Partly allowed

National Insurance Co.Ltd. v. Bijay Kr.Das And Ors.

Jharkhand HC21 Jul 2022MA/167/2008

Case brief

AI extract

What is this about?

This appeal challenged the Motor Accident Tribunal's award of Rs. 2.73 lakhs and the insurer's liability. The Court held the compensation quantum was proper given the undisputed loss of earnings. The Court modified the award to allow the insurer to recover the paid amount from the vehicle owner via execution proceedings since the owner failed to prove the driver's license validity.

What did the court decide?

The appeal allowed in part; the Tribunal's award on quantum maintained; the insurer directed to recover the paid amount from the vehicle owner by executing the award.

National Insurance Co.Ltd. Vs Bijay Kr.Das And Ors. — Execution and Attachment | Jharkhand HC (2022)

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M.A. No. 167 of 2008

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IN THE HIGH COURT OF JHARKHAND AT RANCHI M.A. No.167 of 2008

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National Insurance Co. Ltd. 3 Middleton Street, Sealdah, Kolkata70071 (W.B.)

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.... .... …. Appellant

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Versus

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Bijay Kr. Das, son of Late Sirish Chandra Das, 28 Contractors Area, Road No.4, Adityapur, Seraikella, Kharsawan.

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M/s. Ispat Carriers Pvt. Ltd, 2 P.O. & P.S. Mohan Gosh Road, Calcutta

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Durga Prasad Yadav, father’s name not known to the appellant, representing M/s. Ispat Carriers Pvt. Ltd. Kalimati Road, P.O. & P.S. Sakchi, Jamshedpur, Singhbhum East

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S. Goswami, Manager, father’s name not known to the appellant, representing M/s. Ispat Carriers Pvt. Ltd. Kalimati Road, P.O. & P.S. Sakchi, Jamshedpur, Singhbhum East

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.... .... .... Respondents

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------

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For the Appellant : Mr. Alok Lal, Advocate For the Respondent No.1: Mr. R.C.P. Sah, Advocate For the Respondent No.2 : Mr. A.K. Sahani, Advocate

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P R E S E N T

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HON’BLE MR. JUSTICE ANIL KUMAR CHOUDHARY

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------

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By the Court:-

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Heard the parties.

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This appeal has been preferred against the judgment and award dated 18.03.2008 passed by the 1^st Additional District Judge-cumMotor Vehicle Accident Claim Tribunal, Seraikella in Compensation Case No.3 of 2001 by which the learned Tribunal in a claim application filed under Section 166 of M.V. Act in connection with permanent disability caused to the applicant has awarded a sum of Rs.2,73,547/with interest thereon at the rate of 6% per annum from the date of filing of the claim application and held that the insurance company is liable to pay the compensation amount.

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The brief facts of the case is that the claimant-respondent no.1 on 25.12.2000 while riding his scooter was dashed by the offending trailer

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M.A. No. 167 of 2008

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being rashly and negligently driven by which the claimant-respondent no.1 sustained severe injuries leading to 70% permanent disability. The claimant-respondent no.1 was treated in Tata Main Hospital as an indoor patient till 02.02.2001 and after being discharged from TMH, he remained bed ridden and was under the treatment of various doctors.

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The owner and the driver of the vehicle did not contest the claim application and the insurance company in paragraph no.15 of its written statement has taken the specific plea that the driver of the offending trailer did not have valid and effective driving licence.

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The learned Tribunal on the basis of rival pleadings, altogether framed the following five issues:-

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(i) Whether the claimant sustained injury due to motor accident caused by vehicle no. WB-19-4650 at the relevant time?

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(ii) If the insurer is liable to pay compensation to the claimant for injury caused by the offending vehicle, due to the rash and negligent act of the driver, for disability sustained by the applicant?

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(iii) Are the driver and owner of the vehicle in question liable to pay compensation and whether the terms and condition of the policy has been violated?

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(iv) Whether the motor vehicle in question had valid insurance cover under the insurer at the relevant time?

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(v) Is the claimant entitled for any other reliefs?

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In support of its case, the claimant altogether examined three witnesses and also produced and proved the documents in support of his claim which was marked Exts. 1 to 7. The insurance policy filed by the insurance company was marked Ext. A.

