In a motor accident compensation appeal, the High Court enhanced the award from Rs. 49,000 to Rs. 3,73,300 for permanent disability and directed the insurer to pay first before recovering from the unlicensed driver/owner.
Compensation enhanced to Rs. 3,73,300 with interest. Directed insurer to pay first and recover from owner.
This page shows the compact analysis of this judgement. The full analysis — procedural history, issue-by-issue holdings with ratio and obiter, advocates, and paragraph-level evidence for every claim — is being added to the record in batches and will appear here when this judgement has been through it.
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IN THE HIGH COURT OF JUDICATURE FOR RAJASTHAN AT JODHPUR
: J U D G M E N T :
S.B. CIVIL MISC. APPEAL NO.746/2006
Smt. Girdhar Kanwar Vs. The New India Assurance Co. Ltd. & Ors.
Date of Judgment
25th February, 2013
PRESENT
HON'BLE MR. JUSTICE ARUN BHANSALI
Mr. O.P. Rajpurohit, for the appellant. Mr. D.K. Bhootra, for respondent No.1. Mr. Laxman Panwar for Mr. Firoz Khan, for respondent Nos.2 & 3.
BY THE COURT:
This appeal under Section 173 of the Motor Vehicles Act, 1988 ('the Act') has been preferred by the injured-claimant aggrieved by the judgment and award dated 31.03.2006 passed by the Motor Accidents Claims Tribunal, Pali ('the Tribunal'), whereby, a sum of Rs.49,000/- alongwith interest @ 6% per annum has been awarded as compensation and the respondent Insurance Company has been exonerated from the liability to pay compensation.
Brief facts of the case are that the claimant filed an application for compensation with the averments that she was
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standing on one side of the road on 17.11.2001 at Suraj Pol, Pali when respondent No.3 Ganga Singh, who was riding a motor cycle rashly and negligently collided with her, which resulted in serious injuries to her head, neck and various parts of her body, so also, it resulted in disfigurement of her face and her working capacity was permanently reduced. It was stated that she was aged 44 years at the time of accident and by undertaking domestic work and dairy business she was earning Rs.6,000/per month. The claimant claimed compensation of Rs.14,70,100/- under various heads.
The claim petition was resisted by the respondent No.1 Insurance Company, inter alia, stating that the driver of the motor cycle was not possessing valid and effective driving licence and, therefore, the conditions of the policy have been violated and, consequently, the Insurance Company was not liable. The claim was resisted on merits also.
Reply was filed by respondent Nos. 2 and 3 also. The involvement of the vehicle was disputed and it was claimed that the accident did not happen on account of any mistake on part of the driver.
Based on the pleadings of the parties, the Tribunal framed four issues. On behalf of the claimant AW-1 Girdhar Kanwar (claimant), AW-2 Om Prakash (claimant's husband), AW-3 Dr. Praveen Surana were examined and 82 documents were got exhibited. On behalf of the Insurance Company NAW-1 S.N. Meena, NAW-2 Dr. Rajeev Mathur were examined and four
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documents were got exhibited. On behalf of respondent Nos.2 and 3 neither oral nor documentary evidence was produced.
The Tribunal after hearing the parties, came to the conclusion that respondent No.3 was rashly and negligently driving the motor cycle while under the effective control of respondent No.2 and had caused accident, which resulted in injuries to the claimant, the motor cycle was being driven by respondent No.3, who was not having a valid and effective driving licence and, therefore, the Insurance Company was not liable to make payment of compensation, the claimant was not entitled to any compensation for mental disability and awarded compensation of Rs.8,000/- for medical expenses, Rs.10,000/for nutritious diet, Rs.2,500/- towards travelling expenses, Rs.2,500/- towards nursing expenses, Rs.6,000/- for six simple injuries and Rs.20,000/- towards physical and mental pain and suffering i.e. a total sum of Rs.49,000/- with interest, as noticed above, was awarded.
