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2016 DIGILAW 1351 (RAJ)

Ramesh Chand S/o Shri. Nanu Ram v. Ramesh Chand S/o Shri. Bhura @ Bhura Lal

2016-09-15

ARUN BHANSALI

body2016
JUDGMENT : Arun Bhansali, J. This appeal is directed against judgment and award dated 26.07.2001 passed by Motor Accident Claims Tribunal, Doongarpur ('the Tribunal'), whereby, the Tribunal has awarded a sum of Rs. 1,14,800/- as compensation for the injuries suffered by the appellant and has awarded interest @ 10% per annum from 01.01.2000 to the date of actual payment. However, the Insurance Company has been exonerated from the liability to pay compensation. 2. The application for compensation was filed by the appellant, inter alia, with the averments that he was aged 24 years and was studying in Class-10, was involved with the agricultural operations and manual labour. His income was Rs. 2,500/- per month. On 02.04.1998 at about 04:00 PM he was travelling in Jeep No. RJ-12/C-0923, which was being driven rashly and negligently by its driver, the Jeep went out of control and turned turtle, resulting in injuries to the occupants of the Jeep. It was claimed that the appellant suffered injuries on his eyes, head, thigh, hip etc., wherein, he had fractures in his hip joint, pelvis bone, left thigh and toe. It was indicated that the appellant had to undergo surgery, remain hospitalized and confined to bed for long time and has been rendered partially disabled. 3. The application was contested by the non-claimants. The amount claimed as compensation was disputed. The Insurance Company filed its reply and disputed its liability. It was claimed that as the vehicle despite being a private vehicle was being used for hire and reward and passengers in excess of sitting capacity were travelling. There was violation of Policy conditions and, therefore, the Insurance Company is not liable. 4. On behalf of the claimant he himself along with his father appeared as witness and exhibited documents. No evidence was produced either by the owner or the Insurance Company. 5. After hearing the parties, the Tribunal came to the conclusion that the accident occurred on account of rash and negligent driving by the driver of the vehicle. The appellant suffered four injuries in his left foot and there were three fractures and one dislocation. No evidence was produced either by the owner or the Insurance Company. 5. After hearing the parties, the Tribunal came to the conclusion that the accident occurred on account of rash and negligent driving by the driver of the vehicle. The appellant suffered four injuries in his left foot and there were three fractures and one dislocation. Qua the liability of the Insurance Company, the Tribunal based on the contents of the FIR, came to the conclusion that the vehicle was being used for hire and reward and on account of the fact that about 15 passengers were sitting in the Jeep, the Tribunal found violation of the Policy conditions and exonerated the Insurance Company. While calculating the quantum of compensation the Tribunal came to the conclusion that there was no proof qua the income of the appellant at Rs. 2,500/- per month. However, looking to his age, the income was assessed at Rs. 800/- per month and based on that compensation was awarded, whereby, the appellant was allowed compensation at Rs. 4,800/- towards loss of income for a period of six months, Rs. 3,000/- towards attendant expenses, Rs. 15,000/- towards medical expenses, Rs. 72,000/- towards future loss of income, Rs. 20,000/- towards the grievous injuries and in all a sum of Rs. 1,14,800/- was awarded along with interest as indicated hereinbefore. 6. It is submitted by learned counsel for the appellant that the Tribunal committed error in awarding meager compensation. It was submitted that the appellant was 24 years of age at the time of his accident and, therefore, the assessment of income at Rs. 800/- is too meager. It was submitted that even as per Second Schedule of the Motor Vehicles Act, 1988 for non-earning member income at Rs. 15,000/- per annum is prescribed and, therefore, the Tribunal fell in error in assessing the income of the appellant at Rs. 800/- per month. It was further submitted that the Tribunal has not awarded any amount towards physical pain, hospitalization expenses and nutritional diet. Further for the two inch shortening of left leg, no compensation has been awarded and, therefore, the amount of compensation deserves to be enhanced. It was further submitted that the Tribunal committed error in exonerating the Insurance Company, inasmuch as, there was no material available no record to come to the conclusion that the vehicle in question was being used for hire and reward. It was further submitted that the Tribunal committed error in exonerating the Insurance Company, inasmuch as, there was no material available no record to come to the conclusion that the vehicle in question was being used for hire and reward. Further, merely because passengers in excess of the permissible capacity were travelling in the vehicle, by itself cannot be a reason for holding that the conditions of the Policy have been violated and, therefore, the finding in this regard also deserves to be set aside. 