Partly allowed

Sanju @ Sanjay Kumar Sahu v. Gendu Gond and Others

Chhattisgarh HC3 Apr 2014MAC/100/2006

Case brief

AI extract

What is this about?

The High Court modified a Motor Accident Claims Tribunal award. It allowed the insurance company's appeal in part, setting aside the Rs.90,000 disability portion due to lack of competent medical assessment, while dismissing the claimant's appeal for enhancement after awarding Rs.10,000 for attendant/transportation.

What did the court decide?

The Rs.90,000 disability award was set aside. Rs.10,000 was granted for attendant and transportation, making the total compensation Rs.40,000.

Sanju @ Sanjay Kumar Sahu Vs Gendu Gond and Others — Motor Accident Claims | Chhattisgarh HC (2014)

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IN THE HIGH COURT OF JUDICATURE AT BILASPUR CHHATTISGARH

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MISELLANEOUS APPEAL N0. - OF 2006 c^ ((5U

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(MEMORANDUM OF APPEAL UNDER SECTION 173 OF THE MOTOR VEHICLES ACT, 1988)

APPELLANT

CLAIMANT

silanju @ Sanjay Kumar Sahu , aged about 20 years, S/o Basant Sahu, R/o- Village - Mathpuraina, Police StationTikrapara, Raipur, Tehsil & District- Raipur (C.G.)

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VERSUS

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RESPONDENTS NON-CLAIMANTS

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Gendu Gond, aged about 23 years, S/o

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^ Vishal Gond, R/oVillageTangopani -

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(Baghbahara), Tehsil & District Mahasamund (C.G.) (Vehicle Driver)

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Anjor Singh Thakur, aged about 28 years S/o Vishal Singh Thakur, R/o- VillageTangopani (Baghbahara), Tehsil & District - Mahasamund (C.G.) (Vehicle Owner)

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The Bajaj Allianz General Insurance Company Limited, Pandri, Raipur, Branch 'y Office, Branch Manager, Raipur, District^"^ Raipur (C.G.)

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MEMORANDUM OF APPEAL UNDER SECTION f73 OF THE MOTOR VEHICLES ACT, 1988

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HIGH COURT OF CHHATTISGARH AT BILASPUR

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SB: Hon'ble Shri Justice Pritinker Diwaker

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M.A. No. 343 of 2006

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Appellant Bajaj Alliances General Insurance

Company Limited

VERSUS

Respondents

Gendu Gond and others

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Present:

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Shri Rakesh Pandey, counsel for the appellant. None for respondentsNo. 1 &2, though served. Shri Shivendu Pandya, counsel for respondent No.3.

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M.A.(&tNo.100of2006

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Appellant

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Sanju @ Sanjay Kumar Sahu

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VERSUS

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Respondents

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Gendu Gond and others

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Present:

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Shri ShivenduPandyi, cdunselfdrtHeappellaht. None for respc?ndents^N6.1 &2, tHough served. S h ri Rakesh Randey, ^ynseljgr resppndent No. 3.

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^.»©aRiilitRS:^1—.'-.

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(03rd April, 2014)

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As both these appeals arise out of the same award dated 30.1.2006 passed by the 13th Additional Motor Accident Claims Tribunal (FTC), Raipur (hereinafter referred to as "Tribunal") in claim case No.35/05, they are being disposed of by this common order. 02. Brief facts of the case are that on 19.11.2004 when Sanju @ Sanjay was travelling in motorcycle bearing registration No. C.G.06-A7727 as a pillion rider, the said motorcycle collidid with the stationed truck resulting in fracture in his right hahd.

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A claim case was filed by the claimant for compensation of Rs.

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9.50 lacs, inter alia, pleading that the accident occurred due to rash and negligent driving of, the motdrcycle, he suffered three fractures in his right hand, was hospitalized from 9.11.2004 to 13.11.2004 and thereafter, again for three days from 19.2.2005 to 21.2.2005 and therefore, he is entitled for compensation as claimed.

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The insurance company while contesting the case has pleaded that the claim as put forth by the claimant is exorbitantone, the rider of the motorcycle was not having valid licehce to ride the said vehicle and as such, on account of there being violation of policy conditions the jnsurance company is not liable to pay any compensation.

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In support of his contention, the claimant has examined himself and in his evidence has stated as to the manner in which the accident occurred and he suffered injuries. Except himself, the claimant has neither examined the treating doctor nor the doctor who has allegedly issued the medical certificate Ex.P/1 showing 90% permanent disability to him.

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Tb substantiate his contehfion, the insuranee company examined two witnesses i.e. Roopchand Verma, Police Constable and Sanjay , Kumar Singh, employee of ^he insurance company. However, no witness was examined by Ihe insurartce icompany from the concerned RTO to proveithe fact that on the date of accident the rider of the v motorcycle was not having valid licence.

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From the order sheet dated 14.12.2005 of the Tribunal, it is clear that the application filed by the insurance company under Section 170 of the Motor Vehicles Act was allowed and it was permitted to contest thecase under all the heads.

