Oriental Insurance Co. Ltd vs Tarsem Lal And Another

In this appeal filed under section 173 of the Motor Vehicles Act, 1988 (for short the Act) against the award passed by the learned Motor Accidents Claim Tribunal, Jammu (for short the Tribunal) in file No. 201/C on 04.04.2016. The respondent No. 1 (hereinafter referred to as the claimant) has filed the aforesaid claim petition on the grounds of injuries caused to him in an accident occurred on 14.05.2007 near Sangrampur, Tehsil Akhnoor, District Jammu, by the rash and negligent driving of the tractor i.e. offending vehicle bearing registration No. JK02 AA-0917 driven by the respondent No. 2. Both respondent No. 2- driver as well as the appellant-insurance company appeared before the Tribunal and filed their objections admitting that the offending vehicle was insured with the appellant-insurance company at the time of accident. On the pleading of the parties, the following issues were framed:

"1. Whether an accident took place on 14.05.2007 near Sangrampur Tehsil Akhnoor District Jammu, by rash and negligent driving of the Tractor bearing registration No. JK02AA-0917 by its driver respondent No. 1, as a result of which, petitioner Tarsem Lal received grievous injuries? OPP

If issue No. 1 is proved in affirmative, whether petitioner is entitled to compensation; if so to what amount and from whom? OPP

Whether the driver of offending vehicle was not holding a valid and effective driving licence at the time of the accident and whether there was violation of terms and conditions of policy of insurance? If so to what effect? OPR-2

Whether the petitioner was travelling as a gratuitous passenger in the offending tractor at the time of accident? If so to what effect? OPR-2

"5. Relief. O.P Parties"

The claimant in order to prove his claim besides himself, examined eye witness, Om Parkash and Dr. Nirdosh Mahajan as well as has also produced the disability certificate on record. However, the appellant has examined only one witness i.e. Junior Assistant (Sumit Mangotra), RTO Office, Jammu. Respondent No. 1 i.e. owner/driver of the offending vehicle remained absent during the period of trial, as such, he was set ex parte.

The learned tribunal after considering the statement of the claimant as well as the FIR No. 89/2007 at Police Station, Domana and the evidence adduced, has rightly decided the Issue No. 1 in favour of the claimant and against the appellant holding that the accident occurred on 14.05.2007 which resulted in injuries to the claimant due to rash and negligent driving of the offending vehicle.

The issue No. 2 was the amount of compensation which the claimant was entitled to and from whom. From the evidence led by the claimant, i.e. PW-1 and the medical certificate on file, it was considered the age of the claimant was 22 years at the time of accident. He was engaged as a labourer by the owner of the offending vehicle and was earning Rs. 6,000/- per month. This evidence was not rebutted by any evidence on record. Thus, considering the age of the deceased to be 22 years, 50 % annual income of the claimant was to be increased for future prospectus. In view of the law laid down in Santosh Devi v National Insurance Company, (2012) 6 SCC 421, addition of 50% towards future income was made and therefore, the income of the deceased could be Rs. 9,000/- The disability certificate has been produced by the claimant and has been proved by the PW-3, Dr. Nirdosh Mahajan vide EXPW NM who has stated that the disability of the claimant is 20% as it is a case of crush injury of right foot for which amputation of right big toe was done. Thus, the percentage of loss of earning capacity due to amputation of the big toe of either foot in terms of the Workmen Compensation Act was 14 per cent. However, while considering the judgment of the Hon'ble Supreme Court in Raj Kumar vs. Ajay Kumar and others, reported as 2011 ACJ 1, it was held that the permanent disability on account of actual earning capacity of the disabled persons should be considered in this manner. Paragraph 10 whereof is reproduced as under:

"10. Ascertainment of the effect of the permanent disability on the actual earning capacity involves three steps. The Tribunal has to first ascertain what activities the claimant could carry on in spite of the permanent disability and what he could not do as a result of the permanent ability (this is also relevant for awarding compensation under the head of loss of amenities of life). The second step is to ascertain his avocation, profession and nature of work before the accident, as also his age. The third step is to find out whether (i) the claimant is totally disabled from earning any kind of livelihood, or (ii) whether in spite of the permanent disability, the claimant could still effectively carry on the activities and functions, which he was earlier carrying on, or (iii) whether he was prevented or restricted from discharging his previous activities and functions, but could carry on some other or lesser scale of activities and functions so that he continues to earn or can continue to earn his livelihood."

