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Judgment
B. Manohar, J.—The two appeals are filed challenging the judgment and award dated 12.4.2011 passed in M.V.C. No. 711/2010 on the file of the Motor Accident Claim Tribunal-II, Bellary, (hereinafter referred to as ''the Tribunal'', for short).
MFA No. 23729/2011 has been filed by the National Insurance Company Ltd. challenging the liability fastened on it and the quantum of compensation. MFA No. 24385/2011 has been filed by the claimant challenging the very same judgment and not satisfied with the quantum of compensation awarded by the Tribunal and sought for enhancement of the compensation.
Facts of the case leading to the filing of the claim petition by the claimant is that he was working as cleaner in a lorry bearing Regn. No. AP-21/V-4682 belonging to the 2nd and 3rd respondents. On 5.12.2004 at about 1.00 p.m., near VGM Factory, Belgal Road, Bellary, when he was standing in front of the said lorry for the purpose of loading iron ore, the driver of lorry moved the vehicle in rash and negligent manner without giving signal or horn and dashed against the claimant. As a result of which, the claimant sustained grievous injuries and sustained fractures to the leg and urinary system. He was taken to VIMS Hospital, Bellary for treatment. At the time of accident, he was aged about 25 years and earning a sum of Rs. 4,000/- p.m. He spent more than Rs. 5 lakhs towards medical expenses and sought for compensation of Rs. 33 lakhs. Due to the injuries and fractures sustained by him, he has become permanently disabled to do the work and hence, on the above grounds he filed the claim petition seeking compensation.
The driver as well as owner of the vehicle filed written statement admitting the occurrence of accident, however, denying the rash and negligent on his part. He contended that the vehicle in question was covered by the insurance policy and hence, he sought for dismissal of the claim petition as against him.
The Insurance company filed written statement admitting that the vehicle in question was insured with it. However, it denied the rash and negligent driving of the said vehicle. The driver of the vehicle did not possess a valid and effective driving licence as on the date of the accident. Further it was contended that the claimant, who was a cleaner of the vehicle in question, is not covered under the insurance policy. Hence, the insurer is not liable to pay compensation to the claimant and sought for dismissal of the claim petition.
On the basis of the above pleadings, the Tribunal framed necessary issues. The claimant, in order to prove his case, examined himself as P.W.1 and got marked the documents as Exs. P1 to P21. He examined two doctors who treated him as PWs. 2 and 3. On behalf of the Insurance Company, an Administrative Officer examined as RW1 and marked the documents as Exs. R1 to R5.
The Tribunal, after considering the oral and documentary evidence let in by the parties, taking into consideration the IMV report, spot panchanama, copy of the FIR, complaint and also the order sheet in criminal case, wherein the driver had admitted his guilt and paid a fine of Rs. 1,500/-, found that due to rash and negligent driving of the lorry, the accident had occurred and that the claimant was entitled for compensation. With regard to quantum of compensation, the Tribunal found that Ex. P5, wound certificate, produced by the claimant, clearly discloses that he has sustained lacerated wound over the left temple, blunt injuries over abdomen, abrasion over clunt. X-ray of pelvic shows that there is fracture of superior and inferior rumi. The claimant had also sustained rapture of urethra. He was operated for four times. He was inpatient for a period of four months on different occasions. The doctor, who treated the claimant, assessed the disability to the whole body to an extent of 25%. The Tribunal taking into consideration the monthly income of claimant as Rs. 4,000/-, the disability to the whole body to an extent of 25%, the age of the claimant as 25 years as on the date of accident and thereby applying the multiplier of 18, awarded a sum of Rs. 2,16,000/- towards loss of future income, Rs. 75,000/- towards pain and sufferings since he was operated for four times and inpatient for a period of four months on different occasions, Rs. 25,000/- towards medical expenses, Rs. 15,000/- towards future medical expenses and Rs. 12,000/- towards loss of income during laid up period. In all, the Tribunal has awarded a compensation of Rs. 3,43,000/- with interest at 8% p.a.
Insofar as the liability is concerned, the Tribunal looking into Ex. R5, insurance policy, it discloses that it is a package policy equivalent to comprehensive policy, which covers the risk of cleaner also. The Tribunal taking into consideration the judgments reported in Senior Divisional Manager, New India Insurance Co., Ltd. Vs. K. Kiran and Another, (2007) ACJ 1153 : (2007) 1 ALD 463 : (2006) 6 ALT 1 , National Insurance Co. Ltd. Vs. Prembai Patel and Others, (2005) 2 ACC 361 : (2005) ACJ 1323 : AIR 2005 SC 2337 : (2005) 125 CompCas 86 : (2005) 3 CTC 569 : (2005) 4 JT 399 : (2005) 2 LLJ 1109 : (2005) 6 SCC 172 : (2005) SCC(L&S) 819 : (2005) 3 SCR 655 : (2005) AIRSCW 2254 : (2005) 3 Supreme 587 and 2000 (6) ACJ 535, held that the Insurance Company is bound to indemnify the claimant and accordingly directed the Insurance Company to pay compensation with interest at 8% p.a. Being aggrieved by the said judgment, the Insurance Company has preferred MFA No. 23729/2011 for setting aside the judgment and award.
