National Insurance Company Limited vs Shabir Ahmad Wani And Others

Puneet Gupta, J

The learned Motor Accident Claims Tribunal, Ramban on a Claim Petition filed by the claimant-Shabir Ahmad Wani, respondent No.1 in the appeal, passed an Award in favour of the claimant to the tune of Rs.3,70,000/- along with pendentelite and future interest @ 7% per annum throughout till realization of the amount.

The award is challenged on the ground that the Tribunal has erred in holding the income of respondent No.1-Claimant as Rs.5000/- per month. It is also argued that the remedy under Section 163-A of the Motor Vehicles Act can be availed by the person whose annual income does not exceed Rs.40,000/- but in the present case the trial court has assessed the annual income of the respondent-Claimant as Rs.60,000/- per year. In the light of said fact, the petition under Section 163-A was not maintainable. The medical certificate has not been issued by the Medical Board and that the disability of 40% as assessed by the doctor is of a particular part of the body and not the whole and, therefore, the disability cannot be assessed at 40%. The appellants seek setting aside of the award passed by the Tribunal.

The respondent No.1 has contested the appeal. The scanned record of the Tribunal is before the court.

The controversy in the present appeal lies in a narrow compass. The accident is not in dispute nor is that the vehicle bearing registration No.JK19/0002 (Car) was registered with the appellant at the time of accident. The learned counsel for the appellant has submitted that the Tribunal has wrongly decided the claim petition under Section 163-A of the Motor Vehicles Act as the yearly income of the claimant-respondent No.1 has been assessed by the Tribunal as Rs.60,000/- and in order to bring the claim under Section 163-A the Tribunal has scaled down the income of the claimant below Rs.40,000/-. The learned counsel for the respondent-claimant has, however, submitted that the argument of the appellant is only technical in nature and there was no bar for the Tribunal to decide the claim petition under Section 163-A of the Motor Vehicles Act, 1988.

Both the sides have produced the authorities in support of their respective arguments. The tribunal can treat the petition having been filed under Section 163-A of Motor Vehicle Act though not filed under the said provisions of law in order to do complete justice in the matter.

The Court is of the view that the argument raised by the learned counsel for the appellant is far-fetched and not in tune with the spirit of the Act which is only beneficial legislation. The petition could not be thrown out only on the ground as pleaded by the appellant.

The tribunal on the basis of the evidence that has come on record has held that the monthly income of the claimant cannot be assessed more than Rs.5000/- per month meaning thereby Rs.60,000/- yearly. It cannot be disputed that the petition under Section 163-A of the Act will lie only when the yearly income of the claimant does not exceed beyond Rs.40,000/-. The claimant in his petition has mentioned that his monthly income as Rs.18000/- per month from all sources. The Court has to assess the income of the petitioner as Rs.40,000/- per year for the purposes of disposal of the claim of the petitioner though the Tribunal had held the income of the petitioner as Rs.60,000/- per year. The claim petition having been filed twelve years back, the court does not intend to throw out the claim of the petition on the ground pleaded by the appellant herein.

The yearly income of the claimant is assessed as Rs.40,000/-. As far as the determination of the compensation is concerned the same has to be in accordance with the Schedule II and not otherwise. The medical evidence on record reveals that the claimant has suffered stiffness due to fracture dislocation of left shoulder with post traumatic stiffness of left knee following fracture of left patella. The statement of Dr. Yudhvir Singh in support of the medical permanent disability certificate has been recorded wherein he has reiterated that the permanent disability of the patient is 40%. The permanent disability has affected the manual and routine work of the injured has come in the statement of the doctor. The permanent disability assessed by the Tribunal does not require any reassessment by this Court. Keeping in view the permanent disability the loss of income comes to Rs.16000/-. The age of the claimant was 38 years at the time of accident and, therefore, the multiplier of 16 is required to be applied in the case in hand. The compensation to which the claimant shall be entitled to comes to Rs.16000 x 16 = Rs.2,56,000/-. The claimant has not placed on record any proof regarding the expenses incurred relating to the treatment. The Tribunal has rightly not awarded amount in view of the absence of the evidence in this respect. Thus, the claimant is held entitled to Rs.2,56,000/- as compensation from the appellant-Company and not the one as awarded by the Tribunal. The claimant shall also be held entitled to interest @ 7% as awarded by the Tribunal. The award is modified to the aforesaid terms.

The appeal is allowed in aforesaid terms.