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Rajasthan High Court · body

2013 DIGILAW 728 (RAJ)

National Insurance Co. Ltd. v. Manbhar

2013-04-09

ALOK SHARMA

body2013
JUDGMENT 1. - The appellant National Insurance Company limited (hereinafter 'the insurance Company') by this civil miscellaneous appeal under Section 173 of the Motor Vehicles Act, 1988 (hereinafter 'the 1988 Act') has challenged the award dated 10.1.2002 passed by the judge, Motor Accident Claims Tribunal, Malpura District Tonk (hereinafter 'the Tribunal'), on a Claim Petition No. 25/1999 under Section 166 of the 1988 Act laid by the respondent claimant (hereinafter 'the claimant'). The Tribunal has allowed the claim petition of the claimant inter alia against the Insurance Company for a total compensation of Z 81,500/- (including Rs. 25,000/- already paid under Section 140 of the 1988 Act) along with interest at the rate of 9% per annum on the amount due from the date of filing claim petition till the date of payment. 2. The facts of the case are that the claimant Manbhar instituted a claim petition under Section 166 read with 140 of the 1988 Act before the Tribunal seeking a compensation of a sum of 7 4,16,000/- owing to injuries sustained by her in a motor accident of 16.10.1998 in which jeep No. RJ-26/C-0279 insured with the insurance Company under a comprehensive/ package policy was involved. The injuries alleged to be sustained by the claimant Manbhar were a bruise on the medial side of right knee and fracture of ulna bone of left arm. With regard to the fracture aforesaid an injury report and a certificate of permanent disability of the right arm to the extent of 3% was filed by the claimant, inspire of having pleaded and deposed with regard to fracture of the left forearm. 3. After service of notice of the claim petition the Insurance Company as the insurer. of the jeep No. RJ-26/C-0279 in question filed appearance and submitted a written statement. It was the specific defence of the insurance Company that the vehicle in question i.e. jeep No. RJ-26/C-0279 was insured only for the private use as per the cover note Ex.9, submitted by the claimant herself but instead was being unauthorised used at the time of the accident for hire and reward in breach of the policy conditions consequent to which the Insurance Company was entitled to be absolved of its liability to indemnify the insured no amount was payable to the injured whose remedy would be limited to the driver/ owner of the vehicle. It was in the alternative submitted that if the Insurance Company were to be directed to pay any compensation to the claimant on account of injuries sustained by her in the accident owing to the rash and negligent driving of the vehicle, the Tribunal should allow the Insurance Company by a specific order to recover the compensation paid under the Tribunal's award from the owner of the offending vehicle. It was also submitted on the merits of the claim that the whole case set up before the Tribunal was false, inasmuch as while it was pleaded in the claim petition that the claimant sustained fracture of the left forearm, the injury report exhibited before the Tribunal and proved indicated that the claimant had sustained fracture of ulna bone of the right forearm. Consequently the injury/fracture was unrelated to the accident and no compensation resulting from the accident could be claimed. it was prayed that the claim petition be dismissed. 4. The driver and owner of the offending vehicle jeep No. RJ-26/C-0279 remained ex-parte not having responded before the Tribunal in spite of service of notices of the claim petition. 5. On the basis of pleadings of the parties, the Tribunal framed the following issues: 1- vk;k fnukad 16-10-1998 dks Fkkuk ipsoj ls vkoMk eksM+ tUekxZ ij ( nq/kyh ekrk ds ikl ) vizkFkhZ la0 1 us vizkFkhZ la0 2 ds fu;kstu esa ,oa fgrkFkZ o ykHkkFkZ okgu thi dekaMj la[;k vkj0ts0 26 th 0279 dks xyr rst xfr ykijokgh ls pykdj nq?kZVuk dkfjr dh] ftlls izkFkhZ;k eql] euHkj ds 'kjhj ij la?kkrd o lk/kkj.k mi gfr;k dkfjr gqbZ rFkk nq?kZVuk esa fyIr okgu vizkFkhZ la0 3 ds ;gka lajf{kr Fkk\ ------vkosfndk 2- vk;k vkosfndk dqy :0 4]16]000@& nq?kZVuk esa Lo;a ds 'kjhj ij vkbZ xaHkhj pksVksa dh {kfriwfrZ ckcr~ izfrif{kx.k ls izkIr djus dh vf/kdkfj.kh gSA ----- vkosfndk 3- vk;k vizkFkhZ chek daiuh }kjk fy, x, mtzkr dk D;k vlj gS\ -------vizkFkhZ 4- vuqrks"k\ 6. With regard to issue No. 1, the Tribunal held that the offending jeep No. RJ- 26/C-0279 in the ownership of Ramdhan was being driven by Ramesh, who had since the accident expired and substituted through his legal representatives in the claim petition. With regard to issue No. 1, the Tribunal held that the offending jeep No. RJ- 26/C-0279 in the ownership of Ramdhan was being driven by Ramesh, who had since the accident expired and substituted through his legal representatives in the claim petition. With reference to issue No. 3 with regard to avoidance of liability of the insurance