7. Learned counsel appearing for the respondentowner supported the appellant so far as the exoneration of the Insurance Company is concerned. However, it was submitted that the compensation awarded is just and fair and does not call for any interference. 8. Learned counsel appearing for the Insurance Company supported the award impugned. It was submitted that from a bare perusal of the FIR along with statement of the appellant it is apparent that the vehicle was being used for hire and reward and, therefore, there was express violation of Policy condition and, therefore, the Tribunal was justified in exonerating the Insurance Company, which finding does not call for any interference. It was further submitted that the compensation awarded to the appellant is just and proper and the same does not call for any interference. 9. It was further submitted that the permanent disablement of the appellant has not been proved, inasmuch as, the Doctor who had issued the certificate regarding 50% disablement of the appellant has not entered the witness box and, therefore, the said disablement cannot be relied on by the appellant for claim of compensation. 10. I have considered the submissions made by learned counsel for the parties and have perused the material available on record. 11. So far as exoneration of the Insurance Company from payment of amount of compensation is concerned, the Insurance Company in its reply to the application for compensation, took a plea that the vehicle in question was being used for hire and reward and persons in excess of the capacity were travelling in the vehicle and, therefore, the Insurance Company was not liable for making payment of compensation. However, on behalf of Insurance Company no one appeared in the witness box in support of the objection raised. However, on behalf of Insurance Company no one appeared in the witness box in support of the objection raised. The Tribunal while considering the issue pertaining to the liability of the Insurance Company solely relied on the contents of the FIR, wherein, one Badru indicated that the Jeep in question was taken on hire. The said first informant was not examined, of course the FIR was exhibited as Exhibit-1. 12. When the claimant appeared in the witness box, in the cross-examination only one question was asked whether the vehicle was private, to which, the claimant answered in positive, however, he was not asked any further question regarding the fact as to whether any hire was paid for the said Jeep. From the material available on record except for the contents of the FIR indicating that the vehicle was taken on hire, there is no material available on record to come to a conclusion that the vehicle was taken on hire. So far as the contents of FIR are concerned, in absence of any further evidence, it is well settled that the FIR, charge sheet or other police papers are not by themselves substantive evidence and the same in a stand alone position cannot be treated as evidence so as to record a finding based on the said document. 13. Interestingly, the claimant was not even confronted with the contents of the FIR and, therefore, the Tribunal was not justified in coming to the conclusion that the vehicle was being used for hire and reward only on account of the fact that large number of persons were travelling in the said vehicle. Another finding by the Tribunal for arriving at conclusion of violation of Policy conditions is based on overcrowding of the vehicle. Hon'ble Supreme Court in the case of B.V. Nagaraju v. Oriental Insurance Co. Ltd., (1996) 4 SCC 647 laid down that carrying on passengers more than the number permitted in terms of insurance policy is not such a fundamental breach so as to afford ground to the insurer to excuse its liability altogether. In view thereof and as the policy in question is an comprehensive policy, the finding of the Tribunal regarding the exoneration of the Insurance Company cannot be sustained and the same is, therefore, set aside. 14. In view thereof and as the policy in question is an comprehensive policy, the finding of the Tribunal regarding the exoneration of the Insurance Company cannot be sustained and the same is, therefore, set aside. 14. So far as the quantum of compensation is concerned, the Tribunal has taken the income of the appellant at Rs. 800/- per month only on account of the fact that he was studying in class 10th, however, the Tribunal ignored the age of the claimant i.e. 24 years and merely because he was studying in class 10th cannot be a reason to come to a conclusion that even at the age of 24 years, the claimant was not doing anything. There is substance in the submissions made by learned counsel for the appellant that even as per the Second Schedule to the Act, the income of the nonearning member is taken at Rs. 15,000/- per year and, therefore, assessment by the Tribunal of any income less than that cannot be sustained. 