It was contended by learned counsel for the appellant that the Tribunal has committed grave error in coming to the conclusion that the accident has not resulted in any mental disability to the claimant and, consequently, she was not entitled to any compensation for the said mental disability. It was submitted that it was proved on record that the claimant suffered Dementia on account of the injuries received on her head, which has resulted in permanent disablement. Medical evidence produced by the claimant and the Insurance Company
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has been totally misread, which resulted in grave injustice to the claimant. It was further submitted that the Tribunal has not even dealt with the issue relating to the income and consequential loss of income to the claimant. Even under other heads wholly inadequate compensation has been awarded. On the question relating to the liability of the Insurance Company, it was submitted that the Insurance Company has failed to discharge its burden to prove violation of policy conditions and, therefore, the Insurance Company was liable to make payment of the amount of compensation. Ultimately, it was prayed that the award passed by the Tribunal deserves to be modified and the claimant be awarded adequate compensation for the injuries suffered by her and that the Insurance Company be held equally liable for payment of compensation, in any case the Insurance Company should pay the compensation and recover the same from the owner.
Reliance was placed on judgment of Hon'ble Supreme Court in Sohan Lal Passi Vs. P. Sesh Reddy : AIR 1996 SC 2627 and a judgment of Madhya Pradesh High Court in Mohsin Vs. The Oriental Insurance Co. Ltd. & Ors. : MACD 2009 (1) (M.P.) 11.
Learned counsel for the respondent Insurance Company supported the findings of the Tribunal on the issue of its liability as well as on merits.
On behalf of respondent Nos.2 and 3 it was submitted that the claimant has failed to prove any mental disorder and, therefore, she was not entitled to any compensation whatsoever.
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I have considered the rival submissions made at the Bar. The case of the claimant in the claim petition was that she had received injury on head, which has resulted in internal injuries and her mental balance became weak and she suffered from Dementia (loss of memory), disfigurement of her face and permanent disablement, resulting in her inability to continue with her diary business, from where, she was earning Rs.6,000/- per month. In support of her claim, she examined herself, her husband Om Prakash and Dr. Praveen Surana - a Neuro Physician regarding loss of memory and consequent permanent disablement.
The Tribunal while dealing with the evidence in this regard, rejected the contentions raised by the claimant by analyzing the lengthy cross-examination, when the claimant was examined as AW-1, on commission and reaching a conclusion that it cannot be said that she has lost her memory, as in the X-ray report (Exhibit-10) there was no fracture in the head and she was not examined by any Government Psychiatrist.
Apparently, the approach of the Tribunal has been defective and contrary to the material available on record and, therefore, the finding in this regard cannot be sustained. It is apparent from the record that the claimant suffered head injury which is clear from the injury report (Exhibit-4), whereby, swelling on left side of the head has been indicated. Merely because no fracture has been indicated in the X-ray report (Exhibit-10), it cannot be said that the injury which the claimant
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received cannot result in Dementia as claimed by her. It is not in all cases that if and only if there is fracture in the scull that the injured would have mental illness/disorder/dementia on account of the injury. The mental disorder claimed by the claimant i.e. Dementia could have happened on account of internal injury which she received on account of the accident. The fact that during the course of cross-examination nothing was indicated by the Court Commissioner regarding her mental state, cannot be said to be a reason for discarding her claim of her mental disorder (Dementia).
The crucial evidence in the entire case is that of Dr. Praveen Surana, Neuro Physician, who was produced by the claimant to prove her claim and Dr. Rajeev Mathur, who was produced by the Insurance Company to disprove the claim. Dr. Praveen Surana, who had treated the claimant, has specifically stated in his examination that after the head injury, new memory is not being created i.e. she cannot remember any new thing and forgets everything. Her mental state was also not good. She cannot undertake domestic work and produced his report Exhibit-80. He had conducted Mini Mental Scale (MMS) examination and found her suffering from Dementia. He also stated that the patient has permanently lost her memory and there is very slim possibility of her getting it back. Despite lengthy cross-examination nothing could be brought on record to discredit his testimony.