Company to pay the compensation for reason of unauthorised user of the vehicle by the insured-a private use vehicle used for carrying passengers for hire and reward-the Tribunal held that there was no evidence before it that jeep No. RJ-26/C-0279 insured under comprehensive package policy, was being run for hire and reward. Consequently the defence of the insurance Company was negatived. In respect of issue No. 2 the Tribunal held that the claimant having suffered 3% permanent disability of the right forearm would deprive her earning capacity to an extent of 30%. Based on the loss of earning capacity resulting from the proved accident the Tribunal arrived at a compensation of Rs. 71,280/- payable to the claimant. An amount Rs. 4,400/- was added on account of medical expenses incurred for the treatment of the fracture and Rs. 6,000/- awarded on account of non-pecuniary compensation for pain and suffering to the claimant resulting from the injuries. Thus the compensation determined for the injuries suffered by the claimant in the accident of 16.10.1998 aggregated to Rs. 81,500/-. it was directed that Rs. 25,000/- having already been paid under the No fault liability (Section 140 of 1988 Act) the remainder Rs. 56,500/- be paid to the claimant with interest @ 9% per annum. 7. Mr. Vizzy Agrawal, learned counsel for the appellant Insurance Company submits that the award dated 10.1.2002 passed by the Tribunal is absolutely perverse, inasmuch as the Tribunal held that there was no evidence of the use of the insured vehicle jeep No. Rj-26/C-0279-registered and insured for private use-for hire and reward. Counsel submits that the cover note Ex.9 before the Tribunal conclusively showed that the while jeep was registered and insured only for private use, the claimant Manbhar herself in her cross-examination has admitted the fact that she was travelling in the offending vehicle jeep No. RJ-26/C- 0279 at the time of accident after having paid a charge for the purpose. It was further submitted that the claimant's witness Meera AW-4 also admitted that she along with ten others had paid Rs. It was further submitted that the claimant's witness Meera AW-4 also admitted that she along with ten others had paid Rs. 50/- per passenger for travelling in jeep No. Rj- 26/C-0279. Counsel submits that the evidence of the claimant and her witness Meera AW-4 has been inexplicably overlooked by the Tribunal and nor had the Tribunal taken into consideration Ex.9, the cover note of the insurance of the vehicle in question, which clearly indicated that the jeep No. RJ-26/C-0279 was registered only for private use. The Tribunal, counsel submits, should, on evidence before it, have absolved the insurance Company of its liability to pay compensation, for evident breach of the insurance policy and should have fixed the liability for the payment of the compensation only on the owner and driver of the offending vehicle No. RJ-26/C-0279. Counsel further submits that even otherwise the claim petition ought to have been rejected also on merits on account of claimant's averments in the claim petition before the Tribunal and deposition thereon with regard to the injury suffered by her in the accident being contrary to the permanent disability certificate filed. It was submitted that even while the claimant had pleaded that she sustained a grievous injury on her left forearm as she did in her deposition before the Tribunal, the injury report and the permanent disability certificate she relied upon in support there of indicated that the claimant had sustained a fracture of her ulna bone on her right forearm. It was submitted that thus the permanent disability. certificate evidently did not relate to the injury suffered in the accident of 16.10.1998 and compensation computed and based thereon was liable to be set aside. It was then submitted that even though the adjudication of a claim petition under Section 166 of the 1988 Act is summary in nature, yet the general principles applicable for adjudication of a case apply with equal force for adjudication of claim petitions tinder Section 166 of the 1988 Act. Counsel submits that it is trite that no evidence contrary to the pleadings can be allowed to led in any judicial proceeding as has been permitted by the Tribunal and relied upon in the impugned award dated 10.1.2002. Counsel submits that it is trite that no evidence contrary to the pleadings can be allowed to led in any judicial proceeding as has been permitted by the Tribunal and relied upon in the impugned award dated 10.1.2002. It has been further submitted that the permanent disability certificate submitted by the claimant could not have been relied upon because the doctor who issued the same was not examined before the Tribunal and did not prove the same, rendering the said permanent disability certificate inadmissible in evidence. Counsel further submitted that in any event of the matter, the Tribunal has not disclosed the formula/ basis by which a 3% disability allegedly suffered by the claimant would translate into 30% loss of earning capacity without reference to nature of work done by the claimant for her livelihood. Counsel submits that the Hon'ble Supreme Court in case of United India Insurance Co. Ltd. v. Shila Datta, (2011) 10 SCC 509 , has held that if an Insurance Company is impluaded as party, it is open for it to agitate all defences without any limitation and file appeals on all grounds available and not be limited by Section 149(2) of the 1988 Act. Counsel submits that the compensation of Rs. 71,280/- awarded to the claimant in facts of the case is wholly excessive and hence should be accordingly reduced. 