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2019 DIGILAW 311 (JK)

New India Assurance Co. Ltd. v. Amit Sambhyal

2019-06-04

SINDHU SHARMA

body2019
JUDGMENT : Sindhu Sharma, J. 1. This appeal is filed by the appellant-insurance company against the award dated 26.07.2010 in file No. 45/claim passed by the learned Motor Accidents Claim Tribunal, Jammu and for setting aside the same. The appellant has formulated following questions for determination: i) Whether Learned Presiding Officer, Motor Accidents Claims Tribunal, Jammu, was justified in entertaining the claim petition under Section 163-A of the Motor Vehicles Act, 1988 for the injuries sustained by the driver of the vehicle, who was solely responsible for causing the accident, and there is/was no other tortfeasor? ii) Whether the Learned Presiding Officer, Motor Accidents Claims Tribunal, Jammu, was right in permitting the conversion of the claim petition from Section 166 to Section 163-A of the Motor Vehicles Act, 1988? iii) Whether the insurer is liable to pay the amount of compensation in relation to the accident occurred by the use of the vehicle which was being driven by the son of the insured? 2. The undisputed facts are that the respondent No. 1-Amit Sambhyal (hereinafter referred to as the claimant), was driving a Maruti Car bearing Registration No. JK01B 5981 on 03.07.2004 and on its way from Batra Hospital to Sainik Colony when reached near Raka Morh, Nagrota, it is alleged that the vehicle went out of control due to some mechanical defect which resulted accident due to which the claimant suffered multiple injuries including grievous injuries for which he was first treated in Batra Hospital Sidhra (Acharya Shri Chandra College), later in Government Medical Hospital, Jammu and CMC Ludhiana, as disclosed by him in para 20 of petition filed under section 163-A of the Motor Vehicles Act, 1988 (for short the M.V. Act). 3. During the pendency of the petition filed under section 163-A of the Act, the claimant has filed an application for amendment of the claim petition to apply for compensation under section 166 of the Act. The application for amendment was resisted by the appellant-insurance company but the learned Tribunal rejected the same and allowed the claimant to file the amended petition under section 166 of the Act for the following reasons: "On the other hand counsel for respondent has also cited AIR 2004 SC 2107 , but this authority in my opinion does not suit fit to the circumstances of the case. Claim petition has been filed under section 163-A of the M.V. Act which is also social legislation and object of the legislation should be advanced and not to be defeated as this section has been incorporated in the Act for providing compensation to the victims of road traffic accident and as such provisions of this Act should be interpreted liberally so as to advance the Act and not to defeat the purpose of the Act. Furthermore the above quoted authorities such as 2001 ACJ 827 and ACJ 1528 support the application of the petitioner. Keeping in view the facts and circumstances of the case application of the petitioner for amendment of claim petition to the extent of income of the petitioner is allowed and petitioner is directed to file the amended claim petition." 4. The Tribunal has allowed the claimant to amend the petition vide order dated 15.05.2007. This application was filed only on 25.03.2006. Paragraph Nos. 3 and 4 of the application for permission to amend the claim petition being relevant and are extracted below: "3. That as stated in supra paras a sum of Rs. 13,000/- has been wrongly been claimed as loss of earning per month which was due to typographical and in case the present petition is allowed no body right can be jeopardized but on the other hand the present petition can be decided on merits. 4. That the present petition has been filed immediately when it came into the knowledge of the petitioner and in case the amended petition filed is allowed, the present claim petition can be decided on merits as due to typographical mistake instead of Rs. 3,000/- a sum of Rs. 13,000/- has been claimed as Loss of income." 5. The only prayer is: "It is, therefore, prayed that keeping in view the above mentioned facts and circumstances, the petition may kindly be allowed by filing amended claim petition, keeping in view, the above mentioned facts and circumstances in the interest of justice". The amendment was thus, permitted only to the extent of income of the claimant to read Rs. 3,000/- per month as loss of income instead of Rs. 13,000/- and the learned Tribunal allowed the amended petition vide order dated 15.05.2007. 6. The appellant filed his reply to the amended claim petition on 12.12.2007 and issues were framed on 26.02.2008, which are reproduced below: "1. 3,000/- per month as loss of income instead of Rs. 13,000/- and the learned Tribunal allowed the amended petition vide order dated 15.05.2007. 