National Insurance Company Limited Vs. Asha Bhalchandra Joshi, Now Aasha Manohar Agasti (Mrs.) and ors. - Court Judgment

Dongaonkar S.R., J.

1. By this appeal, the appellant/ National Insurance Company is taking exception to the judgment and Award passed by the Motor Accident Claims Tribunal, Nagpur in Claim Petition No. 473/1991 filed by respondent/original claimant, dated 26th August, 2002, for claiming compensation against original respondent No. 2-Driver of the offending truck, the respondent No. 3-owner of the offending vehicle-Truck bearing No. NLM 8876 allegedly insured with the appellant, in respect of the injuries and permanent disablement caused to her in an accident dated 11.4.1991 when she was returning to home by her Luna Moped at about 5.20 p.m. on Hingna-Wadi road when she was hit by the offending truck and suffered multiple injuries to her both legs.

2. Facts leading to her claim were that in the year 1991 she was serving with one Sandeep Polymers, M.I.D.C. Nagpur as Office Assistant. On the fateful day, she was returning home on her Luna Moped. When she was about to take turn on Hingna-Wadi Road, for her home, the truck bearing No. NLM 8876 came in excessive speed and knocked her down. She suffered serious injuries to her both legs. The details of the injuries are given in the claim petition. It is alleged that the said truck was driven by the respondent No. 2 and owned by respondent No. 3 and it was insured with the appellant. It is further claimed that she was taken to the Hospital immediately after the accident and her family members were informed. She was treated in the hospital of Dr. Babhulkar Orthopedic Surgeon for about 3 months. For a large period she was bedridden. She was discharged from the hospital on 13.6.1991. It is alleged that even thereafter she was required to undergo medical treatment as well as physiotherapy treatment for a long time and she was unable to attend her day to day work. It is further claimed that she was meritorious in her studies during her educational career and at the time of accident she was studying in M.Com. She was also preparing for M.Com. Part II Examination. She had completed the course for Diploma in Public Relations. She had, as well; completed the course of Telephone operating as well as in 'English Typing'. She used to take part in various activities. She was earning monthly salary of Rs. 1200/- from her employment with Sundeep Polymers. In the month of May, 1991 i.e. some time after the date of accident she was to get enhanced salary of Rs. 1500/- per month. It is claimed that she was very very bright in education and had potential of getting a very good job of Class I Officer. But because of accident she could not appear for her M.Com Part II examination and further suffered loss of confidence and her better life in future, so also marriage prospects. She had to undergo mental agony and suffered loss of charm in the life. By giving details she claimed compensation of Rs. 5, 00, 000/- on all the counts, those are available. It is claimed that in view of the fact that the driver of the said truck was negligent in driving the said vehicle because of which the accident had occurred, the said driver, owner of the vehicle as well as its insurer are jointly and severally liable for the same. In addition, the respondent No. 1 had claimed that the medical expenses were borne by her father for which he had received some reimbursement. It is necessary to mention that she had claimed Rs. 71,087.15 towards medical treatment and operation charges. Rs. 75000/- towards mental and physical shock, pains and sufferings, Rs. 75, 000/- as compensation for loss of amenities in the life, Rs. 1, 50,000/- towards damages on account of adverse effect on the marriage prospects and married life, Rs. 50,000/- towards damages for loss of expectation of life and Rs. 50, 000/- towards inconvenience, disappointment, discomfiture, frustration mental stress and loss of confidence etc. In all she claimed Rs. 5, 01,087.15.

3. As usual the respondent No. 2. driver of the said vehicle did not appear, so he was deleted in the claim proceedings. Respondent No. 3 owner of the vehicle was ex parte and the contest was made by the appellant the insurance company. According to the appellant-insurance company, vide paragraph 9 of the reply to the application under Section 140 of the M.V. Act, the Insurance was admitted. In 'specific plea' it was stated. It is admitted that the respondent No. 3 is insurer of the truck No. NLM-8876. But it was denied that the accident had occurred because of the dash by that truck. Rest of the adverse allegations were denied.

4. The claim for N.F.L. was awarded and later on the written statement was sought to be filed by the appellant-Insurance Company. Meanwhile the amendment application to deny the insurance was filed by the appellant-insurance Company. It was sought to say that word 'admitted' should be deleted and instead word 'denied' should be read. Thus the admission of the insurance was sought to be withdrawn by the appellant vide Exh. 15 application. That application came to be rejected and the appellant did not challenge that order of rejection.

5. Later on the appellant filed pursis to adopt the reply to the application under Section 140 of the M.V. Act as written statement vide Exh. 48.

