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2010 DIGILAW 1091 (MP)

Ashish v. Iffco Tokio General Ins. Co. Ltd.

2010-10-26

PRAKASH SHRIVASTAVA

body2010
JUDGMENT Prakash Shrivastava, J. 1. This appeal has been filed by the appellant under section 173 of the Motor Vehicles Act, 1988 against an award dated 31.1.2008 passed by learned Addl. Member, M.A.C.T. (Fast Track), Kukshi, District Dhar, in Claim Case No. 61 of 2007. 2. The appellant on 22.10.2005 was driving Maruti car MP 09-HD 2436 which was owned by Prashant, respondent No. 2. The accident had taken place since the steering of the vehicle had failed. In the accident, the appellant suffered injuries, therefore, he had filed the claim petition before Tribunal. The Tribunal found that in the accident, the appellant had received 21.4 per cent permanent disability in the left hand and 13 per cent in the right hand. The Tribunal thus found that the appellant had suffered 34.4 per cent disability in the particular limb of the body and in reference to the whole body, the Tribunal calculated the permanent disability to the extent of 12 per cent. The Tribunal assessed the monthly income of the appellant as Rs. 2,500 and the age at the time of accident as 32 years and applied the multiplier of 17, thus the Claims Tribunal calculated the loss of income on account of permanent disability as Rs. 61,200. The Tribunal awarded a sum of Rs. 29,948 on account of the actual medical expenses, Rs. 1,800 on account of attendant charges, Rs. 7,500 on account of loss of income during the treatment period, Rs. 3,000 for transportation charges, thus, the Claims Tribunal awarded a sum of Rs. 1,03,448 along with interest at the rate of 9 per cent from the date of application till realization. 3. Learned counsel appearing for the appellant submitted that the Tribunal has committed an error in calculating the permanent disability in reference to the whole body and has committed further error in assessing the income of the appellant and in awarding lower compensation amount. Counsel for appellant had objected to the cross-objection filed by the respondent insurance company on the ground that the cross-objection is time-barred and on merit it is not sustainable. 4. Learned counsel appearing for the respondent insurance company submitted that the amount which has been calculated by the Tribunal is just and proper. Counsel for appellant had objected to the cross-objection filed by the respondent insurance company on the ground that the cross-objection is time-barred and on merit it is not sustainable. 4. Learned counsel appearing for the respondent insurance company submitted that the amount which has been calculated by the Tribunal is just and proper. Pressing the cross-objection filed by the insurance company he submitted that the insurance company is not liable to satisfy the award since the appellant was driving the vehicle borrowed from the owner, therefore, he was not a third party but was in the capacity of the owner of the vehicle. 5. So far as the cross-objection filed by the insurance company is concerned, it is pointed out by the counsel for appellant that notice of this appeal was issued on 8.9.2008 and it was served upon the insurance company on 25.11.2008 and the power of attorney was filed by the counsel for insurance company on 5.12.2008 but the cross-objection was filed after almost two years on 8.10.2010. These dates are not disputed. Therefore, in terms of the Division Bench judgment of this court in the matter of Ranjeet Singh v. Bhagwan Singh, 2007 ACJ 1629 (MP), the cross-objection filed after a lapse of almost two years from the date of service of notice in the appeal was barred by time and there was no application for condonation of delay in filing the cross-objection, therefore, it cannot be entertained. 6. Even otherwise, the insurance company has filed the cross-objection raising the ground that the appellant was driving the borrowed vehicle, therefore, he had stepped into the shoes of the owner and was not a third party and in terms of the judgment of the Supreme Court in the matter of Oriental Insurance Co. Ltd. v. Rajni Devi, 2008 ACJ 1441 (SC); in the matter of Ningamma v. United India Insurance Co. Ltd., 2009 ACJ 2020 (SC); and in the matter of New India Assurance Co. Ltd. v. Sadanand Mukhi, 2009 ACJ 998 (SC), the insurance company is not liable. Such an argument of the insurance company cannot be accepted since no such issue was raised by the insurance company before the Tribunal. Ltd., 2009 ACJ 2020 (SC); and in the matter of New India Assurance Co. Ltd. v. Sadanand Mukhi, 2009 ACJ 998 (SC), the insurance company is not liable. Such an argument of the insurance company cannot be accepted since no such issue was raised by the insurance company before the Tribunal. A perusal of the reply filed by the insurance company before the Tribunal indicates that in the reply, the insurance company had not disputed the liability on the ground that the appellant was deemed to be the owner of the vehicle. The statement of Nitin Jain, the Law Officer of the insurance company, was recorded before the Tribunal but he had also not taken any such objection in his statement. For want of the pleadings and evidence, no such issue was framed by the Tribunal and no finding has been recorded in this regard. Therefore, at this stage such a factual issue cannot be permitted to be raised. 