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2010 DIGILAW 667 (MP)

Lokendra Patidar v. Azad Khan @ Amjad

2010-07-08

PRAKASH SHRIVASTAVA

body2010
ORDER 1. This appeal will also govern the disposal of M.A.No. 2773/08. 2. M.A.No. 2096/08 has been filed by the claimants seeking enhancement of compensation amount awarded by the Tribunal and MA No. 2773/08 has been filed by the driver and owner of the vehicle, challenging the exoneration of the Insurance Company by the Claims Tribunal. These appeals have been filed against the award dated 18.6.2008, passed by li1e Motor Accident Claims Tribunal, Ratlam, in Claim Case No. 14/07. 3. The appellant Lokendra Patidar has suffered injury in an accident, which had taken place on 29.2.06, when he was travelling on a motor-cycle, which was hit by Tata 407 MP 50G 0311. The appellant filed the claim petition. The Claims Tribunal exonerated the Insurance Company, on the ground that the driver of the vehicle was having license to drive LMV, but he had no licence to drive the vehicle in question, which was a goods and commercial vehicle. The Tribunal found that the appellant suffered a permanent disability to the extent of 15%. The Tribunal assessed the monthly income of the appellant as Rs. 3,000/- and calculated the loss of income as Rs. 500/- per month i.e. Rs. 6,000/- per year. It found that the age of the appellant at the time of accident was 30 years and applied the multiplier of 12 and calculated the sum of Rs. 72,000/- as loss of income. The Tribunal awarded Rs. 15,000/- under the head of physical and mental suffering, Rs. 10,000/- on account of loss of income during the treatment period. Rs. 61,000/ - on account of actual medical expenses and Rs. 11,000/- for the contingency expenses during the period of treatment and Rs. 4,000/- towards the transportation charges. Thus, the Tribunal awarded a total sum of Rs.' 1,73,000/- along with 6% interest from the date of application., 4. Learned counsel appearing for the appellant submitted that the Tribunal has committed an error in exonerating the Insurance Company without appreciating that no licence was placed on record and no such defence was taken by the Insurance Company. He further submitted that the amount, which has been awarded by the Tribunal is on the lower side. 5. Learned counsel appearing for the owner and driver of the vehicle challenging the exoneration of the Insurance Company submitted that the Tribunal has not properly appreciated the material on record and wrongly exonerated the Insurance Company. He further submitted that the amount, which has been awarded by the Tribunal is on the lower side. 5. Learned counsel appearing for the owner and driver of the vehicle challenging the exoneration of the Insurance Company submitted that the Tribunal has not properly appreciated the material on record and wrongly exonerated the Insurance Company. 6. Learned counsel appearing for the Insurance Company submitted that no error has been committed by the Tribunal in passing the impugned award and in exonerating the Insurance Company. 7. I have heard counsel for the parties at length and perused the record. 8. A perusal of the reply filed by the Insurance Company before the Claims Tribunal indicates that the Insurance Company had not taken any such plea in the reply that the driver of the offending vehicle was not having a valid licence to drive the vehicle. Photo-copy of the licence, which has been relied upon by the Tribunal has not been proved by any of the party and it does not form the part of the record of the case containing exhibited documents. The Insurance Company has also failed to produce a copy of the policy. No attempt was made by the Insurance-Company before the MACT to plead or prove that that drivel of the vehicle was not having valid licence or he was driving the vehicle in violation of policy conditions. 9. The onus to prove that the driver of the vehicle was not having a valid licence to drive the vehicle on the date of the accident was on the Insurance Company and in the present case, the Insurance Company has failed to discharge the said onus. The Supreme Court in the matter of Narcinva v. Kamat and another v. Alfredo Antonio Doe Martins and others reported in 1985 ACJ 397, has held that non-production of the licence by the driver does not exonerate the Insurance-Company and the Insurance Company in such cases is liable to indemnify the award. 10. Thus, it is found that the Tribunal has committed an error in exonerating the Insurance Company on the basis of a photo copy of licence, which was not proved in evidence by any party and the authenticity of which was not established. 10. Thus, it is found that the Tribunal has committed an error in exonerating the Insurance Company on the basis of a photo copy of licence, which was not proved in evidence by any party and the authenticity of which was not established. Therefore, the order of the Tribunal, exonerating the Insurance-Company is set aside and it is held that the Insurance-Company is liable to satisfy the award passed by the Tribunal. 11. So far as the quantum of compensation is concerned, the Tribunal has found that the appellant was aged about 30 years on the date of accident, but the Tribunal applied multiplier of 12 only whereas, in the age of 25 to 30 years, the multiplier of 18 is applicable. Thus, applying the multiplier of 18 on the annual income of Rs. 6,000/- the amount comes to Rs. 1,08,000/-. 12. Therefore, it is held that the appellant is entitled to enhancement of Rs. 36,000/- under the head of loss of income on account of permanent disability. 13. Learned counsel appearing for the appellant further submitted that the Tribunal has not awarded any amount on account of future treatment, which the appellant will require to incur for removal of plate and the rod, which has been inserted. He submitted that no amount has been awarded by the Tribunal on account of the special diet separately and looking to the nature of injuries and the period of treatment, the amount which has been, awarded under the conventional head is on the lower side. Considering the entire evidence on record, it is found that the appellant is entitled to further sum of Rs. 14,000/- under these heads. 14. Thus, the amount awarded by the Tribunal is enhanced by a sum of Rs. 50,000/- [Rs. Fifty Thousand only], which will bear the same interest at the same rate as awarded by the Tribunal. If the owner of the vehicle has' deposited any compensation amount, he will be entitled to claim it from the Insurance Company. 15. The appeals are accordingly disposed of.