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2012 DIGILAW 413 (RAJ)

National Insurance Co. Ltd. v. Ashok Kr. Raiger

2012-02-10

NISHA GUPTA

body2012
GUPTA, J.—This misc. appeal has been filed under Section 173 of the Motor Vehicles Act, 1988 against the award dated 16.1.2003 passed by learned MACT, Jaipur in MAC No. 951/1995 whereby which a sum of Rs. 1,55,000/- with interest has been awarded in favour of the claimant-respondent No.1. 2. The brief facts giving rise to this appeal as alleged in the claim petition are that on 12.7.1995, injured claimant/respondent No.1 Ashok Kumar Raigar filed an application for compensation under Section 166 of the Motor Vehicles Act in respect to injuries alleged to have been sustained by him in an accident took place on 22.4.1995 when he was going on "Luna" and met with an accident with Truck No. HR-29-0486 which was being driven rashly and negligent by its driver, respondent No.2 Ram Kishan. 3. Heard learned counsel for the parties and perused the relevant record especially the impugned judgment and award. 4. The contention of the counsel for the appellant insurance company is that there was no evidence of negligence on the part of the Truck driver and issue No.1 has not been correctly decided by he learned Tribunal. He further submitted that the amount of compensation which was awarded for injury is excessive in nature and rate of interest with a condition to increase from 9% to 12% if payment is not made within 60 days is against the settled preposition of law. 5. Regarding issue No.1, claimant-respondent No.1 himself has stated that the offending truck hit him when he was going alone the road and his statement was further corroborated by Girdhari, AW.1 who is eye-witness of the incident and having hotel at the place of incident and issue No.1 has been rightly decided in favour of the claimant looking to the evidence produced by the claimant. 6. It was further submitted by the appellant that issue No.3 has been decided holding therein that the driver of the vehicle was not having valid license. Inspite of this, liability has been fastened on the insurance company which cannot be sustained in view of verdict of the Supreme Court in the case of National Insurance Co. Ltd. vs. Parvathneni & Anr., 2009(8) SCC 785 = 2009(2) CCR 1274 (SC). It has not been disputed by both the counsel that the view taken by he Supreme Court in the case of National Insurance Co. Ltd. vs. Parvathneni & Anr., 2009(8) SCC 785 = 2009(2) CCR 1274 (SC). It has not been disputed by both the counsel that the view taken by he Supreme Court in the case of National Insurance Co. Ltd. vs. Darshan Devi (2008) 7 SCC 416 and Oriental Insurance Co. vs. Brij Mohan (2007) 7 SCC 56 = RLW 2007(4) SC 3013 still holds the field and it was the view of the Apex Court that even if the insurance company is not liable, yet it must pay compensation to the claimant and later on recover it from the owner of the vehicle. But, contention of the present appellant is that the Apex Court has referred the question to the Larger Bench and the question is still in consideration and hence, liability could not be fastened on the insurance company. However, looking to the fact that settled view is that if the insurance company has not liability yet it must pay compensation to the claimant and later on recover it from the owner of the vehicle, the learned Tribunal has rightly given liberty to the insurance company to recover compensation from the owner of the offending vehicle and hence, there is no fault in this finding of the Tribunal. 7. It was also submitted by the counsel for the appellant that initially liability has been fastened on the owner of the offending Truck and 60 days time has been granted to pay the amount of compensation and after that increase in the rate of interest from 9% to 12% has been ordered which is against the settled preposition of law. The counsel has relied on the decision in the case of National Insurance Co. Ltd. vs. Keshav Bahadur, 2004(2) SCC 370 = RLW 2004(1) SC 149 wherein it has been held as under : "Once the discretion has been exercised by the Tribunal to award simple interest on the amount of compensation to be awarded at a particular rate and from a particular date, there is no scope for retrospective enhancement for default in payment of compensation. No express or implied power in this regard can be culled out from Section 110 CC of the Act or Section 71 of the new Act. No express or implied power in this regard can be culled out from Section 110 CC of the Act or Section 71 of the new Act. Such a direction in the award for retrospective enhancement of interest for default in payment of the compensation together with interest payable thereon virtually amounts to imposition of penalty which is not statutorily envisaged and prescribed." 8. Looking at the above, the condition to increase in the rate of interest from 9% to 12% is unwarranted and cannot be sustained and it is directed that only 9% interest will be payable from the date of award till realization of the amount of compensation. 9. The last contention of the learned counsel for the appellant is that Rs. 75,000/- has been awarded for loss of income which is excessive and should be proportionately reduced. The claimant himself has stated that his work was of making shoe and he was earning Rs. 4000/- per month from this. The contention of the counsel for he appellant is that still the claimant can work and he has not sustained any loss in his earning capacity. He has further relied on decision in the case of Raj Kumar vs. Ajay Kumar & Anr., 2010 SC Candid 919 wherein principle has been discussed as under : "13. We may now summarise the principles discussed above: (i) All injuries (or permanent disabilities arising from injuries), do not result in loss of earning capacity. (ii) The percentage of permanent disability with reference to the whole body of a person, cannot be assumed to be the percentage of loss of earning capacity. To put it differently, the percentage of loss of earning capacity is not the same as the percentage of permanent disability (except in a few cases, where the Tribunal on the basis of evidence, concludes that percentage of loss of earning capacity is the same as percentage of permanent disability). (iii) The doctor who treated an injured claimant or who examined him subsequently to assess the extent of his permanent disability can give evidence only in regard the extent of permanent disability. The loss of earning capacity is something that will have to be assessed by the Tribunal with reference to the evidence in entirety. (iii) The doctor who treated an injured claimant or who examined him subsequently to assess the extent of his permanent disability can give evidence only in regard the extent of permanent disability. The loss of earning capacity is something that will have to be assessed by the Tribunal with reference to the evidence in entirety. (iv) The same permanent disability may result in different percentages of loss of earning capacity in different persons, depending upon the nature of profession occupation or job, age, education and other factors." 10. In the light of above legal position, Exhibit-8, the disability certificate of the present claimant does to show that he is having difficulty in sitting cross leg and walking. The claimant has stated that he cannot sit but, this fact has not been substantiated by Exhibit-8. Admittedly, his work is of making shoe and his earning capacity has not been reduced substantially looking to he fact that he can still sit and work. At the most, it can be inferred that during the course of treatment, he has suffered loss of earning and further in future there could be some loss of earning capacity. Hence, Rs. 75,000/- which has been awarded by the learned Tribunal to the claimant for loss of earning is higher and should be appropriately reduced. Looking to the fact that the present claimant can still undertake his earning and the fact that during the course of treatment, some loss of earning must be occurred, a sum of Rs. 20,000/- is adequate compensation for loss of past earning and future capacity of earning instead of Rs. 75,000/- as awarded by the learned Tribunal. 11. In the result, the appeal is partly allowed and the compensation awarded by the learned Tribunal to the claimant/ respondent No.1 for loss of past earning and future capacity of earning is reduced from Rs. 75,000/- to Rs. 20,000/- and it is directed that only 9% interest will be payable from the date of award till realization of the amount of compensation instead of increase from 9% to 12%, as directed by the Tribunal. Compensation awarded under other heads by the Tribunal and other conditions of the award shall remain the same.