National Insurance Co. Ltd. vs Francis Xavier and another

P.R. Shivakumar, J.—This Civil Miscellaneous Appeal is directed against the judgment and award of the Motor Accidents Claims Tribunal

(Additional District Judge cum Chief Judicial Magistrate), Krishnagiri dated 23.01.2002 made in MCOP No. 831 of 2000. The National

Insurance Co. Ltd., which figured as the second respondent in the above said MCOP is the appellant herein. The claimant and the first respondent

in the MCOP are respectively respondents 1 and 2 in the Civil Miscellaneous Appeal. The first respondent herein had made a claim of Rs.

3,00,000/- as compensation for the injuries sustained by him in a road accident that took place on 21.06.2000 at about 5.30 p.m. in Krishnagiri.

According to the petition averments, the first respondent herein/claimant was travelling as a pillion rider in a motorcycle bearing Regn. No. TN-

29-R-8134 belonging to the second respondent herein, which was driven by one Mohan, When the said motorcycle was proceeding from east to

west on the Chennai Road in Krishnagiri Town, near Nathan Restaurant, one aged pedestrian crossed the road suddenly. The rider of the

motorcycle, namely the above said Mohan applied sudden brake and swerved the motor cycle to left as a result of which it skidded. The first

respondent herein due to the said mishap fell down and sustained grievous injuries, including fracture of both bones on the left hand.

Contending that the said accident took place due to the rash and negligent riding of the motorcycle by the said Mohan and that despite proper

treatment given to the first respondent herein/claimant, the injuries sustained by him resulted in permanent disability, the first respondent

herein/claimant had claimed a sum of Rs. 3,00,000/- as compensation, which amount according to the petition averments, was liable to be paid

jointly and severally by the second respondent herein and the appellant herein in their capacities as owner and insurer of said motorcycle involved

in the accident.

The second respondent herein, namely the owner of the vehicle involved in the accident who figured as the first respondent in the MCOP did

not contest the same and remained ex parte. The appellant insurance company arrayed as the second respondent in the MCOP alone contested

the case. In the counter statement, besides denying the petition averments that the accident took place due to the rash and negligent driving of the

motorcycle by its rider, the appellant herein contended that due to the sudden crossing of the elderly person which could not be anticipated by the

rider of the motorcycle, he had to apply the brake and swerve the vehicle towards his left in order to avoid hitting the pedestrian; that in the said

process, the first respondent herein, without even informing the rider of the motorcycle jumped from the vehicle, on account of which the rider of

the motorcycle lost his balance and consequently, the vehicle skidded and fell on the road. The appellant herein also questioned the correctness

and reasonableness of quantum of compensation claimed by the first respondent herein.

Based on the said pleadings, the Tribunal framed necessary issues and conducted trial in which two witnesses were examined as P.W.1 and 2

and 11 documents were marked as Ex. P1 to Ex. P11 on the side of the first respondent herein/claimant. Whereas no witness was examined and

no document was marked on the side of the appellant herein/second respondent in the MCOP.

After hearing the arguments submitted on either side and upon considering the evidence in the light of the arguments advanced, the learned

Motor Accidents Claims Tribunal (Additional District Judge cum Chief Judicial Magistrate), Krishnagiri held that the accident took place due to the

rash and negligent driving of the motorcycle by its rider and hence the second respondent herein and the appellant herein were jointly and severally

liable to pay compensation for the injuries sustained by the first respondent herein/petitioners in the said accident. The Tribunal also held that the

injuries sustained by the first respondent herein resulted in 50% permanent disability, assessed the total compensation to which the first respondent

herein was entitled as Rs. 2,50,000/- and passed an award directing the second respondent herein and the appellant herein to jointly and severally

pay the above said amount along with an interest at the rate of 9% per annum from the date of filing of the MCOP till realisation and proportionate

cost. The Advocate''s fee was also quantified at Rs. 8,000/-.

The above said judgment and award of the learned Motor Accidents Claims Tribunal (Additional District Judge cum Chief Judicial Magistrate),

Krishnagiri dated 23.01.2002 is challenged by the appellant herein on various grounds set out in the memorandum of Appeal.

The point that arises for consideration in this Appeal is:

Whether there is any scope for interference with the award of the Tribunal either by setting aside the same or by reducing the compensation so far

as the appellant is concerned?

