The Oriental Insurance Company and anr. Vs. Diva Shankar Rai Alias Pappu and anr. - Court Judgment

Excerpt:
- - part-i but due to the said accident he became permanently disabled and his academic career as well as of opportunity of getting better job were completely ruined. he also became ill-health and handicapped and is unable, to enjoy the pleasure of life. it is said that at the time of accident, the claimant was aged about 19 years and was maintaining good health and, therefore, the claimant has claimed compensation at rs. 6. it has been submitted by the learned advocate of the appellant that while granting compensation to the claimant, the learned tribunal has applied wrong principle of law and awarded exorbitant amount towards compensation and as such the judgment of the tribunal is bad in law and must be set aside. but it is also settled law that in exceptional cases, the appellate court can interfere in the judgment of the tribunal when the tribunal has applied wrong principle of law or has awarded very low or too excessive amount of compensation. (supra). i am further of the view that at best it is a case of partial disablement and the compensation should be assessed on that basis. syed md. mahfooz alam, j.1. this miscellaneous appeal has been preferred by the appellants (oriental insurance company limited, ' begusarai and another) against the judgment dated 5th february, 2000 passed by sri baikunth nath shahi, 3rd additional district judge-cum-additional motor accident claims tribunal, begusarai in claim case no. 25 of 1993 whereby he has awarded total compensation of rs. 6,32,000/- to the injured-claimant (respondent no. 1) with interest at the rate of 12% per annum for injury sustained by him in a motor vehicle accident.2. the brief facts of the case are as follows:on 21.1.1993 at 4.30 p.m. the claimant (diva shankar rai) was returning back to his house along with his villagers, namely, raj kishore rai. and ram naresh rai after viewing a wrestling competition. as soon as he reached the metalled road, a tata maxi bearing registration no. bri - 2151 which was being rashly and negligently driven by its driver came from northern side and knocked down the claimant. as a result of dashing by the said tata maxi, the claimant (diva shankar rai) received severe injuries and became unconscious. however, the driver drove away the maxi towards begusarai. the injured-claimant was removed to the clinic of dr. ashok kumar sharma at begusarai and he was treated by the said doctor where in course of his treatment, the injured regained his consciousness and then his fardbeyan was recorded by the police. thereafter on the basis of the said statement, muffasil p.s. case no. 23 of 1993 was registered under sections 279, 337 and 338 of the indian penal code. later on, begusarai police submitted chargesheet in the said case against the driver of tata maxi after completing investigation.3. it has been stated in the claim application that at the time of accident the claimant was a student of b.sc. part-i but due to the said accident he became permanently disabled and his academic career as well as of opportunity of getting better job were completely ruined. he also became ill-health and handicapped and is unable, to enjoy the pleasure of life. it is said that at the time of accident, the claimant was aged about 19 years and was maintaining good health and, therefore, the claimant has claimed compensation at rs. 2,00,000/- towards permanent disability, rs. 1,00,000/- towards the loss of academic career and opportunity of getting job, rs. 2,00,000/- towards decay in his health and amenities of life and rs. 1,00,000/- towards co-operation and financial assistance which he would have extended to his family and rs. 20,000/- towards treatment and purchase of medicines.4. in the said claim case, the owner of the vehicle, namely, rama kant prasad singh and the insurer oriental insurance company limited (appellant no. 1) appeared but the written statement was filed only on behalf of the appellant no. 1 - oriental insurance company limited.5. as per the written statement of the oriental insurance company limited (appellant no. 1), the defence of the appellant is that as there is nothing on record that the driver, who was driving the vehicle in question at the time of accident, had valid licence as such, the appellant-insurance company is not liable to pay compensation. however, regarding insurance policy of the vehicle bearing registration no. bri- 2151, there is admission that the vehicle was insured under the oriental insurance company limited.6. it has been submitted by the learned advocate of the appellant that while granting compensation to the claimant, the learned tribunal has applied wrong principle of law and awarded exorbitant amount towards compensation and as such the judgment of the tribunal is bad in law and must be set aside.7. on the other hand, the argument of the learned advocate of the claimant-respondent was that the insurance company has very limited ground for filing appeal against the award of the