The Oriental Insurance Company Limited and Another vs Yadava Sanil

K. Ramanna, J.—Heard the learned Counsels appearing on both sides.

The appellant is respondent 2 in MVC No. 374 of 1998 on the file of the Motor Accident Claims Tribunal IV, Mangalore (for short, the ''MACT'') filed u/s 166 of the Motor Vehicles Act, 1988 (for short, the ''Act''). In the said claim petition, the respondent/claimant claimed total compensation of Rs. 10 lakhs from the owner and insurer of the vehicle on account of the personal injuries suffered by him in an accident that occurred on 20-4-1997. Accordingly, the MACT allowed the claim petition awarding compensation of Rs. 4,78,000/- together with interest at 6% p.a. Feeling aggrieved by the said judgment and award passed by the Tribunal, the appellant has filed this appeal mainly on the ground that though the respondent/claimant has not produced cogent evidence to prove his income, the Tribunal has come to a wrong conclusion in awarding compensation of Rs. 3,65,400/- under the head ''loss of future earnings''.

The brief facts leading to the filing of this appeal be noted in the first instance briefly and they are as follows.--

The respondent/claimant was a cleaner. On 20-4-1997 at about 6.30 a.m. he was in a lorry bearing Regn. No. KA-19-9430 and the said lorry was proceeding from Ahmedabad. When the said lorry which was driven by its driver in a rash and negligent manner with high speed came near Nandagada Beedi High School, the driver lost his control over the said lorry and as a result, he dashed against the standing tree and due to the impact, the respondent/claimant sustained grievous injuries and also multiple fractures and therefore, he was admitted to the District Hospital, Belgaum, where he has undergone treatment as an in-patient in the said hospital from 24-6-1997 till his discharge. According to the respondent/claimant, he being a cleaner of the lorry, was getting a salary of Rs. 2,900/- p.m. with Rs. 30/- per day as batta.

After filing the claim petition, the Tribunal has issued notice and both the respondents i.e., owner and the insurer of the lorry appeared through their respective Counsels. In the instant case, the appellant herein was impleaded as 2nd respondent. The contention taken by the appellant herein is that the respondent/claimant alone was responsible for the accident and rest of the claim petition averments have been denied and called upon by the claimant to prove the same. Therefore, on the basis of the available pleadings, the Tribunal has framed in all 4 issues. The respondent himself was examined as P.W. 1 and he has also examined 3 witnesses as P.Ws. 2, 3 and 4 and got marked 11 documents as Exs. P. 1 to P. 11 and closed his case. The appellants herein, though filed their written statements, did not choose to examine any witness. So, after hearing the arguments, the Tribunal has answered Issue No. 1 in the affirmative, Issue No. 2 in the negative and Issue Nos. 3 and 4 in the affirmative partly.

In this behalf, learned Counsel for the appellant-Insurance Company, contended that under the Workmens'' Compensation Act, if an employee loses one eye, it does not exceed 3% to 40% of disability whereas, the Tribunal in this case awarded a sum of Rs. 3,65,400/-under the future earnings. The amount awarded under the head ''medical expenses'' to the tune of Rs. 91,270/- is excessive and without any basis. Therefore, he contended that the appeal is to be allowed. On the other hand, learned Counsel for the respondent/claimant submitted that the present appeal preferred by the Insurance Company u/s 173 challenging the quantum of compensation awarded by the Tribunal is not at all maintainable. The Tribunal has rightly come to the conclusion and therefore, the appeal filed by the Insurance Company is liable to be dismissed with exemplary cost. Further, he maintained that the interest awarded by the Tribunal at the rate of 6% p.a. is very low.

Considering the arguments advanced by both sides, we proceed to see whether the appeal preferred by the insurer of the lorry u/s 173(1) of the Motor Vehicles Act, 1988 is maintainable, when the amount awarded by the Tribunal under the heads, ''pain and suffering'' and ''loss of future earnings'' are excessive. First of all, we want to see whether the contention taken by the respondent/claimant that the appeal filed by the insurer challenging the quantum of compensation awarded by the Tribunal is maintainable. It is an undisputed fact that the lorry bearing No. KA-90/94-340 was involved in the accident and respondent herein was working as a cleaner in that lorry. Appellant herein has not disputed about the actionable wrong but, he disputed about the quantum of compensation awarded by the Tribunal. In order to appreciate the contention, we thought it fit to cull out the provisions of Sections 147, 149(2) and (7) and 173 of the Motor Vehicles Act. Though the learned Counsel for respondent strenuously argued about the maintainability of the appeal preferred by the insurer but, has not brought to our notice any decided law on this point. However, we could lay our hands to some of the decisions of this Court as well as the Apex Court with regard to the maintainability or otherwise of the appeal preferred by the insurer challenging the quantum of compensation awarded by the Tribunal. In case of Shankarayya and Another Vs. United India Insurance Co. Ltd. and Another, the Apex Court has held thus.-

"Motor insurance -- Appeal -- Defences available to Insurance Company -- Owner and driver of the offending vehicle appeared before the Tribunal but they did not file written statement -- No permission of the Tribunal was sought by the insurance company u/s 170 for contesting the proceedings on merit --Insurance Company filed appeal against the compensation awarded by the Tribunal and amount of compensation reduced by the Appellate Court -- Whether the appeal filed by Insurance Company was competent when it had not obtained the right to contest the proceedings on merits u/s 170 -- Held, no; reduction of quantum of compensation by the High Court set aside and the Tribunal''s award restored".

