Harish Kori Vs. Raju K.Rajvardhan - Court Judgment

MISCELLANEOUS APPEAL 2343 2006 Before Mr. Justice J.K. Maheshwari Decided on 7 December, 2012 (Jabalpur) HARISH KORI …Appellant Vs. RAJ.K. RAJVARDHAN & ors. …Respondents Uttam Maheshwari, for the appellant. None for the respondents No.1 & 4. Ajay Mishra, for the respondent No.2. Dinesh Koushal, for the respondent No.3. ORDER

J.K. M AHESHWARI , J.- This order shall govern the disposal of MA No.2343/06 filed by the claimant seeking enhancement and also M.A No.2534/06 filed by the a Central Govt. through Commandant MRC, Sagar assailing the award of compensation. Being aggrieved by the Award dated 29.3.06 passed by the Ist AMACT, Sagar in Case No.32/04, aforesaid both the appeals have been preferred.

2. The facts in brief are that on 29.10.03 at about 7 AM, the injured was going to distribute the newspaper on the bicycle but near the Rest house No.2 Cant Sagar, the bus of MRC School bearing not CPV-0544 driven rashly and negligently by the driver came from behind and dashed the bicycle thereby the injured fell down and received injuries over the head, back, hand, leg and shoulder. The intimation was given to P.S Cant by the auto-driver Sanju alias Satyendra, on which, at crime No.678/03 offence punishable under section 279,337 of the IPC was registered. The injured remained hospitalized in the district hospital, Sagar from 29.10.03 to 14.4.04. The operation of disruption of Pelvic and rupture of Urethra was performed. With the aforesaid averments, being student of Class 8th, while performing the work of distribution of newspaper, the claim petition under section 166 of the Motor Vehicle Act,1988 ( in short the Act) seeking compensation for an amount of Rs.9 lacs on account of permanent disability received to the injured, was filed.

3. The Respondent No.2 filed his written statement and admitted the ownership of the vehicle. It was denied that respondent No.1 was the driver of the offending vehicle. It is further stated that the vehicle was insured with respondent No.3 Insurance company, however, the owner is not liable to pay the amount of compensation. It is further stated that the claimant is not entitled to claim any compensation against the owner.

4. The Respondent No.3 insurance company filed its written statement and admitted insurance of said vehicle but inter alia contended that the said insurance was on fulfilling the terms and conditions of the policy. It is said, the vehicle was used for commercial purpose and insured also as commercial vehicle for transportation of the students of the school. However, the said bus was not having the valid permit on the date of accident, therefore, insurance company is not liable to pay the compensation. The respondent No.4 also filed his written statement contending that he was driving the vehicle being driver of respondent No.2 and it was not driven by respondent No.1.

5. The tribunal while passing the impugned award recorded a finding that the accident had taken place on account of rash and negligence driving of the said vehicle. It has further been held that in the said accident the injured has suffered grievous injuries and also received permanent disability. It is further held that the insurance company is not liable to pay the compensation because the vehicle was driven in violation of the terms and conditions of the policy without having any permit, therefore, the insurance company is not liable to pay the compensation. In view of the foregoing facts, the tribunal awarded the compensation of Rs.1,38,245/- with a direction to pay and recover. From the said amount Rs.65,835 awarded in medical expenses, Rs.32,130/- for future loss of earning on account of disability, Rs.15,290/- for transport expenses and Rs.25000/- for mental pain and future suffering.

6. Shri Ajay Mishra, counsel for Union of India referring the provision of section 66 of the Act contends that as per sub section 3(a) if any transport vehicle is owned by the Central or the State Government and used for the purpose unconnected with any commercial enterprise, the permit to ply such vehicle is not required. However, the findings recorded by the tribunal exonerating the insurance company on account of not having the valid permit is unsustainable in law, therefore, the award passed by the claims tribunal may be modified and the insurance company may be held responsible to pay the amount of compensation indemnifying the liability of appellant by setting aside the findings of pay and recover.

7. Shri Uttam Maheshwari, counsel for the claimant by referring the document Ex.P/9 and P/10 submits that the injured, on account of fracture of Pelvic bone and rupture of Urethra, received the disability to the extent of 35%. Under the direction of this court the report from the Medical college, Jabalpur was called wherein it was found that the said injury found in urethra of the injured may cause impotency in future. However, under such circumstance it is urged that the compensation so awarded by the claims tribunal for future loss of earning is inadequate which may be reasonably enhanced by allowing the MA No.2343/06.

8. Shri Dinesh Koushal, counsel of respondent No.3 Insurance company has strenuously urged that the appellant has not taken any defence in their written statement indicating that the vehicle is owned by the central government and used for government purpose unconnected with the commercial activity, therefore, the insurance company is not liable to pay the compensation. He further submits that the appellant has not brought any evidence either oral or documentary to establish the aforesaid pleading. However in the absence of the aforesaid, appeal on the said contention, is not maintainable and such question cannot be adjudicated which is not raised in the written statement, however, appeal filed by the Union of India is liable to be dismissed. On the question of enhancement raised in the appeal filed by the claimant, it is urged that the insurance company is not liable to pay the compensation therefore it is the owner who has to defend on the said question.

9. On being asked by the Court from Shri Mishra on the point of inadequacy of the amount in the appeal filed by the claimant, it is urged that the injured being unemployed minot person, however, looking to the injuries the compensation has rightly been awarded by the claims tribunal which do not warrant any interference.

