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2019 DIGILAW 538 (GAU)

New India Assurance Company Ltd. v. Lalmihriata

2019-05-03

NELSON SAILO

body2019
JUDGMENT : 1. Heard Mr. Lalfakzuala, the learned counsel for the appellant and Mr. C. Lalfakzuala, the learned counsel for the respondent No. 1. 2. Considering the issue involved and the nature of grievance projected by the appellant, the appeal is taken up for final disposal at the admission stage with the consent of the learned counsels for the rival parties. 3. This is an appeal filed by the appellant Insurance Company against the Judgment & Award dated 20.06.2018 passed by the learned Presiding Officer, MACT, Aizawl in MACT Case No. 51/2017 whereby, a sum of Rs. 10,25,200/- along with 7% interest per annum from the date of filing of the claim application has been awarded by the learned Tribunal to the respondent No. 1 on account of 80% permanent disability of the respondent No. 1 due to a motor accident on 21.12.2016, while he was walking on the road in W. Phaileng, Mamit District, Mizoram. The respondent No. 1 was hit by a moving Truck, which was travelling towards Pukzing to Aizawl B/R No. AS-01- EC/0331. The rear tyre of the Truck ran over his left leg and as a result, his left leg was amputated below the knee. 4. Appearing for the appellant Insurance Company, Mr. Lalfakawma, the learned counsel submits that although the appellant does not dispute the liability to pay the compensation but the learned Tribunal in fact has excessively awarded compensation to the respondent No. 1 by applying the Second Schedule of Section 163 (A) of the Motor Vehicles Act, 1988 (M.V. Act). The learned counsel submits that Sub-Section (3) of Section 163-A of the M.V. Act provides that the Central Government may, keeping in view the cost of living by Notification in the Official Gazette, from time to time amend the Second Schedule. Accordingly, as per the said provision, the Government of India in the Ministry of Road Transport & Highways has come up with a Notification on 22.05.2018 whereby, the Second Schedule of the M.V. Act has been substituted. As per the said notification, in accidents resulting in permanent disability, the compensation payable shall be Rs. 5 Lakhs x percentage of disability. Further, the minimum compensation payable in case of permanent disability of any kind shall not be less than Rs. 50,000/-. Besides this, w.e.f. 01.01.2019, the amount of compensation as specified in Clauses (a)(c) of paragraph (1) shall increase by 5% annually. 5 Lakhs x percentage of disability. Further, the minimum compensation payable in case of permanent disability of any kind shall not be less than Rs. 50,000/-. Besides this, w.e.f. 01.01.2019, the amount of compensation as specified in Clauses (a)(c) of paragraph (1) shall increase by 5% annually. The effective date of the Notification is from the date of its publication in the Gazette of India i.e., 22.05.2018. 5. Mr. Lalfakawma, the learned counsel submits that on the date of passing the impugned Judgment & Award i.e., 20.06.2018, the Gazette Notification already being in force, the learned Tribunal ought to have awarded compensation to the respondent No. 1 as prescribed there-under and not by relying upon the Second Schedule of the M.V. Act as amended. In this connection, the learned counsel relies upon the decision of the Apex Court in Rathi Menon Vs. Union of India reported in (2001) 3 SCC 714 . 6. Mr. Lalfakawma, the learned counsel further submits that the appellant has the right to challenge the quantum of the compensation awarded by the learned Tribunal even without obtaining permission under Section 170 of the M.V. Act to contest the appeal on grounds other than those available under Section 149 (2) of the M.V. Act. Referring to the Apex Court decision in United India Insurance Company Limited Vs. Shila Datta and Others reported in (2011) 10 SCC 509 , the learned counsel submits that if the Insurance Company is not merely a noticee but impleaded as a party respondent/opposite party before the learned Tribunal, the insurer need not obtain permission U/S 170 of the M.V. Act to contest the claim on all other grounds other than Section 149 (2) of the same Act. 7. By referring to paragraph 12 of the impugned Judgment & Award, the learned counsel further submits that the loss of income under the heading pecuniary damages will only have to be awarded as per the Notification dated 22.05.2018 published in the Gazette of India and in so far as the non pecuniary damages are concerned, the learned Tribunal has awarded a sum of Rs. 2 Lakhs towards future medical expenses although no evidence was led by the respondent No. 1 before the learned Tribunal. He submits that awarding of compensation under the said head should be justified subject to there being evidence. 