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2013 DIGILAW 84 (GAU)

National Insurance Co. Ltd. v. Lalvawnga

2013-02-06

PRASANTA KUMAR SAIKIA

body2013
JUDGMENT Prasanta Kumar Saikia, J. 1. In this appeal, the award dated 2.12.2011, passed by ld. Member-cum-Presiding Officer, the Motor Accident Claims Tribunal, Aizawl in MACT Case No. 8/2008 has been called into question. By the aforesaid award, the learned Member-cum-Presiding Officer of the Motor Accident Claims Tribunal, Aizawl (in short MACT, Aizawl) had granted an award to the tune of Rs. 1,70,686/- only in favor of the appellant for sustaining injuries in an accident arising out of the use of the motor vehicle on 5.5.2007. 2. Being aggrieved by and dissatisfied with the aforesaid award, the Opposite party No. 2 in the aforesaid proceeding preferred this appeal on the grounds, stated in the memo of appeal. 3. The brief facts necessary for disposal of the present appeal are that on 5.5.2007, the vehicle bearing registration No. MZ-04 2097 (TATA Sumo) in which the respondent No. 1 herein was traveling met with an accident at a place in between Kawlkulh and Khawzawl. The respondent No. 1 would be referred to hereinafter as claimant since he initiated MACT Case No. 8/2008 which gives rise to the present appeal. 4. It is found evident from the claim petition in MACT Case No. 8/2008 that on the fateful day, the claimant was traveling in the vehicle which was driven by one C.L. Lalrotiuanga S/o Chhunchhianga. The driver had a valid license and the vehicle was insured with the appellant herein who was Opposite Party No. 2 in the claim case aforementioned. The owner of the vehicle Mr. H. Rochhunga was also arraigned as Opposite Party No. 1 therein. 5. It is the specific claim of the claimant/respondent No. 1 that the vehicle met the accident aforesaid for fault on the part of the driver and in that accident, the claimant, being one of the passengers of the aforesaid vehicle, sustained injuries on the fingers of his left hand for which his middle finger was amputated at the distal end. Though he was provided with medical and surgical treatment, he could not fully recover from the injuries, he sustained in the accident on the date aforesaid. 6. Rather, he developed contracture on the middle finger of his left hand for which his finger could not feel the sensation. It has been stated that contracture of the middle finger causes disability and the expert assessed it at about 25% permanent disability. 6. Rather, he developed contracture on the middle finger of his left hand for which his finger could not feel the sensation. It has been stated that contracture of the middle finger causes disability and the expert assessed it at about 25% permanent disability. It has been stated that soon after the incident, he was treated at Khawzawl PHC by Dr. R. Lianmawia, MBBS, Medical Officer. 7. Afterward, he was admitted at Khawzawl PHC and remained hospitalized there during the period between 5.5.2007 and 9.5.2007. He was, however, discharged on 9.5.2007. In connection with the medical treatment, he incurred an expense to the tune of Rs. 2696/- only. His further claim was that he is a cultivator by profession and earns Rs. 3750/- per month at the time when he met with the accident. 8. In the course of time, he approached the Claim Tribunal, Aizawl and filed a claim petition in the prescribed format seeking compensation under Section 140/ 166 of the Motor Vehicle Act, (in short M.V. Act). The notice of that proceeding which was registered as MACT Case No. 8/2008, was served on the opposite parties. Having been served with the notice, the opposite parties entered appearance and contested the proceeding having filed separate written statements. 9. The owner of the vehicle, as being Opposite Party No. 1, tried to resist the claim proceeding stating that the proceeding aforesaid is not maintainable for defect in form and style, that there is no cause of action, that the income certificate, furnished by the claimant, is unreliable since Magistrate First Class, Champhai District, was not the authority, as signed the work of issuing the income certificate and since he issued the certificate without holding any enquiry as to earnings of the claimant. 10. His further case was that his vehicle was duly registered with the concerned authority and was covered by Insurance policy which was issued by opposite party No. 2 therein. The policy was properly executed and it was valid at the time when the accident in question took place. Being so, even if any compensation is to be paid, then opposite party No. 2 is to pay the same on the principle of vicarious liability. 11. The policy was properly executed and it was valid at the time when the accident in question took place. Being so, even if any compensation is to be paid, then opposite party No. 2 is to pay the same on the principle of vicarious liability. 