tribunal and such appeal can only be filed on the ground of violation of section 149(2) of the motor vehicles act, 1988 (in short, m.v. act).in support of his argument, the learned advocate of the claimant-respondent has placed reliance upon the decisions:- (1) : [2003]1scr567 (sadhana lodh, appellant v. national insurance co. ltd. and anr. respondents) (2) : [2000]2scr1050 (chinnama george and ors., appellants v. n.k. raju and anr. respondents) (3) 2001 (1) pljr 73 (national insurance co. ltd. appellant v. madhuri kuer, respondent). the learned advocate further submitted that an appeal filed by the insurance company on any other ground except on the ground of violation of section 149(2) of the motor vehicles act, 1988 is not maintainable if the insurer has not obtained the leave of the tribunal under section 170 of the m.v. act and in this regard he has placed reliance upon the decision reported in : (2000)illj1656sc (rita devi and ors. appellants v. new india assurance co. limited and anr. respondents).8. on the other hand, the learned advocate of the appellant-oriental insurance company limited has placed reliance upon the decision reported in : air1970pat172 (the bihar co-operative motor vehicles insurance society ltd., appellant v. ramejshwar raut and ors. respondents) and : (1998)9scc271 (nagappa mahadev doddaamani, appellant v. new india assurance co. limited and anr. respondents) in support of his argument that if the tribunal has applied a wrong principle of law or has awarded exorbitant amount or inadequate amount towards compensation then in appeal the appellate court can interfere with the finding of the tribunal with regard to quantum of compensation.9. by several decisions of the high courts and the apex court, the law has been settled that the appeal filed by the insurance company will be maintainable only on the ground of violation of section 149(2) of the m.v. act, 1988 and on other grounds it will be maintainable only when the appellant-insurance company has obtained permission under section 170 of the m.v. act from the tribunal. but it is also settled law that in exceptional cases, the appellate court can interfere in the judgment of the tribunal when the tribunal has applied wrong principle of law or has awarded very low or too excessive amount of compensation. to support my view i place reliance upon the decision reported in : (1998)9scc271 (nagappa mahadev doddaamani v. new india assurance co. ltd. and anr.) and in : air1970pat172 (the bihar co-operative motor vehicles insurance society limited v. rameshwar raut and ors.) (supra). thus, the point for consideration before me is that whether the tribunal has applied wrong principle of law while awarding the compensation and whether the compensation awarded by the tribunal is too excessive.10. from perusal of paragraph 9 of the judgment of the tribunal, it appears that while fixing the quantum of compensation, the tribunal has adopted the principle laid down by the hon'ble supreme court reported in : [1999]2scr518 (ashwani kumar mishra, appellant v. p. muniam babu and ors. respondents).11. it has been submitted by the learned advocate of the appellant that the case mentioned in the apex court's decision cannot be equated with this claim case. according to the learned advocate, that case was of permanent disablement of the claimant, who had sustained serious injury in his spinal cord and underwent operations of his spinal cord and kidney number of times but in vain. as a result of the said injury he became permanently disabled and paraplegic (completely paralysed) and also became invalid for all practical purposes. at the time of accident, the boy was aged about 23 years and his earning was assessed at rs. 2000/- per month. on the basis of his permanent disability, the tribunal awarded total compensation of rs. 1,64,037/- with 10% interest. the high court in appeal enhanced the compensation to rs. 2,25,000/- with 12% interest and then the apex court enhanced the compensation to rs. 5,00,000-/. the learned advocate submitted that in the case before this court there is absolutely nothing on record to conclude that the claimant had sustained such injury as a result of which he became permanently disabled, to support his argument, the learned advocate of the appellant has placed reliance upon the evidence of dr. ashok kumar sharma c.w.2. he submitted that evidence of c.w.2 will show that he had found altogether five injuries on the person of injured diva shankar rai -i.e.(i) lacerated wound 1/4' x 1/4' on left thigh with swelling on left thigh with fracture of left femur bone.(ii) swelling right foot 2 ' x 2'(iii) lacerated wound 2' x 1/4' x skin deep on left eye-brow.