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The learned Tribunal first took up the issue no. i and ii together

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M.A. No. 167 of 2008

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and held that the claimant sustained injury due to motor accident caused by the offending vehicle. Thereafter, the Tribunal took up issue no. iii and iv together and held that the insurer is liable to pay the compensation to the claimant for the injury caused by the offending vehicle due to rash and negligent act of the driver for the disability sustained by the claimant. Lastly, the learned Tribunal took up issue no. v and considering the fact that the injured was a senior contractor and is an income tax assessee and his disability is 70% held that the claimant is entitled for compensation of Rs.1,50,000/- for future loss due to deteriorate earning capacity, Rs.48,547/- due to medical expenses supported with vouchers and Rs.75,000/- towards present loss and thus in total Rs.2,73,547/-.

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Mr. Alok Lal, learned counsel for the appellant assailing the judgment and award of the learned Tribunal submits that the learned Tribunal committed grave error by not properly appreciating the evidence in the record and misdirected itself in assessing the compensation to the extent of Rs.1,50,000/-. It is next submitted by Mr. Lal that the Tribunal erred by relying upon Ext. 3 series, 5 series and 6 in absence of examination of medical expert and in this respect, learned counsel for the appellant relied upon the judgment of Hon’ble Supreme Court of India in the case of Raj Kumar vs. Ajay Kumar & Ors. reported in (2011) 1 SCC 343 , paragraph no.16 and 18 of which reads as under :-

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“16. The Tribunal should not be a silent spectator when medical evidence is tendered in regard to the injuries and their effect, in particular, the extent of permanent disability. Sections 168 and 169 of the Act make it evident that the Tribunal does not function as a neutral umpire as in a civil suit, but as an active explorer and seeker of truth who is required to “hold an enquiry into the claim” for determining the “just compensation”. The Tribunal should therefore take an active role to ascertain the true and correct position so that it can assess the “just compensation”. While dealing with personal injury cases, the Tribunal should preferably equip itself with a medical dictionary and a handbook for evaluation of permanent

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M.A. No. 167 of 2008

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physical impairment (for example, Manual for Evaluation of Permanent Physical Impairment for Orthopaedic Surgeons, prepared by American Academy of Orthopaedic Surgeons or its Indian equivalent or other authorised texts) for understanding the medical evidence and assessing the physical and functional disability. The Tribunal may also keep in view the First Schedule to the Workmen's Compensation Act, 1923 which gives some indication about the extent of permanent disability in different types of injuries, in the case of workmen.

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18. The Tribunal should also act with caution, if it proposed to accept the expert evidence of doctors who did not treat the injured but who give “ready to use” disability certificates, without proper medical assessment. There are several instances of unscrupulous doctors who without treating the injured, readily give liberal disability certificates to help the claimants. But where the disability certificates are given by duly constituted Medical Boards, they may be accepted subject to evidence regarding the genuineness of such certificates. The Tribunal may invariably make it a point to require the evidence of the doctor who treated the injured or who assessed the permanent disability. Mere production of a disability certificate or discharge certificate will not be proof of the extent of disability stated therein unless the doctor who treated the claimant or who medically examined and assessed the extent of disability of the claimant, is tendered for cross-examination with reference to the certificate. If the Tribunal is not satisfied with the medical evidence produced by the claimant, it can constitute a Medical Board (from a panel maintained by it in consultation with reputed local hospitals/medical colleges) and refer the claimant to such Medical Board for assessment of the disability.” (Emphasis supplied)

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It is next submitted by Mr. Lal, learned counsel for the appellant that as the appellant has taken a specific plea in paragraph no.15 of its written statement that the driver of the offending vehicle was not having a valid and effective driving licence on the date of accident and the owner of the vehicle did not bring on record any evidence to suggest that the driver of the offending vehicle on the date of alleged occurrence was having a valid and effective driving licence, hence, in view of the principle of law settled by the Hon’ble Supreme Court of India in the case of Pappu & Ors. v. Vinod Kumar Lamba & Anr. reported in (2018) 3 SCC 208 , paragraph nos.11 and 12 of which reads as under :-

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“11. The question is: whether the fact that the offending vehicle bearing No. DIL 5955 was duly insured by Respondent 2 insurance company would per se make the insurance company liable?

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M.A. No. 167 of 2008

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12. This Court in National Insurance Co. Ltd. has noticed the defences available to the insurance company under Section 149(2)(a)(ii) of the Motor Vehicles Act, 1988. The insurance company is entitled to take a defence that the offending vehicle was driven by an unauthorised person or the person driving the vehicle did not have a valid driving licence. The onus would shift on the insurance company only after the owner of the offending vehicle pleads and proves the basic facts within his knowledge that the driver of the offending vehicle was authorised by him to drive the vehicle and was having a valid driving licence at the relevant time.” (Emphasis supplied)

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the owner be held liable and as the insurance company has already paid the compensation amount to the claimant therefore, the insurance company be given the right to recover the said amount from the owner in executing of the award and not by any separate proceeding. Hence, it submitted by Mr. Lal that the impugned judgment and award be modified accordingly.

