Kirtan Rana Vs Mukesh Ram

__________________________________________________________ For Appellant (s) : Ms. Prachi Singh, Advocate For Respondent No. 1 : Mr. Kaushal Yadav, Advocate For Respondent No.3 : Ms. Swati Agrawal, Advocate on behalf of Mr. Pankaj Agrawal, Advocate

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S.B.: Hon'ble Shri Parth Prateem Sahu, Judge

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Judgment On Board

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13/06/2025

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With the consent of learned counsel appearing for the parties, the

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case is heard finally.

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This is the claimant’s appeal filed under Section 173 of the Motor

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Vehicles Act, 1988 (for short “Act of 1988”) seeking enhancement of amount of compensation awarded by learned Additional Motor Accidents Claims Tribunal, Saraipali, District – Mahasamund (CG) vide award dated 20.11.2019 passed in Claim Case No.10 of 2017.

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Facts relevant for disposal of this appeal, in brief, are that applicant/claimant filed an application under Section 166 of the Act of 1988 before the learned Additional Motor Accident Claims Tribunal, Saraipali, District- Mahasamund (CG) pleading therein that on 29.02.2016 in the morning, he was going from Jalgarh (Saraipali) to Sarangarh on his motorcycle. When he reached near village Tamtora, non-applicant No.1 driving the offending vehicle Truck bearing registration No. MH-19 Z 3522 rashly and negligently dashed against motorcycle of appellant, due to which, appellant sustained grievous injury. He was admitted in the hospital from 29.02.2016 to 07.03.2016. His three toes of right leg were amputated which resulted in his permanent disability. Appellant/claimant prayed for total compensation of Rs.11,70,000/-

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Non-applicants No. 1 & 2 remained ex-parte in the claim proceedings and non-applicant No.3 in its written statement denied the pleadings made by the appellant in his claim application and pleaded breach of policy conditions as driver was not possessing the licence of the class of vehicle which he was driving.

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Learned Claims Tribunal, on appreciation of pleadings and evidence brought on record by respective parties, held that on the date of accident, offending vehicle was being driven by non-applicant No.1

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rashly and negligently, due to which, an accident occurred in which appellant sustained grievous injuries, which resulted in permanent disability to the extent of 25%. Recording a finding that breach of the conditions of insurance policy was found to be proved, learned Claims Tribunal held non-applicants No.1 & 2 (Driver and Owner) liable to pay amount of compensation to claimant, and while calculating the loss suffered by the claimant under different heads, awarded total amount of compensation of Rs.73,102/ -.

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Learned counsel for the appellant submits that this appeal is filed seeking enhancement of amount of compensation in an injury case. Appellant also suffered permanent disability which is proved by producing the disability certificate Ex.A-13 issued by the Medical Board, Mahsamund and to prove disability certificate, appellant has also examined Dr. N.K. Mandpe, (AW3). She lastly contended that learned Tribunal even if came to the conclusion that non-applicant No.1/Driver of the offending vehicle was driving Heavy Goods Vehicle, but possessing licence to drive Light Motor Vehicle only, there was breach of conditions of policy, exonerated Insurance Company from liability, then learned Clams Tribunal ought to have issued direction to Insurance Company to first pay the compensation amount and thereafter to recover the same from owner and driver.

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Learned counsel appearing for respective respondents submits that learned Tribunal in the facts and circumstances of the case and also upon appreciation of evidence available on record has awarded just and proper compensation which does not call for any interference. They also submit that to prove the income, claimant/appellant has

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not filed any document or examined any witness and therefore learned Tribunal justified in assessing income of appellant on notional basis. The amount of compensation is just and proper and hence it does not call for any interference.

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I have heard learned counsel for the parties and also perused the records of Claims Tribunal.

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Perusal of the records would show that the claimant in support of his claim has filed document including medico-legal-case of Ramkrishna Care Hospital, Raipur, as Ex.A-11. Upon final diagnosis, doctor has recorded following:-

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“L.W Over Right Elbow, Right Foot with Fracture 1^st and 3^rd M.T. (RT) foot with Amputation of 4^th toe with posterior interosseous Nerve-injury right side”.