(iv) abraison 1' x 1/4' on right thigh,(v) abraison 2' x 2' on left thigh, but none of the injuries was such which had caused permanent total disability to the claimant.12. the learned advocate of the appellant by referring the evidence of c.w.2 pointed out that at paragraph 6 of his deposition, c.w.2 in his cross-examination has admitted that he is not an orthopedic surgeon rather he is a general surgeon but even then he can assess the nature of disablement. the learned advocate pointed out that c.w.2 has admitted that injury nos. (i) and (ii) on the person of the injured which were of grievous in nature can be healed within three months whereas injury nos. (iii) to (v) can be healed within 7 to 10 days. the learned advocate submitted that if the evidence of c.w.2 is read along with the evidence of c.w.1 diva shankar rai (injured) then the only conclusion will be that the claimant had not suffered any such injury which had caused permanent disablement. i am of the view that the argument of the learned advocate of the appellant has got much weight as paragraph 6 of cross-examination of c.w.2 dr. ashok kumar sharma establishes that the injured had not sustained any such injury which had caused permanent disablement to him. moreover, there is nothing in the evidence of c.w.2 as to how he could arrive at the conclusion that the left femur bone of the injured was fractured without the help of any x-ray report (no such x-ray report has been brought on record). besides that, paragraph 5 of deposition of c.w.2 dr. ashok kumar sharma shows that he does not remember as to whether after examination of the injuries of diva shankar rai he again appeared before him for treatment, on any other day or not which goes to show that the injured had not received serious injury on his person. i am, therefore, of the opinion that it is not a case of permanent disablement which can be equated with the case of ashwani kumar mishra v. p. muniam babu and ors. reported in : [1999]2scr518 (supra) and as such, the ratio laid down in the said case with regard to the quantum of compensation for permanent disablement cannot be applied in this case. thus, i hold that the tribunal has wrongly applied the ratio laid down by the apex court in the case of ashwani kumar mishra v. p. muniam babu and ors. (supra). i am further of the view that at best it is a case of partial disablement and the compensation should be assessed on that basis.13. it appears that the tribunal has observed in its judgment that the boy had very bright career and he could have earned a lot but i do not find any such material on the record on the basis of which it can be held that the injured boy had a very bright career. admittedly, at the time of accident the injured was not earning anything as such, in this case notional income for non-earning person as shown in 2nd schedule of the motor vehicles act 1988 i.e. rs. 15,000/- should be taken as loss of annual income to the claimant-injured due to accident. in order to ascertain total loss of income, the notional income at rs. 15,000/- per annum will be multiplied by figure '16' as the victim was aged between 15 to 20 years at the time of accident and thus, total loss of income comes to rs. 15,000/- x 16 = 2,40,000/-. as per chart shown in the 2nd schedule of the motor vehicles act, the calculation, as shown above, will be applicable in the case of permanent total disablement but admittedly, this case is not a case of permanent total disablement rather it is a case of permanent partial disablement and, therefore, on the basis of percentage of disablement, the amount assessed for permanent total disablement will be reduced in this case. there is nothing on record what was the percentage of disability but on the basis of evidence of c.w.2 read with the evidence of c.w.1 (injured) this permanent disability can be assessed at 50% and not more than that and under such circumstances, the loss of income, as assessed above, i.e. rs. 2,40,000/- will be reduced to 50% and then the actual loss of income due to permanent partial disablement will come to rs. 1,20,000/-. over this amount, the claimant will be entitled to get rs. 5000/- towards grievous injury and rs. 15000/- towards medical expenses. thus, the total loss of income due to permanent partial disablement comes to rs. 1,40,000/-. in my view, this is a just and proper compensation payable to the injured in this case. under the circumstances mentioned above, i am of the opinion that the compensation as assessed by the tribunal was not only exorbitant but based on wrong principle of law which requires interference. accordingly, the compensation awarded by the tribunal amounting to rs-. 6,32,000, is reduced to rs. 1,40,000/- which will be paid by the appellant-oriental insurance company with interest at the rate of 12% per annum from the date of filing of the claim application till date of payment.in the result, this miscellaneous appeal is allowed in part with modification in the quantum of compensation which is reduced from rs. 6,32,000/- to rs. 1,40,000/-. the appellant-oriental insurance company is directed to pay the entire compensation with interest at the rate of 12% per annum from the date of filing of the claim application till date of payment within two months from the date of this order failing which the amount will be realised through the process of court. the amount if any, paid earlier will be deducted from total compensation.