6. Learned Member Claims Tribunal framed relevant issues. He recorded the evidence led by the claimant-respondent No. 1, her father. P.W. 2 Bhalchandra Joshi. She had also led evidence of P.W. 3 Dr. Sudhir Babhulkar, Orthopedic Surgeon. The appellant-Insurance Company led the evidence of N.A.W. 1 Balkrishna Lokhande who happened to be the Administrative Officer of the appellant-Insurance Company. The documents in support of the claim were produced. After considering the evidence on record and hearing the parties, the learned Member, Claims Tribunal came to the conclusion that the involvement of the truck bearing NLM 8876 in the accident is proved. He also found that the accident had occurred due to rash and negligent driving of the said truck. He further held that the respondent No. 1 claimant was entitled for the compensation of Rs. 5, 23, 000/- and therefore he recorded his findings and opined that even claim more than what is sought can be awarded in view of the judgment in the case of Sharifunissa and Ors. v. Basappa Ramchandra Date and Ors. reported in 1986 A.C.J. 792. Therefore he passed an impugned award.

7. The appellant-Insurance Company seeks to challenge the same.

8. At this stage, it is necessary to place it on record that initially this Court had heard this matter and remanded the same to the Claims Tribunal for fresh disposal with the following order:

In such circumstances, the appeal is allowed and the impugned award set aside so far as to the extent of the liability of the insurance company is concerned and the matter is remanded to the Tribunal for decision on this point. This expects the Tribunal to decide this point as far as possible within six months, in accordance with law without being influenced by any of the observations mentioned in this appeal. Needless to mention here that it would be open for the injured respondent No. 1 to recover the amount of compensation from the owner of the vehicle, i.e. respondent No. 3.

9. This judgment and order of this Court dated 5.8.2005 was challenged by the respondent No. 1 original claimant in Letters Patent Appeal No. 229/2005. The Division Bench of this Court by its judgment and order dated December, 12, 2007 set aside the same and remanded the said matter again to this Court to deal with the matter on merits instead of remanding the same. The relevant observations which need to be noted and are in paragraphs 41 & 42 read thus:

41. As we have already indicated, the learned Single Judge was not justified in remanding the proceedings back to the Claims Tribunal to consider a half baked plea, sought to be raised by the respondent, particularly when, the respondent is not shown to have been prevented from tendering evidence in respect of such a plea. Therefore, the learned Single Judge, hearing the appeal, could have disposed of the appeal finally with such material as was available. Considering the effect of the half baked plea raised and evidence tendered thereupon. We, therefore, allow the appeal by setting aside the impugned judgment.

42. Considering the fact that the accident took place in the year 1991 i.e. 16 years ago, and the first appeal itself is five years old, we would request the learned Single Judge, before whom the appeal may now be placed, to accord due priority to it.

This is how this Court is again dealing with the appeal filed by the appellant.

10. I have heard the learned Counsel for the parties in extenso.

11. Learned Counsel for the appellant Smt. Deshpande, has submitted that the appellant had not insured the offending vehicle and as such it is not liable for the claim of respondent No. 1. It is further submitted that as usual practice, investigator was appointed in the present case, though his report came after the impugned judgment by the Claims Tribunal. It shows that the said vehicle was not at all insured with the appellant. As such according to her this appeal should be allowed and the liability of the claim of the respondent No. 1 be fastened only on the owner of the vehicle i.e. respondent No. 3. She has further submitted that if it is not possible to allow the appeal by accepting the Investigator's Report, the matter may be remanded back to the Claims Tribunal for fresh adjudication in view of the said report. It is further her submission that the learned Member, Claims Tribunal was not justified in granting exaggerated claim and even for more amount than what was claimed. Further according to her the respondent No. 1 the original claimant had not filed the relevant vouchers on some of the heads for which the claim is made i.e. the receipts of payments to the attendant, nurses and other expenditures. As such the learned Member, Claims Tribunal was wrong in awarding the compensation on those counts. It is further her submission that the learned Member, Claims Tribunal was wrong in awarding penal interest as it has been granted. As such according to her the impugned award is liable to be set aside as against the present appellant.