11. On the other hand, opposite party No. 2 also filed written statement stating inter alia that the claim petition is required to be dismissed on the grounds already stated in the written statement of the opposite party No. 1. Echoing the objections, raised by opposite party No. 1, the opposite party No. 2 too claims that the claim petition was actually barred by limitation and on that count alone, the claim petition needs to be dismissed. 12. The further case of the opposite party No. 2 was that neither the medical certificate assessing the permanent disability of the claimant at 25% nor the income certificate certifying the monthly income of the claimant at Rs. 3750/- can be relied upon since the Doctor who reportedly attended the claimant as well as the Magistrate who issued the income certificate were not authorities entrusted with the duty of issuing the aforesaid certificates. 13. What is important to note is that the Doctor even did not ascertain if the claimant actually sustained 25% permanent disability occasioned by vehicular accident under consideration. The evidence, he rendered in his cross examination, clearly demonstrates that his assessment as to the permanent disability on the claimant was purely a guess work and was not made on any scientific criteria. 14. In regard to income certificate, it has been stated that the learned Magistrate without ascertaining the means of earning of the claimant, issued the certificate stating that the claimant earns Rs. 3750/- p.m. What is equally surprising is that there is evidence on record to show that the claimant himself admitted that at the time relevant, he did not earn anything on his own, rather he only helps his parents who remain engaged in the profession of cultivation. In the face of above revelations, the income certificate certifying the monthly income of the claimant at Rs. 3750/- cannot be accepted as a genuine one and as such, the opposite party No. 2 too prays for dismissal of the proceeding under consideration. 15. On the above pleadings the learned trial court framed 3(three) issues:-- 1. Whether the claim petition is maintainable or not. 3750/- cannot be accepted as a genuine one and as such, the opposite party No. 2 too prays for dismissal of the proceeding under consideration. 15. On the above pleadings the learned trial court framed 3(three) issues:-- 1. Whether the claim petition is maintainable or not. 2. Whether there is any fault on the part of the driver or the owner of the vehicle involve in this case. 3. Whether the Claimant is entitled to get compensation to get compensation and if so, who is liable to pay and to what extent. 16. In order to substantiate his claim the claimant has examined as many as 4 witnesses including himself. The opposite party No. 2 did not adduce any evidence of his own. It rather chose to cross-examine the witnesses from the side of the claimant to make out its own case on demolishing the case of the claimant. The learned Tribunal on the conclusion of the trial and on hearing the parties passed the award aforesaid. It is that award which has been challenged in this appeal under Section 173 of the Motor Vehicle Act. 17. I have heard the learned counsel for the appellant as well as the learned counsel for the respondent No. 1. As stated above, the learned counsel for the appellant has assailed that the judgment impugned mainly on 3(three) grounds. For convenience of discussion, I would discuss those grounds one after another. But before we could consider those grounds, I find it necessary to know if the claimant was successful in establishing fault on the part of the driver which occasioned the accident under consideration. This is because of the reason that the claimant filed his petition under Section 166 of the Motor Vehicle Act. 18. In that connection, I have perused the award impugned to know how the learned Tribunal assessed the evidence on record to ascertain the guilt or otherwise of the driver in causing the accident which occurred at the place aforementioned on 05.05.2008. On such an exercise, I have found that the learned trial court also discussed the matter at length and opined that driver was at fault which occasioned the accident in question. For ready reference, I find it necessary to reproduce the same. 8. On such an exercise, I have found that the learned trial court also discussed the matter at length and opined that driver was at fault which occasioned the accident in question. For ready reference, I find it necessary to reproduce the same. 8. As the present case is filed under Section 166 of the M.V. Act, the Claimant has to prove the fault of the driver or owner of the vehicle. The Hon'ble Gauhati High Court in the case of M/s. United India