Advancing arguments on behalf of the appellant, the learned counsel for the appellant, at the first instance contended that the first

respondent/claimant had not proved that he met with an accident as claimed by him and sustained injuries, as noted in the Claim Petition; that

though the accident according to the Petition averments, occurred on 21.06.2000, the fact that FIR was registered belatedly on 22.07.2000 and

the fact that after obtaining a Wound Certificate marked as Ex. P4 from St. John''s Medical College Hospital, Bangalore, there was no necessity

for the first respondent herein to get a similar certificate under Ex. P2 from the Government Hospital, Krishnagiri have not been properly

considered by the Motor Accidents Claims Tribunal; that the case of the first respondent as if he was travelling as a pillion rider in the motorcycle

at the time of accident was not substantiated by the first respondent; that the claim of the first respondent to have sustained 50% permanent

disability was also not substantiated by acceptable evidence; that a sum of Rs. 2,50,000/- awarded as compensation was highly excessive and

exorbitant and that hence the award of the Tribunal should be interfered with.

On the other hand, the learned counsel for the first respondent contended that the plea raised in the claim Petition as if the accident occurred

due to the negligence on the part of the rider of the motorcycle, the nature of injuries sustained and the resultant permanent disability were properly

proved by adducing proper evidence; that in the absence of contra evidence adduced on the side of the respondents in the MCOP, the learned

Motor Accidents Claims Tribunal rightly decided the issues in favour of the first respondent herein and that the amount awarded as compensation

could never be termed either excessive or exorbitant.

This Court gave its anxious considerations to the submissions made by the learned counsel appearing on either side. The materials available on

record were also perused.

Before the Motor Accidents Claims Tribunal, the first respondent herein had made a claim for compensation against the second respondent

herein and the appellant herein, in their capacities as the owner and Insurer respectively of the motorcycle involved in the accident, namely

motorcycle bearing Regn. No. TN-29-R-8134. It is true the second respondent herein, namely the owner of the motorcycle did remain ex parte

before the Tribunal and has not chosen to prefer any Appeal against the award. The appellant herein, namely Insurer of the said vehicle alone

contested the case before the Tribunal and chose to file the present Appeal against the award passed by the Tribunal. An Insurer, without the leave

of the Court, cannot contest the case on any ground other than those enumerated in Section 149(2) of the Motor Vehicles Act, 1988 without

obtaining leave of the Court u/s 170 of the Motor Vehicles Act. Similarly, in the absence of such lease having been obtained, the award of the

Tribunal cannot be challenged by the Insurer on merits, namely on the question of negligence and regarding the reasonableness of quantum of

compensation.

Though the appellant has not produced any document to show that any such permission was obtained, from the original records submitted by

the Tribunal for reference in the Appeal, this Court is able to find a docket order dated 27.12.2001 to the effect that the appellant herein filed a

Petition u/s 170 of the Motor Vehicles Act and that the said Petition was allowed and the appellant herein was granted leave u/s 170 of the Motor

Vehicles Act to avail the grounds of defence that could be raised by the insured, namely the owner of the vehicle.

In this case, the first and foremost contention raised on behalf of the appellant seems to be that the accident itself has not been proved by

proper evidence. The learned counsel for the appellant pointed out the facts that there was a delay of more than one month in preferring the

Complaint and that the claimant chose to get a Second Wound Certificate from the Government Hospital, Krishnagiri even though he had already

obtained a Wound Certificate form St. John''s Medical College Hospital, Bangalore. In this regard, it is pertinent to note that the oral evidence

adduced through P.W.1 (the first respondent himself) stands corroborated by the documents produced by him. Of course, it is true that there had

been a delay of one month in preferring a Complaint. It is also true that before ever the police were informed, the petitioner got admitted in St.

John''s Medical College Hospital and obtained Ex. P4 issued on 09.07.2000. The accident itself occurred, according to the Petition averments, on

21.06.2000. Subsequently, the petitioner seems to have got admitted in the Government Hospital, Krishnagiri on 26.07.2000 pursuant to which

Ex. P2 - Wound Certificate was issued. The First Information Report itself has been registered on 22.07.2000. No doubt there is a delay in setting

the criminal law in motion and the first respondent has chosen to get admitted in Government Hospital, Krishnagiri for getting Ex. P2 - Wound

Certificate even though Ex. P4 -Wound Certificate had been issued by St. John''s Medical College Hospital, Bangalore much earlier. But the said

discrepancies alone will not be enough to discountenance the contention of the first respondent that he sustained injuries in a road accident that

took place on 21.06.2000. The appellant Insurance Company, who figured as the second respondent in the MCOP, in its counter statement has

categorically admitted that the accident took place on 21.06.2000 on the Madras Road in Krishnagiri, in which the 1st respondent herein/claimant

sustained injuries. When such an admission has been made in the counter statement and the appellant herein has also failed to adduce any evidence

to show that such an admission was erroneous, this Court is not in a position to accept the submissions made by the learned counsel for the

appellant that the truth of the accident itself is in doubt.

