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2019 DIGILAW 949 (GAU)

Oriental Insurance Co. Ltd. v. Mohan Sinha

2019-08-27

NELSON SAILO

body2019
JUDGMENT : Nelson Sailo, J. Heard Mr. S. Dutta, learned senior counsel assisted by Ms. M. Choudhury for the appellant. Also heard Mr. K. Sarma, learned counsel for the respondent claimant. 2. This is an appeal against the Judgment & Award dated 13.12.2013 passed by the learned Member, Motor Accident Claims Tribunal, Sonitpur Tezpur in MAC Case No. 286/2009. 3. Brief facts of the case is that on 18.08.2008, the claimant respondent at about 1:00 PM left for Guwahati from Missamari alone by his Maruti Van bearing registration No. AS-01-AD/1739. When he reached near CMP Gate, Army Camp, Chansari at about 4:00 PM, the sunlight coming from the opposite direction disturbed his vision and as a result, he lost control of the vehicle and skidded off the road and the vehicle overturned on the road side. Due to the accident, he sustained multiple grievous injuries on his head, chest, hands and legs. He was immediately taken to Dispur hospital, Guwahati where he was admitted for 15 days. His right hand was severely fractured and for which, a major surgical operation was done and a rod was implanted. Even after he was discharged on completing 15 days hospitalization, he was admitted back in the hospital for further treatment for a period of one week. He therefore filed a claim application before the Motor Accident Claims Tribunal (the Tribunal), Sonitpur, Tezpur claiming compensation to the tune of Rs. 3 lakhs under Section 163-A of the Motor Vehicles Act, 1988 (MV Act). The respondent claimant arrayed the insurer of the accident vehicle as opposite party No. 3. The insurer filed its written statement denying liability to pay the respondent claimant any compensation. The claimant respondent examined himself as the sole claimant witness, while the Insurance Company did not examine any witness. Consequently, vide the impugned Judgment dated 13.12.2013, the Tribunal awarded a sum of Rs. 2 lakhs to the respondent claimant, as compensation along with interest @ 9% per annum from the date of filing the claim application. The Tribunal also awarded a sum of Rs. 1,000/- to the respondent claimant towards the cost of proceedings. Aggrieved with the judgment and award, the insurer of the accident vehicle is before this Court in appeal. 4. Mr. The Tribunal also awarded a sum of Rs. 1,000/- to the respondent claimant towards the cost of proceedings. Aggrieved with the judgment and award, the insurer of the accident vehicle is before this Court in appeal. 4. Mr. S. Dutta, the learned senior counsel submits that since the respondent claimant while driving his own registered vehicle met with an accident without the involvement of any third party and as such, the Insurance Company is not liable to pay him any compensation. He submits that the accident occurred solely due to the fault of the respondent claimant himself and therefore, the insurer of the Maruti Van has no liability. 5. The learned senior counsel by referring to Section 147 (1)(b) of the MV Act submits that in order to comply with the requirements of Chapter-XI of the MV Act, a policy of insurance must be a policy which insures the person or classes of persons specified in the policy to the extent specified in Sub-section (2) against any liability, which may be incurred by him in respect of the death of, or bodily injury to any person, including owner of the goods or his authorized representative carried in the vehicle or damage to any property of a third party caused by or arising out of the use of a vehicle in a public place. Further by referring to Section 142 of the MV Act, the learned senior counsel submits that for the purpose of Chapter-X of the MV Act, permanent disablement of a person shall be deemed to have resulted from an accident of the nature referred to in Sub-section (1) of Section 140, if such person has suffered by reason of the accident any injury or injuries of permanent nature. However, insofar as the respondent claimant is concerned, his injuries are not permanent in nature and having failed to prove the disability certificate produced by examining the authority who issued the same to him, no case is made out by the claimant respondent for awarding him compensation. 6. The learned senior counsel in order to substantiate that the insurer will only have to indemnify the insured against the liabilities incurred towards a third person or in respect of damage to property relies upon the decision of a Coordinate bench of this Court rendered in Bajaj Allianz General Insurance Co. Ltd. Vs. 6. The learned senior counsel in order to substantiate that the insurer will only have to indemnify the insured against the liabilities incurred towards a third person or in respect of damage to property relies upon the decision of a Coordinate bench of this Court rendered in Bajaj Allianz General Insurance Co. Ltd. Vs. Smrita Saikia & Anr.,2011 5 GLT 563 and Oriental Insurance Co. Ltd. Vs. Alok Saikia,2018 4 GLT 609. 7. Mr. K. Sharma, the learned counsel for the respondent claimant, on the other hand, submits that there is no dispute with regard to the accident and that the vehicle was duly insured with the appellant Insurance Company. Further, an additional premium of Rs. 100/- was also paid for Personal Accident (PA) and therefore, under the circumstances, the impugned award passed by the Tribunal requires no interference. 8. The learned counsel further submits that the respondent claimant, besides examining himself as the claimant witness before the Tribunal exhibited the policy document as well as the disability certificate issued to him by the authority, authorized to issue such certificate as Exhibit Nos. 5 and 6 respectively. As per the disability certificate, the respondent claimant is shown to be 40% permanently disabled. Considering the same, the Tribunal rightly awarded a sum of Rs. 2 lakhs as compensation to the respondent claimant. Under the circumstance, the learned counsel submits that the appeal of the Insurance Company may be dismissed. In support of his submissions, the learned counsel relies upon the case of New India Assurance Com. Ltd. Vs. Kendra Devi & Ors., (2007) 14 SCC 299 and the Madras High Court Judgment in Bajaj Allianz General Insurance Com. Ltd. Vs. C. Ramesh, 2014 4 TAC 196 (Mad). 9. I have heard the submissions made by the learned counsels for the rival parties and I have perused the materials available on record. 10. It is noticed that the authorities relied upon by the appellant provides that an insurer cannot be made liable to pay compensation for the injuries sustained by the owner, while driving his own vehicle but however, the point that cannot be ignored is that the respondent claimant paid additional premium towards personal accident, and therefore under the circumstance, the question is as to whether compensation can be denied to him. The fact remains that there is no dispute with regard to the accident and also with regard to the injury sustained by the respondent claimant. The respondent claimant on account of the injuries sustained by him due to the accident was admitted to Dispur Hospital for 15 days w.e.f. 18.08.2008. After he was discharged, he was again admitted for further treatment for a period of one week in the said Hospital. According to his evidence, his right hand became disabled and he had to go several times for medical check up and to undergo medical treatment. In support of his claim, the respondent claimant exhibited the insurance policy and the disability certificate issued by the District Disability Rehabilitation Centre, Tezpur showing his disability as 40%. Having regard to the fact that the injury and the disability of the respondent claimant has not been disputed by the appellant and also considering the additional premium paid by the respondent claimant towards personal accident coverage, I find no good ground to interfere with the impugned judgment and award. Accordingly, the appeal being found without any merit, the same is dismissed. 11. The appellant is permitted to withdraw the statutory deposit of Rs. 25,000/- made before the Registry of this Court at the time of filing the appeal alongwith interest, if any. 12. Registry to send back the LCR.