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2022 DIGILAW 1361 (MP)

Oriental Insurance Co. Ltd. v. Ranjita

2022-11-16

VIVEK AGARWAL

body2022
ORDER 1. Appellant/Oriental Insurance Company Limited has filed Miscellenous Appeal No.3744/2010, Miscellenous Appeal No.3745/2010 & Miscellenous Appeal No.3746/2010 whereas appellant/claimant Satyendra @ Mahendra Sahu & appellant/claimant Laxman have filed Miscellenous Appeal No.859/2010 & Miscellenous Appeal No.860/2010 being aggrieved of common award dated 8.1.2020 passed by learned Additional Motor Accident Claims Tribunal Multai, District Betul in M.C.C No.35/2009, M.C.C No.44/2009, M.C.C No.24/2009. 2. Learned Counsel for the Oriental Insurance Company Limited submits that the award passed by the Claims Tribunal is erroneous. The Claims Tribunal has overlooked the evidence of Claimant Witness No.3 Chintu Chilhare, who deposes that he was sitting in the Pick Up Van bearing registration No.MP48-G0258 and when it was travelling on a high speed, the brakes had failed resulting in ramming of the Pick Up Van to a Wall causing injuries to the claimants. The evidence of Claimant Witness No.3 Chintu Chilhare has remained unrebutted. On the contrary, in cross-examination, learned counsel for the non-applicant No.2 Devidas had put the aforesaid question to him and he had accepted that he was sitting in the Pick Up Van knowing well that it is meant for transportation of goods and not for carrying passengers. In cross-examination, this witness also admits that since the owner and driver of the offending vehicle were known to him, therefore, he was sitting in the said Pick Up Van. 3. The aforesaid finding of the Claims Tribunal that Claimant Witness No.3 Chintu Chilhare was not sitting in the Pick Up Van is contrary to the evidence given by Claimant Witness No.3 Chintu Chilhare. Infact, in cross-examination on behalf of the Oriental Insurance Company Limited, he admits that three persons were sitting on the rear side of the Pick Up Van and he was sitting in front and, therefore, he deposed that the offending vehicle was moving at the speed of 50 to 60 kilometer per hour as the meter was in front of him. 4. Thus, it is apparent that the claimants were not entitled to travel in a goods vehicle. 4. Thus, it is apparent that the claimants were not entitled to travel in a goods vehicle. It has also come on record and as deposed by Claimant Witness No.3 Chintu Chilhare that the claimants were sitting as gratuitous passengers for which there is no coverage in the Insurance Policy and, therefore, the Oriental Insurance Company should have been either exonerated or at best the Claims Tribunal should have passed an award of pay & recover in favour of the Oriental Insurance Company Limited directing it to pay the compensation and recover it from the owner and driver of Pick Up Van No.No.MP48-G-0258. 5. As far as Miscellaneous Appeal No.859/2010 filed by appellant/claimant Satyendra @ Mahendra Sahu is concerned, it has come on record that he sustained fracture of humerus bone and right ulna bone. The Claims Tribunal has awarded compensation under the head of treatment, loss of income, general damages but has not awarded any amount under the head of physical pain & mental suffering, attendant, nutritious diet, physiotherapy and transportation. Taking all these facts into consideration that the accident took place on 19.12.2006 and the fracture of humerus bone and ulna bone take about two to three months to heal, a sum of Rs.6,000/- at the rate of Rs.2,000/- per month for a period of three moths is awarded under the head of nutritious diet. A sum of Rs.6,000/- at the rate of Rs.2,000/- per month for a period of three months is awarded under the head of attendant. A sum of Rs. 3,000/- is awarded under the head of transport. A sum of Rs.10,000/- is awarded under the head of future treatment/physiotherapy. A sum of Rs.25,000/- is awarded under the head of physical pain and mental suffering. Thus, there will be enhancement to the tune of Rs.50,000/- (Rupees Fifty Thousand Only) to which appellant/claimant Satyendra @ Mahendra Sahu will be entitled to in addition to the amount awarded by the Claims Tribunal. The aforesaid enhanced amount will be payable by the Oriental Insurance Company Limited and in turn the Oriental Insurance Company Limited will be entitled to recover it from the owner and driver of the Pick Up Van No.MP48-G-0258. The enhanced amount of compensation shall earn interest @ 7% per annum from the date of filing of the claim petition till the date of actual payment. 