The next contention raised by the appellant is that the first respondent herein having driven the motorcycle and caused the accident in which he

sustained injuries, cannot claim compensation from the appellant Insurance Company. The said contention seems to have been raised on the

assumption that the petitioner himself happened to be the rider of the vehicle at the time of accident and not the pillion rider. In support of the

appellant''s contention, the learned counsel for the appellant has relied on Ex. P4-Wound Certificate issued by St. John''s Medical College

Hospital, Bangalore. In the said document it has been noted as follows:

Certain injuries said to have been caused on and to be due to road traffic accident on 21.06.2000 around 5.30 p.m. on Madras Road, Krishnagiri.

It has also been noted that while riding a two wheeler, the injured skidded and fell down in an attempt to avoid hitting a pedestrian. Similar

particulars are found in the Wound Certificate issued on 22.07.2000 at the Government Hospital, Krishnagiri which has been marked as Ex. P2.

The first Information Report registered on 22.07.2000 contains the recital to the effect that while he was travelling as a pillion rider in the above

said motorcycle which was driven by one Mohan, the said accident took place. A conjoint reading of all the documents will go to show that, as no

criminal case was registered even though he took treatment in St. John''s Medical College Hospital, Bangalore for the injuries sustained in the

accident, in order to get a criminal case registered the first respondent admitted in the Government Hospital, Krishnagiri on 22.07.2000 and

thereafter paved the way for registration of a criminal case on the same day. Though, in Ex. P4 it has been stated that while he was riding a two

wheeler, he skidded in an attempt to avoid hitting a pedestrian, Ex. P2 contains a slightly varied account of how he sustained injuries. The Doctor

who prepared Ex. P2-Wound Certificate; has not noted clearly as to whether the injured was the rider or pillion rider. However, on the very same

day, Ex. P1-FIR seems to have been recorded. In Ex. P1, it has been clearly noted that the information given to the police was that the accident

took place while the petitioner was travelling in the above said motorcycle as a pillion rider. This aspect has been spoken to clearly by the

petitioner while he was deposing as P.W.1.

On the other hand, no evidence has been adduced in this regard on behalf of the appellant-Insurance Company. That apart, there is a clear

admission made in the counter statement to the effect that the petitioner was a pillion rider and when the rider of the motorcycle applied brake and

swerved the motorcycle towards his left in an attempt to avoid hitting an elderly pedestrian, who suddenly crossed the road, the petitioner out of

fear jumped from the motorcycle without even informing the rider of the motorcycle and in the course of the said act of the first respondent herein

he sustained injuries. The said admission is enough to show that the first respondent herein/claimant was not a rider of the motorcycle but was

travelling as a pillion rider in the motorcycle. Therefore, the contention of the appellant that the first respondent herein was not the rider of the

motorcycle and hence he was not entitled to claim compensation from the appellant-Insurance Company cannot be sustained.

A copy of the cover note has been produced and marked on the side of the first respondent herein as Ex. P3 to show that the vehicle involved

in the accident had been insured with the appellant herein during the relevant period. The fact that the vehicle was covered by a valid Insurance

Policy at the time of accident is also admitted by the appellant. It is not the case of the appellant that the policy taken was an ""Act only"" policy and

hence the petitioner, being a pillion rider, could not claim compensation from the Insurance Company. Defence plea seems to have been raised on

the assumption that the policy was a comprehensive policy covering the risk involved to a pillion rider also and that is why the appellant-Insurance

Company had taken a plea that the petitioner acted as the rider and sustained injuries while he was riding the motorcycle. Therefore the contention

of the appellant that the appellant-Insurance Company shall not be liable to pay compensation to the first respondent cannot be sustained.