8. Mr. B.R. Rana, learned counsel appearing on behalf of the claimant would submit that the claimant is an innocent and illiterate lady, who could not be expected to determine the nature of use of the vehicle so inure, with the Insurance Company before using it as a passenger vehicle. He s )m that the claimant had suffered fracture in her right forearm and the pleadings contrary thereto and deposition in support relating to fracture in the left forearm was occasioned by the negligence of the Advocate engaged by her before the Tribunal. This it is submitted should not work to the claimant's detriment, more so in view of the fact that the injury per se on the person of the claimant owing to the accident is not disputed. It is submitted that by virtue of fracture of the claimant's right forearm, the domestic work of the claimant was adversely affected as was her eating capacity as a casual coolie. It is submitted that by virtue of fracture of the claimant's right forearm, the domestic work of the claimant was adversely affected as was her eating capacity as a casual coolie. it was also submitted that even though there is no mathematical formula to arrive at the loss of earning capacity with reference to permanent disability, in the facts of the case the loss of earning capacity to the extent of 30% on approximation basis has been rightly arrived at by the learned Tribunal. It was also submitted that in the facts of the case the appeal challenging the award dated 10.1.2002 should be dismissed-as the award is not excessive. In the alternative it was submitted that if for reasons of fundamental breach of conditions of the insurance policy of vehicle jeep No. RJ- 26/C-0279, the appeal were to be allowed, yet the compensation awarded by the learned Tribunal and paid to the claimant not be directed to be restituted as a consequence to the Insurance Company but the appellant Insurance Company be held only entitled to recover the award amount from the registered owner and/ or driver of the offending vehicle in question i.e. jeep No. RJ-26/C-0279. 9. Heard learned counsel for the appellant Insurance Company, claimant as also the owner of the offending vehicle jeep No. RJ-26/C-0279 and perused the impugned award dated 10.1.2002. 10. In my considered opinion from the material on record of the Tribunal it is evident that the offending vehicle jeep No. RJ-26/C-0279 registered for private use was in the ownership of respondent No. 3. Ramdhan (Exhibit A-9). It was insured with the appellant Insurance Company only for the private use. From the statements of claimant Manbhar AW-1 and her witness Meera AW-4 it is evident that the insured jeep No. RJ-26/C-0279 was being used for ferrying passengers for hire and reward when owing to rash and negligent driving it overturned. The Tribunal's finding that there was no evidence about the use of the vehicle registered and insured only for private use as taxi is wholly perverse. The Tribunal failed to take into consideration the admission of the claimant and her witness in their cross-examination as also the documentary evidence (the cover note Ex.9) indicating the nature of -insurance of the jeep No. RJ-26/C-0279 only for "private use", but it was used as a taxi at the time of the accident. The Tribunal failed to take into consideration the admission of the claimant and her witness in their cross-examination as also the documentary evidence (the cover note Ex.9) indicating the nature of -insurance of the jeep No. RJ-26/C-0279 only for "private use", but it was used as a taxi at the time of the accident. The breach of a fundamental condition of the insurance policy issued by the insurance Company in favour of the owner (Ramdhan) of the jeep No. RJ-26/C-0279 was thus exfacie evident and proved before the Tribunal. Therefore the appellant Insurance Company has a substantial case for avoidance of its liability to pay the compensation awarded by the Tribunal for the negligence of the driver of jeep No. RJ-26/C-0279 resulting in grievous injury to the claimant. However, following the judgment of the Hon'ble Supreme Court in case of National Insurance Co. Ltd. v. Swaran Singh, (2004) 3 SCC 297 , 1 am of the considered view that as the claimant is a lady of poor means, it would be just and proper to direct the appellant