12. Per contra, learned Counsel for the respondent No. 1 original claimant Shri S.V. Manohar, has submitted that the appellant-Insurance Company had admitted the insurance of the offending truck with the appellant when it filed reply to the application under Section 140 of the M.V. Act. The amendment application which was filed by the appellant to retracting the admission of insurance of the offending vehicle was rejected and the appellant did not file any proceeding to challenge that order. Therefore, it should be held that the insurance of the offending vehicle has been admitted by the appellant. Further according to him, when verification of the reply shows that the reply has been filed on the basis of the record available with the offence of the appellant, the conscious statement that the said vehicle was insured with the appellant has to be believed. It is further his submission that when again with a conscious mind the appellant had filed pursis to adopt the reply to Section 140 M.V. Act Application as Written Statement, the appellant cannot be now permitted to say that the offending truck was not insured with the appellant. It is further his submission that the report of the Investigator is totally untrustworthy and it has been submitted just to protract the proceedings and therefore, remand of the matter is not warranted. It is also submitted by him that the documents which are filed on record; show that the said vehicle was involved in the accident. It was insured with the appellant and therefore investigators report is liable to be rejected. In fact the appellant should be held liable for filing such false report. It is also his case that for these reasons the appellant cannot be allowed to say that the offending truck was not insured with the appellant. He has pointed out that it is the duty of the insurance company to pay just and adequate compensation. It is not a profit making organization and this is not a begging by the claimant, the victim of the injuries suffered in an accident by the vehicle insured, but it is the liability and material responsibility of the insurance company which it has to discharge at any cost without raising protractive pleas and resorting to dilatory tactics, and pleadings. Even otherwise honest investigation by the Investigator is necessary which is not done in the present case. As regards the quantum of the compensation awarded, the learned Counsel has submitted that the compensation awarded by the learned Member, M.A.C.T. is just and correct and grant of more compensation was justified in view of the judgment of this Court reported in 1987 A.C.J. 311 (Municipal Corporation of Greater Bombay and Anr. v. Kisan Gangaram Hire and Ors.)

13. As it was noticed that the respondent No. 1 has secured employment in the State Bank of India, in the year 1993 itself, a query was made to the learned Counsel for respondent No. 1 as to whether any document has been produced by the respondent/claimant showing her earning as salary and otherwise, after getting employment in State Bank of India on the basis of her being physically challenged/disabled. It was informed that no such documents are produced on record. In fact they are not filed even in the appeal. What is the consequence of this, I would discuss later.

14. In view of the submissions of the parties, first point that falls for determination is as to whether the Truck No. NLM-8876 owned by respondent No. 3 was involved in the accident because of which the claimant/ respondent No. I had suffered injuries and the consequent disablement.

15. Learned Member, Claims Tribunal has considered this aspect and has held in favour of the respondent No. 1 claimant. In this regard, it is necessary to see the documents on record which are appearing in the claim petition. Form No. A-Exhibit 28, Colum No. 6, 7, 8 thereof reads thus:

________________________________________________________________________

6 Number of vehicle Truck No.

and the type of vehicle NLM-8876

_________________________________________________________________________

7 Name and address of Driver-Vish-

the driver of the vehicle aka Shankar-

with particulars of dri- das Rajput age

ving licence of the said 26 years r/o

driver and address of Mittae Sector 5,

the issuing authority Street No. 6,

of the driving licence Block No. A,

the number and badge Quarter No. 17

in case of public service P.S. Bhilai Di-

Vehicle and the addr st. Durg (MP.)

ess of the issuing autho-

rity of the said badge.

8 Name and address of Zilmil Singh

the owner of the vehicle s/o Journel Si-

of as it stands as on the ngh Quarter

date of the accient No, 13/24 M.P.

Housing Board

Colony Bhilai

(M.P.O)

16. This document is signed by Inspector of Police Station, M.I.D.C. Nagpur City. It is dated 3.6.1994. First Information Report Exh. 29 shows that the offence was registered on 11.4.1991 which records that the truck NLM-8876 was involved in an accident. It gives details as to the manner in which the truck was driven. No doubt it does not mention the name of the driver, but it appears that the driver's name was later on discovered, but immediately during the investigation. The spot panchnama Exh. 30 also shows the number of the said truck, how the Luna was found damaged and how the accident had occurred. The accident report form gives the details of the insurance thus:

Certificate No. 320904/751/6302056, Bhilai Br. W.E.F.18.3.91 to 17.3.92 (As per photo state copy)

It also shows that the truck number was NLM-8876. Copy of the charge-sheet against the respondent No. 2 is also filed as per Exh. 32 which shows the truck number as well as how it was driven and how Luna (MVI 4129) was found damaged. It clearly appears that respondent No. 2 was prosecuted for the offences under Section 279, 338, 427 of the I.P.C.

17. As against this there is absolutely no evidence led by the appellant to show that the said truck was not involved in the accident and was not driven negligently and fast. It also did not lead any evidence to show that the truck was not owned by respondent No. 3 nor any evidence was led to show that it was not insured with the appellant and alleged photostat copy of Insurance was false and fabricated document.

18. No doubt the appellant has led evidence of Balkrishna Lokhande, wherein he stated thus:

I know everything about this case. The offending vehicle in this case is not insured with us at any time. We have admitted in our written statement about the validity of the policy through oversight. We had issued a letter to the insurer, but it has been returned unserved.