Insurance Co. Ltd. Vrs Lalengmawia in MAC Appeal No. 9 of 2004 wherein in para 7 of the judgment held as under "I shall now consider the submission made by the Ld. Counsel for the appellant regarding the question of proving this negligence by the claimant/respondent No. 1 in the claim case, which was filed under section 166 of the Act. The burden of proving negligence is primarily on the claimant who claims compensation. It is not that the Claimant has to state before the court that the accident occurred because of the negligence on the part of the owner or the owner of the vehicle and even if there is no such specific statement of the claimant/respondent No. 1 before the court, the negligence is to be gathered from the totality of the circumstances leading to the accident. There may be in such cases where the claimant may not know at all the reason for the accident and in such circumstances it is that the claimant will not be entitled to any compensation under the provision of the Act? The answer obviously has to be in negative. In such circumstances the principle of res-ipsa loquitur applies, that means, the accident speaks of itself and tells its own story. There this maxim applies the burden is on the owner or the drive to show that in fact he was not accident and the accident did not occur because of his negligence. The Apex Court in Kaushnuma Begum (Supra) has held that the rule of strict liability and the principle in Ryland Vrs Fletcher can be followed in a claim case under the provision of the Act till a new and better principle is evolved or different situation is created by a legislation. The Apex Court in Kaushnuma Begum (Supra) has held that the rule of strict liability and the principle in Ryland Vrs Fletcher can be followed in a claim case under the provision of the Act till a new and better principle is evolved or different situation is created by a legislation. The rules of strict liability, requires the owner or the driver to show that the accident occurred due to the fault of the claimant or was the consequences of vis major or the act of God". Hence, the cause of accident is due to the fault of the driver. 19. I have found that the decision rendered by learned Tribunal on the point under consideration is based on evidence on record and same needs no interference from this Court of appeal. 20. This brings me to the next important question if the income certificate, issued by the Magistrate First Class, Champhai is reliable and acceptable. On the perusal of the evidence on record, I have found that there is enormous evidence to show that the Magistrate was not the authority entrusted with the duty of issuing the certificate in question. More important, there is nothing on record to show that the Magistrate had done some exercise to ascertain that the monthly income of the claimant at the time relevant. All these clearly demonstrate that the income certificate, stating that the claimant earns Rs. 3750/- during the time under consideration is not at all reliable. The fact that the claimant himself admitted that he only helps his father in cultivating their land only shows that the income certificate is wholly without any substance whatsoever. 21. Here, it is worth noting that the learned Tribunal also did not accept the income certificate, so issued, which was proved as Ext.C-4. But then, what was the probable income of the claimant at the time aforesaid. I have once again noticed that learned Tribunal has made a threadbare discussion to ascertain the income of the claimant at the time relevant. The relevant portion thereof is reproduced below for ready reference:-- The next point to be considered is Issue No. 3 i.e. whether the claimant is entitled to get compensation and if so, who is liable to pay and to what extent? In order to determine the income of the Claimant at the time of the accident, the Ld. The relevant portion thereof is reproduced below for ready reference:-- The next point to be considered is Issue No. 3 i.e. whether the claimant is entitled to get compensation and if so, who is liable to pay and to what extent? In order to determine the income of the Claimant at the time of the accident, the Ld. Counsel for the O.P. No. 2 urged that there is no evidence that the Magistrate, 1st Class is ever competent to issue income certificate, it would therefore be appropriate for the Tribunal to take the national income as provided in the Second Schedule of the MV Act for the purpose of assessing the income. Admittedly, there is no evidence forthcoming that the Magistrate, 1st Class, who issued the Income Certificate (Ext.