Naman Kumar Goel @ Goyal And Others vs Bibekananda Behera & Another

G. Satapathy, J

These two instant appeals U/S. 173(1) of the Motor Vehicles Act, 1988 (in short, the "Act"), assail the same and one judgment dated 09.10.2023 passed in MAC Case No.924 of 2019 by which the learned 3rd Motor Accident Claim Tribunal, Cuttack (in short, "the Tribunal") directed the Divisional Manager, M/s. Oriental Insurance Co. Ltd. (in short, "the insurer") to pay a sum of Rs.16,71,800/- to Mr. Naman Kumar Goel @ Goyal (in short, "the claimant") together with simple interest @ 7% per annum with effect from 13.08.2019 within two months thence failing which to pay penal interest @ 12% per annum.

Briefly stated, on 21.07.2019 at about 8.00 AM, the claimant while proceeding to Kendrapara on a motorcycle bearing Regd. No.OD-33-H-6207 as a pillion rider met with an accident near Bhatapada, Sabar Sahi on Jaunli Road located on Cuttack-Chandabali Road, when one Mahindra Bolero Maxi truck bearing Regd. No.OD-05-AK-3931 (hereinafter, referred to as "the offending vehicle") dashed against the motorcycle resulting in serious injury to the claimant and death of the rider of the motorcycle. According to the claimant, the accident occurred due to rash and negligent driving of the driver of the offending vehicle and as a consequence of such accident, he was shifted to hospital for treatment and accordingly, he undergone treatment in different hospitals incurring huge expenditure, but the accident was reported to police with registration of Salepur PS Case No.184 of 2019, which ultimately resulted in submission of charge-sheet. The claimant further claims that he was 20years old at the time of the accident and was pursuing a Bachelor of Business Administration (BBA) and was also earning Rs.10,000/- per month from a private job and due to accident, he could not do his normal work and thereby, lost a substantial amount due to the accident. On the aforesaid averments, the claimant approached the learned Tribunal in an application U/S.166 of the Act for grant of compensation of Rs.20Lakhs for his injuries in the motor vehicular accident by impleading the owner and insurer of the offending vehicle and his such application for compensation was registered by the learned tribunal as MAC No.924 of 2019.

2.1 In response to the notices of MAC No.924 of 2019, the owner of the offending vehicle did not choose to contest the claim and was accordingly set ex-parte by the learned tribunal on 09.09.2021, but the insurer contested the claim by filing written statement denying the averments of the claim and disowning its liability to pay the compensation to the claimant on the ground that the claimant was rash and negligent in the accident and there was violation of policy conditions by the owner of the offending vehicle for not having valid Route permit and for handing over the vehicle to a driver not holding valid DL.

On the inter-se pleadings of the parties, the learned tribunal struck with five issues and allowed the parties to lead evidence, but only the claimant adduced evidence by examining two witnesses including himself as PWs.1 and 2 and exhibiting police papers and other documents under Ext.1-17 and identifying 20 X-Ray plates under MO-I to MO-XX. After appreciating the evidence on record upon hearing the parties, the learned tribunal passed the impugned judgment directing the insurer to pay compensation indicated (supra). Being dissatisfied with the impugned judgment, the insurer and the claimant have approached this Court in these two separate appeals challenging the quantum of compensation, in addition the insurer challenging the liability to pay the compensation to the claimant.

Heard, Mr. Bijayananda Samantaray, learned counsel for the claimant and Mr. Prasanta Kumar Mahali, learned counsel for the insurer in the present two appeals and perused the record, but none appears for the Respondent-cum-owner in both the appeals at the time of hearing of the appeals despite valid service of notice.

On a careful consideration of rival submission, it appears that the claimant challenges the impugned judgment on the quantum of compensation, whereas the insurer challenges the impugned judgment for not only on quantum of compensation, but also the claimant filing fictitious claim for delay of 2 days in lodging of FIR for the accident, in addition to challenging the impugned award for non-examination of the eye witness and granting exorbitant compensation to the claimant by taking temporary disability of the claimant at 40% in relation to right leg as permanent disability and loss of earning for the same extent of disability of the claimant and the disability certificate being not proved in accordance with law.

It is, however, claimed by the insurer that the disability certificate has not been proved in accordance with law, but the learned Tribunal has not granted any compensation under the heading of loss of future earning to the claimant for the extent of disability suffered by the claimant by observing inter alia that since the disability suffered by the claimant is not in permanent in nature, it cannot be regarded to hold that the claimant has suffered any loss of future earning and, therefore, the extent of disability even if found to be otherwise proved without any objection by the insurer had lost its significance for the Tribunal not granting any compensation by taking into account the extent of disability of the claimant. In this regard, this Court is in fact guided by the law laid down in Raj Kumar Vrs. Ajay Kumar; (2011) 1 SCC 343, wherein the Apex Court in Paragraph-12 has held that if the Tribunal concludes that there is no permanent disability, there is no question of proceeding further and determining loss of future earning capacity. In this case, in view of the guidelines laid down by the Apex Court in Raj Kumar(supra), the learned Tribunal of course has assessed the compensation rightly by taking into consideration the expenses relating to treatment, hospitalization, medicine, transportation, nourishing food and miscellaneous expenditure; and damages for pain, suffering and trauma as a consequence of injuries, but it has not granted any amount under the heading of loss of earning during the period of treatment which will be discussed while examining the quantum of compensation as challenged by both the parties.

