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Madhya Pradesh High Court · body

2007 DIGILAW 1223 (MP)

Orient Insurance Co. Ltd. v. Munni Bai

2007-11-27

N.K.MODY

body2007
ORDER 1. This order shall also govern the disposal of MA No. 3683106 as both the appeals are arising out of one award dated 20.7.2006 passed by II MACT, Fast Track Court, Neemuch in Claim Case No. 0512005 whereby the claim petition filed by respondent No. 1 was allowed and on account of injuries sustained by respondent No.1, a sum of Rs. 96,500/- has been awarded. 2. MA No. 3683/06 has been filed by respondent No.1. It is alleged that amount awarded is inadequate. MA No. 3303/06 is filed by the appellant/Insurance Company wherein it is alleged that appellant/ Insurance Company has wrongly been held liable for payment of compensation. 3. Short facts of the case are that on 28.11.2004, respondent No. 11 Munnibai was travelling on a motorbike having registration No. MP 14B/· 7951 which was being driven by her husband/respondent No.4. The motorbike was owned by respondent No.4 and insured with the appellant. In the claim petition it was alleged that Maruti Van bearing registration No. MP 44 E 4090 which was owned by respondent No.2 and driven by respondent No.3 dashed the motorbike from the backside with the result respondent No.1 fell down and sustained fracture of tibia and fibula and also femur bone in left leg. Respondent No. 1 was hospitalised on three occasions at Ramsanehi Hospital, Bhilwada for a total period of four weeks approximately within a span of six months. It was alleged that respondent No.1 was operated and rod was inserted. Medical evidence was adduced to the effect that there was 39% permanent disability which was assessed as 20% by the learned Tribunal. Break-up of the amount awarded by the learned Tribunal is as under : towards permanent disability Rs. 45,000/- towards pain and sufferings Rs. 3,000/- towards special diet Rs. 1,000/- towards expenses incurred on attenders Rs. 2,000/- towards medical expenses Rs. 42,000/- towards transport expenses Rs. 3,000/- towards litigation expenses Rs. 500/- 4. Learned counsel for respondent No.1 submits that looking to the injuries sustained by respondent No.1, the amount awarded is on lower side. It is submitted that for the purpose of calculating the permanent disability, income of respondent no. 1 was assessed as Rs. 15,000/- on notional basis which is on lower side. Similarly, multiplier of 15 has been applied which ought to have been 16. It is submitted that for the purpose of calculating the permanent disability, income of respondent no. 1 was assessed as Rs. 15,000/- on notional basis which is on lower side. Similarly, multiplier of 15 has been applied which ought to have been 16. Learned counsel submits that on other heads also the amount awarded is on lower side. 5. Mr. H.C. Jindal, learned counsel for appellants submits that learned Tribunal has wrongly held the appellant liable for payment of compensation. Learned counsel submits that initially the claim petition was filed on 10.3.2005 wherein appellant and respondent No.4 were not impleaded as party. In the claim petition, it was alleged that it was rash and negligent driving of respondent No.3, therefore, respondents No.2 and 3 and New India Insurance Co. Ltd. are liable for payment of compensation. Learned counsel further submits that New India Insurance Co. filed the written statement on 31.5.2005 wherein it was alleged that offending Maruti Van was insured with New India Insurance Co. Ltd. with effect from 24.12.2004 to 23.12.2005 while accident took place on 28.11.2004. It was submitted that at the relevant time, vehicle was not insured with New India Insurance Co. Ltd., therefore, Insurance Company is not liable for payment of compensation. Thereafter an amendment application was filed on 7.2.2006 whereby New India Insurance Company was deleted from the array of non-applicants and respondent No. 4 and appellant were impleaded as party to the claim petition. Learned counsel submits that in the claim petition, all the allegations are against the driver of the offending Maruti Van which was being driven by respondent No.3. Learned counsel submits that FIR was lodged by the husband of respondent No. 1 who is respondent No. 4 herein, in which it was alleged that accident occurred because of rash and negligent driving of respondent No.3. It is further submitted that whole trial was conducted by the respondent No.4 as is being admitted by respondent No.1 in her statement but respondent No.4 did not appear in the witness box to demonstrate in what circumstances the accident occurred. Learned counsel submits that in the facts and circumstances of the case, learned Tribunal committed error in holding the appellant liable for payment of compensation. Learned counsel submits that in the facts and circumstances of the case, learned Tribunal committed error in holding the appellant liable for payment of compensation. So far as pleadings are concerned, learned counsel submits that there was no pleadings in the claim petition that accident occurred because of rash and negligent driving of respondent No.3, therefore, no evidence could have been looked into by the learned Tribunal on that account. For this contention, reliance is placed on a decision in the matter of Moolchand v. Radha Sharan [ 2006 (II) MPWN 139 ] wherein this Court has observed that evidence cannot be looked into beyond pleadings. Pleadings cannot take place of proof, until it is proved by reliable evidence. Learned counsel for appellant further submits that document relating to criminal case was filed by the respondent No. 1 herself and from that document it is amply proved that it was respondent No.3 who was responsible for the accident. Learned counsel further placed reliance on a decision in the matter of Oriental Insurance Co. Ltd. v. Premlata Shukla [2007 (2) Vidhi Bhasvar 139 = 2007 ACJ 1928 ] wherein it was held: "Once a part of document is relied upon by both the parties, the learned Tribunal cannot be said to have committed any illegality in relying upon the other part, irrespective of the contents of the documents been proved or not. If the contents have been proved, the question of reliance thereupon only upon a part thereof