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Mr. R.C.P. Sah, learned counsel for the respondent no.1 on the other hand defended the impugned judgment and award and submits that even though the respondent no.1 has not filed any cross objection or appeal but the quantum of compensation awarded by the Tribunal is a meagre one as the Tribunal has not awarded the compensation amount on the heads of pain and suffering and dependency and as the testimonies of the witnesses examined by the claimant that the claimant was a senior contractor with the TISCO and was an income tax assessee has remained unchallenged and undisputed and as Ext. 4 to 4/65 goes to show that the applicant was in indoor treatment 25.12.2000 to 02.02.2001 and he was initially in Coma during the period of his indoor treatment and subsequent thereto also was bed ridden for substantial period of time and keeping in view the undisputed fact that he is suffering from disability of 70% as per the permanent disability certificate issued by the medical board, which has been marked without objection and the

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M.A. No. 167 of 2008

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veracity of the same has not been challenged. Hence, the quantum of compensation ought not to be interfered with.

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Mr. A.K. Sahani, learned counsel for the respondent no.2 submits that since the insurance company has written in paragraph no.14 of its written statement that the driver of the offending vehicle was driving the vehicle cautiously and from the same, it can be interfered that the driver of the offending vehicle was having a valid driving licence, though the owner of the vehicle has neither pleaded nor proved the same. It is lastly submitted that the insurance company ought not to be given the right to recover the compensation amount from the owner of the vehicle.

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Having heard the rival submissions made at the bar and after going through the materials in the record, the following points for determination crop up in this appeal for consideration:

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(i) Whether the quantum of compensation awarded to the claimant-respondent no.1 by the learned Tribunal is to be reduced?

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(ii) Whether the appellant-insurance company be given the right to recover the compensation amount already paid by it to the claimant from the owner of the vehicle being the respondent no.2?

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So far as the first point of determination is concerned, the Hon’ble Supreme Court of India in the case of K. Suresh vs. New India

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Assurance Company Ltd. & Anr. reported in (2012) 12 SCC 274 , reiterated the settled principle of law regarding the heads under which compensation is to be awarded in case of permanent disabilities arising out of use of motor vehicles; para 26 of which reads as under :-

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“ 26. It is worth noting that the Bench referred to the

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M.A. No. 167 of 2008

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pecuniary damages and opined thus : (Raj Kumar Case, SCC P. 348 para 6)

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“ 6. ..... Pecuniary damages (Special damages) (i) Expenses relating to treatment, hospitalization, medicine, transportation nourishing food and miscellaneous expenditure. (ii) Loss of earning which the injured would had made he had not injured comprising –

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(a) loss of earning during the period of treatment (b) loss of future earning on account of permanent disability. (iii) Future medical expenses. Non-pecuniary damages (General damages)

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(iv) Damages for pan suffering and trauma as a consequence of the injuries.

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(v) Loss of amenities (and or loss of prospects of marriage)

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(vi) Loss of expectation of life (shortening of normal longevity).”

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After so stating the Bench proceeded to opine that: (Raj Kumar case [(2011) 1 SCC 343 : (2011) 1 SCC (Civ) 164 : (2011) 1 SCC (Cri) 1161] , SCC p. 348, para 7)

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“7. Assessment of pecuniary damages under Item (i) and under Item (ii)(a) do not pose much difficulty as they involve reimbursement of actuals and are easily ascertainable from the evidence. Award under the head of future medical expenses—Item (iii)—depends upon specific medical evidence regarding need for further treatment and cost thereof. Assessment of non-pecuniary damages—Items (iv), (v) and (vi)— involves determination of lump sum amounts with reference to circumstances such as age, nature of injury/deprivation/disability suffered by the claimant and the effect thereof on the future life of the claimant.”

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It has been observed therein that what usually poses some difficulty is the assessment of the loss of future earnings on account of permanent disability—Item (ii)(a). Thereafter, the Bench adverted to the features which are necessary while assessing the loss of future earnings on account of permanent disability. In the said case it has been opined that permanent disability can be either partial or total and the assessment of compensation under the heads of loss of future earnings would depend upon the factum and impact of such permanent disability on his earning capacity. It has been laid down that the Tribunal should not mechanically apply the percentage of permanent disability as the percentage of economic loss or loss of earning capacity. It has been further observed that:

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M.A. No. 167 of 2008

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(Raj Kumar case [(2011) 1 SCC 343 : (2011) 1 SCC (Civ) 164 : (2011) 1 SCC (Cri) 1161] , SCC p. 349, para 10)

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“10. … In most of the cases, the percentage of economic loss [i.e.] the percentage of loss of earning capacity, arising from a permanent disability will be different from the percentage of permanent disability.”

