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Madhya Pradesh High Court · body

2013 DIGILAW 208 (MP)

Kantabai v. Balu Singh

2013-02-19

J.K.MAHESHWARI

body2013
JUDGMENT : Both these appeals are arising out of the award dated 18-11-2009 passed by the 3rd Additional Member, Motor Accident Claims Tribunal, Indore in Claim Case No. 06/2009 whereby in a case of amputation below the knee accepting the disability to the extent of 60% compensation to the tune of Rs. 4,1 1,600/- has been awarded. 2. M. A. No. 880/2010 has been filed by the claimant assailing the inadequacy of the compensation and also raising the issue of liability fastened against the owner and driver. M. A. No. 238/2010 has been filed by the owner and driver challenging the issue of liability and exoneration of the insurance company by the tribunal, however, both these appeals are being decided by the common order. 3. Facts of the case in brief are that on 25-9-2008 when the claimant was coming after performing her duties as a pedestrian and reached in front of Rajani Bhawan near High Court, M. G. Road, Indore driver driving bus bearing No. MKI 1810 rashly and negligently dashed her whereby she received crush injury in her left leg. After having treatment her left leg below the knee was amputated. The claimant was 35 years aged lady performing the house-hold labour work with different persons and earning Rs. 5,000/- per month. On account of receiving injury she has become permanent disabled, therefore, compensation to the tune of Rs. 15,00,000/- by filing an application under section 166 of the Motor Vehicles Act, 1988 (for brevity, hereinafter referred to as 'the Act') was claimed. 4. Insurance company as well as owner and driver have resisted the claim on various grounds. Insurance company in its return raised objection that the vehicle was being driven in violation of the terms and conditions of the policy and the driver was not possessing valid driving licence, therefore, insurance company is not liable to pay the amount of compensation. 5. Learned Claims Tribunal found that the accident has taken place on 25-9-2008 wherein the injured received crush injuries in her left leg below the knee due to which it was amputated. However, accepting the earning @ Rs. 3,000/-per month commensurate to the disability of 60%, applying the multiplier of 16 awarded a sum of Rs. 3,45,500/- in future loss of earning, Rs. 29,000/- in medical expenses, Rs. 25,000/- in pain and suffering, Rs. 2,000/- for attendant and Rs. However, accepting the earning @ Rs. 3,000/-per month commensurate to the disability of 60%, applying the multiplier of 16 awarded a sum of Rs. 3,45,500/- in future loss of earning, Rs. 29,000/- in medical expenses, Rs. 25,000/- in pain and suffering, Rs. 2,000/- for attendant and Rs. 10,000/-for special diet, making total compensation of Rs. 4,11,600/-. The tribunal further recorded a finding that application for renewal of the permit was submitted by a delay, therefore, the benefit of section 81(5) of the Act is not available to the owner however exonerating the insurance company directed that the owner and driver are liable for payment of the aforementioned amount along with interest. 6. Shri Lokesh Mehta, learned counsel representing the claimant has strenuously urged that the compensation so awarded by the tribunal in future loss of earning is inadequate looking to the nature of the work which the claimant was performing prior to the accident. It is also submitted that the earning @ Rs. 3,000/-per month so accepted by the tribunal is inappropriate which may be reasonably enhanced and applying the proper multiplier compensation may be enhanced. It is also contended that in other heads the compensation so awarded by the tribunal is also inadequate. In addition thereto because the amputation is below the knee, however, for artificial leg some amount ought to be awarded. It is also contended that exoneration of the insurance company is contrary to the provisions of section 81(5) of the Act, therefore, the finding of exoneration of the insurance company may be set aside and the amount of compensation may be directed to be paid jointly and severally by respondents. In view of the foregoing it is urged that the appeal filed by the claimant may be allowed. 