6. The appellant filed his reply to the amended claim petition on 12.12.2007 and issues were framed on 26.02.2008, which are reproduced below: "1. Whether an accident occurred on 03.07.2004 at Nagrota Bye Pass by the use of offending Vehicle No. JK01B 5981 being driven in the hands of erring driver in which petitioner Amit Sambhyal sustained grievous injuries? OPP 2. If issue No. 1 is proved in affirmative whether petitioner is entitled to the compensation; if so to what amount and from whom? OPP 3. Whether driver of offending vehicle at the time of accident was not holding a valid and effective driving license and plied the vehicle in violation of terms and conditions of insurance policy, RC, route permit and fitness etc.; if so how and what is its effect? OPR-1 4. Whether accident has occurred by the negligent driving of petitioner himself, if so how and what is its effect? OPR-1 5. Whether claim petitioner in the present form against respondent No. 1 is not maintainable, if so how? OPR-1 6. Relief. O.P. Parties" 7. The claimant-respondent No. 1 herein besides himself, examined PWs Vinod Kumar and Dr. V.S. Sharma as witnesses. The appellant did not produce any evidence in rebuttal. On issue No. 1, the finding of the learned Tribunal is as under: "From the evidence assembled on record by the petitioner ocular as well as documentary it has been established that an accident has occurred on 03.07.2004 by the use of offending vehicle as a result of which petitioner Amit Sambhyal suffered grievous nature of injuries resulting him 25% permanent disablement. The factum of accident has been proved from the copy of police FIR on file in which name of petitioner and number of offending vehicle find place." 8. Why the learned Tribunal fell short of holding who was driving the vehicle and the how the vehicle met with the accident is also not disclosed. However, in his statement, the claimant has admitted that he was driving the offending vehicle. Why the learned Tribunal fell short of holding who was driving the vehicle and the how the vehicle met with the accident is also not disclosed. However, in his statement, the claimant has admitted that he was driving the offending vehicle. This part of the statement has translated by the learned Tribunal, which reads: "Petitioner Amit Sambhyal while tendering (it is direct account of evidence has narrated that in July, 2009 at 3 PM he was going to home from Batra Hospital (Acharya Shri Chandra College) in his Car No. JK01B 5981 being driven by him when one CRPF vehicle came being driven in a rash and negligent manner and is hit vehicle. He sustained injuries on his leg and other parts of the body. He was immediately shifted to Govt. Medical College, Jammu from where he went to CMC, Ludhiana.....”. 9. So the specific case of the petitioner is that the accident has occurred because of negligence of the CRPF vehicle. The above statement alleging negligence on the part of the driver of the CRPF vehicle made for the first time in his statement which was made on 27.12.2008. But there is not even a whisper about the allegation in the original application filed under section 163-A of the M.V. Act on 20.04.2005 or in the amended petition. In paragraph 20 of the original petition as well as in the amended petition, which appears to be similar, filed under section 163-A of the M.V. Act, he describes the cause of accident, which is reproduced as under: "That on ill fated day i.e. 03.07.2004 the petitioner/injured while driving a Maruti while driving a Maruti Car bearing Registration No. JK01B-5981 which was on its way from Batra Hospital to Sainik Colony when reached near RACKA Morh, Nagrota Bye Pass due to some mechanic defect the maruti car in reference went out of control and met with an accident due to which the petitioner sustained grievous nature of injuries in his both the legs as well as other parts of the body which is evident clear by the medical report issued by the competent authority as the petitioner remained hospitalized in Batra Hospital immediately after the accident and was subsequently shifted to C.M.C. Ludhiana where the petitioner was operated upon and remained under treatment for more than 30 days. The petitioner during the treatment has spent Rs. The petitioner during the treatment has spent Rs. 4 lacs on medicines which is also to be compensated by the respondents mentioned in the titled of the claim petition." 10. This has been repeated in para 2 of the amended petition. So the cause of accident is either mechanical failure or claimant failure to control the vehicle. Since the conclusion of the Tribunal in paragraph 10 of the award is wrong because the original application was filed under section 163-A of the M.V. Act and not under section 166 which was amended to reduce the income of the claimant from Rs. 13,000/- per month to Rs. 3000/- per month as his income would not be more than Rs. 4000/- under section 163-A of the M.V. Act. Reduction of the income was only to make the petition under section 163-A of the M.V. Act maintainable. Further according to the police report the cause of accident was due to break failure of the car. Police treated it as an accident. 11. Issues Nos. 3, 4 and 5 were decided against the appellant. Issue No. 3 was whether the claimant was not having valid driving license at the time of accident, since no evidence was produced, therefore, Tribunal decided it against the appellant. In Issue No. 4 ought not to have been framed because the appellant-insurer cannot be permitted to plead negligence of the claimant. Be that as it may, the main question for the consideration of the maintainability of claim petition and the compensation awarded. 