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2003 DIGILAW 122 (ORI)

New India Assurance v. Susanta Kumar Nayak

2003-02-14

B.P.DAS

body2003
JUDGMENT B. P. DAS, J. — Heard Shri Debasis Das for the appellant and Shri S.C. Routray for respondent No.1. 2. The insurer is in appeal challenging the judgment dated 11.4.2001 passed in M.V. Misc.Case No.452 of 1998 by which the 2nd. Addl. District Judge-cum-Motor Accidents Claims Tribunal, Cuttack, has allowed the application filed by the claimant-respondent No.1 under Sec. 166 of the Motor Vehicles Act, 1988 and directed the insurer-appellant to pay compensation of Rs.75,000/- to the claimant on account of the injuries sustained by him in a motor vehicular accident. 3. The claimant’s case in short is that on 22.2.1998 at about 2 P.M. while he was travelling in a Canter bus bearing registration number OR-05C-3710 from Bhubaneswar to Cuttack the driver of the bus while over-taking a truck, due to application of sudden brake ; the claimant fell down from the bus resulting in fracture injury on his left leg being crushed due to run over of the vehicle. The claimant alleged that due to rash and negli¬gent driving of the driver of the Canter bus, the accident oc¬curred, for which he filed the application under Sec. 166 of the Act claiming a compensation of Rs.2 lakhs for the injuries sustained on account the aforesaid accident from the owner of the bus. The owner of the bus, i.e., present respondent No.2, did not contest the case and was set ex parte whereas the insurer, i.e., the present appellant, contested the case by filing written statement and denied the allegations of the claimant. 4. In course of inquiry of the claim by the Tribunal, the insurer filed an application under Section 170 of the Act to permit it to take all such grounds which were available to the insured, as the owner of the offending bus was set ex parte. The said application was allowed by the Tribunal by its order dated 5.8.1999. Even though liberty was granted in terms of Section 170 of the Act, as it appears, the insurer neither led any evidence nor produced any document in support of its defence. The said application was allowed by the Tribunal by its order dated 5.8.1999. Even though liberty was granted in terms of Section 170 of the Act, as it appears, the insurer neither led any evidence nor produced any document in support of its defence. The Tribunal, basing upon the documents filed by the claimant and evaluating the evidence adduced on behalf of the claimant in support of his claim, while answering the four issues framed by it, came to the conclusion that due to rash and negligent driving of the driver of the offending bus, the accident took place and the claimant was entitled to the compensation, which was assessed at Rs.75,000/- and directed insurer to pay the compensation amount, as there was no dispute regarding the validity of the insurance policy. 5. The insurer in this appeal challenges the award on the ground that the quantum so fixed by the Tribunal is at a higher side and based on no evidence. 6. As I find, the claimant exhibited as many as nine documents and examined four witnesses including the treating physician as P.W.4. The said doctor in his evidence has stated that the claimant had a crushed injury on the left thigh with femoral artery injury and was confined to bed in his Nursinghome i.e., ‘Raj Clinic’ for a period of three months from 20.2.1998 to 21.5.1998 and during this period he had undergone certain sur¬gery. P.W.4 was cross-examination by the insurer but nothing material was brought out to disbelieve the evidence of the doc¬tor. From the money receipt granted by the Raj Clinic where the claimant was admitted for his treatment, it appears that the claimant has spent a sum of Rs.38,000/-. That apart, the Tribunal, taking into account the plea of the claimant the he was earning Rs.80-90/- per day from his business of selling eatables out of which he was maintaining his livelihood, has calculated the loss of income of the claimant during the period he was under treatment in the nursing home. The earning of the claimant per day as fixed by the Tribunal appears to be a little bit higher con¬sidering the minimum wages of an unskilled labourer, which was Rs.60/- per day. Calculating at the aforesaid rate of Rs.60/- per day, the loss of earning of the claimant during the period of his treatment in the nursing home would be Rs.5400/-. Calculating at the aforesaid rate of Rs.60/- per day, the loss of earning of the claimant during the period of his treatment in the nursing home would be Rs.5400/-. Therefore, the claimant is entitled to Rs.5,400/- on this head. That apart, the claimant is entitled to compensation for the pain and sufferings and, in my opinion, Rs.25,000/- would be sufficient. Thus, the total compensation comes to Rs.68,400/-, which is rounded to Rs.70,000/- (seventy thousand). In my considered opinion, the aforesaid amount of Rs.70,000/- is the just and reasonable com¬pensation. 7. So far as the driving licence is concerned, learned counsel for the appellant submits that though the driver had a light motor vehicle licence, he was driving a heavy motor vehicle for which there was breach of the policy condition and the insur¬er is not liable to indemnify the owner. This contention of the learned counsel is no more tenable in view of the decision of the Apex Court in New India Assurance Co. Shimla v. Kamla, AIR 2001 SC 1419 , wherein it was held that the insurer and the insured are bound by the conditions enumerated in the policy and the insurer is not liable to the insured if there is violation of any policy condition. But the insurer, who is made statutorily liable to pay compensation to third parties on account of the certificate of insurance issued, shall be entitled to recover from the insured the amount paid to the third parties, if there was any breach of policy conditions on account of the vehicle being driven without a valid driving licence. If the insurance company succeeds in establishing that there was breach of the policy condition, the Tribunal shall direct the insured to pay that amount to the insurer, and the insurer shall be allowed to recover that amount from the insured. 8. In view of the aforesaid decision of the Apex Court, it is open to the present appellant to recover the amount of compen¬sation from the insured in the event it is found that there is any breach in the policy condition. 9. So far as interest is concerned, the Tribunal has allowed the same @ 9% per annum from the date of the order, which should be from the date of the claim application. 9. So far as interest is concerned, the Tribunal has allowed the same @ 9% per annum from the date of the order, which should be from the date of the claim application. Therefore, the compensation amount, as determined above, shall carry interest @ 9% per annum from the date of application till its realisation. 10. In the result, the misc.appeal is allowed in part and the award is modified to the extent indicated above. Let the entire awarded amount of compensation be deposited before the Tribunal along with the interest accrued thereon within a period of six weeks. On deposit of the aforesaid amount of compensation by the appellant before the Tribunal, the statu¬tory deposit along with its accrued interest shall be allowed to be withdrawn by the appellant. No cost. Misc. appeal allowed in part.