Further, this Court in New India Assurance Company Limited, Mangalore Vs. The Member, Motor Accident Claims Tribunal, Udupi and others, held thus.-

"Motor insurance -- Appeal -- Quantum -- Defences available to Insurance Company -- Contention that quantum of compensation awarded by the Tribunal is excessive and is not in accordance with the principles and law of assessment of compensation for loss of dependency, Insurance Company cannot challenge the amount u/s 149(2) but the same is challengeable in writ -- Whether by taking recourse to proceedings under Article 226 of the Constitution, Insurance Company can be allowed to take defences available to the insured on the ground that company''s right of appeal is restricted and controlled by Section 149(2) and (7) of the Motor Vehicles Act --Held no; Insurance Company cannot be allowed to sidetrack the provisions of the Act; moreover, the award is justified on merits".

In the instant case, respondent herein filed the claim petition against the owner and insurer of the lorry which was involved in the accident. Both the owner and insurer filed their respective written statements denying the liability to pay compensation. The owner of the vehicle has taken a contention that the vehicle is covered by the insurance and he has no liability to pay compensation amount. It is a well-settled law that in case the Insurance Company wants to contest the case on all counts, then they have to take permission from the Tribunal u/s 170 of the Motor Vehicles Act. In the instant case, the appellant-Insurance Company has not taken any such permission but, the owner of the vehicle has not challenged the judgment and award under appeal. The contention of the appellant-Insurance Company is that the present appeal filed by it challenging the quantum of compensation is maintainable. On this point, the Apex Court in United India Insurance Co. Ltd. Vs. Meera Singh and others, held thus.-

"So long as the insured has not challenged the award passed against him and so long as the liability would only fall on the Insurance Company it is inequitable to deny a remedy of appeal to the Insurance Company.

The person against whom the claim is made is normally the insured of the vehicle involved in the accident. When he failed to contest the claim made against him the insurer gets the opportunity to contest such claim on all or any of the grounds available to the insured. The right of the insured to contest a claim does not stop with the end of the proceedings before the Tribunal.

What is meant by the words ''failed to contest''? These words must be interpreted in a realistic manner. Right to contest would include the right to contest by filing an appeal against the award of the Tribunal as well. Hence, the insured can continue to contest the claim by filing an appeal as provided u/s 173 of the Act. If the insured fails to prefer an appeal that also would amount to failure to contest that claim effectively. Quite often the insured would lose the desire to contest the claim once he is told that he would not be mulcted with the liability as the same is siphoned off to the insurer. It means that insured had dropped out from contesting a claim midway. In such an eventuality the Act enables the insured to contest it on all grounds available to the insured".

Therefore, considering the ratio laid down by the Apex Court, we are of the firm opinion that the contention of the learned Counsel for respondent/claimant that the appeal filed by the Insurance Company is maintainable, is well-founded.

The next point urged by the learned Counsel for the appellant is that the amount awarded by the Tribunal under the head ''medical expenses'' and ''future loss of earning'' is exorbitant. The burden is on the victim of the road traffic accident to prove the manner in which the accident took place, nature of the injuries sustained by him, treatment undergone by him, amount spent towards medical expenses and percentage of disablement.

In the instant case, the respondent herein has produced the wound certificate, Ex. P. 2, before the Tribunal/to show that he has suffered multiple fractures and also injuries to his right eye but, Ex. P. 2 issued by the Government Hospital, Belgaum, reveals that the respondent herein had sustained 8 injuries. According to doctor, Injury Nos. 5, 6 and 8 are grievous in nature. Apart from producing Ex. P. 2, respondent/claimant has produced Ex. P. 4 issued by the Ophthalmologist which shows that the claimant''s right eye has become blind and the Tribunal has rightly observed in para 15 of the judgment under challenge. The claimant suffered 70% of disablement as opined by P.W. 3-Dr. Norman Mendonca. Even P.W. 2, the doctor who examined the respondent/claimant on 13-6-1998 opined that his right eye has become completely blind. Even P.W. 3-Dr. Edward Nazarath, deposed before the Tribunal that on 17-11-1997 the respondent/claimant came to Fr Mullers'' Hospital at Kankanady, Mangalore, after treatment from the District Government Wenlock Hospital, Mangalore and according to him, right side bone of the waist has been completely dislocated and the thighbone on the right side was not united, nerves at right thigh was cut and there was infection and fracture on the left ankle. According to him, the respondent/claimant suffers 70% of disability. So, considering the nature of the injuries sustained by the respondent/claimant, the Tribunal awarded a sum of Rs. 20,000/- under the head ''pain and suffering'' and considering the evidence of P.W. 1, the Tribunal awarded a sum of Rs. 24,360/- towards ''loss of income'' while undergoing treatment. Therefore, the Tribunal after appreciating both oral and documentary evidence placed on record, has come to the conclusion that the respondent/claimant suffers 50% of the entire body disability. Considering the age and income of the claimant, the Tribunal has applied the multiplier ''15'' to assess the loss of nature earnings and awarded compensation of Rs. 3,65,400/-. So, having regard to the facts and circumstances of the case, we record our opinion that the Tribunal has rightly awarded the aforesaid amount under the heads ''pain and suffering'', ''loss of income while undergoing treatment'' and ''future loss of income''. The respondent herein has produced in all 171 medical bills marked as Ex. P. 9. Taking into consideration the medical bills produced by the claimant, the Tribunal has awarded a sum of Rs. 91,270/- towards medical expenses and we do not find any infirmity or incorrectness in awarding compensation towards ''medical expenses''. Apart from that, Tribunal has awarded Rs. 1,330/- towards incidental charges, that is towards attendant''s charges, food and nourishment and transportation charges and in our opinion the amount awarded under the aforesaid heads appears to be just and proper. Therefore, viewed from any angle, we do not find any prima facie case, legal or factual to admit this case.

For the foregoing reasons, we dismiss this appeal at the stage of admission itself. No order as to costs.