However, in cross-examination he has stated as follows:

From the year 1990 till the year 1999,1 had no occasion to go through any files of Division No. 1. The reply in the case has been filed in the year 1991.1 am telling it on the basis of the record. Ex. 13 is the same reply it is true that, this reply is filed on 29.4.92. The date 29.4.92 is correct is one. It is not correct to say that, without giving through the record I have falsely stated that the reply was filed in the year 1991.1 have not held investigation in this case. I can say that, since the year 1999, we are appointing investigator in each and every case. Since the year 1999, no investigator has been appointed in this case.

Thus when his evidence was recorded on 9.8.2002, though the scheme of appointing investigator was started in 1999, no investigator was appointed till his evidence was recorded

19. In further cross examination he has stated thus:

I am getting the information of the dates, and various stages of this case. I do not know the date of my application for amendment has been decided. I know that application has been rejected. We have not preferred Revision against that order. We could not get any direct proof for that, therefore, we have not preferred the revision.

This clearly means that the appellant has accepted the order of rejection of the amendment application. It did not prefer any revision application or any other proceeding to challenge that order. The learned Counsel for the appellant has feebly urged that, while remanding this matter earlier, this Court has found that in the circumstances of the case, the appellant should be allowed to contest this matter on the plea that the said vehicle was not insured with the appellant. Therefore, appellant should be allowed to raise relevanscontentions again. I am unable to agree.

20. As already pointed out above, the order of remand by this Court was challenged in the Letters Patent Appeal by the respondent No. 1 and the Division Bench of this Court while deciding the Letters Patent Appeal has observed that the matter can be decided on merits and it should not have been remanded back. It was also observed as stated above that the plea of the appellant was half baked plea. The parties have referred to the dictionary meaning of 'half baked' which reads thus:

half-baked-insufficiently cooked, 2-not completed: insufficiently planned or prepared, 3- lacking mature judgment or experience; unrealistic: half-baked theorists,

4-informal eccentric; crazy.

See ---------------------------

To me it appears that the appellant has landed itself in a precarious position, first admitting the insurance, then filing an application for withdrawal of that plea, then not preferring any proceedings to challenge the order of rejection of that application and thereafter again accepting the reply of Section 140 application of the claimant as Written Statement. It was total callousness and negligence on the part of the appellant's officers to place the true facts before the Claims Tribunal. Insurance company is not expected to resist the claim on false pleas. No doubt it is a public money, which is to be spent for meeting out the just claims of compensation, but then it is its statutory liability and responsibility to honour such commitment in the interest of people at large for the victims of such accidents may not be, at times would be able to get the full details in respect of insurances of the vehicles. In fact Insurance Companies are expected to be honest in contesting such claims. In the present case it seems otherwise. The documents which are produced on record which are in the shape of the AA form and other documents prepared by the police authorities during the course of investigation show that the appellant was the insurer of the offending truck. As such in my opinion, on this aspect the record is very clear and it does not admit the allowing of retracting the plea of admission of insurance of the offending truck with the appellant. In fact, as pointed out above, there was a conscious statement by the appellant while filing reply to the application under Section 140 of the M.V. Act, that 'It is admitted that the respondent No. 3 is insurer of the truck No. NLM 8876.' The verification of this reply shows that the officer had verified contents of this paragraph on the basis of the information received from the records of the appellant, then respondent No. 3 company and believed by him to be correct. It has to be presumed that the officer who had filed this reply must have verified the record and then made this conscious statement. As such unless there was some concrete material to show that this statement was made with some oblique motive to support the claim of the claimant or for some any other reason, then only perhaps the appellant would have been entitled to move for saying that it may be allowed to retract the admission.

21. Learned Counsel for the claimant/respondent No. 1 has rightly relied on the observations of the Apex Court in : (2008)7SCC85 Gautam Samp v. Leela Jetly and Ors. wherein it has been held: 'An admission made in a pleading is not to be treated in the same manner as an admission in a document. An admission made by a party to the his is admissible against him proprio vigors?. Here is the case where the admission of the appellant is supported by the documents which are prepared by the public authorities in discharge of their public duties. In such circumstances, such a retraction cannot be permitted.

22. At this stage, it is necessary to refer the observations of the Division Bench of this Court while deciding the Letters Patent Appeal of the respondent No. 1 in paragraph 8, which read thus:

8-While there can be no doubt that public sector insurance companies must be vigilant about their funds and in appropriate cases challenge awards, if such awards are found to be unwarranted burden on the company's finances, we can not endorse the course adopted by the respondent insurance company in the present proceedings to have a matter in respect of disablement suffered by a young lady remanded back 14 years after the disablement. First, no party could be permitted to easily retract an admission. Secondly, in this case, the company had not retracted the admission in the entirety. Lastly, inspite of absence of pleadings, it had tendered evidence about absence of insurance cover and so, there was absolutely no justification for remanding the matter.

I do not see any reason to say that these observations are not binding, and other view is possible.