10. Having heard the parties, first of all the arguments advanced by Mr Mishra in the light of sub section (3) of section 66 of the Act by which it is urged that Union of India is not responsible to pay the compensation, is required to be considered. In this regard the provision of Chapter V section 66 is relevant, however reproduced as thus :

66. Necessity for permits. – (1) No owner of a motor vehicle shall use or permit the use of the vehicle as a transport vehicle in any public place whether or not such vehicle is actually carrying any passengers or goods save in accordance with the conditions of a permit granted or countersigned by a Regional or State Transport Authority or any prescribed authority authorising him the use of the vehicle in that place in the manner in which the vehicle is being used : Provided that a stage carriage permit shall, subject to any conditions that may be specified in the permit, authorise the use of the vehicle as a contract carriage: Provided further that a stage carriage permit may, subject to any conditions that may be specified in the permit, authorise the use of the vehicle as a good carriage either when carrying passengers or No.: Provided also that a goods carriage permit shall, subject to any conditions that may be specified in the permit, authorise the holder to use the vehicle for the carriage of goods for or in connection with a trade or business carried on by him. (2) The holder of a goods carriage permit may use the vehicle, for drawing of any trailer or semi-trailer not owned by him, subject to such conditions as may be prescribed:

38. Provided that the holder of a permit of any articulated vehicle may use the prime-mover of that articulated vehicle for any other semi-trailer. (3) The provisions of sub-section (1) shall not apply - (a) to any transport vehicle owned by the Central Government or a State Government and used for Government purposes unconnected with any commercial enterprise; (b).............”

11. A bare reading of the aforesaid it is apparent that the necessity of the permit to the owner of the motor vehicle has been enumerated under the Act but under sub section 3(a) it has been clarified that if any transport vehicle owned by the Central Government or the State Government and used for Government purposes unconnected with any commercial activity then the provision of section 66(3) to fulfill the necessity of the valid permit would not be attracted. However, to take the advantage of sub section 3(a) of section 66 of the Act it is sine quo not on the part of the Union of India to plead and prove that the offending vehicle was owned by them and it was being used for government purposes unconnected with commercial activities. In the written statement no whisper of said pleading is made and no evidence has been brought on the said issue. In such circumstance the point raised in the appeal without having any pleading and evidence is not required to be adjudicated. In addition thereto it has to be observed that even before this court after filing this appeal no evidence has been brought on record to establish that the offending vehicle was being used for the purposes unconnected with any commercial activity. In this connection, statement of Vivek Madhav Rahalkar (NA.W-1) who is the officer of the Insurance Company is relevant who had stated that the policy of the vehicle was issued for passenger carrying commercial vehicle by the Insurance Company. N.A.W-2, namely, Mahendra Kumar Shrivastav has come from the RTO office to prove the document Ex.D-2 to establish the fact that for the offending vehicle no permit was issued from the Sagar office. In view of the foregoing facts when the appellant has not putforth any defence in the context of the provision of section 66 (3)(a) of the Act. As the contrary evidence of the Insurance company discharging its burden established that the vehicle in question was not possessing a valid permit legally insured as commercial vehicle for carrying the passenger. In that view of the matter, in the considered opinion of this court, the arguments advanced by Shri Mishra counsel of Union of India is not having any substance hence repelled. No other point has been raised, hence MA No.2534/06 filed by the Union of India is hereby dismissed.

12. not coming on the point of enhancement in MA No.2343/06 filed by the claimant, the certificate of permanent disability Annex.P/9 and Anex.P/10 has been produced which is proved by the doctor. The findings regarding grievous injury and permanent disability has also been recorded by the claims tribunal. However there is no reason to disbelieve the aforesaid certificate. As per the injuries received to the injured it is apparent that there is disruption of pelvic bone and rupture of urethra. As per the order of this court, the opinion from the Medical College Jabalpur has been sought for, whereby the fact regarding disability was found correct and it is further opined that such injury may cause impotency to the injured for whole life. In the aforesaid context it is required to be seen that the amount of compensation as allowed by the claims tribunal in the head of future loss of earning may be enhanced. In view of the foregoing and looking to the nature of disability i.e 35% which in the present case is acceptable and also looking to the fact that the injured is a student doing the work of distribution of newspaper his notional earning can be accepted Rs. 15000/- per annum. As per disability, the future loss of earning per annum comes to Rs.5250/-. As per age of the injured i.e 15, the multiplier of 15 is applied, then amount comes to Rs.78750/-. On adding Rs.65825/- towards medical expenses, Rs.15290/- towards transport expenses and Rs.25000/- for pain and suffering, the amount comes to Rs.1,84,865/-. In addition to it the certificate issued by the medical college Jabalpur was called as per direction of this court in the head of causing impotency for the injuries, Rs.1,00,000/- further deserves to be awarded. Thus, the total sum of compensation comes to Rs.2,84,865/-. On reducing the sum awarded by the Tribunal Rs.1,38,245/-, the net enhanced sum comes to Rs.1,46,620/-.

13. Accordingly, the appeal M.A.No.2534/06 filed by the Union of India is hereby dismissed while the appeal M.A.No.2343/06 filed by the claimant is allowed in part. The enhanced sum Rs.1,46,620/- is directed in view of the foregoing discussion. The finding recorded by the claims tribunal directing the Insurance company to pay and recover is hereby maintained with an observation that the Insurance company may recover the amount from the Union of India, the appellant in M.A.No.2534/06. It is further directed that the claimant would also be entitled to get the interest on the enhanced amount at the rate of 7.5% per annum. In the facts and circumstances of the case, the parties to bear their own costs. Appeal partly allowed.