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Madhya Pradesh High Court · body

2010 DIGILAW 1057 (MP)

National Insurance Co. Ltd. v. Omprakash

2010-10-14

PRAKASH SHRIVASTAVA

body2010
JUDGMENT :- Prakash Shrivastava, J. 1. This appeal under section 173 of the Motor Vehicles Act, 1988 has been filed against the award dated 30.6.2009, passed by Motor Accidents Claims Tribunal, Sonkutch, Distt. Dewas, in Claim Case No. 108 of 2006. 2. The respondent No. 1 (claimant) was travelling in Maruti van bearing registration No. 41-D 0468 on 10.8.2005, when the van in question had turned turtle and the respondent No. 1 had received injuries in the accident. He had filed the claim petition before the Tribunal and the Tribunal found that at the time of accident the respondent No. 1 was earning Rs. 3,000 per month. The Tribunal assessed the permanent disability in reference to the whole body to the extent of 20 per cent and found the age of the appellant to be between 40 and 45 years and applied the multiplier of 15. Thus, the Tribunal calculated the loss of income due to the permanent disability suffered as Rs. 1,08,000. The Tribunal awarded following sums under different heads: (1) Actual medical expenses Rs. 1,350 (2) Special diet Rs. 1,000 (3) Transportation charges Rs. 1,000 (4) Attendant charges Rs. 1,000 (5) Loss of income during treatment period Rs. 9,000 (6) Physical, mental pain and suffering Rs. 5,000 (7) Loss of future income Rs. 1,08,000 Total Rs. 1,26,350 3. Learned counsel appearing for the appellant insurance company submitted that the Tribunal has committed an error in fixing the liability on insurance company, ignoring that the appellant was travelling in the vehicle as a fare paying passenger and further that the amount which has been awarded by the Tribunal is on the higher side. 4. Learned counsel appearing for the respondent No. 1 submitted that no error has been committed by the Tribunal in fixing the liability on the insurance company since the breach of policy condition is not established in the matter and that the amount which has been awarded is just and proper. 5. I have heard learned counsel for the parties and perused the record. 6. The arguments of learned counsel for the appellant in respect of the breach of policy condition is based upon the report of the investigator, Exh. D2, wherein it has been stated that the respondent No. 1 was travelling as fare paying passenger. 5. I have heard learned counsel for the parties and perused the record. 6. The arguments of learned counsel for the appellant in respect of the breach of policy condition is based upon the report of the investigator, Exh. D2, wherein it has been stated that the respondent No. 1 was travelling as fare paying passenger. This report is based upon the alleged statement of the respondent No. 1 said to have been recorded before the investigator, but this report was not filed by the appellant before the Claims Tribunal when the statement of respondent No. 1 was recorded, therefore, there was no opportunity to confront the respondent No. i with this report and to find out the correctness of the report, which was based mainly upon the statement of the respondent No. 1. There is also no other cogent material on record to establish that the respondent No. 1 was travelling as fare paying passenger. 7. The Tribunal has rightly noticed that if the report was prepared two years before, then it should have been filed along with reply of the appellant and the respondent No. 1 should have been confronted with the said report to find out the correctness of it and for want of it, the Tribunal has rightly refused to rely upon the said report. Thus, I find that no error has been committed by Tribunal in this regard and the insurance company has failed to establish the breach of the policy condition, therefore, the liability has rightly been fixed on the insurance company. 8. So far as the quantum of compensation is concerned, the learned counsel appearing for the appellant submitted that Claims Tribunal has committed an error in assessing the income of the respondent No. 1 as Rs. 3,000 per month, whereas on the basis of the statement of the respondent himself he was working as assistant teacher at the time of accident and was getting salary of Rs. 1,400. On perusal of the record, it is noticed that the income of the respondent No. 1 has not been assessed only on the basis of the salary received by him, but respondent No. 1 before the Tribunal had stated that he aLso had the income from agriculture and he was working as Sahara agent and earning. The respondent No. 1 had stated that he was earning Rs. 6,400 per month. The respondent No. 1 had stated that he was earning Rs. 6,400 per month. He had also filed the document, Exh. P 18-C, to show that he was owning agricultural land. Considering all these material on record, the amount of Rs. 3,000 per month assessed by the Tribunal does not appear to be on the higher side. 9. The learned counsel appearing for the appellant further submitted that the calculation of the permanent disability in reference to the whole body to the extent of 20 per cent is on the higher side, when the doctor has given the permanent disability certificate showing that the respondent No. 1 had suffered permanent disability to the extent of 24 per cent in reference to particular limb of the body. In this regard the statement of Dr. Yogesh Valimbhe is relevant, who has stated that respondent No. 1 has suffered the fracture in the fibula bone of the right leg and the fracture had not united. He has stated that due to the fracture, the right leg of the respondent No. 1 has become weak and there is limping on the right leg. Even if the arguments of the learned counsel for the appellant are accepted that the extent of permanent disability in reference to the whole body calculated by the Tribunal is on the higher side then also it is not a case, where the compensation amount is required to be reduced since the Tribunal has not granted adequate amount under the heads of the actual medical expenses, special diet, transportation charges, attendant charges, physical and mental pain and suffering and loss of income during the treatment period. It is also noticed that the Tribunal has not awarded interest from the date of application on the awarded amount. 10. Thus, in view of the above analysis, the award passed by the Tribunal does not require any interference. The appeal is, accordingly, dismissed. No costs.