United India Insurance Co. Ltd. and Others vs Banwari Lal and Others

Rajendra Menon, J—As both these appeals have been fled under Section 173(1) of the Motor Vehicles Act and challenge is made to an award dated 25th January, 2008 passed by the Motor Accident Claims Tribunal, Hoshangabad, in Accident Claim Case No. 66/2004, both these appeals one by the Insurance Company challenging the liability imposed upon the Insurance Company and the other by the claimant for enhancement of compensation, are being decided by this common order.

Facts in brief goes to show that on 15th May, 2003 claimant Banwari Lal was travelling in a vehicle bearing MP No. 4H 4514 (a Jeep). It is said that the vehicle was being driven by respondent No. 1 Shahid Khan, it was owned by respondent No. 2 Rewashanker and was insured with respondent No. 3 United India Insurance Company Ltd., Itarsi. It is further said that the jeep was being driven by respondent No. 1 Shahid Khan in a rash and negligent manner and it turned turtle due to the aforesaid rash and negligent driving near "Bhopal Tiraha". As a result seven or eight passengers travelling in the jeep sustained injury. The claimant Banwari Lal is said to have sustained a fracture in his nose. As a result he was admitted in the District Hospital, Hoshangabad, where he underwent certain surgery of the nose and was discharged after one month. It is said that as a result of the accident, there is disfiguration on his face due to some damage to the nose, his sense of smelling has been reduced, his hearing power has been reduced and further contending that he was earning about Rs. 150/- per month and because of the accident his earning capacity has also reduced due to the permanent disablement suffered, a claim petition was fled under Section 166 of the Motor Vehicles Act claiming a compensation of Rs. 17,65,000/-. Even though respondent No. 2, the owner of the vehicle appeared and fled a written statement but thereafter as they did not appear both respondents No. 1 and 2 were proceeded ex-parte. Respondent No. 3 Insurance Company appeared and fled an objection to say that the vehicle was registered as a private vehicle but was being used as a Taxi and as there is violation of the policy condition, the insurance company cannot be held liable. Based on the material that came on record, learned Court below framed six issues. Issue No. 1 was as to whether the vehicle in question met with an accident on 15.5.2003 because of the rash and negligent driving of the driver and whether in the accident the claimant suffered the injuries as indicated herein above? This issue has been answered positively in favour of the claimant. Issue No. 2 was as to whether the applicant has sustained permanent disablement of his nose due to the accident? The issue is answered in the positive by saying that the claimant has suffered permanent disablement of his nose. Issue No. 3 was as to whether the vehicle was being driven in contravention to the terms and conditions of the Insurance policy? This issue has been answered against the Insurance company by holding that Insurance Company has not proved this fact. Issue No. 4 was as to whether at the time of the accident the claimant was 40 years of age and earning Rs. 150 per month? This issue has been answered by holding that at the time of accident claimant was 45 years of age. He was only a Majdoor earning Rs. 30 to 40/- per day. Issue No. 5 was as to whether the claimant was entitled to the compensation of Rs. 17,65,000/-? This issue has been answered by holding that the claimant is only entitled to compensation of Rs. 70,000/-.

Challenging the award Banwari Lal the claimant has fled M.A. No. 264/2009 seeking enhancement of compensation on the ground that once the claimant is found to have suffered permanent disability of the nose, he should be awarded compensation by treating him to be permanent disabled, to earn Rs. 150/- per day. It is said that once a case of permanent disability is made out, the learned Tribunal should have awarded appropriate compensation. Contending that the compensation has not been properly assessed commensurate to the injury and the disability suffered by claimant M.A. No. 264/2009 is an appeal by the claimant under Section 173(1) seeking enhancement of compensation.

M.A. No. 2192/2008 is an appeal by the Insurance Company and it is their contention that once the insurance policy was produced and was exhibited as Exhibit D/1 and when the insurance policy shows that the vehicle was registered as a private vehicle and when the material available on record did show that the vehicle was being used as a Taxi, it is said that violation of the terms and conditions of the insurance policy is established and therefore, the liability on the Insurance Company imposed by the Tribunal was not proper.

I have heard learned counsel for the parties and perused the record. The facts that have come on record are not in dispute. As far as M.A. No. 2192/2008 the appeal fled by the Insurance Company is concerned, records indicate that the Insurance Company fled the written statement and raised a plea that the vehicle in question was insured as a private vehicle but was being used as a Taxi and therefore, the Insurance Company cannot be held liable. The policy in this regard is Exhibit D/1. It pertains to the vehicle in question which is a Mahindra Commander Jeep. However, it is insured for third party liability and except for fling the policy of insurance no evidence has been lead by the Insurance Company to say that on the date of the incident the vehicle was being used as a commercial vehicle by collection of tariff or fare from the passengers who were travelling in the vehicle.