Judgment:

Syed Md. Mahfooz Alam, J.

1. This Miscellaneous Appeal has been preferred by the appellants (Oriental Insurance Company Limited, ' Begusarai and another) against the judgment dated 5th February, 2000 passed by Sri Baikunth Nath Shahi, 3rd Additional District Judge-cum-Additional Motor Accident Claims Tribunal, Begusarai in Claim Case No. 25 of 1993 whereby he has awarded total compensation of Rs. 6,32,000/- to the injured-claimant (respondent No. 1) with interest at the rate of 12% per annum for injury sustained by him in a motor vehicle accident.

2. The brief facts of the case are as follows:

On 21.1.1993 at 4.30 P.M. the claimant (Diva Shankar Rai) was returning back to his house along with his villagers, namely, Raj Kishore Rai. and Ram Naresh Rai after viewing a wrestling competition. As soon as he reached the metalled road, a Tata Maxi bearing registration No. BRI - 2151 which was being rashly and negligently driven by its driver came from northern side and knocked down the claimant. As a result of dashing by the said Tata Maxi, the claimant (Diva Shankar Rai) received severe injuries and became unconscious. However, the driver drove away the Maxi towards Begusarai. The injured-claimant was removed to the clinic of Dr. Ashok Kumar Sharma at Begusarai and he was treated by the said doctor where in course of his treatment, the injured regained his consciousness and then his fardbeyan was recorded by the police. Thereafter on the basis of the said statement, Muffasil P.S. Case No. 23 of 1993 was registered under Sections 279, 337 and 338 of the Indian Penal Code. Later on, Begusarai Police submitted chargesheet in the said case against the driver of Tata Maxi after completing investigation.

3. It has been stated in the claim application that at the time of accident the claimant was a student of B.Sc. Part-I but due to the said accident he became permanently disabled and his academic career as well as of opportunity of getting better job were completely ruined. He also became ill-health and handicapped and is unable, to enjoy the pleasure of life. It is said that at the time of accident, the claimant was aged about 19 years and was maintaining good health and, therefore, the claimant has claimed compensation at Rs. 2,00,000/- towards permanent disability, Rs. 1,00,000/- towards the loss of academic career and opportunity of getting job, Rs. 2,00,000/- towards decay in his health and amenities of life and Rs. 1,00,000/- towards co-operation and financial assistance which he would have extended to his family and Rs. 20,000/- towards treatment and purchase of medicines.

4. In the said claim case, the owner of the vehicle, namely, Rama Kant Prasad Singh and the insurer Oriental Insurance Company Limited (appellant No. 1) appeared but the written statement was filed only on behalf of the appellant No. 1 - Oriental Insurance Company Limited.

5. As per the written statement of the Oriental Insurance Company Limited (appellant No. 1), the defence of the appellant is that as there is nothing on record that the driver, who was driving the vehicle in question at the time of accident, had valid licence as such, the appellant-Insurance Company is not liable to pay compensation. However, regarding insurance policy of the vehicle bearing registration no. BRI- 2151, there is admission that the vehicle was insured under the Oriental Insurance Company Limited.

6. It has been submitted by the learned Advocate of the appellant that while granting compensation to the claimant, the learned Tribunal has applied wrong principle of law and awarded exorbitant amount towards compensation and as such the judgment of the Tribunal is bad in law and must be set aside.

7. On the other hand, the argument of the learned Advocate of the claimant-respondent was that the Insurance Company has very limited ground for filing appeal against the award of the Tribunal and such appeal can only be filed on the ground of violation of Section 149(2) of the Motor Vehicles Act, 1988 (in short, M.V. Act).In support of his argument, the learned Advocate of the claimant-respondent has placed reliance upon the decisions:- (1) : [2003]1SCR567 (Sadhana Lodh, appellant v. National Insurance Co. Ltd. and Anr. respondents) (2) : [2000]2SCR1050 (Chinnama George and Ors., appellants v. N.K. Raju and Anr. respondents) (3) 2001 (1) PLJR 73 (National Insurance Co. Ltd. Appellant v. Madhuri Kuer, Respondent). The learned Advocate further submitted that an appeal filed by the Insurance Company on any other ground except on the ground of violation of Section 149(2) of the Motor Vehicles Act, 1988 is not maintainable if the insurer has not obtained the leave of the Tribunal under Section 170 of the M.V. Act and in this regard he has placed reliance upon the decision reported in : (2000)ILLJ1656SC (Rita Devi and Ors. appellants v. New India Assurance Co. Limited and Anr. respondents).