From the evidence of P.W.1 and Ex. P2 and Ex. P4 - Wound Certificates and Ex. P5 - case summary and discharge record and the evidence

of P.W.2, it is obvious itself would show that the petitioner sustained fracture on both bones on the left fore-arm for which he took treatment at St.

John''s Medical College Hospital, Bangalore. It is also evident from the documentary and oral evidence adduced on the side of the first respondent

that despite treatment, the injuries resulted in permanent disability, as there was malunion of the fractured bones and deformity. The medical

practitioner who has been examined as P.W.2, assessed disability at 50%. The Disability Certificate has been marked as Ex. P10. In the absence

of any other contra evidence and in the light of the fact that the appellant-Insurance Company has not been successful in proving that the

assessment of disability made by P.W.2 cannot be relied on, the Tribunal has rightly accepted the assessment of the disability made by P.W.2.

Evidence has been adduced to the effect that the first respondent was a qualified electrician. Ex. P8 is the electric wireman license issued by

the Government of Tamil Nadu to the petitioner. Ex. P9 is the National Trade Certificate in the trade of wireman issued to the petitioner. As the

first respondent herein is proved to have sustained fracture of both bones of left hand and though the fractured bone got united after treatment,

there is malunion and deformity and also been proved that the movement of the left hand elbow was restricted drastically resulting in functional

disability of 50%, the Tribunal has rightly come to the conclusion that the quantum of disability assessed by P.W.2 should be accepted.

The first respondent as per Ex. P9 was born on 08.06.1967. Therefore, as on the date of accident he had completed the age of 33. As per the

petition averments, he was aged 34 years. Therefore, there is nothing wrong in the Tribunal''s decision to take the age of the first respondent herein

on the date of accident as 34 years. But the Tribunal, without giving any details of the assessment, has simply awarded a sum of Rs. 2,50,000/- as

compensation. There is no detail to show how this figure was arrived at. Therefore the contention of the learned counsel for the appellant that the

compensation was fixed arbitrarily, has got to be accepted.

We have already seen that the age of the first respondent herein at the time of accident could be taken as 34 years. He was a qualified

wireman. According to his case and the evidence adduced by him as P.W.1, he was earning a monthly income of Rs. 5,000/-. But, no document

has been produced to substantiate the same. As it has been proved by documentary evidence that the petitioner was a qualified wireman, this

Court has to take his monthly income prior to the accident at the minimum of Rs. 3,000/-. Considering the nature of the job for which he was

qualified and the nature of disability, this Court has to come to the conclusion that the extent of loss of future earning shall be equal to the functional

disability certified by the medical petitioner. Therefore, the future loss of earning capacity is fixed at Rs. 1,500/- per month, which is equivalent to

Rs. 18,000/- per annum. Taking into consideration the above said facts and circumstances of the case, this Court comes to the conclusion that it is

a fit case that the multiplier method can be adopted for assessing damages for future loss of earning capacity. While assessing future loss of earning

capacity caused by the permanent disability, no amount need be deducted towards contingency. All these contingencies like possibility of reduction

of disability in due course of time and the possibility of the claimant dying prior to the expected longevity of life are taken into account while

selecting the multiplier. As the first respondent was aged about 34 years as on the date of accident, this Court deems it fit to select 15 as the

appropriate multiplier and thus arrive at the figure Rs. 1,70,000/- as the compensation for the Loss of Future Earning Capacity. The petitioner has

produced medical bills to the tune of Rs. 32,305/- which can be rounded to Rs. 32,000/-. For Transport Expenses a sum of Rs. 2,000/- can be

awarded. For Pain and Suffering a sum of Rs. 10,000/- can be awarded. For Extra-Nourishment, a sum of Rs. 3,000/- was awarded. Thus the

total amount of compensation to which the first respondent shall be entitled is fixed at Rs. 2,17,000/-, the split up particulars of which are, at the

cost of repetition are furnished hereunder:

The above amount shall carry an interest at the rate of 9% per annum from the date on which the MCOP was filed till the date of realisation. The

first respondent shall also be entitled to the proportionate cost.

In the result, the Appeal is allowed in part and the award of the Tribunal is modified by reducing the compensation from Rs. 2,50,000/- to Rs.

2,17,000/-. The first respondent herein shall be entitled to an interest at the rate of 9% per annum from the date of filing of the MCOP till

realisation. The first respondent herein shall also be entitled to proportionate cost in the MCOP. The parties shall bear their respective cost in the

CMA.