NEW INDIA ASSURANCE CO. LTD. v. KAHNU CHARAN SAHU — 1976 DIGILAW 26 (ORI)

JUDGMENT : S. Acharya, J.—The insurer of the vehicle, opposite party No. 2 before the Tribunal, has preferred this appeal. 2. Kahnu Charan Sahu, Respondent No. / in this appeal, who was injured in the accident, preferred a claim for compensation of Rs. 50,000/- u/s 110-A of the Motor Vehicles Act (hereinafter referred to as the 'Act'). According to the claimant, on 15.10.72 he was traveling on a bicycle on the Athgarh-Narsinghpur road on the extreme left side of the road when the jeep O.R.C. 2901 belonging to M/s. Eastern Silk Manufacturing Co. (P) Ltd. (Respondent No. 2 in this appeal) dashed against the claimant. The said accident happened due to the rash and negligent driving of the jeep, and due to the said accident the claimant was injured and ultimately his right leg was amputated below the hip in the S.C.B. Medical College Hospital, Cuttack. 3. The claim was contested by the owner of the vehicle (R. 2) and the insurer, the Appellant in this appeal. 4. On the averments made and the questions raised by the parties in the proceeding, the court below on a discussion and consideration of the evidence and materials on record has arrived at the findings that Sk. Samir, the authorised driver of the jeep, was actually driving the jeep in question ; that the insurance company has to bear the liability covered by the terms of the policy ; that the claimant was working as a mason prior to the accident; and that because of the accident his right leg had to be amputated and with the artificial leg given to him he cannot do the work of a mason in the manner he was doing that job previously. On account of expenses for the claimant's treatment, the cost of the artificial leg supplied to him and the cost of his cycle damaged in the said accident, the court has assessed compensation at Rs. 1,895. On account of the claimant's loss of income due to the disability caused to him due to the accident, the court has fixed compensation of Rs. 12,000/-. after making the usual discount on account of lump sum payment of the compensation amount. The total compensation has thus been assessed at Rs. 1,895. On account of the claimant's loss of income due to the disability caused to him due to the accident, the court has fixed compensation of Rs. 12,000/-. after making the usual discount on account of lump sum payment of the compensation amount. The total compensation has thus been assessed at Rs. 13,895/- and the insurance company, the Appellant herein, has been directed to pay that amount with interest at the rate of 6 per cent per annum to be calculated from the date of the application till the date of payment. A cost of Rs. 150/- has also been awarded in favour of the claimant. 5. Mr. P. Roy, the learned Counsel for the Appellant, contends that the Court's finding that Sk. Samir, the authorised driver of the jeep, was driving the jeep at the time of the accident is contrary to and against the weight of the evidence and materials on record. According to Mr. Roy, on the evidence on record it is established that the jeep was being driven by one Sk. Amiruddin, the brother of Sk. Samir, and as Sk. Amiruddin was not the authorised driver of the jeep, the insurance company is not liable to pay any compensation to the claimant, as the jeep was being driven in violation of the terms contained in the insurance policy. Mr. Roy, in support of his above contention, drew my attention to the written statement filed by the Manager of M/s. Hastern Silk Manufacturing Co. (P) Ltd., opposite party No. 1 in the court below. In paragraph A thereof it is stated that the vehicle in question was being driven by one Sk. Amiruddin the brother of the authorised driver of the vehicle Sk. Samir. on this statement Mr. Roy submits that as the person driving the vehicle at the time of the accident was not an employee of opposite party No. 1 and was not the authorised driver of the said vehicle, the claimant cannot make the insurance company liable for any compensation for this accident. The said Manager, who filed the written statement on behalf of opposite party No. 1, the owner of the jeep, in his examination-in-chief stated that the facts stated in the written statement were on the basis of information received from and reported by Sk. Samir, the driver of the vehicle. The said Manager, who filed the written statement on behalf of opposite party No. 1, the owner of the jeep, in his examination-in-chief stated that the facts stated in the written statement were on the basis of information received from and reported by Sk. Samir, the driver of the vehicle. Again in his cross-examination he has categorically stated that the averment in the written statement that the vehicle at the time of the accident was being driven by the brother of Sk. Samir was made on the information given by Sk. Samir. Sk. Samir has not been examined in this case, and the said Manager (O.P.W. 1 for opposite party No. 1) has admitted in his deposition that he did not take any steps to summon the said driver as a witness in this case, though his residential address was known to this witness. From the above deposition of O.P.W. 1 it is evident that the statement in the written statement to the effect that one Sk. Amiruddin was driving the jeep was here-say. That being so, it was for opposite party No. 2 (the insurer), who was present in court during the hearing of the case, to lead proper evidence regarding that fact if it wanted to take its stand on that