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However, in some cases on appreciation of evidence and assessment the percentage of loss of earning capacity as a result of the permanent disability would be approximately the same as the percentage of permanent disability in which case, of course, the court or Tribunal would adopt the said percentage for determination of compensation. To arrive at the said conclusion reliance was placed on Arvind Kumar Mishra [(2010) 10 SCC 254 : (2010) 4 SCC (Civ) 153 : (2010) 3 SCC (Cri) 1258] and Yadava Kumar [(2010) 10 SCC 341 : (2010) 4 SCC (Civ) 168 : (2010) 3 SCC (Cri) 1285] .” (Emphasis supplied)

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Now coming to the facts of the case, it is evident from the deposition of A.W.1-the applicant- who was not able to stand and was given a stool to sit at the time of his being examined as a witness. He has categorically stated that he sustained injury as the offending trailer being rashly and negligently driven dashed him. He was in coma for three days in TMH and after being discharged from TMH, he was under the treatment for about 1 ½ years at TMH and other hospitals in respect of which, he has proved the documents which has been marked exhibits. He was an A class contractor of building construction and his monthly income at the time of accident was Rs.20,000-25,000/- per month. Now he is not able to work independently and is dependent upon his employee. Now he is earning Rs.2,000-3,000/- per month. He has been disabled to the extent of 70%. In paragraph no.16 of his crossexamination, he has reiterated that prior to the accident, his earning was Rs.20,000-25,000/- per month. He can produce documents of doing the job on contract basis from TISCO. It is evident from his testimony that after the accident he was in coma for three days or that he was earning

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M.A. No. 167 of 2008

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Rs.20,000-25,000/- per month and after his death, he was earning Rs.2,000-3,000/- per month has remained unchallenged in his crossexamination. Similarly, his testimony that he was an A class contractor has also remained unchallenged and that is to be accepted as true.

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A.W.2-Pravin Swaroop is an eye witness to the occurrence. He has supported the factum of accident. A.W.3- Ruma Das is the wife of the claimant and she besides the factum of accident has also stated in detail about the disability sustained by her husband being the claimant and she has also stated about the indoor treatment of the claimant in Tata Main Hospital and the claimant having been operated in three different occasions in connection with the injuries sustained by him in the said motor vehicle accident. She has also stated that prior to the accident, the claimant used to earn Rs.20,000/- per month but after the accident because of his disability, he is not able to earn money. Perusal of the record reveals that in cross-examination, the testimony of A.W.3 about the treatment undergone by the claimant after his accident and that he used to earn Rs.20,000/- per month has not been challenged in any manner and for that matter, the loss of earning of claimant has not been challenged in any manner. Hence, the same is to be accepted to be true.

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So, keeping in view of the serious nature of injury sustained by the claimant, who is stated to be a person of 57 years of age and the unchallenged testimony put forth by the claimant about his loss of earning of Rs.15,000/- per month and that the learned Tribunal has not awarded any compensation towards the pain and suffering of the claimant though undisputedly, he was in coma for three days after his accident and he has undergone surgery operation three times and he is

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M.A. No. 167 of 2008

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now dependent upon his staff, this Court is of the considered view that the quantum of compensation of Rs.2,73,547/- is proper and the same need not be reduced. The first point of determination is answered accordingly.

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So far as the second point for determination is concerned, it is a settled principle of law as has been held by the Hon’ble Supreme Court of India in the case of Pappu v. Vinod Kumar Lamba (supra) as there is specific pleading of the appellant-insurance company that the driver of the offending trailer was not having a valid and effective driving licence on the date of accident, it was incumbent upon the owner of the vehicle to bring on record the valid and effective evidence regarding the driving of the offending vehicle was having a valid and effective driving licence, to shift the liability to pay the compensation amount to the insurance company but having not done so, this Court is of the considered view that in the facts of the case, it is the owner who is liable to pay the compensation amount to the claimant. Since the insurance company has already paid the amount of compensation, it is a fit case where the insurance company be given the right of recovery of the compensation amount already paid by it to the applicant, from the owner of the vehicle by executing of the judgment and award as has been held by the Hon’ble Supreme Court of India in the case of Manuara Khatun & Ors. v. Rajesh Kr. Singh & Ors. , reported in (2017) 4 SCC 796 , para-21 & 22 of which reads as under:-