23. This takes me to consider the impact of the alleged investigator's report. It is necessary to bear in mind, as stated above, that investigator was not appointed, though the scheme was started in 1999, till the evidence of the officer of the appellant was recorded. It would be seen that the judgment of the Claims Tribunal is dated 26.8.2002, whereas the investigator's report was received on 7.10.2002. This report is submitted by one Subhash Satpathi, Advocate practicing at District Court, Durg. It is necessary to note its contents which read thus:

I was told by your Company to obtain information in connection with the above said owner of the Truck No. NLM 8876 and driver and to submit investigation report. At first, I went to the residence of owner of truck No. NLM 8876 at 13/24 M.P.H. Board, Society, Industrial Area, Bhilai. On entering into the said house, it was gathered that there was no person by name Zilmil Singh s/o Jarnail Singh residing at the said address. I went to the address of vehicle Driver Vishakha Rajput s/o Shankardas Rajput at Sector-5, Street-6, No. 4, House No. 4, Bhilai. There is no person by name Vishakhadas Rajput residing in the said house. But in the said residence one Sunderlal Rawat s/o Late Shyamlal Rawat is residing since the last 13 years. The said house is allotted by Bhilai Steel Plant, since he is permanent employee of the Bhilai steel Plant. These facts have been accepted by B.S.P. employee Radheshyam residing in House No. 3 and B.S.P. employee Murli Sahu residing in House No. 5. Both the persons are neighbourers of Sunderlal Rawat residing in House No.4. Since the driver of the truck could not be traced, correct information about the accident by the truck could not be got nor information about the driving licence of the driver could be got. I went to the office of the Regional Transport Office, Durg and tried to get the information of the registration of Truck No. NLM 8876.But in this connection no information could be obtained. The information was given by the employee of the said office that there are no registration documents of the said truck No. NLM 8876 in the office of Regional Transport Office Branch Durg. Because in the Durg office the vehicles are registered in Durg were given the M.P. 24 series since 1.7.89 and since 1st November, 2000, on establishment of the State Chhatisgarh the number of the vehicles registered in Durg Office starts from CG 07 and prior to 1989, on registration of the vehicles in Durg Regional Transport Office, Nos. of MBR-MBSMOR.MIS-MOC-MOT-MKT-MMR-MPT-MPDCPT-CPK-CPJ were given. The said vehicle NLM 886 might have been registered in the State of Nagaland. Such information was given by the employees of Regional Transport Office.

Since full and correct addresses of the owner and driver of the truck were not available, no information about the incident or about the vehicle and the documents could be gathered. Thus on the above investigation, investigation report is being submitted.

It is stated that the respondent No. 3 and respondent No. 2 were not traced on the addresses which were given in the records. The report is so vague that it does not lead us any where. In fact, it is the case of the investigator that since full and correct addresses of the truck owner and driver of the truck were not available, no information about the incident or about the vehicle and the documents could be gathered. No doubt it is stated by him that there are no registration documents in respect of the Truck No. NLM 8876 at R.T.O. Office Branch Durg, but it would be seen that this registration must have been prior to 1.7.1989 and therefore, that record must not have been available at the R.T.O. Office at Durg. As already stated above, this report is filed in the appeal. It does not lead to a concrete inference that there was no truck in existence with number NLM 8876 either at R.T.O. Office, Durg or any other R.T.O. Office before its establishment. It is also not case that NLM series for registration is not available in the State of M.P. particularly in Durg Area. As such in my opinion, this investigator's report does not need any consideration in the appeal, much less for a remand of the matter for fresh consideration in view of this report. Needless to say that the prayer of the appellant in this case even at this stage has to be rejected. More so in view of the observation in the judgment of this Court in L.P.A. No. 229/2005 referred above.

24. In this view of the matter, therefore, it is apparent that the alleged offending truck had caused the accident to respondent No. 1 when she was driving her Luna at the relevant time as alleged. It was owned by respondent No. 2 and driven by respondent No. 3 at the relevant time/original respondent No. 2, and it was insured with the appellant.

25. As such the liability of the appellant to pay compensation in respect of the injuries and disabilities caused to the respondent No. 1 in the aforesaid accident is obvious.

26. This takes me to consider the quantum of compensation to be awarded to the respondent No. 1. I may add that normally insurer (Insurance Company) can not be allowed to challenge the quantum of compensation and it can raise only statutory defences. But at the same time the claimant would be entitled for a just and reasonable compensation and not unwarranted and impermissible at law.

27. It is necessary to note that respondent No. 1 has not filed any appeal or cross-objection to challenge the non-granting of certain claims made by her. May be because she was granted more compensation than what she had claimed. But then fact remains that some of the claims of the respondent No. 1 were negatived by the learned Member, M.A.C.T. and she has not raised any grievance about that in the appeal.