7. Even otherwise, the insurance policy, Exh. D1, indicates that the additional premium was paid to cover the risk of the owner-driver of the vehicle, therefore, even in terms of the judgments relied upon by the counsel for the insurance company, the liability of the insurance company cannot be denied. Even if the appellant is held to be deemed owner of the vehicle, then also since additional premium was paid to cover the risk of the owner of the vehicle, therefore, the insurance company is liable. No material has been placed on record to indicate that the liability of the insurance company in respect of the owner of the vehicle was limited liability. Thus, I find that the cross-objection filed by insurance company is liable to be rejected on the ground of limitation as well as on merit. 8. So far as the appeal of the claimant is concerned, Dr. B.L. Khangar, AW 1, has stated that in the accident, the appellant had received injuries in different parts of the body and his clavicle bone of right shoulder and humerus and radius bone of the left shoulder were fractured. On account of the fractures, the appellant had suffered permanent disability. The doctor has stated that the right arm of the appellant does not rise even to the shoulder level and there is difficulty in twisting the elbow and wrist of the left hand. On account of the fractures, the appellant had suffered permanent disability. The doctor has stated that the right arm of the appellant does not rise even to the shoulder level and there is difficulty in twisting the elbow and wrist of the left hand. He has also stated that to cure the fracture of humerus and radius bone, operation was conducted and plate was inserted. He has also stated about the weakening of the muscles of the hands and restriction of movement of left arm. According to the doctor, the appellant had suffered permanent disability to the extent of 13 per cent in right hand and 21.4 per cent in the left hand. This permanent disability was suffered by the appellant in reference to the upper limb of the body but for calculating the permanent disability in reference to the whole body, the nature of work of the appellant is one of the relevant factors. The evidence on record indicates that the appellant is a dentist. The appellant has stated that his left hand from the wrist and his two fingers have suffered deformity. He has also stated that due to the permanent disability he is unable to do his work as dentist. 9. Considering the nature of the disability which is disclosed by the doctor and taking into account the nature of work of the appellant, it is found that the Tribunal has committed an error in holding that the appellant had suffered the permanent disability only to the extent of 12 per cent in reference to the whole body whereas on the basis of the evidence on record, it is clearly established that the appellant has suffered permanent disability at least to the extent of 20 per cent in reference to the whole body. Appellant is doctor by profession, and he has stated that his monthly income was Rs. 20,000 but no evidence of income has been placed on record but keeping in view the year of accident and the fact that the appellant is a doctor by profession, it is safe to presume that the appellant was having the monthly income of Rs. 3,000 which comes to annual income of Rs. 36,000 and the loss of annual income on account of 20 per cent permanent disability comes to Rs. 7,200. 3,000 which comes to annual income of Rs. 36,000 and the loss of annual income on account of 20 per cent permanent disability comes to Rs. 7,200. The Tribunal has rightly applied multiplier of 17, therefore, the total loss of income on account of permanent disability comes to Rs. 7,200 x 17 = Rs. 1,22,400, whereas the Tribunal awarded only a sum of Rs. 61,200 under this head, therefore, the appellant is entitled to further sum of Rs. 61,200 under this head. 10. Thus, the appeal is allowed in part by enhancing the compensation amount by a sum of Rs. 61,200 which will bear interest at the rate of 9 per cent per annum from the date of the application till realization. The cross-objection filed by the insurance company is rejected. No costs.