- C-4) is competent to issue such certificate. Per contra to the submission advanced by the Ld. Counsel for the O.P. No. 2, the Ld Counsel for the Claimant, Rualkhuma Hmar, submitted that when the evidence on record without any deviation there from speaks of the profession (i.e. Cultivator) it would be u justified on the part of the Tribunal to take the national income as the income of the claimant for the purpose of assessment of the award and that if the Claimant was held to be a cultivator, the Minimum Wage as provided in the Notification No. B.11015/1/2009 dated 03.06.2011 issued by the Under Secretary to the government of Mizoram, Labour and Employment can be taken into consideration and that in the schedule of the said Notification, it appears, classification of works at Sl. No. 1, "Jhum Cultivator" is classified as unskilled and minimum rate of wages per day is provided as Rs. 170/-. Considered both the submissions carefully and decided that the rate quoted by the Ld. Counsel of the Claimant in the above is prospective effect and as such, not applicable in the present case as the accident has taken place on 5.5.2007. However, it may be convenient to accept notional income @ Rs. 3000/- per month for non-earning member as granted by the apex court in Laxmi Devi & Ors. Vs. Md. Tabbar & Ors. Reported in 2008 (2) (TAC) 394 SC. 22. I am quite in agreement with the decision, arrived at by the learned Tribunal vis--vis income of the claimant during the period under consideration. 3000/- per month for non-earning member as granted by the apex court in Laxmi Devi & Ors. Vs. Md. Tabbar & Ors. Reported in 2008 (2) (TAC) 394 SC. 22. I am quite in agreement with the decision, arrived at by the learned Tribunal vis--vis income of the claimant during the period under consideration. That being the position, in my opinion too, the monthly income of the claimant at the time relevant needs to be assessed at Rs. 3000/- a month, he being a non-earning member of his family. 23. So situated, let us whether the claimant sustained any wounds in the incident in question and if so, whether it is permanent injury and what was the degree of such injuries in the terms of percentage? The Doctor who attended the claimant at Khawzawl PHC was Dr. R. Lianmawia MBBS, Medical Officer. According to him, the claimant sustained injuries in the accident in question and such injuries required amputation on the left middle finger at the distal end. He also noticed that the claimant developed contracture on the left middle finger of his left hand. Therefore, he opined that the claimant sustained permanent injury and such injury caused disability which can be measured at 25%. In that connection, he issued a certificate which was proved as Ext.C-5. 24. The above claim of Doctor was put to acid test from the side of the appellant/respondent No. 2 stating that the findings of the Doctor or for that matter his certificate cannot at all be acted upon since he is not the authority to issue the certificate aforesaid, since he made no scientific examination to ascertain the degree of disability and since he issued the certificate aforesaid on mere asking of the claimant. 25. I have very carefully considered the above arguments in the light of evidence on record. On my perusal of the evidence on record, I have found that there is evidence to show that Doctor is not the authority entrusted with the duty of issuing certificate aforementioned. However, the evidence he tendered clearly reveals that the claimant sustained wounds in middle finger of the left hand which requires amputation at the distal end. The said finger also fails to experience sensation caused by the wounds aforesaid. 26. However, the evidence he tendered clearly reveals that the claimant sustained wounds in middle finger of the left hand which requires amputation at the distal end. The said finger also fails to experience sensation caused by the wounds aforesaid. 26. I have also found that the Doctor, who was examined as PW 4, did not ascertain the degree of disability applying any standard tool available. His opinion is rather based on assumption and presumption which as stated above lacks scientific basis. In that connection, learned counsel for the appellant has referred me to Part-II of Schedule-I of the Workmen's Compensation Act, 1923 to show that disability, sustained by the claimant for the accident in question can be rated as 10% permanent disability. 27. To bring home her point, she relied on the injury described at serial No. 10-A of the Part-II of the Schedule-I to the Workmen's Compensation Act, 1923. Injury at 10-A aforesaid is speaks about guillotine amputation of tip of thumb without loss of bone and such injury was rated as causing 10% permanent disability. 28. Here, it is worth noting that as per explanation to Section 163-A of the Motor Vehicle Act, the permanent disability as contemplated in that Act shall have the same meaning and extent as in the Workmen's Compensation Act, 1923. For ready reference, the relevant part is reproduced below:-- Explanation- For the purposes of this sub-section, "permanent disability" shall have the same meaning and extent as in the Workmen's Compensation Act, 1923. 