28. As regards the nature of the injuries, there is almost no dispute. In fact the evidence of P.W. 3 Dr. Sudhir Babhulkar shows that the respondent No. 1 was treated by him in his hospital i.e. Sushrut Hospital at Nagpur. He stated that the contents of discharge card issued in respect of respondent No. 1 are correct. Said discharge card would show that the respondent No. 1 had suffered serious injuries for which the operations were carried out, diagnosis & treatment as stated is Fracture medial mallen crush injury (It) C Crush injury (Rt) Foot - Debridment Skin Grafting (11.4.91,29.4.91,25.9.91, 12.5.91)

29. He has stated that the percentage of the disability is of 72%. In cross examination by appellant, this expert witness has stated:

The petitioner Asha was admitted in my hospital on 11.4.1991. At the time of discharge, I did not calculate the percentage of disability. After six months of the injury, the disablement was 72% I have mentioned it in Ex. 45. At the time of her discharge from the hospital, she was not in a position to do her daily persuades. Even after discharge she has attended the hospital for about three months for routine treatment.

This will show that the nature & extent of the injuries/disabilities suffered by the respondent No. 1 because of accident.

30. As regards the other expenditure incurred for her treatment and other things, the father of the respondent No. 1 Bhalchandra Joshi has deposed.

31. Initially none appeared for the appellant and therefore, there was no cross examination to this witness. However, later on recall this witness was cross examined and, surprisingly; only to limited extent which reads:

That, evening some one telephoned me informing about my daughter's accident. There is no documentary evidence regarding the payment made to die nurses. It is not true that, my daughter has made a false claim.

This will show that the evidence of the father of the respondent No. 1 has gone almost unchallenged. The challenge was only in respect of the payments made to the nurses.

32. As already pointed out above, there is no challenge to the adverse findings by the respondent No. 1, the claim as awarded by the learned Member, Claims Tribunal is as follows:

_______________________________________________________________________1 Damage for pecuniary Amountlou_______________________________________________________________________i Loss of earning 00,25,000.00ii Loss of earning capacity 01,63,200.00iii Loss of house keeping capac 00,81,600.00ity and expenses incurredfor substitution of servant________________________________________________________________________iv medical expenses notreimbursed 00,20,786.00v nurses fees for dressing etc. 00,03,000.00vi Daily message expenses 00,06,000.00vii costs of crutches &walker; 00,02,000.00_________________________________________________________________________viii special diet 00,05,814.00_________________________________________________________________________ix special shoes 00,40,000.00_________________________________________________________________________DAMAGES FOR NON-PECUN- IARY LOSS_________________________________________________________________________i Pains and sufferings 00,25,000.00_________________________________________________________________________ii Loss of amenities oflife and loss of expe-ctation of life 01,00,000.00_________________________________________________________________________iii Disfigurement, Dis-comfort and incon-venience and adve-rse affect on hermarital life 00,50,000.00_________________________________________________________________________Total 05,23,000.00_________________________________________________________________________

While there cannot be controversy as regards grant of damages for pecuniary and non pecuniary losses as given above, the question arises regarding compensation for future loss of earning capacity which has been awarded by the learned Tribunal to the extent of Rs. 1, 63, 200/-.

33. I am aware that the respondent No. 1 had suffered serious injuries, she had suffered permanent disabilities. She had to undergo considerable pains and sufferings, she has also suffered some disfigurement, and she is required to face all these adverse things for all her life. In my opinion, in such circumstances, she would have been entitled for damages on above count. However now except for loss of future earning capacity for the reasons I would indicate later, which are peculiar for this case that cannot be lost sight of.

34. Though there is full sympathy for claimant/respondent No. 1,1 am afraid this sympathy cannot be taken to lead to the grant of unreasonable compensation overlooking the material facts which are appearing in the present claim. It is necessary to note that the father of the claimant/respondent No. 1 in his evidence has stated thus:

8-Asha is serving in the S.B.I. She is appointed in the category of physical handicapped person. Before giving appointment to such person the medical board of the bank examined such person and then only the board is satisfied that the person is physical handicapped then only the bank use give appointment to the person under that category. Asha has undergone these various tests and then only as the medical board has satisfied that she is physically handicapped she has been appointed in the S.B.I.

I have pointed out above that in the claim proceeding as well as during the pendency of the appeal respondent No. 1 has failed to produce the documents as regards her salary which she is receiving from her employment in S.B.I. It is true that when she was in the private service at the time of accident, she was getting Rs. 1200/-because it was private service. Judicial notice of the fact that salaries and perks so also medical reimbursement facilities in S.B.I, like public sector undertakings are much more than the private services, can be taken. When service is accorded in S.B.I, to the claimant/respondent No. 1 on the consideration that she was handicapped, she would be definitely getting salary and also medical reimbursements for all such ailments and consequences during the service. It is not pointed out by the learned Counsel for the claimant/respondent No. 1 that because such ailments were prior to entering into service, she would not be entitled for medical reimbursement etc. in respect of such ailment. Monthly salaries also in such public sector undertakings are sufficiently high. Therefore, inference favourable to claimant/respondent No. 1 can not be drawn.

