Nitin vs Iffco Tokyo General Insurance Co. Ltd. and Others

Hon''ble Prakash Shrivastava, J.—This appeal is filed by the appellant u/s 173 of the Motor Vehicles Act, 1988 against an award dated 31st January, 2008 passed by learned MACT (Fast Track), Kukshi, District Dhar in Claim Case No. 62/2007.

The appellant had suffered injury in the road motor accident which had taken place on 22nd October, 2005. Accordingly, he had filed the claim petition before the Tribunal. The Tribunal found the appellant had suffered permanent disability to the extent of 23.8% in the upper limb of the body and Tribunal calculated the permanent disability in reference to the whole body as 8%. The Tribunal assessed the income of the appellant as Rs. 15,000/- per annum and keeping in view the extent of permanent disability, the Tribunal calculated the annual loss of income of Rs. 1,200 on account of permanent disability. The Tribunal found the age of the appellant as 27 years at the time of accident and applied the multiplier of 18 and calculated the total loss of income due to permanent disability as Rs. 21,600. The Tribunal awarded a sum of Rs. 16,650 under the head of actual medical expenses, Rs. 1,800 under the head of attendant charges and Rs. 3,000 for the transportation charges. The Tribunal awarded Rs. 10,000 for loss of studies during the treatment period. Thus, the Tribunal awarded a total sum of Rs. 53,050 alongwith the interest @ 9% per annum from the date of application till realisation. The Tribunal exonerated the Insurance Company on the ground that the appellant was travelling as a passenger in the vehicle and the risk of the appellant was not covered, therefore, the Insurance Company was not liable to satisfy the award.

It is not necessary to narrate the entire facts in detail, such as how the accident occurred, negligence in driving the offending vehicle, etc. The Tribunal has already recorded the findings on these issues in favour of the appellants. None of those findings have been assailed at the instance of the respondents i.e., owner/driver/insurance Company by filing cross-appeal or cross-objection. Thus it is not necessary to burden the judgment by detailing the facts on the said issues.

Learned Counsel for appellant has submitted that the Tribunal has committed an error in calculating the compensation amount and has further committed an error in exonerating the Insurance Company.

Learned Counsel for respondent Insurance Company has submitted that the Award which has been passed by the Tribunal is in accordance with law and no interference is required.

Heard the learned Counsel for parties and perused the record.

So far as the issue of exonerating of Insurance Company is concerned, appellant was travelling as a passenger in the vehicle and in view of Circular of the IRDA dated 16th November, 2009 and keeping in view the fact that the policy in question as package policy, the risk is covered by the policy, therefore, the Tribunal committed an error in exonerating the Insurance Company.

Dr. B.L. Khangar (AW. 1) has stated that in the accident, the appellant had received injury in the right shoulder and his shoulder bone was fractured He has stated that due to the injury the appellant finds it difficult to lift the right hand and to do the daily routine activities. He has opined that the appellant has suffered disability of the right hand to the extent of 23.8%. The AW-2, appellant himself has stated that at the time of accident he was a student of BDS. Looking to the course which the appellate was studying and the effect of the permanent disability on his career, it is found that the 8% permanent disability which was calculated by the Tribunal in reference to the whole body is on the lower side and the Tribunal ought to have held that the appellant had suffered 12% permanent disability. So far as the income of the appellant is concerned, the Tribunal has calculated Rs. 15,000/- annual income of the appellant but looking to the year of the accident and the age of the appellant, the Tribunal ought to have assessed Rs. 24,000/- per annum as a notional income of the appellant. Thus, the loss of income keeping in view the permanent disability comes to Rs. 24,000 x 12% x 18 = Rs. 51,840/- whereas Tribunal awarded a sum of Rs. 21,600 under this head. Therefore, the amount awarded under this head is enhanced by a sum of Rs. 30,240/-. It is also noticed that the Tribunal has not awarded adequate amount under the head of physical and mental pain and suffering, special diet, attendance charges, etc., therefore, the amount awarded under these heads is enhanced by a lump sum amount of Rs. 15,000/-. Therefore, the amount awarded by the Tribunal is enhanced by a sum of Rs. 45,240/- ( Rs. 30240 + Rs. 15,000). The enhanced amount will be paid by the respondents jointly and severally.

In view of the aforesaid, the appeal is partly allowed to the extent indicated above. No costs.