2 Lakhs towards future medical expenses although no evidence was led by the respondent No. 1 before the learned Tribunal. He submits that awarding of compensation under the said head should be justified subject to there being evidence. In this connection, he refers to the Apex Court decision rendered in Raj Kumar Vs. Ajay Kumar and Another reported in (2011) 1 SCC 343 wherein, it was held that if there are specific medical evidence collaborating the evidence of the claimant, compensation can be granted towards the head Future Medical Expenses. The learned counsel also refers to the case of Syed Sadiq and Others Vs. Divisional Manager, United India Insurance Company Limited reported in (2014) 2 SCC 735 to reiterate the stand that evidence is a must and a pre-condition for awarding any compensation towards future medical treatment. 8. Mr. Lalfakawma, the learned counsel also submits that Second Schedule of Section 163-A of the M.V. Act having being substituted as on date of the Judgment & Award of the learned Tribunal i.e., 20.06.2018, there was no question of the learned Tribunal reverting back to the un-amended or un-substituted provision while passing the impugned Judgment & Award. He thus submits that the appeal of the Insurance Company may be allowed as prayed for. 9. Mr. C. Lalfakzuala, the learned counsel for the respondent No. 1 submits that the appellant Insurance Company has no right to file the instant appeal in view of the fact that permission under Section 170 of the M.V. Act was not obtained by them. To substantiate his submission, he refers to the decision of the Apex Court in the case of Rekha Jain Vs. National Insurance Company Limited & Others, reported in (2013) 8 SCC 389 . Referring to the said decision, the learned counsel submits that the earlier decision of a three Judges Bench of the Apex Court in National Insurance Company Limited Vs. Nicolletta Rohtagi and Others reported in (2002) 7 SCC 456 was adopted by the Apex Court. In the said decision, the Apex Court held that the statutory defences, which are available to the insurer to contest a claim are confined to what are provided under Sub-Section (2) of Section 149 of the M.V. Act. Nicolletta Rohtagi and Others reported in (2002) 7 SCC 456 was adopted by the Apex Court. In the said decision, the Apex Court held that the statutory defences, which are available to the insurer to contest a claim are confined to what are provided under Sub-Section (2) of Section 149 of the M.V. Act. However, the Insurance Company may be allowed to file an appeal on ground other than Section 149 (2) of the M.V. Act only when permission as required under Section 170 (b) of the MV Act has been obtained. Therefore, the appeal is liable to be dismissed on this ground alone. 10. The learned counsel further submits that the respondent No. 1 met with an accident on 21.12.2016 whereafter, a claim was filed before the Tribunal on 09.08.2017. The law holding the field as on the date of the accident and on the date of filing of the appeal was the un-amended Second Schedule of the M.V. Act and therefore, no error has been committed by the learned Tribunal in applying the same. Whereas, the Notification published in the Gazette of India substituting the Second Schedule of the M.V. Act was only on 22.05.2018, much after the date of the accident and also filing of the claim application and therefore, there is no question of applying the same to grant compensation to the respondent No. 1. The learned counsel submits that it is a settled law to statute or any enacted law are to be applied prospectively unless there is a specific provision in the enactment that the same has to be applied retrospectively. In the present case as well, a mere perusal of the Notification dated 22.05.2018, nowhere indicates that the same has to be applied retrospectively and therefore, interference of this Court on the impugned Judgment and Award is not called for. 11. To substantiate this submission, the learned counsel relies upon the decision of the Apex Court rendered in the case of Katikara Chintamani Dora and Others Vs. Guntreddi Annamanaidu and Others reported in (1974) 1 SCC 567 and also in the case of State of Punjab and Others Vs. Bhajan Kaur and Others reported in (2008) 12 SCC 112 . 12. The learned counsel Mr. Guntreddi Annamanaidu and Others reported in (1974) 1 SCC 567 and also in the case of State of Punjab and Others Vs. Bhajan Kaur and Others reported in (2008) 12 SCC 112 . 12. The learned counsel Mr. C. Lalfakzuala, by referring in the case of Rekha Jain (Supra) submits that it is a well settled principle that in granting compensation for personal injury, the injured has to be compensated under the following heads amongst others:- (i) for pain and suffering (ii) for loss of amenities (iii) shortened expectation of life, if any (iv) loss of earnings or loss of earning capacity or in some cases for both (v) medical treatment and other special damages. 