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Madhya Pradesh High Court · body

2005 DIGILAW 836 (MP)

Puranchand Shivhare v. Ajit Nirkhe

2005-08-08

SUBHASH SAMVATSAR

body2005
JUDGMENT Both these appeals arise against the same judgment dated 9.12.1995 passed by Third Additional Member Judge, Motor Accidents Claims Tribunal, Shivpuri in Claim Case No. 12/95 whereby the Claims Tribunal has awarded an amount of Rs. 2,95,000/- plus interest thereon and counsel fee Rs. 5,000/- to the claimant. Appeal No. 503/97 is filed by the Insurance Company while Appeal No. 507/97 is filed by the owner of the vehicle. In these cases cross objection is also filed by the claimant. Brief facts of the case are that the claimant was travelling in a bus No. MBU 678 which was going from Shivpuri towards Indore. When bus crossed Kolaras the bus met with an accident in which the claimant got injured. The claimant was student of Veterinary College, Mhow studying in the first year. In the said accident he got injury on his head and fell unconscious. He remained unconscious for three months. Subsequently, he recovered but his mental condition was disturbed. He lost his memory. His eye sight was weaken in the accident and practically he became a person of unsound mind. The application for compensation was filed on his behalf and the Claims Tribunal found that, he is entitled to compensation of Rs. 1,00,000/- plus medical expenses at Rs. 1,50,000/-. The Court below also awarded an amount of Rs. 20,000/- for his future treatment and Rs. 25,000/- towards pain and suffering. Thus, total amount came to Rs. 2,95,000/-. Insurance Company has filed an appeal on the ground that the appellant being a third party, the risk of the Insurance Company in limited to Rs. 50,000/- only and for the remaining amount Insurance Company cannot be held liable. The owner of the vehicle in his appeal has challenged the amount of quantum. First question which is to be determined is about the liability of the Insurance Company. The accident in question has taken place on 3.10.1989. The Insurance policy was in force from the period 9.3.1989 to 8.2.1990. Said Insurance Policy was issued under the old Act i.e. Motor Vehicles Act of 1939. The liability of the Insurance Company is limited upto Rs. 50,000/- only. After perusal of the policy it appears that the Insurance Company has charged an amount of Rs. 240/- for the liability of passengers as per Motor Vehicles Act, 1939, Rs. 16/- is charged towards risk of driver, cleaner and conductor and Rs. The liability of the Insurance Company is limited upto Rs. 50,000/- only. After perusal of the policy it appears that the Insurance Company has charged an amount of Rs. 240/- for the liability of passengers as per Motor Vehicles Act, 1939, Rs. 16/- is charged towards risk of driver, cleaner and conductor and Rs. 50/- towards third party liabilities. The main contention raised by counsel for the appellant is that under the old Act under which the policy was issued the liability of the Insurance Company was limited to Rs. 50,000/-. He submitted that by virtue of section 147 (2) of 1988 Act, the old policy remained in force for a period of 4 months after coming into force of the new Act. The accident has taken place within a period of four months from the date of coming into force of the new Act which came into force on 1.7.1989. During this period the liability of the Insurance Company under section 95 (2) of the old Act was limited to Rs. 50,000/-. Hence, the Court below has erred in holding that the Insurance Company is liable for entire amount of compensation. For this purpose counsel for appellant has relied on the judgment of apex Court in the case of Oriental Insurance Co. Ltd. v. Bhoop Singh and others, (2003) 10 SCC 286 , Dr. T.V. Jose v. Chacko PM. and others, 2001 ACJ 2059 and in the case of New India Assurance Co. Ltd. v. CM. Jaya and others, 2002 ACJ 271. After going through all the three judgments I find that the question involved in all these cases was not involved in the present case. In the case of Oriental Insurance Co. Ltd. v. Bhoop Singh (supra) the apex Court has held that the liability of the Insurance Company in respect of third party was limited upto Rs. 50,000/- under section 95 (2). However, the affect of section 147 sub clause 2 of the new Act was not there before the apex Court for consideration. Hence, said judgment is distinguishable and does not help the Insurance Company in the present appeal. In the case of T.V. Jose (supra) the apex Court has held that the word third party would include gratuitous passenger in the car and the Insurance Company is not liable for payment of compensation. Hence, said judgment is distinguishable and does not help the Insurance Company in the present appeal. In the case of T.V. Jose (supra) the apex Court has held that the word third party would include gratuitous passenger in the car and the Insurance Company is not liable for payment of compensation. Third party policy does not cover liability to gratuitous passengers who are not carried for hire or reward. Thus, this case is also not applicable in the present case. Next judgment relied by counsel is in the case of New India Assurance Co. Ltd. v. CM. Jaya (supra) is also on the different issue. In that case the apex Court has held that if Insurance Company has not taken any higher liability by accepting higher premium for payment of compensation to a third party, the Insurance Company shall not be liable for entire amount of compensation. But this question is also not involved in the present case. On the other hand apex Court in the case of National Insurance Company Limited v. Behari Lal and others, 2000 AIR SCW 3353 has held that the proviso to sub-section (2) of section 147 of the new Act cannot be read as proviso to section 147 (2)(c) of the new Act. The affect of section 147 sub-clause II is that the policy issued under the old Act is to remain in force for a period of four months after the date of coming into force of the new Act which