12. The Tribunal after reproducing paragraphs 59 and 66 of the judgment of the Supreme Court, titled, Deepal Girishbhai Soni and others v. United India Insurance Company Ltd. Baroda reported as (2004) 5 SCC 385 concluded that: "In view of the law laid down by the Hon'ble Supreme Court and the import of the section 163-A I am satisfied that the petition is maintainable and the petitioners made out a good ground for grant of compensation under section 163-A of the Act." 13. Before proceeding further it is appropriate to clarify certain observations made by the Tribunal. After referring to the arguments of the counsel for the appellant insurer with regard to the maintainability of the claim petition either under section 166 or the 163-A of the M.V. Act. Before proceeding further it is appropriate to clarify certain observations made by the Tribunal. After referring to the arguments of the counsel for the appellant insurer with regard to the maintainability of the claim petition either under section 166 or the 163-A of the M.V. Act. The Tribunal observed as under : "The scanning of the file has emanated that in this petition the interim award under section 140 M.V. Act has also not been passed neither the claimants have claimed the same. The petition as per the pleadings of the petitioners appears to have been commenced under section 163-A instead of S. 166 M.V. Act. Accordingly, the petitioners have led the evidence in view of the provisions laid down in section 163-A of the Act. Admittedly the vehicle is insured with the respondent No. 1, who is the owner......." It is evident from the opening page of the award, which reads as under: "Petitioner initially commenced claim petition under Sections 166 and 140 of the Motor Vehicles Act.............." 14. The observation of the Tribunal is not correct because the claimant has filed the claim petition only under section 163-A of the M.V. Act as is clear from page one of the petition filed on 20.04.2005. Since in para 4 of the petition, it has been stated that the claimant was earning Rs. 13,000 per month. Appellant-insurance Company on 07.12.2005 filed their objections. In para one of the preliminary objections, the appellant submits as under: "1) That the claim petition u/s 163-A of Motor Vehicles Act is not maintainable and its liable to be dismissed out rightly as the petitioner in the petition has mentioned that he was earning Rs. 13,000/- per month i.e. Rs. 1,56,000/- annually which exceeds Rs. 40,000/- annually. Therefore the petition is barred under the M.V. Act and deserves to be dismissed out rightly." 15. It is the objections which forced the claimant (respondent No. 1 herein) to seek permission to amend the petition by reducing the monthly income from Rs. 13,000/- to Rs. 3,000/- per month on the ground that it was a typographical mistake which the learned Tribunal accepted. Petitioner allowed to make the amendment so that there was no petition under section 160 or 140 of the M.V. Act. 16. This takes us to the amount awarded. The amount awarded under the following heads are as under: For loss of future income Rs. Petitioner allowed to make the amendment so that there was no petition under section 160 or 140 of the M.V. Act. 16. This takes us to the amount awarded. The amount awarded under the following heads are as under: For loss of future income Rs. 1,44,000/- For medical expenses Rs. 2,41,238/- For pain and suffering Rs. 50,000/- For loss of amenities in life Rs. 50,000/- Total Rs. 4,85,238/- 17. As per the statement of Dr. V.K. Sharma, the overall disability of the claimant was 25 per cent. However, in his cross examination, this witness has stated reads as under: "I have not treated the petitioner after the accident. I have not mentioned the age of the petitioner on the disability certificate. The disablement mentioned in both lower limb only not of the whole body. The petitioner with this disability can perform the sitting chairs prolonged time. Today I have not seen the patient in the court. There is no original treatment record of the petitioner attached with the file however there is a photocopy attested of discharge certificate has been annexed with the file. Petitioner is not remained in-patient and was treated in emergency only. While assessing the disablement certificate we see the discharge record X-ray and clinical examination of record but that record has not been seen by me today except photo attested discharge record." 18. The cross examination is very poor and the question remains why the Tribunal failed to put question to him about the percentage of a body's disability suffered by him. In Raj Kumar vs. Ajay Kumar and another, reported as (2011) 1 SCC 343 , it was held that "the Tribunal should not be a silent spectator when medical evidence is tendered in regard to the injury and their defect, in particular the extent of permanent disability. Section 168 and 169 of the Act make it evident that the Tribunal does not function as a neutral umpire as in a civil suit, but as an active explorer and seeker of truth who is required to 'hold an enquiry into the claim' for determining 'just compensation'. The Tribunal should therefore, have taken an active role to ascertain the true and correct position so that it can assess just compensation.......”. 19. This apart, the disability was assessed on 30.11.2005 as per certificate dated 17.12.2005 (ExPW VK). The Tribunal should therefore, have taken an active role to ascertain the true and correct position so that it can assess just compensation.......”