Oriental Insurance Company Ltd vs Chhaju Ram And Others

Sureshwar Thakur, J

The Insurer of the offending vehicle, whereuponwhom, the apposite indemnificatory liability, visÂa vis, the compensation amount, stood fastened, is,

aggrieved by the pronouncement, made, by the learned Motor Accident Claims TribunalÂII, Mandi, District Mandi, H.P., upon, Claim Petition No. 49

of 2011, (i) wherethrough, compensation amount, comprised, in, a sum of Rs.2,13,100/Â alongwith interest accrued thereon, at the rate of 7.5% per

annum, and, commencing from, the date of petition till realization thereof, stood assessed, visÂaÂvis, the petitioner therein/respondent No.1 herein,

and, the apposite indemnificatory liability thereof, was fastened, upon, the insurer/appellant herein. On the other hand, respondent No.1/cross objector

also reared crossÂobjections, bearing C.O No. 30 of 2015, against, the impugned award, wherethrough, he seeks enhancement of compensation

amount, in a sum, higher, than, the one assessed qua him, under, the impugned award.

The learned counsel, appearing for the aggrieved insurer, does not, contest the validity, of, rendition, of, affirmative findings, upon, the issue

appertaining, to, the ill fated mishap, being a sequel of rash, and, negligent manner, of, driving, of, the offending vehicle, by, respondent No.3 herein.

However, his centralized focus, for, his making an onslaught, visÂaÂvis, the impugned award, is, anchored upon, qua though, the vehicle, as borne,

from the apposite registration certificate, embodied in Ex.RW1/B, being categorized, as, a, light goods vehicle, (i) whereas, contrary the driving licence,

rather held, at the relevant time, by respondent No.3 herein, and, as borne in Ex.RW2/A, though, authorized him to drive vehicle(s) carrying, the,

classification of “light motor vehicleâ€, and, “light transport vehicleâ€, yet, when there occurring no specific, and, explicit pronouncement, in, Ex.

RW2/A, visÂaÂvis, respondent No.3 herein, being also authorized to drive, the, offending vehicle, (ii) thereupon, Ex.RW2/A being not construable to

be a valid, and, effective driving licence, for, hence, authorizing respondent No.3 herein, to, drive the offending vehicle, at the relevant time, (iii) and,

has also contended, that, the fastening, of, the apposite indemnificatory liability, upon, the appellant, does also, suffer from, a, grave fallibility.

However, the afore contention, is, per se, ridden, with a gross fallacy, as, a bare scanning, of, Ex.RW2/A, (a) makes, clear revelations qua there

occurring, a specific, and, explicit echoing, visÂaÂvis, respondent No.3 herein, being authorized to drive, a, “light motor vehicleÂnon transportâ€,

and, a “light motor vehicleÂtransportâ€, (b) and, the afore echoings dehors, any further explicit echoing becoming carried therein, visÂaÂvis,

respondent No.3 herein being authorized, to, drive a light transport vehicle, rather are sufficient, and, abundant, to constrain this Court, to, conclude qua

the respondent No.3 herein, rather holding, an, authorization, through, Ex.RW2/A, to, drive, the, offending vehicle.

Be that as it may, the learned counsel appearing for the insurer, has proceeded, to, make a contention before this Court, that, with the report, of, the

FSL, borne in Ex. Rx, making, a, pronouncement, visÂaÂvis, alcohol being detected in the blood, and, urine samples, of, respondent No.3 herein, (a)

and, with the contract of insurance rather barring him to drive the offending vehicle, under, the influence of liquor, (b) whereas, his, at, the relevant

time, driving it, in, an intoxicated condition, (c) hence, therethrough, upon breach of the requisite fundamental condition, borne in the contract, of,

insurance, being sparked, hence, the apposite indemnificatory liability, visÂaÂvis, compensation amount, being not saddleable, upon, the insurer of the

offending vehicle. However, the afore submission, is, rudderless, (a) as, the apposite MLC, occurring at page 39, in, the records of the learned tribunal,

makes vivid echoings qua, though, the Doctor concerned, at time of his subjecting, respondent No.3 herein, to medical examination, his hence opining

qua respondent No.3 consuming alcohol, (b) yet the Doctor concerned, also has made further echoings therein qua his being not under, the, influence

of liquor, (c) thereupon, the relevant test(s) for determining qua the ill fated mishap being sequelled, by, the, gross inebriated condition, of, respondent