plea. In this connection it must be noted that in the written statement filed by the opposite party, it did not assert that the jeep in question at the time of the accident was not being driven by its authorised driver, nor did it adduce any evidence to establish that fact. So the factual basis on which Mr. Roy founded his contention has no substantive evidence to support the same. Moreover, O.P.W. 1 for opposite party No. 1 has categorically stated in his deposition that at the relevant time he had left the vehicle in question in charge of Sk. Samir the authorised driver of the vehicle. In the absence of any legal evidence to the effect that the vehicle in question at the time of the accident was being driven by some other person, one can presume that the vehicle was being driven by its authorised driver. Their Lordships of the Supreme Court in the case reported in Sitaram Motilal Kalal Vs. In the absence of any legal evidence to the effect that the vehicle in question at the time of the accident was being driven by some other person, one can presume that the vehicle was being driven by its authorised driver. Their Lordships of the Supreme Court in the case reported in Sitaram Motilal Kalal Vs. Santanuprasad Jaishankar Bhatt, have observed that there is a presumption that a vehicle is driven on the master's business and by his authorised agent or servant, but that is a reputable presumption. In this case, the said presumption has not in any way been negatived. On the above facts and considerations, the contention raised by Mr. Roy is without any substance. Therefore, the finding of the court below that the vehicle in question at the time of the accident was being driven by its authorised driver is correct and justified. 6. The Appellant could not challenge the impugned judgment on any other ground. There is, therefore, no merit in this appeal. 7. The claimant, Respondent in this appeal, has preferred a cross objection claiming higher compensation than what has been awarded in this case. 8. It is urged by Mr. Das on behalf of Respondent No. 1 that the court below was not justified in assessing the compensation for the claimant's loss of income due to his disability caused by the accident on the basis that the claimant would have worked ably as a mason only till his 50th year. In this connection Mr. Das submits that now-a-days it is generally expected that a healthy man would live upto the age of 70 years; and that it is well known and courts can take judicial notice of the fact that a mason can work ably upto the age of 55 years. Mr. Das says that in the decision reported in S.K. Devi Vs. Uttam Bhoi and Another, he finding of the court below, that a labourer is capable of working ably upto the age of 55 years, was confirmed. It is well known that a mason can work as such till the age of 55 years. Employees like masons and such other persons who render manual labour of skilled and unskilled type are retained in Government and private service till the age of 55 years. It is well known that a mason can work as such till the age of 55 years. Employees like masons and such other persons who render manual labour of skilled and unskilled type are retained in Government and private service till the age of 55 years. So, it can reasonably be said that the claimant, who was working as a mason just before the accident, could have worked as such till the age of 55 years. The court, therefore, should have assessed the compensation for the loss of income on the above basis. 9. Mr. Das further submitted that the court below was wrong in computing the compensation amount for loss of income from the claimant's 34th years. The accident took place in October, 1972. In the claim petition the claimant's age was shown as 32 years. The claimant was examined in the court below in November, 1974, and at that time his age was 34 years, as stated in his recorded deposition. The court, in assessing the compensation on this account, should have taken into consideration the age of the claimant at the time of the accident, and not his age at the time of his deposition in court. Mr. Roy, appearing for the insurer, who in a case of this nature has the liability to pay the entire compensation amount, fairly concedes that the court below should have calculated the compensation amount on this count on the basis of the claimant's age as it was at the time of the accident, i.e. 32 years and not from his 34th year, as has been done by the court below. 10. Mr. Das has also challenged the rate at which the compensation has been assessed on the above count. The count below finds that the income of the claimant before the accident was Rs. 150/- per month, and that because of his disability on account of the amputation of his right leg due to the said accident he can be deemed to have lost 50 per cent of his earning capacity. Mr. Das urges that by the amputation of his leg due to the said accident the claimant has become completely invalid to earn anything whatsoever, and so the court below was not justified in calculating the compensation at the rate of 50 per cent of his previous earning capacity. Mr. Das urges that by the amputation of his leg due to the said accident the claimant has become completely invalid to earn anything whatsoever, and so the court below was not justified in calculating the compensation at the rate of 50 per cent of his previous earning capacity. True it is that the right leg of the claimant above the knee has been amputated due to the injuries he sustained in the said