6. The enhanced amount of compensation shall earn interest @ 7% per annum from the date of filing of the claim petition till the date of actual payment. 6. In above terms, Miscellaneous Appeal No.859/2010 filed by appellant/claimant Satyendra @ Mahendra Sahu is disposed of. 7. As far as Miscellaneous Appeal No.860/2010 filed by appellant/claimant Laxman is concerned, the Claims Tribunal has only awarded a sum of Rs.10,000/- though there was finding that there was dislocation of the shoulder of appellant/claimant Laxman. The Claims Tribunal has awarded compensation under the head of treatment, loss of income, general damages but has not awarded any amount under the head of physical pain & mental suffering, attendant, nutritious diet, physiotherapy and transportation. Taking all these facts into consideration that the accident took place on 19.12.2006 and the fracture of humerus bone and ulna bone take about two to three months to heal, a sum of Rs. 6,000/- at the rate of Rs.2,000/- per month for a period of three moths is awarded under the head of nutritious diet. A sum of Rs.6,000/- at the rate of Rs.2,000/- per month for a period of three months is awarded under the head of attendant. A sum of Rs.3,000/- is awarded under the head of transport. A sum of Rs.10,000/- is awarded under the head of future treatment/physiotherapy. A sum of Rs.25,000/- is awarded under the head of physical pain and mental suffering. Thus, there will be enhancement to the tune o f Rs.50,000/- (Rupees Fifty Thousand Only) to which appellant/claimant Laxman will be entitled to in addition to the amount awarded by the Claims Tribunal. The aforesaid enhanced amount will be payable by the Oriental Insurance Company Limited and in turn the Oriental Insurance Company Limited will be entitled to recover it from the owner and driver of the Pick Up Van No.MP48-G-0258. The enhanced amount of compensation shall earn interest @ 7% per annum from the date of filing of the claim petition till the date of actual payment. 8. In above terms, Miscellaneous Appeal No.860/2010 filed by appellant/claimant Laxman is disposed of. 9. As far as Miscellaneous Appeal No.3744/2010, Miscellaneous Appeal No.3745/2010 & Miscellaneous Appeal No.3746/2010 filed by the appellant/Oriental Insurance Company Limited is concerned, there is violation of the terms and conditions of the Insurance Policy. 8. In above terms, Miscellaneous Appeal No.860/2010 filed by appellant/claimant Laxman is disposed of. 9. As far as Miscellaneous Appeal No.3744/2010, Miscellaneous Appeal No.3745/2010 & Miscellaneous Appeal No.3746/2010 filed by the appellant/Oriental Insurance Company Limited is concerned, there is violation of the terms and conditions of the Insurance Policy. The Insurance Policy Conditions stipulates that the vehicle in question is only meant for transportation of goods and not for carrying passengers. The evidence of Claimant Witness No.3 Chintu Chilhare has remained unrebutted, which proves that there was violation of terms and conditions of the Insurance Policy and, therefore, the liability cannot be fastened on the Oriental Insurance Company Limited. Thus, in the light of the ratio of law laid down by Hon'ble the Supreme Court in Pappu & Others v. Vinod Kumar Lamba & Another 2018 (4) M.P.L.J 488 , it is directed that the Oriental Insurance Company Limited shall first pay the amount of compensation and thereafter it shall be entitled to recover it from the Owner and Driver of Pick Up Van No. MP48 -G-0258. 10. In above terms, Miscellaneous Appeal No.3744/2010, Miscellaneous Appeal No.3745/2010 & Miscellaneous Appeal No.3746/2010 filed by the appellant/Oriental Insurance Company Limited stand allowed & disposed of. Let record of the Claims Tribunal be sent back.