No.3 herein, rather not holding any sway, for, making any conclusion qua it, constituting the preeminent cause, for, the illÂfated mishap hence

happening (d) nor also Ex. Rx carries any relevance, visÂaÂvis, the afore facet, as it is merely a photo copy of the original, and, further when the

author thereof, has not stepped into the witness box, for, proving its contents, (e) and, further with the apt road certificate, being not adduced, into

evidence, as also the person, who has carried, the, afore urine, and, blood samples, to the FSL concerned, also not stepping into witness box, for hence

this Court, being coaxed, to draw a conclusion, qua dehors Ex. Rx, being, a, photo copy of the original, also with its author, not, stepping into the

witness box, it, yet holding an aura of formidability, (f) sequelly, rather the non stepping into the witness box of the person, who carried, under, the apt

road certificate, the blood, and, urine sample, of, respondent No.3 herein, to, FSL concerned, constrains this Court to conclude, that, the blood, and,

urine samples, whereon, opinion(s) borne in Ex. Rx, stood rendered, by the FSL concerned, being not, the blood, and, urine sample, of, respondent

No.3 herein. Consequently, there is no proven fundamental breach, of, the terms, and, conditions of the contract of insurance, and, the fastening of the

apposite indemnificatory liability, upon the aggrieved insurance, is both apt, and, tenable.

The learned tribunal while concluding, that, the disabled claimant, from, his proven avocation, of, a mechanic hence drawing minimum wages,

comprised in a sum of Rs.100/Â, per diem, yet with the disability certificate borne in Ex.PW4/A, making portrayals, visÂaÂvis, disability, to, the extent

of 25% being entailed, upon, the disabled claimant, hence, it, calculated the loss of income, visÂaÂvis, the disabled claimant, hence in, 25%, visÂaÂ‐

vis, the per mensem salary, borne in a sum of Rs.750/Â​, from, his avocation, of, a mechanic. However, the learned counsel appearing, for, the crossÂ​‐

objector/disabled claimant, had, upon leave, being granted to him, for, proving the pleaded fact, qua, a further disability, of, right lower limb, also being

encumbered, upon, the disabled claimant, (a) also with the crossÂobjector casting an averment, visÂaÂvis, the afore disability hence holding, a direct,

nexus with the injury, initially entailed, upon, his person, in sequel, to, the illÂfated mishap, (b) and, upon, availing the afore leave, his ensuring proof, of,

Ex. AD/1, wherein, the afore reflections are existing, (c) and, the requisite proof qua therewith standing adduced, by its author one Dr. Anurag

Sharma, (d) and, with RWÂ1 Dr. Anurag Sharma, during, the course of his crossÂexamination by the learned counsel for the appellant, though, not

deposing with fullest assurance, visÂaÂvis, genre or the nature, of, the disability hence becoming encumbered upon the claimant, and, he has also

thereafter made echoings, visÂa vis, his inability, to, testify with the fullest assurance, visÂa vis, the disability certificate appertaining, to, the

injuries intially sustained, upon, the claimant, in the motor vehicle accident concerned, (e) yet the afore oral deposition cannot coax this Court, to,

discard, the probative sanctity, of all the recitals borne in Ex. AD/1 rather (f) especially when the right lower limb of the claimant becomes echoed, in,

Ex. AD/1, to, become entailed with, stiffness, and, loss of function up to 50%, and, the afore percentum, of, disability is further disclosed therein to not

likely to improve (g) thereupon, hence the afore narrations, as, cast in Ex. AD/1 do, benumb, the effect, if any, of the afore echoings occurring in the

cross examination, of, RWÂ1 (Dr. Anurag Sharma). Moreso, for omission, on the part, of, the learned Counsel for the appellant, to, ensure, the

examination, of, the Doctor concerned, who had issued the initial disability certificate as borne in Ex. PWÂ4/A, for, his making a deposition, visÂaÂ‐

vis, the disability pronounced, in, the initially issued disability certificate, holding no nexus, visÂaÂvis, the reassessment, as, made quaÂthereÂwith, by

RWÂ1 (Dr. Anurag Sharma), (h) whereas it constituted the best evidence, for, sustaining the espousal of the counsel, for, the insurance company, qua

Ex. AD/1 rather holding no nexus, with the injuries initially gained, upon, the person of the claimant, and, qua wherewith the initially constituted medical

board hence had issued, a, disability certificate, as, borne in Ex. PWÂ4/A. In sequel, the disabled claimant obviously, is, rendered permanently

incapacitated, to, efficiently perform, the, callings, of, his hitherto avocation, as, a mechanic, dehors, a 50% disability being entailed, upon, him, as, the

occurrence of the afore disability, on, a vital portion of his body, directly appertains, besides, impedes, the, fullest performance, of, his hitherto

avocations, rendering it hence, to, constitute, a, cent percentum functional disability.

