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2014 DIGILAW 891 (BOM)

National Insurance Co. Ltd. v. Vijay Khedekar

2014-04-04

Z.A.HAQ

body2014
Judgment : 1. The Appeal arises out of the Award passed by the Motor Accident Claims Tribunal in Claim Petition no. 44 of 2006 dated 09.04.2008 by which it is held that the original claimants are entitled for compensation at Rs.2,44,995/-as per the calculations. However, it is held that there is negligence on the part of the claimant also, the Tribunal has finalised the amount of compensation at Rs.1,72,000/- along with interest at 9% per annum from the date of the application till the date of the Award. The Tribunal directed that the amount received by the claimants under Section 140 of the Motor Vehicles Act, 1988, shall be adjusted while paying the amount of compensation. 2. The Appeal is filed by the National Insurance Company Limited. The claimants, owner and driver of the vehicle which was involved in the claim, have not filed any Appeal. 3. Heard Shri Timble, learned Counsel for the Appellant and Shri S. S. Kakodkar, learned Counsel for the Respondent no. 1-claimant. None appears for the Respondent nos. 2 and 3. 4. Shri Timble, learned Counsel for the Appellant, has submitted that the document at page 51 of the paper book which is the sketch alongwith the panchanama, clearly shows that the accident has occurred due to the negligence of the claimant no. 1, who was driving the scooter. From the sketch he points out that the truck which was insured with the Appellant-Insurance Company, was on the extreme left side of the road and the two tyres on the left side of the truck were on the katcha portion of the road. According to the Appellants, the claimant no. 1, who was driving the scooter was going through the middle of the road and has dashed with the truck. The learned Advocate for the Appellant has pointed out the variations in the pleadings and the evidence of the claimants and the statements tried to be introduced in the evidence of the claimant no. 2 (AW. 2), which shows that she tried to improve the case subsequently by making some statements which has no foundation in the pleadings. Shri Timble, learned Advocate, has submitted that the Tribunal has come to the conclusion that the truck was being driven rashly and negligently on the statement made by the claimant no. 2(AW. 2) that the truck was being driven without left headlight being on. Shri Timble, learned Advocate, has submitted that the Tribunal has come to the conclusion that the truck was being driven rashly and negligently on the statement made by the claimant no. 2(AW. 2) that the truck was being driven without left headlight being on. The learned Advocate has further submitted that the Tribunal has calculated the amount of compensation at Rs.1,90,995/-towards the permanent disability arbitrarily and mechanically without any basis and contrary to the guidelines laid down in several judgments of this Court. The learned Advocate has submitted that the Tribunal has committed an error in awarding an amount of Rs.50,000/-under the head "pains and sufferings" which, according to the Appellant, is exorbitant. 5. Shri S. S. Kakodkar, learned Advocate, submitted that the claimant no. 1 has suffered permanent disability upto 5% and this is proved from the medical certificate produced on record dated 03.04.2006 at exhibit no.29 and supported by the evidence of Dr. Shivanand Bandekar, (AW.3). The learned Advocate for the claimants has submitted that the amount of Rs.1,90,955/-awarded by the Tribunal for the permanent disability suffered by the claimant is just and proper and does not require any modification. He has further submitted that the amount of Rs.50,000/-granted by the Tribunal under the head "pains and sufferings" is in fact lesser than what should have been awarded. He has submitted that the Tribunal has not taken into consideration that the claimant no. 1 had also suffered fracture of tooth which is clear from the hurt certificate which is at page no. 37 of the paper book and in respect of which the claimant no. 1 (AW.1) and the claimant no. 2(AW.2), has also deposed and there is no cross-examination or any suggestion given by the Appellant in the matter. Learned Advocate for the claimants has submitted that while admitting the Appeal, this Court had granted stay to the execution of the Award on the condition that the Appellant deposits the entire amount with the Registrar of this Court and the claimants are permitted to withdraw 50% of the amount and, accordingly, the claimants have withdrawn about Rs.94,000/- and, accordingly, the claimants have withdrawn 50% of the amount. 6. 