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2000 DIGILAW 386 (BOM)

CITY INDUSTRIAL DEVELOPMENT CORPORATION v. DIRECTORATE OF INSURANCE

2000-06-16

D.K.DESHMUKH

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JUDGMENT : D.K. Deshmukh, J. 1. By this appeal, the appellant challenges the award dated 20.2.1988 made by the Motor Accidents Claims Tribunal, Thane, directing the opponent No. 1, i.e., CIDCO, who is the employer of the claimant, to pay compensation in the amount of Rs. 34,020 with interest. 2. This award is challenged firstly by the CIDCO only on one ground, namely, that the vehicle was insured with the opponent No. 2, Directorate of Insurance and, therefore, the liability to pay the compensation is of the opponent No. 2 also jointly with the opponent No. 1, i.e., the appellant. The original claimant has also filed a cross-objection claiming increase in the amount on four counts namely, (i) expenses incurred for visiting the doctor; (ii) compensation awarded on account of pain and suffering; (iii) compensation awarded on account of loss of amenities and enjoyment of the life; and (iv) compensation awarded on account of impairment of future prospect and earning. 3. So far as the first aspect of the matter is concerned, it is clear that the vehicle was insured with the opponent No. 2. The reliance placed by the Tribunal for denying compensation on the terms included in the insurance policy is not proper in view of the clear judgment of the Madras High Court in the case of General Assurance Society, Ltd. Vs. N.A. Mohamed Hussain and Another. It is clear that the clause on which the reliance has been placed by the Tribunal is of no effect in view of the provisions of Section 95 of the Motor Vehicles Act and, therefore, the appeal filed by the original opponent No. 1 deserves to be allowed and it has to be held that the opponent No. 2 is jointly liable to pay the amount of compensation to the claimant along with the employer/ original opponent No. 1. 4. In so far as the cross-objection filed by the original claimant is concerned, it is clear from the provisions of Rule 312 of the Bombay Motor Vehicles Rules, 1959 that provisions of Order 41 have been made applicable to the appeals filed before this court under the Motor Vehicles Act and, therefore, as the provisions of Order 41 provide for filing of cross-objection, the cross-objection filed by the original claimant is tenable. It is further clear from the judgment of the Full Bench of the Allahabad High Court in the case of U.P. State Road Transport Corporation Vs. Smt. Janki Devi and Others, that even in the absence of rule making provisions of the CPC 'applicable to the appeals filed before this court under the Motor Vehicles Act, the cross-objection is still maintainable. Now, taking up the cross-objection filed by the claimant, so far as the claim of the claimant for increase in the amount of compensation awarded on account of pain and suffering is concerned the Tribunal has awarded the amount of Rs. 15,000. According to the claimant, the claimant should have been awarded an amount of Rs. 25,000 on this count. It is to be seen that there is a permanent scar on the face of the claimant because of the accident. It is further to be seen that his left hand is disfigured because of the accident. It is further to be seen here that he had to undergo operation for bone-grafting. He was required to be hospitalised. It is thus clear that because of the accident the claimant had to undergo considerable pain and suffering. The amount of Rs. 15,000 awarded by the Tribunal appears to be too meagre. In my opinion, it would be just and proper to increase the amount from Rs. 15,000 to Rs. 25,000. 5. The next claim made by the claimant is for increase in the compensation awarded for loss of amenities and enjoyment of his life. On this account only an amount of Rs. 10,000 has been awarded. Considering that the claimant has suffered a permanent injury to his left hand, which has resulted in disfiguring his left hand and there is a permanent scar on his face and there is much impairment to his enjoyment of life, the amount of Rs. 10,000 awarded by the Tribunal on this count appears to be too meagre and, therefore, in my opinion, the claimant would be entitled to increase in this amount by another Rs. 10,000. 6. The next claim by the claimant is for increase in the amount awarded by the Tribunal on account of the trips that the appellant had to make to the hospital for his treatment. The claimant is claiming an amount of Rs. 10,000. 6. The next claim by the claimant is for increase in the amount awarded by the Tribunal on account of the trips that the appellant had to make to the hospital for his treatment. The claimant is claiming an amount of Rs. 3,000 on this count, because according to him he has made 30 trips to the hospital and for each trip he had to pay Rs. 100 for taxi. In so far as this aspect of the matter is concerned, the learned counsel appearing for the appellant submits that on this count a total amount of Rs. 500 including expenses incurred for trip to the hospital was claimed in the claim and that amount has been awarded. According to the learned counsel for the appellant, therefore, there is no scope for increasing any amount on this count. It is, however, to be seen that claim was made in the year 1983 and it is clear from the record that the claimant had to go on visiting the hospital till November, 1984. The claimant in his evidence had made a claim that he has made 30 trips. Cross-examination of the claimant by the appellant shows that there is virtually no cross-examination of the claimant on this aspect of the matter. It is further to be seen that the doctor who was examined as a witness stated that between 7.6.1983 and 30.11.1984 the claimant had come to hospital for his examination by the doctor on eight occasions. He has further stated that the claimant had to come to the hospital on other days also for dressing and plastering, etc. It is thus clear that even taking the statement of the doctor on its face value, Rs. 500 awarded by the Tribunal on this count is deficient. Considering that there is no cross-examination of the claimant on this aspect of the matter and considering his clear statement on oath that he had to go to the hospital 30 times and each time he was required to pay Rs. 100 to a taxi, in my opinion, the claimant is entitled to increase in his amount awarded on this count. In my opinion, therefore, the claimant is entitled to Rs. 3,000 on account of expenses incurred by him for making trips to the hospital, Rs. 500 on this count has already been awarded and, therefore, the claimant is entitled to increase of Rs. In my opinion, therefore, the claimant is entitled to Rs. 3,000 on account of expenses incurred by him for making trips to the hospital, Rs. 500 on this count has already been awarded and, therefore, the claimant is entitled to increase of Rs. 2,500 on this count. 7. In the result, therefore, appeal and cross-objection both succeed. The award made by the Motor Accidents Claims Tribunal, Thane is modified to the following extent: (i) It is directed that the amount of compensation awarded to the claimant shall be payable by both the appellant and opponent No. 2 jointly and severally; (ii) It is further directed that the claimant would be entitled to receive an amount of Rs. 22,500 more than the amount awarded by the Tribunal with the same rate of interest and from the same date as has been awarded by the Tribunal. Appeal disposed of with no order as to costs.