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The Tribunal after hearing counsel for the parties and taking into consideration the material on record, by the jmpugned award granted a totalcompensation of Rs.1,20,000/- with interest @ 6% p.a. from the date of claim petition till realization, in favour ofthe injured-claimant on

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the following heads:

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(i) For 90% permanent disability Rs.90,000/(ii) For medical expenses Rs.20,000/(iii) For pain and suffering Rs.10:000/-

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M.A.No.343/06: This appeal has been preferred by the insurance company challengihg award on the point of liability as well as quantum of compensation 6h the following grouhds:

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(i) that rider of the motorcy^le was not having a valid and effective licence on the date of accident and as such, there being violation of policy conditions the tnsurance company is not liable to pay compensation;

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(ii) that the claimant had failed to prove that he has suffered 90% permanent physical disability and as such, the Tribunal was not justified in awarding Rs.90,000/- under this head merely on the basis of disability certificate (Ex.P/1) which wasnot issued by the competent authority/medical board but by one Dr.G.S. Bachu in hisjndividuaricipacity,'vyho'isinitliehabit of issuing such certificates;

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(iii)

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that the claimant has feile^ to prove his case as he has neither examined Dr G.S. BiclTu, who^issuigd'the^tiisability certificate (Ex.P/1) nor the treating doctor andas such,he was hot entitled fbr any cbmpensation under any of the heads;

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Replying to this argument, it has been contended on behalf of learned counsel for th@ claimant that though no doctor has been examined by the claimant but considering the disability certificate (Ex.P/1), the Tribunal was justified in granting Rs.9p,000/- to the claimant under the head of permanent disability. He, however, admits thatauthorofEx.P/1 Dr Bachu is in the habitbf issuirig such certificate in favour of number of claimants Jn Sfaim cases.

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Though the insurance company has taken the ground that rider

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ofthe motorcycle was not having avalid licence to ride the motorcycle, but no evidence has been adduced by it, nor any person from the concerned RTO has been examined to prove the factum of breach of policy conditions on the ground of rider of the motorcycle not possessing valid licence on the date of accident. It is a settled principle of law that the onus of proof regarding breach of policy conditions is on the insurance company and in the present case, the insurance company has failed to discharge its burden. Thus in absence of any such evidence, it can not be held that on the fateful day, rider of the motorcycle was not having a valid licence.

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As regards contention of the insurance company that the amount of Rs.90,000/- granted in favour of the claimant towards alleged 90% permanent^{disabilityisillegal,theTribunalhas} granted^{thesaidamount} to the claimaht on the basisof disabilitycertifjcate Ex.P/1 issued by one Dr. G.S; Bachu. However, this doctor has not been examined by the claimant to prove as to on what basis the said doctor has assessed his permanent disability. The claimant has also not examined any other doctor to prove his alleged disability. In number of cases, this Court has noticed that such type 6f certiTicates are issued by Dr. Bachu. However, considering the fact that Dr. Bachu is not before this Court, it may not be proper to make ahy comment Oh the certificate issued by him, but as ^here is permissjon. in favour of ttieinsurance company under Section 170(b) of the Motor Vehicles Act to contest the case on all the grounds, the finding of the Tribunal granting Rs.90,000/- in favour of the claimant towards 90% permanent disability being on the face of record perverse is liable to be and is hereby set aside. The amount of Rs.90,000/- granted by the Tribunal under this head is reduced from the total compensation of Rs.1.20 lacs awarded to the claimant.

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So far as the amount awarded towards other heads i.e. Rs.20,000/- for medical expenses and Rs.10,000/- for pain & suffering, the same appears to be just and reasonable and therefore, is kept intact.

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M.A. (C)No.100/06: Tliis appeal has been preferred by the claimant for enhancement of compensation on the ground that no amount has been awarded by the Tribunal towards special diet, attendant and transportation, especially when there is evidence on record to show that the claimant remained hospitalized on two occasions and as such, must have incurred expenses towards services of attendant, special diet and transportation.

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On the other hand, learned counsel for the respondenVinsurance company submits that looking to the nature of injuries sustained by the claimant, the amount awarded by the Tribunal towards medical expenses and pain and suffering is itself on the higher side and therefore, there is no scope for any further award under' other heads.

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In the totality of facts and circumstances of the case, particularly the period of hospitalization, the claimant is held entitled for Rs.5,000/towards special diet, Rs.2,000/- for attendant and Rs.3,000/- for transportation. Thus, the claimant is entitled for a total compensation of Rs.40,000/- instead of Rs. 1.20 lac as awarded by the Tribunal, with interest @ 6% per annum from the date of claim petition till realization.

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In the result, M.A.No.3^3?Q6 preferred by the insurance company is allowed in part whereas M.A;(c)NcCT 00/06 preferred by the claimant is dismissed. The award impugned is modified to the extent indicated above. __-

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Sd/pritinker Diwaker Judge

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Sanju @ Sanjay Kumar Sahu v. Gendu Gond and Others

Case brief

What is this about?

What did the court decide?

Sanju @ Sanjay Kumar Sahu v. Gendu Gond and Others

Case brief

What is this about?

What did the court decide?

What the court decided

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