8. On the other hand, the learned Advocate of the appellant-Oriental Insurance Company Limited has placed reliance upon the decision reported in : AIR1970Pat172 (The Bihar Co-operative Motor Vehicles Insurance Society Ltd., appellant v. Ramejshwar Raut and Ors. respondents) and : (1998)9SCC271 (Nagappa Mahadev Doddaamani, appellant v. New India Assurance Co. Limited and Anr. respondents) in support of his argument that if the Tribunal has applied a wrong principle of law or has awarded exorbitant amount or inadequate amount towards compensation then in appeal the appellate court can interfere with the finding of the Tribunal with regard to quantum of compensation.

9. By several decisions of the High Courts and the Apex Court, the law has been settled that the appeal filed by the Insurance Company will be maintainable only on the ground of violation of Section 149(2) of the M.V. Act, 1988 and on other grounds it will be maintainable only when the appellant-Insurance Company has obtained permission under Section 170 of the M.V. Act from the Tribunal. But it is also settled law that in exceptional cases, the appellate court can interfere in the judgment of the Tribunal when the Tribunal has applied wrong principle of law or has awarded very low or too excessive amount of compensation. To support my view I place reliance upon the decision reported in : (1998)9SCC271 (Nagappa Mahadev Doddaamani v. New India Assurance Co. Ltd. and Anr.) and in : AIR1970Pat172 (The Bihar Co-operative Motor Vehicles Insurance Society Limited v. Rameshwar Raut and Ors.) (supra). Thus, the point for consideration before me is that whether the Tribunal has applied wrong principle of law while awarding the compensation and whether the compensation awarded by the Tribunal is too excessive.

10. From perusal of paragraph 9 of the judgment of the Tribunal, it appears that while fixing the quantum of compensation, the Tribunal has adopted the principle laid down by the Hon'ble Supreme Court reported in : [1999]2SCR518 (Ashwani Kumar Mishra, appellant v. P. Muniam Babu and Ors. Respondents).

11. It has been submitted by the learned Advocate of the appellant that the case mentioned in the Apex Court's decision cannot be equated with this claim case. According to the learned Advocate, that case was of permanent disablement of the claimant, who had sustained serious injury in his spinal cord and underwent operations of his spinal cord and kidney number of times but in vain. As a result of the said injury he became permanently disabled and paraplegic (completely paralysed) and also became invalid for all practical purposes. At the time of accident, the boy was aged about 23 years and his earning was assessed at Rs. 2000/- per month. On the basis of his permanent disability, the Tribunal awarded total compensation of Rs. 1,64,037/- with 10% interest. The High Court in appeal enhanced the compensation to Rs. 2,25,000/- with 12% interest and then the Apex Court enhanced the compensation to Rs. 5,00,000-/. The learned Advocate submitted that in the case before this Court there is absolutely nothing on record to conclude that the claimant had sustained such injury as a result of which he became permanently disabled, To support his argument, the learned Advocate of the appellant has placed reliance upon the evidence of Dr. Ashok Kumar Sharma C.W.2. He submitted that evidence of C.W.2 will show that he had found altogether five injuries on the person of injured Diva Shankar Rai -i.e.

(i) Lacerated wound 1/4' x 1/4' on left thigh with swelling on left thigh with fracture of left femur bone.

(ii) Swelling right foot 2 ' x 2'

(iii) Lacerated wound 2' x 1/4' x skin deep on left eye-brow.

(iv) Abraison 1' x 1/4' on right thigh,

(v) Abraison 2' x 2' on left thigh, but none of the injuries was such which had caused permanent total disability to the claimant.