On behalf of the Insurance Company one Shri Vergese Khallu D.W.1/N.A.2 the administrative officer has been examined. This witness produces the insurance policy Exhibit D/1 and only says that this is the insurance policy. In cross examination he admits that the insurance policy provides for third party liability on the insurance company. This witness does not give any evidence to say that the vehicle in question was being used by collection of passenger fee or tariff from the passengers who were travelling in the vehicle nor has the insurance company adduced any evidence to show that the vehicle was being used after collection of fare from the passenger or is rented or hired forced carrying passengers. The claimant P.W.1 Banwari Lal and his witness P.W.2 Devilal who were travelling in the vehicle have been examined. They say that they were travelling in the vehicle and were going to attend a Barat, even though they say that they had gone in Taxi but in cross examination by the counsel for the Insurance Company (who is wrongly shown as counsel for respondent No. 2), no question is put to these witnesses to suggest that they were travelling in the vehicle after payment of fare.

If the vehicle was being used as a Taxi then the passengers travelling in the vehicle would be permitted to travel only after the fare for the journey is collected from them. There is no evidence available on record nor is there any remote suggestion by the Insurance Company in the evidence adduced to say that the passengers like the claimant Banwari Lal and his witness Devilal were travelling in the vehicle after payment of fair. That being so, I am of the considered view that the Insurance Company having failed to prove that the vehicle was used as a Taxi and was plying after collection of fare from the passenger, the Tribunal has not committed any error in rejecting the objection of the Insurance Company as the Company has failed to prove violation of the terms and conditions of the policy. On the contrary, witness of the Insurance Company admits that policy did cover a third party liability, and treating it to be a third party liability, the insurance company is held to be liable. In doing so, the Tribunal has not committed any error. I see no reason to interfere. Accordingly, there is no merit in the appeal fled by the Insurance Company and therefore, M.A. No. 2192/2008 is liable to be and is accordingly dismissed.

As far as the claim for enhancement of compensation by the claimant is concerned, it is a case where the claimant suffered a fracture on his nose and thereafter, the Doctor who examined him only says that there is permanent disability in the nose in as much as there is slight disfiguration of the nose and his sense of smelling has been reduced. However, the evidence do show that the claimant was working as a general Majdoor, he was doing work as a labourer, and no evidence is adduced to say that because of his disability, his earning capacity has been reduced. If the claimant was working as a labour, it is not known as to how fracture in his nose and his reduction of his sense of smelling will reduce his earning capacity as a labourer. Accordingly, it cannot be said that because of the injury the claimant has suffered any loss in his income or earning capacity and on that count no further compensation can be awarded to the claimant. The claimant has suffered hospitalization for one month and may have been kept out of work for some period of time. On that count, a compensation equivalent to about three months loss of salary and earning can be awarded to him and as the learned Tribunal has not awarded any compensation on this count, the appellant/claimant will be entitled to some compensation on this count i.e. salary for a period of three months.

As far as earning of the claimant is concerned, he has come out with a case that his earning was about Rs. 150/- per day. However, in his cross examination he admits that he was working as a Majdoor and the salary of Majdoor per day was Rs. 40/- to 50/- per day. Keeping in view the aforesaid, the learned Trial Court has assessed the salary of the claimant to be Rs. 30-40/- per day and in doing so, learned Court has not committed any error. The Court has also awarded Rs. 50,000/- as compensation for the injury suffered to the claimant, Rs. 10,000/- for mental suffering, Rs. 5000/- for special diet, Rs. 20,000/- for medical treatment and Rs. 5000/- for incidental expenses. The compensation for the injury suffered by the claimant and the loss caused to him in his smelling capacity and the permanent disfiguration of the nose requires to be adequately compensated and on this account only a sum of Rs. 50,000/- has been awarded. Claimant is 45 years old person and is working as a Majdoor. Interest of justice would be met in case this award of compensation on this count is enhanced to Rs. 1,00,000/-. That apart, for the loss of earning for a period of three months, if the claimant is found to be earning Rs. 40/- per day then he would be earning about Rs. 1200/- per month and for three months loss of salary, he would be entitled to further sum of Rs. 3,600/-. Apart from the aforesaid, no further addition in the compensation can be permitted as no evidence has been adduced in this regard.

Keeping in view the aforesaid, the appeal of the appellant i.e. M.A. No. 264/2009 is allowed in part and the compensation is enhanced by Rs. 50,000/- on account of permanent disability to the nose caused to the appellant and Rs. 3,600/- towards three months salary. Accordingly, enhancing the compensation from Rs. 70,000/-to Rs. 1,23,600/-. Accordingly, the appeal is allowed in part. The enhanced amount of compensation shall also carry interest at the same rate as has been granted from the Court below.

Both the appeals stands disposed of. No order as to costs.