7. Shri Vishal Baheti, learned counsel representing the owner and driver contends that on filing an application for renewal of the permit and after its acceptance by the Regional Transport Authority and thereafter granting renewal of the permit it would be with effect from the date of such expiry. It is contended by him that there was delay in submission of the application for renewal of the permit, but after renewal such delay is having no consequence and by operation of law as clarified under sub-section (5) of section 81 of the Act said permit would be valid for 5 years from the date of its expiry. It is contended by him that there was delay in submission of the application for renewal of the permit, but after renewal such delay is having no consequence and by operation of law as clarified under sub-section (5) of section 81 of the Act said permit would be valid for 5 years from the date of its expiry. It is submitted by him that grant of permit and its renewal are two different situations, once a matter relates to renewal then on allowing application, renewal of permit would relate back to the date of expiry of permit. In support of the said contention reliance has been placed on a Division Bench judgment of this Court in the case of M. P. State Road Transport Corporation vs. State Transport Appellate Tribunal, reported in 7992 MPLJ 931. In view of the foregoing it is urged that liability fastened by the tribunal may be modified making it joint and several along with insurance company and finding of exoneration of insurance company may be set aside. 8. Shri S. V. Dandwate, learned counsel representing the insurance company in counter to the arguments of Shri Baheti contended that the application for renewal should be filed prior to 15 days of its expiry and if it is not filed as is the situation prevalent in the present case benefit of section 81(5) is (i) plying any vehicle - (1) without payment of tax due on such vehicle; (2) without payment of tax during the grace period allowed for payment of such tax and then stop the plying of such vehicle; (3) on any unauthorized route; (ii) making unauthorized trips : Provided that in computing then number of punishments for the purpose of clause (o), any punishment stayed by the order of an appellate authority shall not be taken into account: Provided further that no application under this sub-section shall be rejected unless an opportunity of being heard is given to the applicant. (5) Where a permit has been renewed under this section after the expiry of the period thereof, such renewal shall have effect from the date of such expiry irrespective of whether or not a temporary permit has been granted under clause (d) of section 87, and where a temporary permit has been granted, the fee paid in respect of such temporary permit shall be refunded." Bare reading of the aforesaid it is apparent that on submission of an application for fresh grant or renewal of a permit other than temporary permit or a special permit shall be effective for a period of five year from date of grant or its renewal. As per sub-section (2) an application for renewal is required to be submitted prior to fifteen days from the date of its expiry. As per sub-section (3) the Regional Transport Authority or the State Transport Authority has conferred with the discretion to entertain an application for renewal after the last date specified in sub-section (2) if he is satisfied that a person applying for renewal was prevented by good and sufficient cause, within the time specified. As per sub-section (5) on renewal of the permit under section 81 after expiry of the period of earlier grant its renewal shall have effect from the date of such expiry. 10. Thus it is clear that a permit renewed shall be effective from the date of such expiry as per sub-section (5). In the said context if document Ex.D-5 filed in the present case is visualized then it is clear that renewal was ordered on an application submitted on 10-8-2009, as per order dated 11-8-2009 upto 18-9-2013. In the said context, if the language of section 81(1) is perused, then from the date of application or from the order, the period of 5 year has not yet elapsed upto 18-9-2013 i.e. the date of renewal. But simultaneously if we see the document of renewal Ex.D-5C, then the initial grant was from 19-9-2003 to 18-9-2008 i.e. for the period of 5 years. In front of such column, the authority has rounded up the period of initial grant and by putting the cross, date was clarified as 11-8-2009. The meaning of the said date is not understandable to this Court. By plain reading of sub-section (1) of section 81, either the grant or the renewal would be valid for the period of 5 years. The meaning of the said date is not understandable to this Court. By plain reading of sub-section (1) of section 81, either the grant or the renewal would be valid for the period of 5 years. But if the date of renewal is accepted as 11-8-2009, then looking the date of expiry of that renewal i.e. 18-9-2013, the period of 5 years shall not elapse by that date. Simultaneously, if sub-section (5) of section 81 is perused, then it is apparent that on renewal of the permit under section 81, such renewal shall be effective from the date of such expiry irrespective of whether or not the temporary permit has been granted under clause (d) of section 87 and whether a temporary permit has been granted, the fee paid in respect of such temporary permit shall be refundable. On conjoint reading of section 81(1) and 81(5), it is clear that a permit shall be effective from the date of issuance or renewal thereof for a period of five years, however either initial grant or renewal shall only be valid