Research › Search › Judgment

Madhya Pradesh High Court · body

2010 DIGILAW 397 (MP)

National Insurance Co. Ltd. v. Sudhir

2010-04-06

N.K.MODY

body2010
Judgment ( 1. ) Being aggrieved by the award dated 21/6/2004 passed by MACT, Indore in Claim Case No. 266/02 whereby the claim petition filed by respondent No. 1 was allowed and a sum of Rs. 80,270.00 was awarded on account of injuries sustained by respondent No. 1, the present appeal has been filed. ( 2. ) Short facts of the case are that the respondent No. 1 filed a claim petition before the learned Tribunal on 12/9/2008 alleging that on 21/11/1997 when the respondent No. 1 was going on his scooter, at that time motor vehicle known as Nagar Seva bearing registration No. MP/09-D/8729 which was being driven by respondent No. 2, owned by respondent No. 3 and insured with appellant, dashed the respondent No. 1, with the result respondent No. 1 fell down and the wheel of offending vehicle rolled over the leg of respondent No. 1, with the result respondent No. 1 sustained grievous injuries and was hospitlized at M.Y. Hospital, Indore from where respondent No. 1 was shifted to Gokuldas Nursing Home, where the respondent No. 1 was operated and rod was inserted. Respondent No. 1 remained in hospital w.e.f. 22/11/97 to 29/11/97, thereafter after six weeks the rod was removed. It was alleged that a sum of Rs. 40,000.00 was spent in his treatment. It was alleged that because of accident respondent No. 1 sustained permanent disability. It was prayed that claim petition be allowed and compensation be awarded. ( 3. ) The claim petition was contested by the appellant on various grounds including on the ground that respondent No. 2 was not possessing valid driving licence, therefore, appellant is not liable for payment of compensation. It was prayed that claim filed by respondent No. 1 be dismissed so far as it relates to appellant. After framing of issues and recording of evidence, learned Tribunal allowed the claim petition and compensation of Rs. 80,270/- was awarded for which respondent Nos. 2 and 3 and appellant were held liable. Being aggrieved by the award appeilant filed the present appeal in which cross-objections have been filed by respondent No. 1 alleging that the amount awarded by the learned Tribunal is on lower side which deserves to be enhanced, while contention of the appellant is that the learned tribunal committed error in holding the appellant liable for payment of compensation. ( 4. ( 4. ) Learned counsel for the appellant argued at length and submits that the impugned award passed by the learned tribunal against the appellant is illegal, incorrect and deserves to be set aside. It is submitted that since the respondent No. 2 was not possessing valid driving licence and this fact was duly proved by the appellant, therefore, learned Tribunal committed error in holding the appellant liable for payment of compensation. It is submitted that in the facts and circumstances of the case, appeal filed by the appellant be allowed and the impugned award so far as it relates to appellant be set aside. ( 5. ) In alternative learned counsel for the appellant submits that so far as cross- objections filed by the respondent No. 1 is concerned, looking to the injuries sustained by the respondent No. 1 amount awarded by the learned Tribunal is just and proper, which requires no interference. ( 6. ) Learned counsel for respondent No. 1 submits that learned Tribunal has awarded a sum of Rs. 80,270/-, break up of which is as under :- Rs. 35,263/- towards medical expenses. Rs. 10,000/- towards pain and sufferings. Rs. 30,000/- towards permanent disability. Rs. 5,000/- towards loss of income for the period during -_treatment. Rs. 80,263/- Total ( 7. ) Learned counsel for respondent No. 1 submits that looking to the injuries sustained by respondent No. 1 amount awarded by the learned Tribunal is on lower side as on number of heads no amount has been awarded and on number of heads amount awarded is on lower side. It is submitted that the cross objections filed by the respondent No. 1 be allowed and the amount awarded by the learned Tribunal be enhanced and the appeal filed by the appellant Insurance Company be dismissed. ( 8. ) Learned counsel for respondent No. 2 submits that the burden to prove that respondent No.2 was not possessing valid driving licence was on the appellant. It is submitted that since the appellant failed to prove this fact, therefore, learned Tribunal has rightly held the appellant liable for payment of compensation. ( 8. ) Learned counsel for respondent No. 2 submits that the burden to prove that respondent No.2 was not possessing valid driving licence was on the appellant. It is submitted that since the appellant failed to prove this fact, therefore, learned Tribunal has rightly held the appellant liable for payment of compensation. ( 8. ) Learned counsel for respondent No. 2 submits that the burden to prove that respondent No.2 was not possessing valid driving licence was on the appellant. It is submitted that since the appellant failed to prove this fact, therefore, learned Tribunal has rightly held the appellant liable for payment of compensation. So far as cross-objections filed by respondent No. 1 is concerned, learned counsel submits that looking to the injuries sustained by the respondent No. 1 amount awarded by the learned Tribunal is just and proper, which requires no interference. In the facts and circumstances of the case, learned counsel submits that the appeal filed by appellant and cross-objections filed by respondents No. 1 be dismissed. ( 9. ) So far as liability of appellant is concerned, to prove the fact that the respondent No. 2 was not possessing valid driving licence, appellant examined Jeevanlal Jain (Administrative Officer), who has stated that Ex.D/1 is policy and Ex.D/2 is the report of Surveyor (CPS Chhabra) and Ex.D/3 is the copy of licence of respondent No. 2. From perusal of the record it is evident that CPS Chhabra (Surveyor) was not examined by the appellant, similarly original record was not called from the office of concerned RTO to prove Ex.D/3. In the facts and circumstances of the case, this Court is of the opinion that the learned Tribunal has rightly held that appellant failed to prove that the respondent No. 2 was not possessing the requisite licence. In view of this, appeal filed by the appellant is dismissed. ( 10. ) So far as cross-objections filed by respondent No. 1 is concerned, from perusal of the record it is evident that a major accident took place in which respondent No. 1 sustained injuries, while he was going on scooter. It is also proved that respondent No. 1 was operated and rod was inserted. In the facts and circumstances of the case, this Court of the view that the amount awarded by the learned Tribunal is on lower side and a case of enhancement is made out. In view of this, respondent No. 1 shall be entitled for the following amount :- Rs. 40,000/- towards medical expenses. Rs. 10,000/- towards pain and sufferings. Rs. In the facts and circumstances of the case, this Court of the view that the amount awarded by the learned Tribunal is on lower side and a case of enhancement is made out. In view of this, respondent No. 1 shall be entitled for the following amount :- Rs. 40,000/- towards medical expenses. Rs. 10,000/- towards pain and sufferings. Rs. 5,000/- towards special diet. Rs. 5,000/- towards transport expenses. Rs. 5,000/- towards expenses incurred on attenders. Rs. 10,000/- towards loss of income Rs. 40,000/-_towards permanent disability. Rs. 1,15,000/- Total ( 11. ) In other words, in view of this, the respondent No. 1 is held entitled for a total sum of Rs. 1,15,000.00 instead of Rs. 80,270.00 by way of compensation for the injuries sustained by him in the accident. The enhanced amount of Rs. 34,730.00 shall carry interest @ 8% p.a. ( 12. ) In view of this, appeal filed by the appellant is dismissed and the cross- objections filed by respondent No. 1 is allowed in part by enhancing the amount of compensation. With the aforesaid observations, appeal stands disposed of. No order as to costs.