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2011 DIGILAW 97 (MP)

United India Insurance Co. Ltd. v. Guman

2011-01-22

J.K.MAHESHWARI

body2011
ORDER 1. M.A. No. 969 of 2009 has been filed by the Insurance Company assailing the award dated 25.2.2009 passed by 5th Member, Motor Accidents Claims Tribunal, Indore in Claim Case No. 147/08 whereby claimant-respondent No.1 Guman who has suffered amputation below knee has been awarded total compensation of Rs. 3,25,000/- along with interest. 2. While the claimant by filing Motor Vehicles Act, 1939 No. 1608 of 2009 assailed the same award and the enhancement is sought for as the amount awarded by the claims tribunal is inadequate and in lower side. 3. The facts of the case are that claimant-respondent No. 1 Guman Singh was travelling by loading tempo bearing No. MP-09-KD-5362 along with his goods. While the said vehicle reached near culvert of Thikri Naidad Road and as the driver of the said vehicle driving it rashly and negligently it turned turtle wherein injuries have been received to the injured in his left leg and also over the shoulder. Ultimately left leg below knee was amputated. The Tribunal accepting it as a case of permanent disability assuming disability to the extent 35%, earning of the injured as Rs. 2,500/- applied the multiplier of 16 awarded compensation of Rs. 1,68,000/- in general damages for future loss of earning due to disability Rs.1,10,000/- has been awarded in medical expenses and transportation. Rs. 4,000/- in special diet, Rs. 4,000/- as attendant, Rs. 12,000/- in pain and suffering and Rs. 2,000/- toward loss of estate and Rs. 25,000/- towards artificial leg making total compensation Rs. 3,25,000/-. The Tribunal further recorded a finding that the plea of not having a valid driving licence of transport vehicle is unsustainable because the weight of the vehicle was less than 7500 kgs. The argument regarding gratuitous passenger has been dealt with by the tribunal and recorded a finding that the injured was sitting along with his goods, however, it was found that the driver and owner as well as Insurance Company are liable jointly and severally to pay the said amount of compensation. 4. Shri Bhaskar Agrawal, learned counsel appearing on behalf of the appellant-United Insurance Company contends that looking to the driving licence certificate Ex. D-2 it is apparent that it was issued for 20 years. however, such driving licence cannot be treated as a licence of transport vehicle. It is in the category of omnibus as a LMV licence. 4. Shri Bhaskar Agrawal, learned counsel appearing on behalf of the appellant-United Insurance Company contends that looking to the driving licence certificate Ex. D-2 it is apparent that it was issued for 20 years. however, such driving licence cannot be treated as a licence of transport vehicle. It is in the category of omnibus as a LMV licence. If the driver is driving a vehicle on the basis of the said licence, the Insurance Company cannot be held liable for the compensation, if any, on account of the accident if found proved. It is further contended that the Tribunal recorded a finding in favour of the claimant that he was not a gratuitous passenger, and has not discussed the evidence in detail and in one line it is said that the claimant was not sitting as gratuitous passenger. Such finding cannot be sustained in the eyes of law, therefore, also the finding to hold the Insurance Company liable jointly and severally recorded by the Tribunal may be set aside. 5. Arguing against the enhancement in the appeal filed by the claimant it is contended by him that the Tribunal has rightly awarded the compensation accepting the monthly earning of the injured to be Rs. 2,500/- and applying the multiplier of 16, however, the compensation as awarded by the Tribunal is just and reasonable which cannot be enhanced. 6. Shri Vijay Singh Chouhan, learned counsel appearing on behalf of the claimant-respondent No. 1 Guman Singh contends that the compensation as awarded by the Tribunal is inadequate which may be enhanced. It is said by him that the injured was not a gratuitous passenger and the accident has taken place in 2007. The evidence of his earning is available on record, but in any case the earning should not be accepted less than Rs. 100/- per day, however. if we accept the said earning, the annual earning comes to Rs. 36,000/-. It is also contended by him that the percentage of the disability as per the finding of the tribunal i.e. 35% is incorrect. 100/- per day, however. if we accept the said earning, the annual earning comes to Rs. 36,000/-. It is also contended by him that the percentage of the disability as per the finding of the tribunal i.e. 35% is incorrect. In the present case the injured was an agriculturist and he suffered amputation of the leg below knee, thereby he cannot perform any work for the whole life, therefore, it is prayed that it may be treated a case of 100% disability and accordingly compensation may be calculated applying the due multiplier of 18 as the injured was 28 years of age. In other heads also the compensation as awarded by the Tribunal is inadequate which may further be enhanced reasonably. In view of the foregoing it is submitted by him that the compensation as allowed by the Tribunal is inadequate which may be enhanced. 7. Shri Vikas Yadav, learned counsel appearing on behalf of driver-respondent No.2 contends that the plea with respect to not having LMV driving licence is of no substance in light of the Division Bench judgment of this Court in the case of Soram Bai v. Pawan Yadav and others, 2008 ACJ 2748. However, the finding as recorded by the Tribunal on the point of having a LMV licence for driving a vehicle less than 7500 Kgs. weight may be upheld. It is also contended that the injured was sitting as a gratuitous passenger which is apparent from the evidence adduced by the claimant himself along with other evidence. It is also said that in the FIR it has been specifically mentioned that the injured while sitting in a transport vehicle along with his goods it turned turtle due to rash and negligent driving of the driver, however, it cannot be accepted. He was not sitting as a gratuitous passenger, therefore, the finding as recorded by the Tribunal is in accordance with law, therefore, such finding may be upheld. The Tribunal awarded adequate compensation, therefore, the appeal seeking enhancement of compensation may be dismissed. 