for 5 years. After its renewal under section 81, the said renewal shall be effective from the date of expiry of the earlier grant. Thus, either grant or renewal it shall be for the period of 5 years. But as per Ex.D-5C, if the period of renewal is accepted as 11-8-2009 and the date of expiry of the renewal of permit i.e. 18-9-2013 then period of 5 year is not completed, therefore, the contention advanced by Shri Dandwate does not appear to be justifiable. In the context of sub-section (5) of section 81, in any case looking to the ambiguity in the document Ex.D-5C, the issuing authority i.e. R.T.O. may explain it before trial Court. In such circumstances, to have the clarity of the document Ex.D-5C the claims tribunal may record the statement of transport authority by giving explanation of the dates in the context of the provision of sub-section (1) and (5) of section 81 of the Motor Vehicles Act. But this Court is having no hesitation to say that by the conjoint reading of these sub-sections, the grant of permit shall be valid for 5 years and renewal thereof would also be valid for 5 years, and in the case of renewal, it would be operative from the date of expiry of the initial grant. 11. But this Court is having no hesitation to say that by the conjoint reading of these sub-sections, the grant of permit shall be valid for 5 years and renewal thereof would also be valid for 5 years, and in the case of renewal, it would be operative from the date of expiry of the initial grant. 11. In view of the foregoing observations, for a limited purpose of recording the statement of RTO on Ex.D-5C and for clarification of the dates, the matter is remitted back. The claims tribunal shall record the statement of RTO and thereafter in the light of observation made hereinabove, shall decide the issue of liability afresh. 12. Now coming to the point of enhancement, in the facts of the present case compensation awarded by the Claims Tribunal for future loss of earning appears to be just because it has been awarded applying the multiplier method and the earning so accepted on the date of accident is also proper. But for pain and suffering in a case of amputation and in other heads the amount so awarded is inadequate. Simultaneously some amount further deserves to be awarded for artificial limb looking to the fact that the amputation is below the knee. Thus for the pain and suffering and in other heads Rs. 50,000/- deserves to be added while for artificial limb Rs. 50,000/- further deserves to be awarded in addition to the compensation awarded by the tribunal. However, the appeal filed by the claimant for the purpose of enhancement is allowed by directing enhancement of Rs. 1,00,000/-. 13. It is seen from the record that compensation to the tune of Rs. 4,11,600/-has been awarded, but on depositing Rs. 75,000/- in the appeal filed by the owner and driver assailing the issue of liability and exoneration of the insurance company the claimant could not get any amount. The issue of liability is in between the owner, driver and the insurance company, which is required to be adjudicated in view of the observations made hereinabove by Claims Tribunal. In such circumstances, in the facts of this case it is directed that the amount of compensation Rs. 5,11,600/- in total be paid by the insurance company within two months along with interest. It is made clear here that on Rs. In such circumstances, in the facts of this case it is directed that the amount of compensation Rs. 5,11,600/- in total be paid by the insurance company within two months along with interest. It is made clear here that on Rs. 4,11,600/- awarded by the tribunal, interest be paid as per award and on enhanced amount, interest shall be paid @ 7.5% per annum. It is further made clear here that after decision afresh on the issue of liability as per remand directed by this Court, the claims tribunal shall decide the issue of liability within a period of three months. It is further made clear that by the decision on the issue of liability by the tribunal, if finding of exoneration is recorded, then the insurance company would be at liberty to recover the entire amount from the owner and driver. It is also made clear here that if the issue of liability is decided in favour of the owner and driver by the claims tribunal, then insurance company would not be entitled to recover the amount so paid and owner and driver may take recourse to take refund of the amount deposited by them. It is also made clear that if either the owner, driver or the insurance company feels aggrieved by the finding of the claims tribunal recorded afresh, they would be at liberty to assail it in accordance with law. Parties present in the Court shall appear before the concerned tribunal on 15th April, 2013 and the Registry of this Court shall posthaste transmit the record to the tribunal with a view to reach here on or before the said date. In the facts of this case, parties to bear their own costs. Order accordingly.