Bajaj Allianz General Insurance Co. Ltd. vs Narendra Singh

Prakash Shrivastava, J.—This order will govern the disposal of M.A. the instance of the insurance company and M.A. No. 1217/2008 is at the instance of claimant. Both these Miscellaneous Appeals have been filed against the award of the Motor Accidents Claims Tribunal dated 20.12.2007 passed in Claim Case No. 187/2006.

In brief, the claimant has filed the Claim Petition under Section 166 of the Motor Vehicles Act pleading that on 3.2.2006 the claimant was travelling in the bus for attending the wedding along with the marriage party and the bus had stopped on the National Highway near village Devli, and claimant had deboarded the bus for attending the natural call, when the Maruti Car No. RJ14-CB-1821 had come from the Kota side in rash and negligent manner and caused accident, as a result of which the claimant had received serious injuries on different parts of the body. The Maruti car was owned by the respondent No. 1, driven by respondent No. 2 and insured with the respondent No. 3. The claimant was taken to Devli and from there he was taken in ambulance to Jaipur; where he remained admitted from 3.2.2006 to 12.2.2006 and thereafter he was lifted by air to Bombay and was operated in P.D. Hinduja National Hospital; where he remained admitted from 13.2.2006 to 13.5.2006 and he was brought by train to Ratlam and then by ambulance to Mandsaur. The claimant had suffered paraplegia on account of the injuries received and he was being treated regularly by the doctor at Mandsaur. The claimant had suffered the permanent disability in the accident. The offence was registered against the driver of the vehicle and in view of the medical expenses and the disability suffered, claimant had claimed sum of Rs. 30,35,000/- in the claim petition.

The owner and driver of the vehicle had remained ex parte before the tribunal.

The insurance company by filing the reply before the tribunal, had denied the claim and had raised the plea that the vehicle was not insured with the respondent-Insurance Company and that the driver of the vehicle was not having effective and valid licence and the vehicle was being driven in violation of the policy conditions.

The tribunal after appreciating the evidence on record, has found that the accident was caused by the Maruti Car No. RJ14-CB-1821, which was driven in rash and negligent manner by the driver of the said vehicle. The tribunal found that in the accident the appellant had received the permanent disability. The tribunal also found that at the time of the accident the appellant was earning Rs. 3 Lacs per annum from the agriculture, tractor and dairy business. The insurance company failed to prove that the driver of the vehicle was not having valid or effective licence at the time of the accident. The tribunal also found that the appellant had incurred expenditure of Rs. 7,80,000/- towards the medical expenses. The tribunal further awarded a sum of Rs. 3,000/- as attender expenses for his treatment at Jaipur from 3.2.2006 to 12.2.2006 in Jaipur S.M.S. Hospital. The tribunal awarded a sum of Rs. 18,000/- towards the attender charges for his treatment from 13.2.2006 to 13.5.2006 at Bombay. The tribunal further awarded a sum of Rs. 48,500/-for his travelling expenses by air to Bombay. A sum of Rs. 19,652/- has been awarded towards the travelling charges from Bombay to Ratlam and then Ratlam to Mandsaur. The tribunal has awarded the sum of Rs. 9,200/- towards the expenses incurred for physiotherapy. A sum of Rs. 20,000/- has been awarded towards the attender charges on account of the permanent disability suffered by the appellant. The tribunal has assessed the loss of income of Rs. 5,000/- per month and after finding the age of the appellant as 49 years, the tribunal has applied multiplier of 11 and has calculated the total loss of income of Rs. 6,60,000/-. The tribunal has thus passed an award of Rs. 16,74,352/- in favour of the claimant-appellant. The tribunal while passing the award, has also found that the vehicle is insured with the insurance company. The tribunal has further awarded interest @9% from the date of filing of the application.

Learned counsel appearing for the insurance company submits that the appellant has failed to prove that the accident was caused due to rash and negligent driving of the vehicle. He submits that there is no independent witness proving the said fact. He has also referred to the spot map in this regard. He has also submitted that the amount which has been awarded by the tribunal is on the higher side and that there is no financial loss to the claimant and ancillary charges awarded are on the higher side.

As against this, learned counsel for the claimant submits that the tribunal has rightly found that the accident was caused due to the rash and negligent driving of the vehicle and that the amount which has been awarded by the tribunal under the different heads is on the lower side, and the same deserves to be enhanced.

I have heard the learned counsel for the parties and perused the record.

So far as the issue of causing of accident due to the rash and negligent driving of the Maruti Car No. RJ14-CB-1821 is concerned, the Claims Tribunal in this regard has elaborately dealt with the evidence of the parties. The tribunal has considered the oral statement of the claimant Narendra Singh, who had suffered injury in the road motor accident. The injured witness has clearly stated that when he was standing by the side of the road, the accident was caused by the Maruti Car No. RJ14-CB-1821 coming in speed in rash and negligent manner from the side of Kota. The claimant has duly proved the documents relating to the criminal case; such as FIR (Ex.P/1), Spot Map (Ex.P/2), Seizure Memo of the vehicle in question (Ex.P/3), query of the vehicle (Ex.P/4) and medical report (Ex.P/5). In the cross-examination, he has stated that at the time of accident he was standing on the left side of the road. The eyewitness (PW-6) Krishnaveer Singh has supported the version of the claimant. He has also stated that the accident was caused due to the rash and negligent driving of the Maruti Car No. RJ14-CB-1821. The version given by the eyewitness Krishnaveer Singh cannot be disbelieved only on the ground that he is a relative of the claimant. His presence on the spot is normal and natural since the claimant alongwith the other relatives was travelling in a marriage party. The driver and owner of the vehicle have not appeared before the tribunal to rebut the evidence of the claimant. It has been noted by the tribunal that the SHO Jahajpur had given the notice (Ex.P/4) under Section 133 of the Motor Vehicles Act to the owner of the vehicle to furnish information about driver of the vehicle and in response to this notice, the owner had disclosed that on 3.2.2006 when the accident was caused, the vehicle was driven by Mohd. Eliyas. Thus Ex.P/4 also reveals that the accident was caused by the Maruti Vehicle in question. The finding which has been recorded by the claims tribunal in this regard are just and proper which is duly supported by the evidence on record. The vehicle was duly insured with the insurance company and no violation of the policy condition has been established. Though the insurance company had raised the plea before the tribunal that at the time of the accident the driver of the vehicle was not having any effective and valid driving licence, but the insurance company has not produced any cogent material in this regard. Therefore, the said plea has rightly been rejected by the tribunal.