35. No doubt claimant has produced documents showing that she was well in studies and she could have received good salary, fact remains that she has not produced any documents to show that salary which presently she is receiving was much less than what she could have received, had she completed her education and received good job. Needless to add, even adverse inference for not leading such evidence would be required to be drawn. What is applicable for appellant for not producing Policy document etc. would be equally applicable to claimant/ respondent No. 1 for non production of such material evidence.

36. Let me state the evidence led by her in this behalf. Paragraph 8 of her evidence speaks:

As I was bedridden because of the accident, I could not join my duty in Sundip Polymers. I lost my service. At present I am serving in the Industrial Branch of S.B.I, at Nagpur. In the year 1993,1 got the employment on the basis of my disablement, in the category of physical handicap person. I was required to face the medical board examination in which the board opinion that my disablement is 53 &. On its certificate, the S.B.I, appointed me in that category. I am not satisfied with my present employment because I have completed the dep. course in Public Relation in the year 1991, in that year the Diploma holder were very rare therefore, I had fair chances of getting employment of a handsome salary. Because of the accident, I have lost that opportunity.

37. She has stated in paragraph 9 thus:

9-In December, 1993, my basic pay was Rs. 1,000/-. Had I not met with the accident I would have been appointed as Public Relation Officer and drawn salary of Rs. 20,000/- to Rs. 25,000/- per month. Because of the accident, I have sustained loss of Rs. 5,000/-to Rs. 10,000/- per month.

She has claimed that she has sustained loss of Rs. 5000/- to Rs. 10000/- per month saying that she would have received good salary as Public Relation Officer had she been appointed so, after completion of her education. The very fact that she has not produced any document regarding her salary in S.B.I, would lead to adverse inference in this regard and therefore in my opinion, despite due sympathy for respondent No. 1 it is impossible for me to say that she had suffered loss in her earning because of this disability and she would have received better salary than what she is getting presently, besides perks and other facilities in this regard. The justification of this part of claim as given by learned Member, Motor Accidents Claims Tribunal is thus:

14(u) Low of earning Capacity:- The evidence on record shows that, the petitioner was a meritorious student. She has completed the course in Telephone Operating and is holding a Diploma in Public Relations. She is Commerce Graduate. She claims that, had there not been such unfortunate incident, she would have been appointed as a Public Relations Officer and would have draw a monthly salary of Rs. 20,000/-. Considering these days of unemployment and high competition in the field, I hold that, the accident has certainly diminished petitioner's capacity of earning at least by Rs. 1,000/- per month i.e. Rs. 12,000/- per year. Considering the petitioner's age as per the structural formula, the multiplier of 17 is applicable in this case. Thus, for loss of earning capacity, the petitioner would be entitled to Rs. 2,00,000/- (Rs. 12000 X 17). Considering that, the petitioner is getting the amount in lump sum instead of driblets 20% is deducted. Thus, the petitioner is entitled to damage under this head to Rs. 2,04,000, 40800163,200/-.

The same cannot be said to be justified for reasons already recorded above. Therefore, grant of Rs. 1, 63, 200/- in this regard would not be legally justified. The submission of learned Counsel for claimant/respondent No. 1 that this amount should be considered for award for permanent disability and loss of comfort also cannot be accepted, as this aspect has been considered while awarding damages for non pecuniary losses.

38. Turning to the question of granting more compensation than what is claimed, the learned Counsel for the respondent No. 1 has referred the observations of this Court in 1987 A.C.J. 3111. Municipal Corporation of Greater Bombay and Anr. v. Kisan Gagaram Hire and Ors. as under:

The Act itself nowhere lays down that the Tribunal will not grant amount in excess of the amount claimed in the application.

and in paragraph 10 wherein it has been observed thus:

10- A survey of the aforesaid authorities strengthens the proposition that we seek to lay down viz. that there are no fetters on the powers of the Tribunal to award compensation in excess of that which is claimed in the application

39. No doubt the amount excess to what has been claimed by the claimant can be granted, but the Division Bench itself has further laid down that the Tribunal may grant the amount excess the original claimed but some procedure has to be followed by the Tribunal, which is laid down in paragraph 11 of the said judgment which is quoted below:

