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Madhya Pradesh High Court · body

2011 DIGILAW 1305 (MP)

Sunil v. Ashok Kumar

2011-11-18

N.K.MODY

body2011
ORDER 1. Being aggrieved by the award dated 26.8.06 passed by MACT, Mandsaur in Claim Case No. 65/05 whereby claim petition filed by the appellant was allowed and compensation of Rs. 28,000/- was awarded on account of injuries sustained by the appellant in a motor accident which took place on 23.3.04 and the liability to pay the amount of compensation was apportioned between respondets Nos. 1 & 3 and the respondent No.2 was exonerated, present appeal has been filed. 2. Short facts of the case are that the appellant filed a claim petition the learned Tribunal alleging that on 23.3.04 appellant was going on a motor bike of respondent No.1 as pillion rider, which was insured with respondent No.2. It was alleged that the motor bike which was being driven by respondent No.1 rashly and negligently met with an accident with another motor bike bearing, registration No. MP/l4-BA/5657 which was being driven by respondent No.3. In the said accident appellant sustained grievous injuries. It was alleged that the accident occurred because of rash and negligent driving of respondent No.3, therefore, claim petition be allowed and compensation be awarded. 3. The claim petition was contested by the respondents by filing reply. After framing of issues and recording of evidence learned Tribunal allowed the claim petition filed by appellant and awarded compensation as Rs. 28,000/ - holding respondent Nos. 1 & 3 liable equally and also apportioned the amount of compensation and exonerated respondent No.2 on the ground that under the policy risk of pillion rider is not covered, against which present appeal has been filed. 4. Learned counsel for the appellant argued at length and submits that the impugned award passed by the learned Tribunal is illegal, incorrect and deserves to be set aside. It is submitted that the appellant sustained fracture of radius bone in right hand and also sustained fracture of mandible bone alongwith facial injuries. It is submitted that the appellant was hospitalized w.e.f. 23.3.04 to 29.3.04. It is submitted that the learned Tribunal awarded a sum of Rs. 28,000/-, breakup of which is as under:- Rs. 25,000/- Towards permanent disability. Rs. 3,000/- Towards medical expenses. 5. Learned counsel further submits that looking to the injuries sustained by the appellant amount awarded by the learned Tribunal is grossly inadequate as on number of heads no amount has been awarded. 28,000/-, breakup of which is as under:- Rs. 25,000/- Towards permanent disability. Rs. 3,000/- Towards medical expenses. 5. Learned counsel further submits that looking to the injuries sustained by the appellant amount awarded by the learned Tribunal is grossly inadequate as on number of heads no amount has been awarded. So far as liability is concerned, learned counsel submits that since the learned Tribunal found that the accident occurred because of rash and negligent driving of respondent Nos. 1 & 3, therefore, the learned Tribunal committed error in apportioning the liability. It is submitted that so far as appellant is concerned, it was a case of joint tort-feasors and the appellant can recover the amount of compensation from any of the tort-feasors. For this contention learned counsel placed reliance on a decision in the matter of Sushila Bhadoriya v. Madhya Pradesh State Road Transport Corporation, 2005 ACJ 831 . So far as exoneration of respondent No.2 is concerned, it is submitted that the policy which was issued by respondent No.2 was package policy. It is submitted that to avoid the liability no Officer was examined by the respondent No.2. It is submitted that as per circular issued by IRDA dated 16.11.09 the risk of pillion rider is covered. It is submitted that the appeal filed by the appellant be allowed and the impugned award passed by the learned Tribunal be set aside and the amount be enhanced and respondents be held liable for payment of compensation jointly and severally. 6. Learned counsel for respondent No.2 submits that no illegality has been committed by the learned Tribunal in passing the impugned award. It is submitted that looking to the injuries sustained by the appelant amount awarded by the learned Tribunal is just and proper, which requires no interference. So far as apportionment is concerned, it is submitted that it is true that the appellant could have prosecuted any of the joint tort-feasors but in the present case when the appellant has impleaded both the joint tort-feasors as party and after recording of evidence learned Tribunal has apportioned the liability, therefore, no illegality has been committed by the learned Tribunal in doing so. So far as exoneration of respondent No.2 is concerned, learned counsel submits that the policy was admitted by the respondent No.1, therefore, the contents were not required to be proved by respondent No.2. So far as exoneration of respondent No.2 is concerned, learned counsel submits that the policy was admitted by the respondent No.1, therefore, the contents were not required to be proved by respondent No.2. For this contention learned counsel placed reliance on a decision in the matter of Oriental Insurance Co. Ltd. v. Premlata Shukla, 2007 (2) Vidhi Bhaswar 139 = 2007 ACJ 1928 . Learned counsel submits that in the facts and circumstances of the case, appeal filed by the appellant has no merits and the same be dismissed. 