accident, and he now is able to move about only with the help of a crutch. So he certainly cannot work as a mason, nor can he do any other work which a man with his legs intact can do. But even with that disability he can do some such work which will yield an income of Rs. 70/- to Rs. 80/- per month, if he sincerely applies himself in that direction. On the above considerations I find that the court below was justified in awarding compensation at the rate of 50 per cent of the claimant's approximate monthly income of Rs. 150/- assessed by it. 11. Mr. Roy, the learned Counsel for the insurer, suggested that in fixing compensation in a matter of this nature, the court would do well to assess the compensation on the basis of compensation fixed as per schedule IV of the Workmen's Compensation Act, as the amounts specified therein have been fixed by the Legislature after due consideration of the different aspects of the matter. The insurer certainly is not capable of raising the above pleas as it does not come within any of the grounds which can be agitated by an insurer, as provided u/s 96(2) of the Act. Moreover, I am of the view that the compensation payable as per schedule IV of the Workmen's Compensation Act cannot as a matter of rule be followed in assessing compensation in respect of a claim preferred u/s 110-A of the Act. Moreover, I am of the view that the compensation payable as per schedule IV of the Workmen's Compensation Act cannot as a matter of rule be followed in assessing compensation in respect of a claim preferred u/s 110-A of the Act. A workman, while accepting a job in a particular concern, accepts the same knowing full well the inherent danger and risk involved in the said job, and the compensation payable as per schedule IV is only for an injury caused to a workman due to an accident arising out of and in course of his employment as specifically provided u/s 3(1) of the Workmen's Compensation Act, and an employer is not liable to pay any compensation to a workman if an injury is caused to him under the different circumstances mentioned in the proviso to that section. There are certain fundamental and obvious distinctions and differences between an accident arising out of the use of motor vehicles and an accident arising out of and in course of the employment of a workman, and so considerations determining compensation in the two cases cannot be the same. Moreover, u/s 110-B of the Act, the Tribunal has to determine the amount of compensation which appears to it to be 'Just'. This section was engrafted in the Act in 1956, by which time Workmen's Compensation Act with schedule IV in it had already been enacted. That being so, the fact that the Legislature provided for 'just' compensation in Section 110-B shows that it did not like to adopt the fixed compensation stated in schedule IV of the Workmen's Compensation Act for matters pertaining to claims under the Motor Vehicles Act. 12. Mr. Das next urged that the court should have awarded compensation to the claimant for the pain and physical and mental sufferings caused to him on account of the said accident. The claimant has not asked for any compensation on the above account either in his deposition or in his claim petition. No ground claiming compensation on the above account has been taken in the cross-appeal filed in this Court. The claimant has not asked for any compensation on the above account either in his deposition or in his claim petition. No ground claiming compensation on the above account has been taken in the cross-appeal filed in this Court. So the owner or the insurer of the vehicle did not know that they would have to meet a claim for compensation on this account The claimant asked for compensation only on the following heads: (i) His disability in earning his livelihood due to the infirmity on account of the amputation of his leg; (ii) Expenses during treatment; (iii) Cost of artificial leg; (iv) Cost of bicycle damaged. The court below has granted compensation separately on all the four above-mentioned heads. On the said considerations, I am unable to grant any compensation on the above ground. 13. On the above discussions and considerations, the compensation on account of the claimant's loss of income due to the disability caused to him in the said accident has to be calculated from his 32nd year up-to his 55th years at the rate of Rs. 75/- per month. Thus, the total compensation on this account for 23 years comes to Rs. 20,700/-. Out of the same 6% has to be deducted on account of lump sum payment and uncertainties of life. Accordingly, the net compensation on this account comes to Rs. 19,458/-. Over and above the said amount, the claimant is also entitled to Rs. 1,895/- on account of his expenses on treatment, cost of artificial leg and damage to his bicycle, as assessed by the court below. He is also entitled to Rs. 150/- as cost granted by the court below. So, all told, the claimant is entitled to a compensation of Rs. 21,503/-. u/s 95(2)(c) of the Act, the above amount is to be paid by the insurer with interest at the rate of 6 per cent per annum to be calculated from the date of the claim application till the date of payment of the same as provided u/s 110-CC of the Act. 14. The cross-appeal filed by Respondent No. 1 is accordingly allowed to the extent stated above with costs. 15. In the result, therefore, the appeal preferred by the insurer is dismissed with costs and the cross-appeal preferred by the claimant-Respondent No. 1 is partly allowed with costs.