One of the pleas as set up by the insurer is that the claimant has made a fictitious claim for delay of two days in lodging of FIR and non-examination of eye witnesses, but when charge sheet has been submitted in this case, it is hardly material whether there is delay in lodging of FIR or not. Besides, it is not the rule that eye witnesses shall be required to be examined to prove the injuries to the claimant. Law only says about grant of compensation to a person suffering from injuries arising out of use of motor vehicles provided the other conditions are fulfilled. On the contrary, the insurer has not led any evidence to disclose that the claimant has not suffered any injuries in the motor vehicular accident nor had it proved about the accident not occurring. Further, no evidence has been tendered by the insurer to say that the claim advanced by the claimant is fictitious. Hence, the aforesaid plea of the insurer about claimant making fictitious claim is rejected.

Reverting back to the core issue of challenge to quantum of compensation which is advanced by both the parties, it appears that the learned Tribunal has taken into consideration Exts. 19, 20, 23 & 26 which are the pharmacy bills of the claimant revealing expenditure of expenses for the treatment of claimant at Rs.5,29,371/-, but the learned Tribunal thereafter has proceeded to grant a lump sum amount of Rs.9,00,000/- which includes the aforesaid expenditure of Rs.5,29,371/- which according to this Court is erroneous inasmuch as, there must be justification of granting the additional amount of Rs.3,70,629/- under the heading of medical treatment of the claimant, but the learned Tribunal has granted Rs.40,000/- towards the special diet and conveyance charges for the treatment of the claimant in the hospital for about 53 days which is considered to be on lower side inasmuch as, the claimant was immediately shifted to SCB MCH, Cuttack and thereafter to Ashwini Hospital, Cuttack and he was treated as indoor patient therein for around 53 days which is never disputed and, therefore, the claimant is entitled to Rs.10,000/- towards conveyance charges and granting Rs.750/- per day towards cost of special diet, the aforesaid amount would come to Rs.39,750/-. It is appropriate to state here that no amount has been granted to the claimant for loss of earning during the aforesaid period, but the claimant had advanced claim that he was earning Rs.10,000/- per month from a private job during the relevant time and thereafter, the loss of earning during the period of treatment and sometime thereafter for around four months, it would be just and proper to grant Rs.60,000/- towards the loss of earning during the relevant time for the treatment of the injuries sustained by him. In addition, the claimant is also entitled to attendant charges for the period of treatment of 53 days @ Rs.600/- per day and, therefore, it would come around Rs.31,800/-. The learned Tribunal has rightly granted a sum of Rs.5,00,000/- towards pain suffering and loss of amenities to the claimant as well as Rs.2,00,000/-towards future medical treatment inasmuch as, the claimant's medical document reveals that he had undergone surgery and treatment for crushed injuries of right lower limb with fracture of both bone of right leg, compound grade III B with compound open fracture of patella(right), fracture of lateral femoral condyle (Hoffa) and this medical procedure would definitely require future treatment. The learned tribunal has also rightly granted a sum of Rs. 1,00,000/- towards loss of amenities which is a reasonable amount keeping in view the nature of injuries sustained by the claimant and his future sufferance. In the result, the claimant is entitled to following amount under different heads as compensation towards injuries sustained by him in the motor vehicular accident.

Sl.No

Heads

Amount

(i)

Expenses relating to treatment, hospitalization & medicine

Rs.5,29,371/-

(ii)

Expenses relating to transportation (Rs. 10,000/-) & Special diet(Rs. 39,750)

Rs.49,750/-

(iii)

Expenses relating to attendant charges

Rs.31,800/-

(iv)

Loss of earning during treatment & recovery

Rs.60,000/-

(v)

Pain, suffering & trauma

Rs.5,00,000/-

(vi)

Loss of amenities

Rs.1,00,000/-

(vii)

Future medical expenses

Rs.2,00,000/-

Total

Rs.14,70,921/-

In addition, the claimant is also entitled to simple interest @ 7% per annum as awarded by the learned Tribunal, but the penal interest @ 12% per annum as imposed on the award, if the same is not satisfied within two months of passing of the impugned judgment is not being in conformity with law is hereby set aside.

In the result, the appeal filed by the insurer stands allowed on contest, but the appeal filed by the claimant is hereby dismissed on contest, however, without any costs. Accordingly, the impugned judgment is modified to the extent indicated above and the insurer is hereby directed to pay the aforesaid amount of Rs.14,70,921/- (Rupees Fourteen Lakhs Seventy Thousand Nine Hundred Twenty One) together with interest @ 7% per annum w.e.f 13.08.2019 till its actual realization to the claimant within eight weeks hence. In case of deposit of the aforesaid modified compensation amount before the learned Tribunal, the same shall be disbursed to the claimant proportionately in terms of the impugned judgment and the statutory deposit with accrued interest thereon be refunded back to the insurer on proof of deposit of the modified compensation amount before the learned Tribunal.