7. From perusal of the record it is evident that the appellant sustained bony injuries and he was hospitalized. Keeping in view the injuries sustained by the appellant this Court is of the view that the amount awarded by the learned Tribunal is on lower side as on number of heads no amount has been awarded. In my opinion, it will be proper to enhance the compensation by Rs. 20,000/-. In view of this appellant is entitled for a total sum of Rs. 48,000/ -. Enhanced amount shall carry interest @ 8% p.a. from the date of application. 8. Two wheeler package policy is on record. Liability to third party is mentioned in clause 1 (i) of section II of the Policy, which reads asunder:- Section II - Liability to third parties :- 1. Subject to the limits of liability as laid down in the Schedule hereto the Company will indemnify the insured in the event of an accident caused by or arising out of the use of the insured vehicle against all sums which the insured shall become legally liable to pay in respect of (i) death of or bodily injury to any person including occupants carried in the insured vehicle (Provided such occupants are not carried for hire or reward) but except so far as it is necessary to meet the requirements of Motor Vehicles Act, the Company shall not be liable where such death or injury arises out of and in the course of the employment of such person by the insured. 9. So far as Policy is concerned, it has been observed by the learned Tribunal that the policy has been admitted by the respondent No.1 but this document is neither exhibited nor proved. Contents of the document has not been proved. 9. So far as Policy is concerned, it has been observed by the learned Tribunal that the policy has been admitted by the respondent No.1 but this document is neither exhibited nor proved. Contents of the document has not been proved. Respondent No.2 has not brothered to appear in witness-box to state how the respondent No.1 wants to avoid its liability. Even if it is assumed that the policy is admitted by the respondent No. 1, then too, contents of the policy cannot be treated as admitted by the appellant who is claimant. Since as per policy also the liability of injury or death of any person including the occupant carried in the insured vehicle is covered. In the facts and circumstances of the case there was no justification on the part of the learned Tribunal in exonerating respondent No.2. 10. So far as apportionment of liability is concerned, in the matter of Sushila Bhadoriya (supra) Full Bench of this Court has held that in case both joint-feasors are impleaded as party and if there is sufficient material on record, the question of apportionment can be considered by the Tribunal. In this case both the tort-feasors were impleaded as party and after taking into consideration the evidence on record learned Tribunal has apportioned the liability, therefore, no illegality has been committed by the learned Tribunal in that regard. However, so far as appellant is concerned, appellant can recover the amount of compensation from any of the tort-feasors. Since the vehicle on which the appellant was pillion rider was insured with respondent No.2, therefore, respondent No.2 shall be liable to pay the amount of compensation as awarded and as enhanced. However, respondent No.2 shall be at liberty to recover half of the amount from respondent No.3. 11. The amount awarded shall be deposited by the Insurance Company with the learned Tribunal and the learned Tribunal is directed to invest 80% of the said amount to long term fixed deposit in the name of appellant in the nearest Nationalized Bank, in the area where the appellant is residing, with the condition that the bank will not permit any loan or advance. Interest on the said amount shall be credited on monthly basis in S.B. Account of appellant, which shall be opened by the appellant from where appellant can withdraw the amount as per his needs. Interest on the said amount shall be credited on monthly basis in S.B. Account of appellant, which shall be opened by the appellant from where appellant can withdraw the amount as per his needs. However, on an application by the appellant this condonation could be modified by the learned Tribunal in exceptional circumstances, if made out by the appellant. 12. With the aforesaid observations, appeal stands disposed of. Manish Jain for appellant; R.L. Patidar for respondent No.1; Pradeep Gupta with Bhaskar Agrawal for respondent No.2.