Sri N.R. Kuppellur, learned Advocate appearing for the appellant in MFA No. 23729/2011 contended that the Tribunal failed to appreciate the policy in its proper perspective. The said policy does not cover the risk of cleaner. Hence, the insurer is not liable to pay the compensation. Further, the income of Rs. 4,000/- p.m. taken by the Tribunal is excessive. Though the accident occurred in the year 2004, the claim petition was filed in the year 2010, which gives rise to suspicion about the occurrence of accident. No reason has been assigned for the inordinate delay in approaching the Tribunal. Hence, the judgment and award passed by the Tribunal may be set aside and absolved the liability fastened on the Insurance Company.
On the other hand, the claimant being not satisfied with the quantum of compensation has filed MFA No. 24385/2011 contending that in the accident, he sustained lacerated wound over the left temple, blunt injuries over abdomen, abrasion over clunt. Ex. P20 shows that the claimant had sustained fractures of superior and inferior pubic rami, retropubic and retroperitongal haematoma with rapture of urethra. He was inpatient for more than four months on different occasions and undergone two major operations as well as two minor operations. The compensation awarded by the Tribunal is on the lower side. Hence, sought for enhancement of compensation.
I have carefully considered the arguments addressed by the learned Advocate for the parties and perused the judgment and award and the oral and documentary evidence adduced by the parties.
The records disclose that due to actionable negligence on the part of driver of the offending vehicle, the accident had occurred on 5.12.2004 at about 1.00 p.m. In the accident, the claimant, who was working as cleaner of the lorry in question, sustained grievous injuries. He took the treatment in VIMS Hospital, Bellary for a period of six months. He was inpatient for a period of four months on different occasions. In view of blunt injury over the abdomen and other parts of the body, the claimant sustained fracture of superior and inferior rami and rapture of urethra. He was operated for four times by the Urologist and Neurologist. In the criminal case, the driver of the offending vehicle pleaded guilty of the offence alleged against him and paid a fine of Rs. 1,500/-. There is dispute with regard to the occurrence of accident, injuries sustained, treatment and disability to the whole body to an extent of 25%.
The Tribunal taking into consideration the income of claimant as Rs. 4,000/- p.m., since the vehicle is interstate permit, a cleaner will earn a sum of Rs. 4,000/-, the age of claimant as 25 years and thereby applying the multiplier of 18, the disability to the whole body to an extent of 25% assessed by the doctors, awarded a sum of Rs. 2,16,000/- towards future loss of income. A sum of Rs. 75,000/- towards pain the sufferings is in accordance with law taking into consideration the injuries sustained, hospitalization and four operations undergone by the claimant. The compensation of Rs. 25,000/- towards medical expenses, Rs. 15,000/- towards future medical expenses since the claimant has to take treatment regularly for rapture of urethra till his death, Rs. 12,000/- towards loss of income during laid up period is in accordance with law. Hence, the claimant is not entitled for any enhancement of compensation.
Insofar as the liability is concerned, the Insurance Company contended that the insurance policy does not cover the risk of cleaner. The said contention cannot be accepted since Ex. R5, copy of policy, discloses that it is a package policy equivalent to comprehensive policy, which covers the risk of cleaner also. The comprehensive policy covers the risk of all employees like drivers, cleaners, hamalies and passengers, who travel with the goods. Apart from that a sum of Rs. 3,580/- was collected as basic, in addition to it, third party damages of Rs. 100/-. A sum of Rs. 100/- was collected for compulsory accident to driver, owner, which discloses that it is a package policy. Hence, the Insurance Company cannot escape from the liability to compensate the claimant. In view of the principles laid down in the judgments referred to above, I am of the opinion that the Insurance Company is bound to indemnify the owner and liable to pay the compensation. Therefore, I find no infirmity or irregularity in the judgment impugned passed by the Tribunal fastening the liability on the Insurance Company to compensate the claimant. In view of the above findings, both the appeals require to be dismissed. Accordingly, I pass the following:
ORDER
"MFA No. 23729/2011 filed by the Insurance Company and MFA No. 24385/2011 filed by the claimant are dismissed."
The amount in deposit made before this Court is ordered to be transferred to the concerned Tribunal.