. 19. This apart, the disability was assessed on 30.11.2005 as per certificate dated 17.12.2005 (ExPW VK). The relevant portion of the certificate reads as under: "Presently his fracture is united with implants still in place. He is having wasting of right thigh and leg with restricted movements of right knee and ankle with inability to squat and sit cross leg and walking with limb. He is having mild stiffness of left knee and ankle with wasting left leg also. His overall permanent disability amounts to 25%." 20. The word presently is significant, what happened after the implants were removed, we do not know. It should have reassessed before the Dr. V.K. Sharma, who were examined on 14.11.2008. Dr. Sharma has been examined only in respect of the certificate issued on 17.12.2005 when the implants were intact so the Tribunal has failed to consider the disability accorded to the law as laid in para 13 of the Supreme Court in Raj Kumar's case (supra) which reads as under: "Ascertainment of the effect of the permanent disability on the actual earning capacity involves three steps. The Tribunal has to first ascertain what activities the claimant could carry on in spite of the permanent disability and what he could not does a result of the permanent ability (this is also relevant for awarding compensation under the head of loss of amenities of life). The second step is to ascertain his avocation, profession and nature of work before the accident, as also his age. The third step is to find out whether (i) the claimant is totally disabled from earning any kind of livelihood, or (ii) whether in spite of the permanent disability, the claimant could still effectively carry on the activities and functions, which he was earlier carrying on, or (iii) whether he was prevented or restricted from discharging his previous activities and functions, but could carry on some other or lesser scale of activities and functions so that he continues to earn or can continue to earn his livelihood." 21. So the assessment made by the Tribunal is not correct and requires reassessment by the doctor. The question, however, is whether the petitioner is entitled to compensation awarded by the Tribunal. So the assessment made by the Tribunal is not correct and requires reassessment by the doctor. The question, however, is whether the petitioner is entitled to compensation awarded by the Tribunal. The claimant is a resident of House No. 33/A, Sainik Colony, Jammu. He is son of retired colonel H.S. Sambyal and his mother Smt. Koshlya Sambhyal is the owner of the vehicle. The petitioner did not explain and admit his relation with the owner, which according to learned counsel for the appellant, is mother of the petitioner and from the address given in the title of the petition, but there is no plea either by the appellant or in the objections filed against the maintainability of the petition on this ground. Silence on the part of the petitioner to disclose that he was the driver of the vehicle held by his mother is quite unfair and the silence on the part of the insurance company speaks volume about its fairness. There is no ground about the maintainability of the claim petition filed by the son of the insured. Even though law on the point is no longer res integra since he was driving the car as son of the owner, the owner was not liable to compensate him in view of the law laid down in Ningamma and Anr. vs. United India Insurance 2009 ACJ 2020 held in para 19: "19. We have already extracted Section 163-A of the MVA hereinbefore. A bare perusal of the said provision would make it explicitly clear that persons like the deceased in the present case would step into the shoes of the owner of the vehicle. In a case wherein the victim died or where he was permanently disabled due to an accident arising out of the aforesaid motor vehicle in that event the liability to make payment of the compensation is on the insurance company or the owner, as the case may be as provided under Section 163-A. But if it is proved that the driver is the owner of the motor vehicle, in that case the owner could not himself be a recipient of compensation as the liability to pay the same is on him. This proposition is absolutely clear on a reading of Section 163-A of the MVA. This proposition is absolutely clear on a reading of Section 163-A of the MVA. Accordingly, the legal representatives of the deceased who have stepped into the shoes of the owner of the motor vehicle could not have claimed compensation under Section 163-A of the MVA." 22. The High Court of Punjab and Haryana in New India Insurance and Ors. vs. Karamjeet and Anr., 2013 DGLS (P&H) 1079 has held that: "In view of the ratio laid down by the Hon'ble Supreme Court in Ningamma's case (supra), I hold that the legal heirs of deceased Ravi Kumar who stepped into the shoes of his mother Kanta Devi who was the owner of the ill-fated scooter cannot lawfully make a claim for compensation invoking the provision u/s 163-A of the Motor Vehicles Act, 1988 as the owner of the vehicle cannot be a claimant as well as recipient of the compensation awarded in the claim petition." 23. In view of the aforesaid discussion, this appeal is allowed and the impugned award is set aside. 24. Record of the petition be remitted back to the Tribunal.