The next issue is about the quantum of compensation which has been awarded by the claims tribunal. The plea of the insurance company is that the compensation amount which has been awarded by the tribunal is on the higher side, whereas the plea of the claimant is that the compensation amount awarded by the tribunal is on the lower side.

The evidence on record clearly establishes that in the accident the claimant had suffered permanent disability. The record reveals that the claimant after the accident was brought to Devli hospital, thereafter he was taken to Jaipur; where he was treated from 3.2.2006 to 12.2.2006 in Jaipur S.M.S. Hospital, and thereafter he was taken to the Hinduja hospital Bombay; where he remained admitted from 13.2.2006 to 13.5.2006 and was treated for the spine damage. The plates were also inserted in the shoulder. He was again brought to Jaipur; where he was treated from 7.2.2007 to 28.2.2007, thereafter his treatment had continued at Mandsaur. PW-7 Dr. Nitin Jain who is one of the treating doctor and had given the disability certificate, had disclosed before the tribunal that on examining the claimant on 11.7.2007 he had found that the claimant had become the patient of polytrauma having fracture in the left side rib. He had received injury in the spinal cord in level C7, D2, D11 and D12. He had also received fracture in the scapula and clavicle bones of left shoulder which is called unstable shoulder injury. He has also stated that on account of the injuries received in the spinal cord, the claimant had suffered traumatic paraplegia and his glands relating to the urine and stool were affected. He has also stated that the patient was suffering pain in the entire body and he was unable to walk without support. According to him, the claimant had suffered 60% permanent disability in reference to the whole body which was on account of paraplegia. According to him, the claimant had suffered 21% disability in the left shoulder which in reference to the whole body was 13%. Thus according to the doctor, the claimant had suffered 73% permanent disability and he was required to use walker throughout his life and also required the help of one attendant for the daily work. There is nothing on record to disbelieve the version which is given by the doctor and the tribunal has rightly recorded the finding relating to disability on the basis of the medical evidence.

The tribunal has awarded a sum of Rs. 7,80,000/- which is the actual medical expenses, arrived at on the basis of the bills Ex.P/16 to P/212. The tribunal has further awarded a sum of Rs. 3000/- towards the attender charges for the treatment of the claimant in Jaipur from 3.2.2006 to 12.2.2006 and a sum of Rs. 18,000/- as attender charges for his treatment at Mumbai from 13.2.2006 to 13.5.2006. A sum of Rs. 48,500/- which has been awarded by the tribunal towards the travelling charges by air, is based upon the airplane tickets Ex.P221 to 225. The travelling charges awarded for travelling from Mumbai to Ratlam by train and for Mandsaur by ambulance to the tune of Rs. 19,652/- Is also supported by the document Ex.P213 to 214. The tribunal has awarded a sum of Rs. 25,000/- towards the charges for physiotherapy based upon the document Ex.P/234 to P/235 as also the receipts given by the doctor. A sum of Rs. 9,200/- awarded towards the purchase of the equipments is based upon Ex.P/236 to P/239. The attender charges which have been awarded by the tribunal for holding day to day activities to a sum of Rs. 20,000/-, is also found to be just and proper. The tribunal considering the nature of the business of the claimant has noted that the business is still continuing even after the accident and injury of the claimant, but the tribunal considering the contribution of the claimant in the business has rightly assessed the loss of income of Rs. 5,000/- per month on account of the permanent disability which is suffered by the claimant. The tribunal has also rightly assessed the age of the claimant as 49 years but while applying the multiplier of 11, the tribunal has committed an error. In terms of the judgment of the Supreme Court in the matter of Smt. Sarla Verma and Others Vs. Delhi Transport Corporation and Another, , the tribunal ought to have applied multiplier of 13 and calculated the loss of income of Rs. 7,80,000/- as against Rs. 6,60,000/-. Therefore, the claimant is entitled to enhancement of a sum of Rs. 1,20,000/- under the head of loss of income. The amount which has been awarded by the tribunal under the other heads, is just and proper.

In view of the aforesaid analysis, M.A. No. 496/2008 filed by the insurance company is dismissed and M.A. No. 1217/2008 filed by the claimant is partly allowed by enhancing the compensation amount by a sum of Rs. 1,20,000/-. The enhanced amount will bear interest at the same rate as awarded by the tribunal and governed by the same conditions as contained in the award of the tribunal.

Signed order be kept in the file of M.A. No. 496/2008 and a copy thereof be placed in the file of M.A. No. 1217/2008.