6. After hearing the learned Advocates for the respective parties and examining the record, the following points arise for my determination: (i) Whether the findings of the Tribunal on the rash and negligent driving by the driver of the truck are proper? (ii) Whether the amount of compensation of Rs.50,000/- awarded by the Tribunal under the head “pain and sufferings”, is just and proper? (iii) Whether the Tribunal is justified in awarding the compensation of Rs.1,90,995/- towards permanent disability suffered by the claimant no. 1? (iv) To what amount the claimants are entitled to? 7. The sketch which is at page 51 of the paper book shows the position of the truck and the scooter, which were involved in the accident and the factual position is not disputed by either of the parties. The evidence of Shri Harish Bhatta (AW.4), who is PSI and who had gone to the spot of accident, shows that statements of several persons were recorded which showed that there was no fault of the truck driver. It is not disputed that the truck driver has not been prosecuted. However, looking to the fact that the accident has taken place, it cannot be said that the scooter rider has voluntarily dashed with the truck. Therefore, the findings of fact arrived at by the learned Presiding Officer, cannot be said to be perverse and the finding regarding rash and negligent driving of the truck is maintained. At the same time, the findings given by the learned Presiding Officer about contributory negligence on the part of the scooter driver are also just and proper and as per the material on the record. 8. The Tribunal has awarded an amount of Rs.1,90,995/- on account of permanent disability suffered by the claimant no. 1. The findings in this respect are superfluous and contrary to law. In the case of Raj Kumar vs. Ajay Kumar & anr., reported in 2011(1) ALL MR 402 (S.C.) at para 8, the Hon'ble Supreme Court has recorded as follows: "8. Where the claimant suffers a permanent disability as a result of injuries, the assessment of compensation under the head of loss of future earnings, would depend upon the effect and impact of such permanent disability on his earning capacity. The Tribunal should not mechanically apply the percentage of permanent disability as the percentage of economic loss or loss of earning capacity. The Tribunal should not mechanically apply the percentage of permanent disability as the percentage of economic loss or loss of earning capacity. In most of the cases, the percentage of economic loss, that is, percentage of loss of earning capacity, arising from a permanent disability will be different from the percentage of permanent disability. Some Tribunals wrongly assume that in all cases, a particular extent (percentage) of permanent disability would result in a corresponding loss of earning capacity, and consequently, if the evidence produced show 45% as the permanent disability, will hold that there is 45% loss of future earning capacity. In most of the cases, equating the extent (percentage) of loss of earning capacity to the extent (percentage) of permanent disability will result in award of either too low or too high a compensation. What requires to be assessed by the Tribunal is the effect of the permanently disability on the earning capacity of the injured; and after assessing the loss of earning capacity in terms of a percentage of the income, it has to be quantified in terns of money, to arrive at the future loss of earnings (by applying the standard multiplier method used to determine loss of dependency). We may however note that in some cases, on appreciation of evidence and assessment, the Tribunal may find that percentage of loss of earning capacity as a result of the permanent disability, is approximately the same as the percentage of permanent disability in which case, of course, the Tribunal will adopt the said percentage for determination of compensation (see for example, the decisions of this court in Arvind Kumar Mishra v. New India Assurance Co.Ltd., - 2010(10) SCALE 298 and Yadava Kumar v. D.M., National Insurance Co. Ltd., - 2010 (8) SCALE 567).” 9. There is no justification for the grant of an amount of Rs.1,90,955/- for the permanent disability suffered by the claimant no.1. The conclusions to that effect are unsustainable in law. However, the award made by the Tribunal under the head "pain and sufferings" cannot be said to be improper in the circumstances of the case and the grant of Rs.2000/- towards medicines is also not justified. The conclusions to that effect are unsustainable in law. However, the award made by the Tribunal under the head "pain and sufferings" cannot be said to be improper in the circumstances of the case and the grant of Rs.2000/- towards medicines is also not justified. Taking overall view of the matter and taking the fact that the claimant has already been paid the amount of Rs.94,593.50, I am of the view that interest of justice would be subserved by holding the amount of compensation under the different heads for which the claimants are entitled, restricted to the amount already paid to the claimant. It would not be proper in the facts of the case to direct the claimants to repay the amount. This Court while passing the interim Order has ordered the claimants to withdraw the amount unconditionally and the Appellant-Insurance Company, had not objected to it and, therefore, it will not be proper at this stage to recover any amount from the claimants. The Award passed by the Tribunal is accordingly modified and it is directed that the claimants are entitled for the compensation of the amount which is already received by them. The balance amount which is lying in the deposit with the Registry of this Court should be repaid to the Appellant-Insurance Company along with the interest which has accrued on it. 10. The Appeal is partly allowed and disposed accordingly. The award passed by the Tribunal is modified in the above terms. In these circumstances, parties to bear their own costs.