11- The only question that requires to be considered is of the procedure that should be followed by the Tribunal before awarding higher compensation. We are of the view that in all such cases a proper notice or intimation should be given to the opposite party so that the opposite party has an opportunity to contest the claim even by leading evidence, if necessary. Ordinarily the Tribunal should take a written application from the claimant. This application need not necessarily be in the form of an amendment to the original application. Since as stated earlier the amount of compensation claimed or the specific heading under which it is claimed is no more than in the nature of the particulars of the claim, a variation in the same does not change the cause of action, which is the accident. It only furnishes additional material for assessing the claim. The additional claim should as far as possible be taken in writing which should also indicate the reasons why the additional claim is made. Where it is not possible to take the additional claim in writing, the reasons for the same should be recorded. A copy of such written application should be served on the opposite party to give it an adequate notice of the excess amount claimed and to contest it, if it so desires. Where the application is not taken in writing, the Tribunal should make a note of it in its diary and give notice of the claim similarly to the other side. It may also happen in certain cases that on account of ignorance or otherwise, a party may not apply for higher compensation. If however, the Tribunal feels at any stage that the party is entitled to higher compensation, the Tribunal should ask the claimant concerned to make an application for the same in writing and a copy of the application should be served on the opposite party to enable it to contest the claim for higher amount.

40. It is needless to say that in the present case no such procedure has been followed.

41. Here is the case where the claimant has not claimed compensation in a general manner. In fact the claimant was aware of the heads on which the compensation can be claimed and as such the claimant has claimed the compensation giving the quantum of claims on each such heads and thereafter the total claim was made out for Rs. 5, 01, 087.15. In these circumstances, when procedure laid down by the Division Bench of this Court in 1987 itself is not followed and the claim of the claimant-respondent No. 1 was specific in respect of the heads and amounts claimed on that basis, showing consciousness on the part of the claimant to claim the compensation on those heads, in my opinion, no claim excess to the actual claim made by the claimant could have been awarded by the Claims Tribunal; as in the instant case. Therefore, the appeal will have to be allowed to that extent.

42. As regards the interest is concerned' the learned Member, M.A.C.T. has stated in Clause 2 of his order thus:

2)- The respondent No. 2. Mr. Zilmil Singh s/o Jernal Singh, and the respondent No. 3-National Insurance Company, shall pay a compensation of Rs. 5, 23, 000/- [Rupees five lac twenty three thousand only] to the petitioner with interest & 9% per annum and costs of the petitioner within 30 days from the date of order failing which the petitioner is entitled to recover it with interest at@ 15 % per annum till the amount is fully satisfied.

43. Therefore, it appears that he has awarded penal interest if the claim is not honoured within 30 days. Such type of penal interest is clearly hit for want of suitable provisions under the Act. Learned Counsel for the appellant has rightly pressed into service the observations of the Calcutta High Court in . National Insurance Co. Ltd. v. Tapas Kumar Ghosh and Anr. wherein it has been observed in paragraph 10 as under:

10- In the present case also after going through the impugned judgment of the learned Tribunal, we find that Tribunal, in fact awarded higher rate of interest with retrospective effect as default clause and in our view having regard to the position of law settled by the Hon'ble Apex Court in the case of National Insurance Co. v. Keshav Bahadur : AIR2004SC1581 , the Tribunal did not have this power under the Act and natural the order of the Tribunal directing payment of enhanced rate of interest with retrospective effect on default clause cannot be supported in me eyes of law.

44. These observations of the Calcutta High Court are based in view of the law laid down by the Apex Court in the case of National Insurance Co. v. Keshav Bahadur : AIR2004SC1581 . In my opinion the learned Member, Claims Tribunal was not right in awarding penal interest & 15% P.A. from the date he has ordered.

45. On this count also this appeal needs to be allowed.

Thus total compensation payable to claimant/respondent No. 1 can be computed as below:

Damages for pecuniary losses:Loss of earning: 25,600/-Loss of Housingkeeping capacity: 81,600/-Medical expensesnot reimbursed: 20,786/-Nursing fees &dressing;: 03,000/-Daily massage: 06,000/-Crutches & Walker: 02,000/-Special diet: 05,814/-Special shoes: 40,000/-______________Total 1,84,800/-______________Damages for non pecuniary losses:Pains & sufferings: 25,000/-Loss of amenities oflife and loss ofexpectation of life: 1,00,000/-Disablement: 50,000/-_______________Total 1,75,000/-_______________Thus in all Rs. 3,59,800/-

OPERATTVE ORDER

The appeal is partly allowed.

The impugned judgment and award of the learned Member, M.A.C.T. is modified as

under:

Claimant/respondent No. 1 shall be entitled to Rs. 3,59,800/- towards compensation in this case together with interest & 9% p.m. from the date of application till its full and final realization including N.F.L. Needless to state that the amount if any already paid shall be deducted. The appellant do pay the same. Award accordingly stands modified. Parties to bear their own costs.