12. The learned Advocate of the appellant by referring the evidence of C.W.2 pointed out that at paragraph 6 of his deposition, C.W.2 in his cross-examination has admitted that he is not an Orthopedic Surgeon rather he is a general Surgeon but even then he can assess the nature of disablement. The learned Advocate pointed out that C.W.2 has admitted that injury Nos. (i) and (ii) on the person of the injured which were of grievous in nature can be healed within three months whereas injury Nos. (iii) to (v) can be healed within 7 to 10 days. The learned Advocate submitted that if the evidence of C.W.2 is read along with the evidence of C.W.1 Diva Shankar Rai (injured) then the only conclusion will be that the claimant had not suffered any such injury which had caused permanent disablement. I am of the view that the argument of the learned Advocate of the appellant has got much weight as paragraph 6 of cross-examination of C.W.2 Dr. Ashok Kumar Sharma establishes that the injured had not sustained any such injury which had caused permanent disablement to him. Moreover, there is nothing in the evidence of C.W.2 as to how he could arrive at the conclusion that the left femur bone of the injured was fractured without the help of any X-Ray report (no such X-Ray report has been brought on record). Besides that, paragraph 5 of deposition of C.W.2 Dr. Ashok Kumar Sharma shows that he does not remember as to whether after examination of the injuries of Diva Shankar Rai he again appeared before him for treatment, on any other day or not which goes to show that the injured had not received serious injury on his person. I am, therefore, of the opinion that it is not a case of permanent disablement which can be equated with the case of Ashwani Kumar Mishra v. P. Muniam Babu and Ors. reported in : [1999]2SCR518 (supra) and as such, the ratio laid down in the said case with regard to the quantum of compensation for permanent disablement cannot be applied in this case. Thus, I hold that the Tribunal has wrongly applied the ratio laid down by the Apex Court in the case of Ashwani Kumar Mishra v. P. Muniam Babu and Ors. (supra). I am further of the view that at best it is a case of partial disablement and the compensation should be assessed on that basis.

13. It appears that the Tribunal has observed in its judgment that the boy had very bright career and he could have earned a lot but I do not find any such material on the record on the basis of which it can be held that the injured boy had a very bright career. Admittedly, at the time of accident the injured was not earning anything as such, in this case notional income for non-earning person as shown in 2nd Schedule of the Motor Vehicles Act 1988 i.e. Rs. 15,000/- should be taken as loss of annual income to the claimant-injured due to accident. In order to ascertain total loss of income, the notional income at Rs. 15,000/- per annum will be multiplied by figure '16' as the victim was aged between 15 to 20 years at the time of accident and thus, total loss of income comes to Rs. 15,000/- x 16 = 2,40,000/-. As per chart shown in the 2nd Schedule of the Motor Vehicles Act, the calculation, as shown above, will be applicable in the case of permanent total disablement but admittedly, this case is not a case of permanent total disablement rather it is a case of permanent partial disablement and, therefore, on the basis of percentage of disablement, the amount assessed for permanent total disablement will be reduced in this case. There is nothing on record what was the percentage of disability but on the basis of evidence of C.W.2 read with the evidence of C.W.1 (injured) this permanent disability can be assessed at 50% and not more than that and under such circumstances, the loss of income, as assessed above, i.e. Rs. 2,40,000/- will be reduced to 50% and then the actual loss of income due to permanent partial disablement will come to Rs. 1,20,000/-. Over this amount, the claimant will be entitled to get Rs. 5000/- towards grievous injury and Rs. 15000/- towards medical expenses. Thus, the total loss of income due to permanent partial disablement comes to Rs. 1,40,000/-. In my view, this is a just and proper compensation payable to the injured in this case. Under the circumstances mentioned above, I am of the opinion that the compensation as assessed by the Tribunal was not only exorbitant but based on wrong principle of law which requires interference. Accordingly, the compensation awarded by the Tribunal amounting to Rs-. 6,32,000, is reduced to Rs. 1,40,000/- which will be paid by the appellant-Oriental Insurance Company with interest at the rate of 12% per annum from the date of filing of the claim application till date of payment.

In the result, this Miscellaneous Appeal is allowed in part with modification in the quantum of compensation which is reduced from Rs. 6,32,000/- to Rs. 1,40,000/-. The appellant-Oriental Insurance Company is directed to pay the entire compensation with interest at the rate of 12% per annum from the date of filing of the claim application till date of payment within two months from the date of this order failing which the amount will be realised through the process of Court. The amount if any, paid earlier will be deducted from total compensation.