15. In view thereof, the income of the appellant is assessed at Rs. 15,000/- per year. Further, it is an admitted fact that the claimant remained hospitalized for the period 02.04.1998 to 28.04.1998, however, the Tribunal has not awarded any amount towards the expenses during the period of hospitalization, which is assessed at Rs. 300/- per day. The Tribunal has also failed to award any amount for the physical pain suffered by the appellant. 16. Hon'ble Supreme Court in the case of Raj Kumar v. Ajay Kumar & Anr., (2011) 1 SCC 343 while dealing with the issue of permanent disablement laid down that non-pecuniary damages must include damages for pain, suffering as a consequence of the injuries. 17. In the present case, admittedly the appellant remained confined to bed for full six months and had suffered multiple fractures and underwent surgery and, therefore, for physical pain and suffering he is entitled to a lump sum of Rs. 10,000/-. Further, towards expenses on nutrition diet during the period of his convalescence, the appellant is entitled to a sum of Rs. 5,000/-. 18. So far as permanent disablement of the appellant to the extent of 50% is concerned, the appellant produced medical certificate (Exhibit-71) indicating his disablement. 10,000/-. Further, towards expenses on nutrition diet during the period of his convalescence, the appellant is entitled to a sum of Rs. 5,000/-. 18. So far as permanent disablement of the appellant to the extent of 50% is concerned, the appellant produced medical certificate (Exhibit-71) indicating his disablement. It is no doubt true that the medical practitioner, who issued the certificate, was not produced in the witness box, however, when the appellant entered the witness box, he was not cross examined qua the said document (Exhibit-71). Further, looking to the nature of injuries suffered by the appellant, it cannot be said that from the nature of injuries and on account of the fact that there was shortening of two inches of the left lower limb, the disability percentage indicated in the report is excessive so as to disbelieve the same. 19. In view thereof, the submission made by learned counsel for the Insurance Company seeking rejection of the disability of the appellant also cannot be accepted. 20. So far as submissions made by learned counsel for the appellant regarding non award of amount towards shortening of limb is concerned, the Tribunal has calculated the amount towards loss of income based on 50% disablement of the appellant, wherein, the said two inches shortening of the lower limb has already been considered and, therefore, no separate amount needs to be assessed towards the said aspect. 21. In view of the above, the compensation awarded by the Tribunal deserves to be calculated based on the income of the appellant at Rs. 15,000/- per year i.e. Rs. 1,250/- per month, resulting in the total compensation as under:- 1. Loss of income for six months : 1250x6= 7,500/- 2. Attendant expenses : 500x6=3,000/- 3. Treatment expenses : Rs. 15,000/- 4. Loss of future income. : 1250 x 12 x 15/2 =1,12,500/- 5. Compensation on account of grievous injuries. : 5000x4= 20,000/- 6. Hospitalization expenses. : 26x300 = 7800/- 7. Physical pain and suffering. : Rs. 10,000/- 8. Nutritional diet : Rs. 5,000/- : Rs.1,80,800/- 22. On the enhanced amount of compensation to the extent of Rs. 66,000/- the appellant would be entitled for interest @ 7% per annum from the date of application i.e. 10.03.1999 till the date of actual payment. The rate of interest awarded by the Tribunal on the amount awarded by it, is not disturbed. 23. Consequently, the appeal is partly allowed. On the enhanced amount of compensation to the extent of Rs. 66,000/- the appellant would be entitled for interest @ 7% per annum from the date of application i.e. 10.03.1999 till the date of actual payment. The rate of interest awarded by the Tribunal on the amount awarded by it, is not disturbed. 23. Consequently, the appeal is partly allowed. The finding by the Tribunal pertaining to the liability of the Insurance Company is set aside. The Insurance Company would be liable along with the Driver and Owner of the vehicle for payment of compensation to the appellant. Further, the award impugned is further modified and instead of Rs. 1,14,800/- the appellant is entitled to compensation to the tune of Rs. 1,80,800/-. On the enhanced amount of Rs. 66,000/- the appellant would be entitled to interest @ 7% per annum from the date of application i.e. 10.03.1999. The rate of interest on the sum awarded by the Tribunal is maintained. The amount of compensation be paid by the Insurance Company to the claimant within a period of six weeks from the date of this judgment.