and not upon the rest, on the technical ground that the same had not been proved in accordance with law, would not arise. A party objecting to the admissibility of a document must raise its objection at the appropriate time. If the objection is not raised and the document is allowed to be marked and that too at the instance of a party which had proved the same and where for consent of the other party has been obtained, the former cannot be permitted to turn round and raise a contention that the contents of the documents had not been proved and thus should not be relied upon." 6. Mr. Mr. Sameer Athwale, learned counsel for respondent No.1 submits that after obtaining the certified copy of the criminal case, respondent No. 1 came to know that in the criminal case it is alleged that it is respondent No.3 who was responsible for the accident, therefore, claim petition was amended. Learned counsel submits that so far as respondent No.1 is concerned, she was a third party. Even if respondent No.4 did not appear in the witness box, then too appellant cannot avoid the liability because it was a case of composite negligence so far as respondent No. 1 is concerned. 7. Mr. Satish Jain, learned counsel for respondents No.2 and 3 submits that accident occurred because of rash and negligent driving of motorbike of respondent No.4. It is submitted that respondent No.3 himself has appeared in witness box and has explained that in what circumstances the accident occurred. It is submitted that case of respondent No. 3 right from the beginning was that no accident has taken place with the Maruti Van. Learned counsel submits that in the facts and circumstances of the case, learned Tribunal committed error in holding the respondents No.2 and 3 liable for payment of compensation along with appellant and respondent No.4. Learned counsel further submits that it is only appellant and respondent No.4 who are liable for payment of compensation. 8. From perusal of record, it is evident that stay was granted by this Court on 6.11.2006 upon depositing 50% of the amount of award including cost and interest. Learned counsel for appellant also submits that 50% of the amount has already been deposited by the appellant/Insurance Company Ltd. 9. After appreciation of evidence and also perusal of record it appears that most important witness was Banshidas who was not only the owner and driver of the offending motorbike but was also the husband of injured respondent No.1. Respondent No. 1 has categorically admitted that all the action for prosecuting the claim petition was taken by respondent No. 4 and on all the dates respondent No.4 was present in the Court. Surprisingly, except respondent No. 1 no evidence was adduced by respondent No.1 to prove that in what circumstances the accident occurred. The best witness was respondent No.4 who was withheld for the reasons best known to respondent No.1. 10. Surprisingly, except respondent No. 1 no evidence was adduced by respondent No.1 to prove that in what circumstances the accident occurred. The best witness was respondent No.4 who was withheld for the reasons best known to respondent No.1. 10. So far as criminal case is concerned, complaint was lodged on very day and it was respondent No.4 who lodged the complaint and stated that accident occurred because of rash and negligent driving of respondent No.3. Since complaint was lodged immediately after the accident, therefore, there was no justification in mentioning the wrong fact. The document of criminal case which are filed are also incomplete. No statement has been filed which was recorded by the police authorities. The seizure memo of the offending van is on record. There is nothing in the seizure memo to show that offending Maruti Van was damaged in any manner in the said accident as it was alleged that accident has taken place from the back side. So far as pleadings are concerned, it is true that right from beginning the case of respondent No.1 was that it was respondent No.3 who was responsible for the accident but later on after knowing the fact that offending Maruti Van is not insured, the claim petition was amended and respondent No.4 and appellant were impleaded as party and it was alleged in the claim petition that respondent No.4 was also at fault. However, prior to this, all the allegations in the claim petition are against respondent No.3. It appears that the moment respondent No.1 came to know that the offending van is uninsured, the story regarding in what circumstances the accident occurred was changed. The amendment was nothing else but was an after thought. Since the respondent No.4 was not in a position to face the reality, therefore, deliberately respondent No.4 did not appear in witness box. 11. Since no independent evidence was adduced by the respondent No.1 except herself who has stated that she does not know in what circumstances, the accident occurred, learned Tribunal committed error in holding the respondent No.4 and the appellant liable for payment of compensation. So far as amount of compensation is concerned, it appears that looking to the injuries sustained by respondent No.1, the amount of compensation awarded is on lower side and a case of enhancement is made out. The same is further enhanced by Rs. 25,000/-. 12. So far as amount of compensation is concerned, it appears that looking to the injuries sustained by respondent No.1, the amount of compensation awarded is on lower side and a case of enhancement is made out. The same is further enhanced by Rs. 25,000/-. 12. In view of this, MA No. 3303/06 which is the appeal filed by the appellant/Insurance Company is allowed and MA No. 3683/06 filed by respondent No. 1 is dismissed. It is held that accident occurred on 28.11.2004 because of rash and negligence on the part of driver of offending Maruti Van who is respondent No.3. In view of this, respondent No. 1 shall be entitled for compensation from respondents No.2 and 3 which comes to Rs. 1,21,500/-. The enhanced amount shall carry interest @ 7.5% per annum from the date of application. The amount which has I already been deposited by the appellant, shall be recoverable by the appellant from respondents No.2 and 3. With the aforesaid modifications, the appeal stands disposed of. No order as to costs.