came into force on 1.7.1989. But the said proviso does not limit the liability of the Insurance Company to pay the compensation as specified in the policy of the Insurance as under section 95 (2) of the old Act. After coming into force of new Act the liability of the Insurance Company has increased by virtue of the provisions of the new Act and the limitations provided under section 95 (2) of the old Act shall not be applicable and the liability of the Insurance Company will be unlimited. After coming into force of new Act the liability of the Insurance Company has increased by virtue of the provisions of the new Act and the limitations provided under section 95 (2) of the old Act shall not be applicable and the liability of the Insurance Company will be unlimited. Considering this fact this Court also in the case of National Insurance Company Limited Gwalior v. Batasia and others in MA 78/94 decided on 29.8.2002 has taken the same view and held that if any accident occurs within a period of four months of coming into force of the new Act the liability of the Insurance Company shall be in accordance with section 147 of the new Act and provisions of section 95 of the old Act will not apply. The apex Court in the case of Padma Srinivasan v Premier Insurance Company Ltd., 1982 ACJ 191 has laid down that the question of liability of the Insurance Company is to be decided on the basis of the provisions of the Act applicable on the date of accident. In the present case on the date of accident new Act has already came into force and under the new Act, the liability of the Insurance Company is unlimited hence the Insurance Company is no doubt liable to pay the entire amount of compensation. Moreover, perusal of the policy which is produced before this Court shows that the Insurance Company has accepted the premium in respect of third party, hence for this reason also 'the Insurance Company is liable to pay the entire amount of compensation. Now, as regards quantum, to prove the quantum the claimant has examined Ajit, the claimant himself as AW 1. He has stated that on the date of accident he was going to Mhow in a bus. He was student of Veterinary College, Mhow. The accident has taken place somewhere after Shivpuri. He does not know how the accident has taken place. After the accident he has lost his memory. His eye sight of the left eye is completely lost and his backbone was broken. Thereafter, he has lost his mental balance. While recording his statement the Court has noted the fact that this witness is of retarded mind and he is not mentally fit to depose. The next witness is Dr. Yogendra Pradhan, AW 2. He says that the appellant was admitted in Hospital on 4.10.1989. Thereafter, he has lost his mental balance. While recording his statement the Court has noted the fact that this witness is of retarded mind and he is not mentally fit to depose. The next witness is Dr. Yogendra Pradhan, AW 2. He says that the appellant was admitted in Hospital on 4.10.1989. He has brought the papers from the Hospital. At the time of admission the appellant was unconscious and there were injuries on his face and abrasions in the skull. He was advised C.T. Scan. On C.T. Scan it was found that there were injuries on the temporal region due to which he is mentally retarded. His memory is quite weak and he cannot see from one eye. He was admitted for one month in the hospital. Another witness is Shekhar, the elder brother of the claimant. He said that after the accident Ajit, the claimant had to leave his studies. He has lost sight of one eye and his mental condition is retarded. His brother is not in a position to move due to the injuries sustained by him. Respondents have not led any evidence to rebut these facts. Considering this evidence the Claims Tribunal has given a finding that the claimant was injured in the said accident. In the accident he got injuries on his face and head. He has lost eye sight of one eye and his memory is weaken. The Court has come to the conclusion that the claimant has a retarded mental condition and he cannot carry his studies further. He was admittedly student of veterinary college shows that there were chances of hi s being a veterinary doctor. Considering this fact the Court has awarded his compensation of Rs. 1,00,000/-. After perusing the entire record I find that the amount of compensation awarded by the Court is on lower side. As the claimant was completely mentally retarded due to the accident and has to leave studies has affected his career adversely. Thus, this is a case of 100% disablement as far as loss of income is concerned. The notional income of a person as per the Act is Rs. 15,000/- per year which can be taken as a loss of income to the appellant. He was 20 years of age at the time of accident and, therefore, multiplier of 16 will be applicable in the present case. Thus, the compensation comes to Rs. The notional income of a person as per the Act is Rs. 15,000/- per year which can be taken as a loss of income to the appellant. He was 20 years of age at the time of accident and, therefore, multiplier of 16 will be applicable in the present case. Thus, the compensation comes to Rs. 2,40,000/-. The Court below also found that an amount of Rs. 1,50,000/is spent on the treatment of the applicant. Thus, the claimant shall be entitled to this amount also. Thus, the total amount of compensation comes to Rs. 3,90,000/-. Apart from that appellant is also entitled to Rs. 10,000/towards special diet and other expenses. Thus, 1 hold that the claimant is entitled to compensation of Rs. 4,00,000/- (Rupees Four Lacs only). The enhanced amount of compensation shall carry interest at the rate of 7% per annum from the date of filing of the appeal. Thus, appeal stands dismissed with costs. Cross objection stands allowed. Counsel fee Rs. 5,000/-. Appellant in Appeal No. 507/97, the owner has deposited the amount of Rs. 25,000/- as per interim award. It is directed that he is entitled to recover the said amount from the Insurance Company.