insurance Company to discharge the liability towards payment of compensation, as finally determined in this appeal, to the claimant. Thereafter the appellant insurance Company would be entitled to recover the award amount jointly and severally from the registered owner/ driver of the offending vehicle i.e. jeep No. RJ-26/C- 0279 in pursuance of this order passed in the Civil miscellaneous appeal at hand. 11. Mr. Vizzy Agrawal, learned counsel for the appellant Insurance Company would submit that even though the insurance Company has been held entitled to recover the award amount to be paid or paid to the claimant from the owner of the offending vehicle jeep No. RJ-26/C-0279, yet the appellant Insurance Company is within its rights to submit that the compensation of f Rs. 1,500/- (minus Rs. 25,000/-) along with interest at the rate of 9% per annum awarded by the learned Tribunal is excessive. For one, he submits that while the pleadings and evidence of the claimant before the Tribunal indicated the fracture of ulna bone of her left forearm, the injury report and X-ray submitted by the claimant indicated that the claimant suffered fracture of right forearm. For one, he submits that while the pleadings and evidence of the claimant before the Tribunal indicated the fracture of ulna bone of her left forearm, the injury report and X-ray submitted by the claimant indicated that the claimant suffered fracture of right forearm. It is submitted that aside of above contradiction in the pleadings, a simple fracture of the right forearm resulting into 3% permanent disability ought not to have entailed assessment of loss of earning capacity of 30% and compensation to the tune of Rs. 71,280/-. It is submitted that the compensation is exfacie excessive in the, context of the year of the accident i.e. 1998, the economic status of the claimant and work done by her .which has relevance to "loss of earning capacity". 12. Mr. B.R. Rana, learned counsel for the claimant submits that the claimant is a labourer and had suffered a fracture of the right forearm which would have long term effect on her earning capacity. He submits that therefore the compensation awarded by the Tribunal is just and proper. 13. Having heard learned counsel for the appellant insurance Company and the claimant, I am of the considered view that in the facts of the case the compensation of Rs. 71,280/- awarded by the learned Tribunal is quite clearly excessive, even if the contradictions between the pleadings, deposition before the Tribunal on the one hand and the documents filed on the other were to be overlooked. I am further of the view that the permanent disability certificate relied upon by the claimant could not have been taken into consideration by the Tribunal as it was inadmissible in evidence in view of the fact that the doctor who issued the disability certificate was admittedly not examined before the Tribunal. Aside of the above, the basis of arriving at 30% loss of earning capacity perverse on a permanent disability certificate showing 3% disability of the right forearm is opaque and cannot withstand judicial scrutiny in this appeal. 14. However, in the overall facts and circumstances of the case, the ends of justice would be met if the award dated 10.1.2002 is modified and the sum of Rs. 71,280/- for loss of earning capacity is reduced by 50% to Rs. 35,640/- as compensation on account of the grievous injury to the right forearm suffered by the claimant in the accident in issue. 71,280/- for loss of earning capacity is reduced by 50% to Rs. 35,640/- as compensation on account of the grievous injury to the right forearm suffered by the claimant in the accident in issue. The award with regard to medical expenses at Rs. 4,400/-, and for pain and suffering at Rs. 6000/- and interest at the rate of 9% on the due/ outstanding amount from the date of filing of the claim petition till the date of payment shall remain the same and is sustained in appeal. 15. Consequently the award dated 10.1.2002 passed by the Motor Accident Claims Tribunal Malpura District Tonk is partially modified. it is directed that the appellant insurance Company shall pay to the claimant a sum of Rs. 35,640/- only as compensation for the grievous injury suffered to her right forearm in the accident resulting from the rash and negligent driving of jeep bearing No. RJ-26/C- 0279 insured with Insurance Company. The claimant shall, as directed by the Tribunal, be also entitled to receive ? 4,400/- toward medical expenses and Rs. 6,000/- on account of pain and suffering. The aggregate amount of the award would thus stand at Rs. 46,040/- only (Forty Six Thousand and forty only). Deducting the amount of compensation paid for No Fault Liability under Section 140 of the 1988 Act, for the remainder amount the claimant would be entitled to interest at the rate of 9% per annum from the date of this order to the date of payment.Appeal disposed of accordingly.Appeal disposed of. *******