Thus, the loss of income of the claimant, while considering this fact was fixed as 14%. Therefore, the earning capacity of the claimant and the loss of income comes to Rs. 9000x12x14% equal to Rs. 15,120/-. The age of the claimant- respondent is 22 years, therefore, in terms of judgment of the Supreme Court in Sarla Verma (Smt.) and ors. v Delhi Transport Corporation and anr, (2009) 6 SCC 121, the multiplier which is to be considered would be 18, therefore, the loss of earning capacity of the respondent No. 1-claimant comes to Rs. 15,120X18=Rs. 2,72,160/-In addition to this, claim has also been made that the claimant was taken to the Government Medical College, Jammu on 14.05.2007 and was admitted there up to 29.05.2007 where he was treated for his injuries, thus, he had sought expenditure for two attendants in the hospital for a period of 15 days i.e. would be Rs. 15,000 and in view of the disability incurred to him, he also sought Rs. 20,000 on account of pain and suffering and 15,000 on account of loss of amenities of life. The claimant has also sought an amount of Rs. 10,000/- towards medical expenses as well as Rs. 10,000 towards special diet. Therefore, the compensation to which claimant was entitled to is as under:

Loss of future income

=

Rs. 2,72,160/-

Attendants' expenditure

=

Rs. 15,000

Pain and sufferings

=

Rs. 20,000

Loss of amenities of life

=

Rs. 15,000

Expenses on medicine

=

Rs. 10,000

Special diet and nutrition

=

Rs. 10,000

Total

=

Rs. 3,42,160/-

Third issue framed by the Tribunal was with regard to validity and effectiveness of the license of the driver at the time of the accident. The onus to prove this issue was on insurance company, since they raised the plea that the driver of the offending vehicle was not holding valid and effective driving license. As per the official record, the driving license of the driver was endorsed as Light Motor Vehicle (LMV) and it was admitted that it authorize him to drive tractor. Record of the record keeper of the office of the RTO, Jammu has proved that the license of the respondent No. 2 endorsed as LMV and has admitted that he is authorized to drive tractor. He has also stated that in terms of definition of the Light Motor Vehicles, occurring under sub section (2) of section 2 of the Act, LMV means a transport vehicle or omnibus the gross vehicle weight of either of which or a motor car or tractor or road roller, the unladen weight of any of which does not exceed (7500) Kilograms. This question now stands settled in terms of Supreme Court's judgment in Mukund Dewangan v Oriental Insurance Company Ltd. reported as (2017) 14 SCC 663Thus, this issue was decided in favour of the claimant and against the appellant.

Lastly the issue was with regard to whether the claimant was travelling as a gratuitous passenger in the offending tractor at the time of accident and if so, to what effect. The appellant has pleaded that the offending vehicle was a goods vehicle and the respondent No. 2 had allowed the claimant to travel in the tractor as a passenger and therefore, the insurance company is not liable to indemnify the insured in terms of the policy. However categoric evidence and the pleading of the claimant is that he was engaged as a labourer by the owner of the offending vehicle and and the time of accident, he was being given salary, as such, question of being a gratuitous passenger does not arise, since he was an employee of the owner of the offending vehicle (tractor). There is no evidence led by the appellant-insurance company that the claimant was a gratuitous passenger. Firstly gratuitous passenger and the liability of the insurance company for a victim of accident i.e. labourer travelling in a tractor is covered under section 147 of the Act, which is very wide in its scope and meaning and it is clearly intended that every policy of insurance statutorily required to cover the risk of liability in respect of classes of persons relating to all type of vehicles without exception and with no defence to the insurance company disclaiming the liability with respect to particular class of persons or kind of vehicles. Thus, in terms of judgment of the Supreme Court in New India Assurance Company v Smt. Shakuntla Devi reported as AIR 1997 J&K 40 (DB) this issue was also decided in favor of the claimant. Para 25 whereof is reproduced as under.

"25. The learned single Judge has rightly said that the legislature clearly intended that every policy of insurance statutorily required to cover the risk of liability in respect of classes of persons relating to all types of vehicles without exception and with no defence to the Insurance Company disclaiming the liability with respect of particular class or persons or particular kind of vehicles.

Therefore, the deceased Raj Pal, being a labourer travelling in the truck, engaged by either of the parties, is covered under Section 147 of the Motor Vehicles Act, 1988 and the liability to pay the compensation has to fail on the appellant."

In view of the above, the claimant was held entitled to sum of Rs. 3,42,160/- along with 7.5% interest per annum from 30.01.2012. Therefore, the impugned award suffers no defect or illegality and is accordingly upheld. This appeal is, dismissed, being without any merit. Registry to disburse the amount deposited with it strictly in terms of the award after proper identification of the claimant.