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Further medical document annexed along with Ex.A-11 would show that appellant also underwent Operative Procedure which is mentioned as “D & R RT FA foot with K-Wrie Fixation (Rt) MTP joint, great toe with SSG (Rt) foot under GA”. Further the document bears nature of injury suffered and course in the hospital which is reproduced as under :

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“ -SLR- 80 degree

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-Rotation -Hip (R) Painful -Swelling (+) Thigh, Knee and leg -Tenderness (+) Thigh Knee and leg -Crush Injury (Rt) foot (+)

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LW over dorsum of foot (sickle shaped) 8-10 cm -Tenderness (+)

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-LW Over dorsum ad base of 2^nd toe 3-4 cm

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-3^rd and 4^th Toe crushing 3^rd toe having with skin tag +4^th toe amputated -L.W extended from dorsum to planter Aspect muscle contaminated -Deformity of great tow (+)

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-Pulsation (+)

Course in Hospital ”

From the medical documents available on record would show that the appellant suffered lacerated wound over right elbow, right foot with fracture 1^st and 3^rd MT (middle toe) (Rt) foot with amputation of 4^th toe with posterior interosseous nerve- injury right side.

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From the contents of aforementioned document, relevant portion of which is extracted above, would show that appellant suffered grievous injury and further document Ex.P-13 would show that due to aforementioned injury, appellant also suffered permanent disability to the extent of 25%.

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Learned Clams Tribunal based on the evidence has also recorded that appellant suffered 25% permanent disability, however, no amount of compensation under the said head has been awarded. True it is that appellant could not able to place on record the salary certificate issued by employer, even when the contention of learned counsel for appellant is that appellant on the date of accident was working as Salesman with Colgate company. No document is filed to show that appellant could not able to work for about 7 months as submitted. In the facts of the case and absence of any document regarding proof of income, in the considered opinion of this Court, learned Tribunal justified in assessing the income on notional basis. However, for the purpose of calculating income on notional basis, learned Tribunal ought to have considered the status of appellant to be an educated person as he is working as Salesman and not a labourer, cost of living, price index, wage rates structure and also minimum wages fixed by the Competent Authority under the

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Minimum Wages Act and prevailing on the date of accident. Learned Tribunal has assessed Rs.5000/- per month as income of the appellant which in the opinion of this Court is on lower side. Considering entirety of the facts of case, I find it appropriate to assess income of appellant as Rs.8,000/- per month. It is ordered accordingly.

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Learned Tribunal has awarded loss of income for 2 months only. Looking to the nature of injury suffered by the appellant as reflecting from the the medical documents produced by the appellant, in the opinion of this Court, appellant may not have worked for about 4 months and, accordingly, I am inclined to award loss of income during treatment for 4 months. It is ordered accordingly. The appellant will also be entitled for compensation towards the ‘grievous injury’ suffered by him of Rs.25,000/-

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Learned Tribunal though recorded a finding that appellant suffered permanent disability to the extent of 25% and there was amputation of 4^th toe, however, no amount is awarded for the permanent disability and the loss of 4^th toe. Due to permanent disability, appellant might suffer for whole of his life and he has to live with this disability in future. On the date of accident the appellant is shown to aged about 33 years and, therefore, I find it appropriate to award Rs.20,000/- towards ‘loss of amenities of life’.

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Learned Claims Tribunal has awarded Rs.5,000/- towards pain and suffering which is also on lower side. Taking note of the nature of injury, nature and period of treatment taken by appellant, I am inclined to award Rs.25,000/- towards ‘pain and suffering’,

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Rs.10,000/- towards ‘special diet’ and Rs.5,000/- towards ‘conveyance expenses’.

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Apart from above, the claimant is also entitled for sum of Rs.55,102/towards ‘medical expenses’ as awarded by the Claims Tribunal. It is ordered accordingly..

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Now, instead of Rs.73,102/- as awarded by the Claims Tribunal, the appellant/claimant will be entitled to get total compensation of Rs. 1,72,102/- as under:-

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S. N.	Heads	Comp	ensation
1.	Medical expenses	: Rs.	55,102
2.	Loss of Income of four months (8000 x 4)	: (+) Rs.	32,000
3.	Loss suffered due togrievous injury	: (+)Rs.	25,000
4.	Pain and Suffering	: (+) Rs.	25,000
5.	Nutritious/Special Diet	: (+)Rs.	10,000
6.	Transportation/conveyance charges	: (+)Rs.	5,000
7.	Loss of amenities of life	: (+)Rs.	20,000
	Total compensation	: Rs.	1,72,102

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Aforementioned total amount of compensation shall carry interest @ 7.5% per annum from the date of filing of claim application till its realization. Any amount of compensation already paid to the claimants shall be adjustable from the total amount of compensation which has now been calculated and awarded by this Court. Other conditions of impugned award shall remain intact.