8. After having heard learned counsel appearing on behalf of the parties, first of all the issue regarding the driving licence possessed by the driver is required to be dealt with. In the judgment of Oriental Insurance Co. The Tribunal awarded adequate compensation, therefore, the appeal seeking enhancement of compensation may be dismissed. 8. After having heard learned counsel appearing on behalf of the parties, first of all the issue regarding the driving licence possessed by the driver is required to be dealt with. In the judgment of Oriental Insurance Co. Ltd. v. Angad Kol and others, 2009 (1) JLJ 313 (SC) = 2009 ACJ 1411 the apex Court held that if the driving licence was granted for 20 years, it may be presumed that it was issued for the purpose of LMV and it cannot be accepted as licence of transport vehicle, which may be issued only for 3 years. As per document Ex. D-2 it is apparent that the licence has been issued in favour of the injured for 2011 (178) DLT 128 years. In such circumstances, argument advanced by Shri Bhaskar Agrawal learned counsel appearing on behalf of the Insurance Company seems to be justified and deserves to be accepted. The judgment of the Division Bench of this Court as relied upon is of prior date from the judgment of the apex Court. The said judgment of Angad Kol (supra) has not been considered by the Division Bench. In such circumstances relying upon the judgment of the apex Court in the case of Angad Kol (supra), in the opinion of this Court, the finding as recorded by the Tribunal that the vehicle was not less than 7500 Kgs. weight is unsustainable in law, however, such finding is liable to be set aside. 9. So far as the finding on the point of gratuitous passenger as recorded by the Tribunal is concerned. I have gone through the record and as per the FIR it is apparent that the injured was sitting along with his goods. That may be substantive piece of evidence, unless contrary is proved by the other-side. In the opinion of this Court the argument as advanced by Shri Agrawal cannot be accepted, however, it is to be held that the injured was sitting in a transport vehicle along with his goods at the relevant point of time and not as gratuitous passenger, which turned turtle, therefore, he received injuries. 10. Now coming on the point of enhancement it is seen from the record that the accident took place in November, 2007. 10. Now coming on the point of enhancement it is seen from the record that the accident took place in November, 2007. The injured was an agriculturist, however, his earning, cannot be accepted less than Rs. 3,000/-. If we accept such earning, the annual earning comes to Rs. 36,000/-. It is seen from the' record that it is a case of amputation below knee and for the purpose of percentage of the said disability, Second Schedule of Workmen 's Compensation Act is having its application. If we accept Entry No.21 of the said Schedule, the disability shall be to the extent of 50%. Accordingly, if we accept the said disability, the future loss of earning is required to be calculated by accepting 50% loss of earning, thereby annual loss comes to Rs. 18,000/- and looking to the age of the injured multiplier of 18 would be applicable, thereby general damages for future loss comes to Rs. 3,24,000/- which is liable to be enhanced in place of Rs. 1,68,000/- as awarded by the Tribunal. In other heads, the compensation as awarded is in lower side, however, it is further liable to be enhanced by Rs. 40,000/- in lump sum. In other head i.e. medical head the Tribunal has rightly awarded the compensation in accordance with the medical bills available on record. Rs. 2,000/- in the head of loss of estate has wrongly been awarded, however, such amount may not be enchanced. Thus, the total compensation comes to the tune of Rs. 3,24,000/- plus Rs. 1,10,000/- plus Rs. 20,000/- in the head of special diet, attendant and pain and suffering plus Rs. 40,000/- which is enhanced in the said head, thus the total compensation comes to Rs. 4,94,000/- If we deduct the amount awarded by the tribunal i.e. Rs. 3,25,000/- then the enhanced amount comes to Rs. 1,69,000/-. 11. In view of the discussion as made hereinabove, it is apparent that the Insurance Company cannot be held liable jointly and severally to pay the compensation in view of having LMV licence. Therefore, in light of the judgment of apex Court in the case of Angad Kol itself Insurance Company must pay the amount first then it may recover the same from the respondent No.3 and 4. 12. Accordingly, the appeal filed by the Insurance Company as well as the claimant are allowed in part. Therefore, in light of the judgment of apex Court in the case of Angad Kol itself Insurance Company must pay the amount first then it may recover the same from the respondent No.3 and 4. 12. Accordingly, the appeal filed by the Insurance Company as well as the claimant are allowed in part. The finding with respect to the liability to pay compensation jointly and severally as held against the Insurance Company is hereby set aside. The enhancement of Rs. 1,69,000/- is being directed by allowing the appeal filed by the claimant. However, in the facts and circumstances of the case and looking to the fact that the injured has suffered amputation, therefore, amount must be paid by the Insurance Company which may be recovered by it from respondent No.3 and 4. The enhanced amount shall carry interest at the rate of 7.5% per annum. In the facts and circumstances of the case, parties are directed to bear their own costs.