29. In view of above, I am of the considered view that the degree of disability sustained by the claimant due to accident aforesaid can be measured with the help of chart of injuries as shown in the schedule to the Workmen's Compensation Act, 1923. 30. Coming back to the evidence on record, I have found that the injuries as disclosed by Ext.C-5 clearly matches with the injury described at serial No. 10-A of the Part-II of Schedule-I to the Workmen's Compensation Act. Being so, in my view, the injury sustained by the claimant in the accident under consideration can safely be concluded as having caused 10% permanent disability in the claimant. Resultantly, the opinion of the Doctor that the incident in question caused 25% disability cannot be accepted as proper assessment of the injury same, as discussed above, needs to be toned down to 10% only. Resultantly, the opinion of the Doctor that the incident in question caused 25% disability cannot be accepted as proper assessment of the injury same, as discussed above, needs to be toned down to 10% only. This question is accordingly decided. 31. Referring to the decision, rendered by the Hon'ble Supreme Court in the case of Sunil Kumar Vs. Ram Singh Gaud & Ors. reported in (2007) 14 SCC 61 as well as decision of this Hon'ble Court in the case of New India Insurance Co. Ltd. Vs. Kawllian Thanga & Anr reported in 2007(3) GLT 444. Learned counsel for the appellant has argued that the learned Tribunal did not deducted one third from the probable future income of the claimant as required under the law. 32. For ready reference, the relevant portion from the Sunil Kumar (Supra) is reproduced below:-- 9. Taking into consideration the present income of the appellant as Rs. 4000 per month; and the permanent disability of 45% suffered by him, we are of the view that the capacity of the appellant to earn in future would be reduced by Rs. 1800 per month approximately. If 1/3rd is deducted towards miscellaneous expenses, the loss of income comes to Rs. 1200 per month which, in rum, comes to Rs. 14.400 per annum. The appellant was 29 years of age at the time of accident. Taking the multiplier to be 18(as per the Second Schedule to Section 163-A of the Act), the total loss of income comes to Rs. 2,59,200. 33. For ready reference, the relevant portion from the New India Insurance Co. Ltd. (supra). 5. ...Thus the multiplier chosen correctly being 17, the amount of compensation should have been Rs. 15,000 x 17 = Rs. 2,55,00/-. From this amount one third has to be deducted being personnel expenses of the deceased and thus the net amount would come to Rs. 1,70,000/- only.... 34. On the perusal of the aforesaid decisions, I am of the opinion that the learned Tribunal was in duty bound to deduct one third from the probable income of the claimant. Same not being done, learned Tribunal has committed an error in computing the compensation payable to the claimant. 35. It deserves a mention here that learned Tribunal has granted Rs. 2686/- as being medical expenses incurred by the claimant, whereas it also granted Rs. Same not being done, learned Tribunal has committed an error in computing the compensation payable to the claimant. 35. It deserves a mention here that learned Tribunal has granted Rs. 2686/- as being medical expenses incurred by the claimant, whereas it also granted Rs. 1000/- towards the mental and physical shock, received by the claimant at the time of accident and also Rs. 5000/-towards the pain and suffering caused by the accident in question. I have found no reason to interfere with such amount, total being Rs. 8686/-. The amount aforesaid is also requires to be paid to the claimant as directed by the Tribunal. 36. The claimant was a boy of 26 years 4 months 6 days at the time of incident. Learned Tribunal has applied multiplier 18 in computing the compensation to be paid to the respondent/claimant. I have found that application of aforesaid multiplier is justified and as such, no interference is called for from this Court of appeal on that count as well. 37. In view of above, I compute the compensation payable to the claimant in the following manner:-- 38. Consequently, it is held that the claimant is entitled to Rs. 51,886/- in total and not Rs. 1,70,686/- as calculated by the learned Tribunal. In view of above, this appeal having merit is partly allowed. The amount of compensation awarded to the claimant stands reduced to Rs. 51886/- only which shall also bear interest @9% per annum from the date of presentation of the claim petition till the date of realization of the entire compensation. There shall be no order as to costs.