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Now this Court will consider the submission of learned counsel for the appellant that learned learned Claims Tribunal erred in not issuing a direction to respondent No.3 to pay and recover the amount of compensation from the Owner and Driver of the offending vehicle.

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Learned Claims Tribunal had held that on the date of accident offending vehicle was insured by respondent No.3, however, insurance company was exonerated only on the ground that driver, on the date of accident, was possessed with driving licence to drive Light Motor Vehicle, however, he was driving Heavy Goods Vehicle on the date of accident. Learned Claims Tribunal taking note of the fact that driver on the date of accident was not possessed of a valid and effective driving licence to drive the offending vehicle has recorded a finding that there was breach of conditions of insurance policy and on that ground exonerated insurance company. The said finding recorded by Learned Claims Tribunal is not put to challenged by driver or owner of offending vehicle.

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Hon’ble Supreme Court in the case of Oriental Insurance Co. Ltd. Vs. Nanjappan & Ors. (2004) 13 SCC 224 while dealing the issue to first pay the amount of compensation and thereafter to recover the same from driver or owner of offending vehicle, has observed as thus:

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“8 . Therefore, while setting aside the judgment of the High Court we direct in terms of what has been stated in Baljit Kaur's case (supra) that the insurer shall pay the quantum of compensation fixed by the Tribunal, about which there was no dispute raised, to the respondents-claimants within three months from today. For the purpose of recovering the same from the insured, the insurer shall not be required to file a suit. It may initiate a proceeding before the concerned

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Executing Court as if the dispute between the insurer and the owner was the subject matter of determination before the Tribunal and the issue is decided against the owner and in favour of the insurer. Before release of the amount to the insured, owner of the vehicle shall be issued a notice and he shall be required to furnish security for the entire amount which the insurer will pay to the claimants. The offending vehicle shall be attached, as a part of the security. If necessity arises the Executing Court shall take assistance of the concerned Regional Transport authority. The Executing Court shall pass appropriate orders in accordance with law as to the manner in which the insured, owner of the vehicle shall make payment to the insurer. In case there is any default it shall be open to the Executing Court to direct realization by disposal of the securities to be furnished or from any other property or properties of the owner of the vehicle, the insured. The appeal is disposed of in the aforesaid terms, with no order as to costs.”

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Further Hon’ble Supreme Court in the case Shamanna & Anr Vs. Divisional Manager, Oriental Insurance Company Ltd. & Ors. (2018) 9 SCC 650 reiterating its earlier decision in the case of Nanjappan (supra) held as under:

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“14 . So far as the recovery of the amount from the owner of the vehicle, the insurance company shall recover as held in the decision in Oriental Insurance Co. Ltd. v. Nanjappan and others where this Court held that -

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“8….For the purpose of recovering the same from the insured, the insurer shall not be required to file a suit. It may initiate a proceeding before the concerned Executing Court as if the dispute between the insurer and the owner was the subject matter of determination before the Tribunal and the issue is decided against the owner and in favour of the insurer. ”

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Considering the aforementioned decisions of Hon’ble Supreme Court and facts and circumstances of the case, I am of the view that learned Tribunal erred in not issuing direction to insurance company to first pay amount of compensation and, thereafter, to recover the same from he owner and driver of the offending vehicle.

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For the foregoing discussions, it is directed that respondent No.3/Insurance Company, even though insurance company is exonerated from iis liability to indemnify the insured, however, considering the fact that respondent No.3/insurance company had issued insurance policy with respect to offending vehicle, to protect the interest of claimant, I find it appropriate to allow the prayer made by learned counsel for the appellant. It is directed to respondent No.3/insurance company to first satisfy the amount of compensation as ordered by this Court and thereafter to recover the same from respondents/Non-applicant No.1 & 2 i.e. Driver and Owner of the offending vehicle. However, it is made clear that for recovery of the said amount, insurance company can recover the amount in an execution proceeding as held by Honb’le Supreme Court in the case

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of Nanjappan (supra).

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In the result, appeal is allowed in part. Impugned award is modified to the extent as indicated herein above.

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Sd/-

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(Parth Prateem Sahu) Judge

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Praveen

Kirtan Rana v. Mukesh Ram

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Kirtan Rana v. Mukesh Ram

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