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“ 21. In view of the foregoing discussion, we are of the view that the direction to United India Insurance Co. Ltd. (Respondent 3) — they being the insurer of the offending vehicle which was found involved in causing accident due to negligence of its driver needs to be issued directing them (United India Insurance Co. Ltd. Respondent 3) to first pay the awarded sum to the appellants (claimants) and then to recover the paid awarded sum from the owner of the offending vehicle (Tata Sumo)

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M.A. No. 167 of 2008

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Respondent 1 in execution proceedings arising in this very case as per the law laid down in para 26 of Saju P. Paul case [National Insurance Co. Ltd. v. Saju P. Paul, (2013) 2 SCC 41 : (2013) 1 SCC (Civ) 968 : (2013) 1 SCC (Cri) 812 : (2013) 1 SCC (L&S) 399] quoted supra.

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22. Accordingly, the appeals succeed and are allowed. Impugned order is modified to the extent that Respondent 3 United India Insurance Co. Ltd. is accordingly directed to pay the awarded sum to the appellants (claimants). Thereafter Respondent 3 United India Insurance Co. Ltd. would be entitled to recover the entire paid awarded sum from the owner (insured) of the offending vehicle (Tata Sumo) Respondent 1 in these very proceedings by filing execution application against the insured. ”

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And in the case of National Insurance Co. Ltd. v. Saju P.

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Paul & Anr. , reported in (2013) 2 SCC 41, paragraph no.26 of which

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reads as under :-

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“26. The pendency of consideration of the above questions by a larger Bench does not mean that the course that was followed in Baljit Kaur [(2004) 2 SCC 1 : 2004 SCC (Cri) 370] and Challa Upendra Rao [(2004) 8 SCC 517 : 2005 SCC (Cri) 357] should not be followed, more so in a peculiar fact situation of this case. In the present case, the accident occurred in 1993. At that time, the claimant was 28 years old. He is now about 48 years. The claimant was a driver on heavy vehicle and due to the accident he has been rendered permanently disabled. He has not been able to get compensation so far due to the stay order passed by this Court. He cannot be compelled to struggle further for recovery of the amount. The Insurance Company has already deposited the entire awarded amount pursuant to the order of this Court passed on 1-8-2011 [National Insurance Co. Ltd. v. Saju P. Paul, SLP (C) No. 20127 of 2011, order dated 1-8-2011 (SC) wherein it was directed:“Issue notice. Let the entire awarded amount be deposited in this Court within six weeks. On deposit of the aforesaid amount, the same shall be kept in a fixed deposit account initially for a period of six months. ” ] and the said amount has been invested in a fixed deposit account. Having regard to these peculiar facts of the case in hand, we are satisfied that the claimant (Respondent 1) may be allowed to withdraw the amount deposited by the Insurance Company before this Court along with accrued interest. The Insurance Company (the appellant) thereafter may recover the amount so paid from the owner (Respondent 2 herein). The recovery of the amount by the Insurance Company from the owner shall be made by following the procedure as laid down by this Court in Challa Upendra Rao [(2004) 8 SCC 517 : 2005 SCC (Cri) 357] .”

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The second point for determination is answered accordingly.

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In view of the discussions made above, the impugned judgment and award is modified and it is ordered that the appellant insurance company would be entitled to recover the entire paid awarded

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M.A. No. 167 of 2008

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sum from the owner of the offending vehicle Respondent 2 in these very

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proceedings by filing execution application against the insured.

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Accordingly, the appeal is allowed in part and the impugned judgment and award is modified to the aforesaid extent.

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The Registrar General of this Court is directed to pay Rs.25,000/- if any, deposited by the appellant in connection with this appeal to the appellant upon the appellant satisfying that the appellant has paid the entire compensation amount to the applicant-respondent no.1, otherwise, the said amount be remitted to the concerned Tribunal by appropriate mode.

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No order as to costs.

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Let a copy of this Judgment along with Lower Court Records

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be sent back to the learned court below forthwith.

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(Anil Kumar Choudhary, J . )

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High Court of Jharkhand, Ranchi Dated the 21^st July, 2022

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AFR/ Sonu-Gunjan/-

National Insurance Co.Ltd. v. Bijay Kr.Das And Ors.

Case brief

What is this about?

What did the court decide?

National Insurance Co.Ltd. v. Bijay Kr.Das And Ors.

Case brief

What is this about?

What did the court decide?

What the court decided

A compact analysis

Issues for consideration

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