Even though this court, was enjoined to, visÂaÂvis, the afore factum probandum, ask the learned tribunal, to, make the apposite determination, yet,

for precluding, the, procrastination of trial of the lis, and, also with the afore evident fact, rather existing in the testimony of RWÂ1, thereupon, without

remanding the lis, visÂaÂvis, the afore factum, hence to the learned tribunal, this, Court concludes, that, with a cent percent disability being

encumbered, upon, the disabled claimant, hence, the takings into account, only 25% per centum of the per mensem wages of the disabled claimant, for

computing, the, compensation, visÂaÂvis, him, rather by the learned tribunal, is, an unbefitting endeavour, rather he is entitled, to, compensation, visÂ‐

aÂvis, the fullest proportion, of, his per mensem salary, as, he has through the afore encumbrance, of, a cent percent disability, upon, him, has become,

encumbered with, a, cent percentum functional disability. Furthermore, the verdict of the Hon'ble Apex Court rendered in a case titled as National

Insurance Co. Ltd. vs. Pranay Sethi and others, reported in 2017 ACJ 2700, the relevant paragraph No.61, extracted hereinafter:

“61. In view of the aforesaid analysis, we proceed to record our conclusions:Â​

(i) The twoÂJudge Bench in Santosh Devi should have been well advised to refer the matter to a larger Bench as it was taking a different view than

what has been stated in Sarla Verma, a judgment by a coordinate Bench. It is because a coordinate Bench of the same strength cannot take a

contrary view than what has been held by another coordinate Bench.

(ii) As Rajesh has not taken note of the decision in Reshma Kumari, which was delivered at earlier point of time, the decision in Rajesh is not a binding

precedent.

(iii) While determining the income, an addition of 50% of actual salary to the income of the deceased towards future prospects, where the deceased

had a permanent job and was below the age of 40 years, should be made. The addition should be 30%, if the age of the deceased was between 40 to

50 years. In case the deceased was between the age of 50 to 60 years, the addition should be 15%. Actual salary should be read as actual salary less

tax.

(iv) In case the deceased was selfÂemployed or on a fixed salary, an addition of 40% of the established income should be the warrant where the

deceased was below the age of 40 years. An addition of 25% where the deceased was between the age of 40 to 50 years and 10% where the

deceased was between the age of 50 to 60 years should be regarded as the necessary method of computation. The established income means the

income minus the tax component.

(v) For determination of the multiplicand, the deduction for personal and living expenses, the tribunals and the courts shall be guided by paragraphs 30

to 32 of Sarla Verma which we have reproduced hereinbefore.

(vi) The selection of multiplier shall be as indicated in the Table in Sarla Verma read with paragraph 42 of that judgment.

(vii) The age of the deceased should be the basis for applying the multiplier.

(viii) Reasonable figures on conventional heads, namely, loss of estate, loss of consortium and funeral expenses should be Rs. 15,000/Â, Rs. 40,000/Â‐

and Rs. 15,000/Â​ respectively. The aforesaid amounts should be enhanced at the rate of 10% in every three years.â€​

hence, permitting, visÂaÂvis, the afore perennial loss, of, income, as, evidently visited, upon, a, disabled claimant, to, hence, mete accretions or

escalations, visÂaÂvis, the, afore hitherto per mensem income, of, the disabled claimant, as, borne in a sum of Rs.3,000/Â, also necessitating its

application hereat. Consequently, in, consonance therewith, the disabled claimant, being aged 16 years, at the time, of, happening, of, the illÂfated

mishap, hence, is entitled, for, 40% increase, in his apposite per mensem income, borne, in a sum of Rs.3,000/Â increases whereof, are, computed to

stand borne in a sum, of, Rs.42,00/Â. In sequel whereto, the loss of annual income, of the disabled claimant, visÂaÂvis, his last drawn income, is

computed, at Rs.4200/Â x 12=Rs.50,400/Â. After applying thereto, the apposite multiplier of 16, the total compensation amount, is assessed in a sum

of Rs.50,400/Â x 16=Rs.8,06,400/Â. In addition, to the afore amount, the disabled claimant is also held entitled, to, a sum of Rs.25,000/Â under the

head “pain and sufferingâ€​, and, Rs.44,100/Â​ under head “medical chargesâ€​, as already adjudged by the learned tribunal.

For the foregoing reasons, the appeal filed by the insurer is dismissed, whereas, the crossÂobjections instituted by the disabled claimant/crossÂ‐

objections, are allowed, and, the impugned award, in, the afore manner, hence, is modified. Consequently, the disabled claimant, is, held entitled to a

total compensation of Rs.8,75,500/Â alongwith interest accrued thereon, at the rate of 7.5% per annum, and, commencing from, the date of petition till

realization thereof. The amount of interim compensation, if awarded, be adjusted in the aforesaid compensation amount, at the time of final payment.

All pending applications also stand disposed of. Records be sent back forthwith.