages)
(i) Expenses relating to treatment, hospitalization, medicines, transportation, nourishing food, and miscellaneous expenditure.
(ii) Loss of earnings (and other gains) which the injured would have made had he not been injured, comprising:
(a) Loss of earning during the period of treatment;
(b) Loss of future earnings on account of permanent disability.
(iii) Future medical expenses.
Non-pecuniary damages (General Damages)
1 2020 ACJ 27 2 MACD 2011 (SC) 33 6
Macma_1260_2006 and 1626_2006
(iv) Damages for pain, suffering and trauma as a consequence of the injuries.
(v) Loss of amenities (and/or loss of prospects of marriage).
(vi) Loss of expectation of life (shortening of normal longevity). In routine personal injury cases, compensation will be awarded only under heads (i), (ii)(a) and (iv). It is only in serious cases of injury, where there is specific medical evidence corroborating the evidence of the claimant, that compensation will be granted under any of the heads (ii)(b), (iii), (v) and (vi) relating to loss of future earnings on account of permanent disability, future medical expenses, loss of amenities (and/or loss of prospects of marriage) and loss of expectation of life. Assessment of pecuniary damages under item (i) and under item (ii)(a) do not pose much difficulty as they involve reimbursement of actuals and are easily ascertainable from the evidence. Award under the head of future medical expenses - item (iii) -- depends upon specific medical evidence regarding need for further treatment and cost thereof. Assessment of non-pecuniary damages - items (iv), (v) and (vi) - involves determination of lump sum amounts with reference to circumstances such as age, nature of injury/deprivation/ disability suffered by the claimant and the effect thereof on the future life of the claimant. Decision of this Court and High Courts contain necessary guidelines for award under these heads, if necessary. What usually poses some difficulty is the assessment of the loss of future earnings on account of permanent disability - item (ii)(b)."
In the light of the principles laid down in the aforementioned
case, it is suffice to say that in determining the quantum of
compensation payable to the victims of accident, who are disabled
either permanently or temporarily, efforts should always be made to
award adequate compensation not only for the physical injury and
treatment but also for the loss of earning, inability to lead a normal 7
Macma_1260_2006 and 1626_2006
life and enjoy amenities, which would have been enjoyed but for
disability caused due to the accident.
As could be seen from the impugned judgment, P.W.2-Doctor,
who treated the claimant, deposed that the claimant was admitted in
Yashoda Hospital on 31.03.2001 with fracture of right ankle and
fracture of right side ribs. Dr.Arvind Kumar, Orthopedic Surgeon,
conducted surgery for fracture of lower end of fibula and middle
malleolus of right tibia and Ex.A3-Wound Certificate and Ex.A4-
discharge summary were issued by Yashoda Hospital. He further
deposed that as per Ex.A4, surgery was performed and plates and
screws were inserted to right ankle and they are still in existence and
the claimant has to undergo another operation for removal of the
plates and screws. P.W.2 also assessed the disability to the extent of
40%. Even in the absence of any documentary evidence with regard
to the income of the injured, the Tribunal has to keep in view an
overall consideration of the factors such as the avocation of the
injured, the period of treatment and the wages that was prevalent
during that particular period while determining the notional
income. Since the claimant failed to produce any documentary
evidence to show his earnings, I feel that if the income is taken at the
rate of Rs.3,000/- per month, it would meet the ends of justice. 8
Macma_1260_2006 and 1626_2006
Insofar as the disability is concerned, P.W.2 has specifically
deposed that because of the fractures suffered by the claimant, he
has suffered partial permanent disability at 40%. If the income is
taken at Rs.3,000/- per month, the disability at 40% and the
multiplier of '15' is adopted, the claimant is entitled to an amount of
Rs.2,16,000/- (Rs.3,000/- x 12 x 15 x 40%) towards disability
sustained by the claimant. Admittedly, the claimant has sustained
two fracture injuries and he took treatment from 31.03.2001 to
08.04.2001 and P.W.2 also supported the fractures sustained by the
claimant and the treatment taken by him, but the Tribunal did not
award any amount towards attendant charges, extra nourishment
and transportation charges etc. The Tribunal awarded Rs.5,000/-
only towards pain and suffering, which appears to be on lower side.
In the facts and circumstances of the case, this Court feels that the
claimant is entitled to the following amounts towards compensation
under various heads:
Sl. Name of Head Awarded by Awarded by this
No. Tribunal Court
Rs. Ps. Rs. Ps.
1. Towards disability 50,000.00 2,16,000.00
2. Attendant charges -- 2,000.00
3. Extra nourishment -- 5,000.00
4. Transportation --- 5,000.00
5. Pain and suffering 5,000.00 20,000.00
6. Medical Expenses 64,708.00 64,708.00
TOTAL 1,19,708.00 3,12,708.00
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Macma_1260_2006 and 1626_2006
The contention of the learned Counsel for the Insurance
Company is that the Tribunal failed to see that the Car involved in
the accident was insured only under Act policy and hence the
Insurance Company is not liable to pay the compensation.
A perusal of the written statement filed by the Insurance
Company shows that there is no specific pleading that Ex.B4 is an
Act policy and further no oral evidence has been adduced to prove
that Ex.B4 is an Act policy. Without any pleading, the Insurance
Company cannot succeed in the appeal on the ground that the
policy does not cover the risk of the passengers traveling in the car
and thus, the Insurance Company miserably failed to prove that
Ex.B4 is an Act policy. Further, the Tribunal has categorically
observed that Ex.B4-copy of policy would show that the Fiat Car
No.DL-2/CE-4245 belonging to M/s. Tata Press Limited, was
insured with the Insurance Company and the policy was valid from
28.02.2001 to 27.02.2002 and since the accident took place on
29.03.2001, the Tribunal has rightly held that as on the date of the
accident, the Fiat Car involved in the accident was insured with the
Insurance Company and the policy was valid and subsisting.
Therefore, in the absence of any pleading in the written statement,
this Court is of the view that the Tribunal has rightly held that both 10
Macma_1260_2006 and 1626_2006
the insured and insurer are liable to pay the compensation to the
claimants.
Accordingly, M.A.C.M.A.No.1626 of 2006 filed by the
Insurance Company is dismissed and M.A.C.M.A.No.1260 of 2006
filed by the claimant is allowed in part by enhancing the
compensation amount awarded by the Tribunal from Rs.1,19,708/-
to Rs.3,12,708/-. The enhanced amount will carry interest at 7.5%
p.a. from the date of order passed by the Tribunal i.e. 30.01.2006 till
the date of realization, payable by respondents 1 and 2 jointly and
severally. There shall be no order as to costs.
Miscellaneous petitions, if any, pending shall stand closed.
_____________________ JUSTICE G. SRI DEVI
04.01.2022 Gsn 11
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