13. The learned counsel Mr. C. Lalfakzuala submits that in the present case, considering the amputation of the left leg of the respondent No. 1 below his knee, the learned Tribunal was only justified in awarding compensation not only towards physical pain and suffering and loss of amenities but also towards future medical expenses. Though the respondent No. 1 may not have led specific evidence to substantiate medical treatment undertaken by him, it is only obvious from the appreciation of the entire evidence led by him that proper medical treatment was necessary in the past and also in the future as well. Therefore, the impugned Judgment and Award requires no interference and the appeal being without any merit, the same should be dismissed. 14. I have heard the submissions advanced by the learned counsels for the rival parties and I have perused the material available on record. 15. As may be noticed, broadly, the main grounds of appeal are two fold. Firstly, the appellant contends that the Notification published by the Ministry of Road Transport & Highways on 22.05.2018 should be the basis for calculating the compensation. Secondly, in absence of any evidence, the respondent No. 1 could not have been awarded compensation towards future medical expenses. 16. In so far as the first issue is concerned, what may be noticed is that the date of the accident is 21.12.2016 and whereafter, a claim application was filed by the respondent No. 1 on 09.08.2017. Finally, the claim was disposed of vide Judgment & Award dated 20.06.2018 by the Tribunal. 16. In so far as the first issue is concerned, what may be noticed is that the date of the accident is 21.12.2016 and whereafter, a claim application was filed by the respondent No. 1 on 09.08.2017. Finally, the claim was disposed of vide Judgment & Award dated 20.06.2018 by the Tribunal. What may be further noticed is that the Tribunal heard the parties on 14.05.2018 and admittedly on that day, the Notification dated 22.05.2018 was not in existence. Therefore, this issue has been raised by the appellant admittedly for the first time in the present appeal. It is also an admitted fact that the compensation awarded to the respondent No. 1 under the Second Schedule of the M.V. Act prior to the amendment is more beneficial to the respondent No. 1. 17. The case of Rathi Menon (Supra), relied upon by the learned counsel for the appellant has also been considered. However, on the facts of that case, the subsequent revision of the compensation admittedly was more beneficial to the claimants therein. This aspect cannot be ignored, more so, when the M.V. Act is a beneficial legislation. Therefore, having regard to the ratio laid down by the Apex Court in Katikara Chintamani Dora and Others (Supra), I am of the considered view that in absence of any expressed provision in the Ministry of Road Transport & Highways Notification that the same is to be applied retrospectively from a certain date, the Notification will have to be applied prospectively. In view thereof, I am of the considered opinion that the calculation made by the Tribunal as per the Second Schedule of the M.V. Act prior to its amendment requires no interference. 18. In so far as the other issue regarding the award of compensation towards non-pecuniary damages under the head Future Medical Expenses is concerned, I am of the considered view that the learned counsel for the appellant is correct in pointing of the fact that no evidence or rather direct evidence was led in this regard and therefore, the Tribunal could not have awarded a sum of Rs. 2 Lakhs under this head. The authority relied upon by the learned counsel for the appellant i.e., Raj Kumar (Supra) and Syed Sadiq (Supra) have been duly considered. 2 Lakhs under this head. The authority relied upon by the learned counsel for the appellant i.e., Raj Kumar (Supra) and Syed Sadiq (Supra) have been duly considered. However, one aspect of the matter, which is undisputed is that the left leg of the respondent No. 1 above the knee was amputated, rendering him 80% disabled. A disability certificate from the competent authority was duly obtained and produced by the respondent No. 1 before the Tribunal. Having regard to the nature of his disability and also the decision of the Apex Court in Syed Sadiq (Supra) and in Rekha Jain (Supra), I am, therefore, of the considered opinion that ends of justice will be served if the amount of compensation awarded under the head Future Medical Expenses is modified to Rs. 1 Lakh instead of Rs. 2 Lakhs. 19. In so far as the competency of the appellant Insurance Company to file the present appeal is concerned, the issue need not detain this Court inasmuch as the law in this regard is clear from the decision of the Apex Court at paragraph 11, 12, 13, 34 to 36 of Shila Datta (Supra). 20. In the result, the respondent No. 1 will be entitled to compensation as follows:- Pecuniary Damages:- (1) Loss of Income = Rs. 3300 X 12 X 15 X 80 = 4,75,200/- 100 Non-Pecuniary Damages:- (1) Future Medical Expenses = Rs. 1,00,000/- (2) Physical Pain and Suffering = Rs. 2,00,000/- (3) Loss of Amenities = Rs. 1,50,000/- Total = Rs. 9,25,200/- (Rupees Nine Lakhs Twenty Five Thousand Two Hundred) only. 21. Besides the above modification, the rest of the terms and conditions, including interest as awarded by the Tribunal will remain the same. 22. The appeal accordingly stands disposed of.