The evidence of Dr. Rajeev Mathur, also a Neuro Physician,
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who was examined as NAW-2 by the Insurance Company has been essentially misread by the Tribunal for discarding the case of the claimant regarding Dementia. The said Dr. Mathur has stated that he had not examined the claimant and in his crossexamination he has specifically admitted that Dementia can occur on account of head injury and if there is Dementia then there would be permanent disability. It was also stated that the person would lose his memory on account of Dementia and would also lose his power to do any work. He would lose his sense regarding toilet and the Dementia can be tested by MMS also. He also admitted that without examining the patient no opinion can be formed and like mathematics and biology no definite opinion can be given. The above analysis of the evidence of both the doctors leads to a irresistible conclusion that while Dr. Surana has given his evidence after examining and treating the claimant, Dr. Mathur has given his opinion based on his understanding of the subject and there also in the crossexamination, as considered above, he has in fact supported the version of Dr. Surana.
The last reason given by the Tribunal that the claimant was not treated by a Psychiatrist appears to be on account of Tribunal's failure to understand difference between a Psychiatrist and a Neuro Physician. It is not the case of the claimant that on account of injury, she suffered a kind of illness, which was required to be treated by a Psychiatrist and, therefore, the reason recorded by the Tribunal also has no basis.
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The sum and substances of the above discussion is that the finding recorded by the Tribunal that on account of mental disability the claimant is not entitled to any compensation is set aside and it is held that the claimant has suffered permanent disablement on account of Dementia and is accordingly entitled to claim compensation in this regard.
For the determination of compensation on account of the permanent disability suffered by the appellant though sufficient evidence was available on record, the Tribunal has not dealt with the said issue. Normally, this Court would have remanded the issue back to the Tribunal but looking to the time which has already elapsed, it is deemed appropriate that the compensation be assessed by this Court.
The claimant has claimed that she was doing domestic work and operating a dairy before the accident and was earning a sum of Rs.6,000/- per month, which activity has come to an end on account of her disability caused by accident. Her version is supported by evidence of her husband AW-2 Om Prakash. Certain documents were filed by the claimant before the Tribunal on 30.04.2005 after the statements of AW-1 and AW-2 were recorded, though the same have not been marked as Exhibits invoking principles of Order XLI, Rule 27(1)(b) CPC and taking the copies of Bank Loan Ledger for the period February, 2000 to December, 2001 and passbook into consideration the same does support her version of such activities.
No specific proof of income has been placed on record.
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However, taking a conservative view of the income from a dairy business, which essentially is uncertain, a monthly income of Rs.3,000/- can perhaps be calculated. From the evidence of both the Neuro Physician AW-3 – Dr. Praveen Surana and NAW2 Dr. Rajeev Mathur and the oral evidence of claimant and her husband, it would be appropriate to take the permanent disability at 60% and, thereafter assess the compensation in light of principles laid down by Hon'ble Apex Court in Sarla Verma Vs. Delhi Transport Corporation : 2009 (6) SCC 121, which comes to 3,000x12x15x60/100=3,24,000/-. The claimant would also be entitled to interest @ 6% per annum from the date of filing the claim petition. The rest of the compensation under various heads does not require any interference and the same is upheld.
So far as issue relating to the liability of the Insurance Company is concerned, the Insurance Company has fully discharged its burden by issuing notice to the owner of the vehicle, notice of which is clearly proved on account of production of the registration receipt as well as the acknowledgment, which have been exhibited as Exhibits-NA-2, NA-3 and NA-4. However, the owner despite service of the said notice has failed to produce the valid and effective driving licence regarding respondent No.3 and, therefor, a presumption has rightly been drawn against the owner and the driver that the driver was not holding a valid and effective driving licence at the time of accident. The officer of the Insurance Company was
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produced as a witness, nothing has been brought out in his cross-examination to the contrary. The owner and driver have failed to appear in the witness box to lead any evidence in this regard.
The reliance placed by the appellant on the judgment Hon'ble Supreme Court in the case of Sohan Lal Passi (supra) cannot come to her aid, inasmuch as, in the said case the Hon'ble Supreme Court had come to the conclusion that the insured had taken all precautions by appointing a duly licenced driver to drive the vehicle and it was not established that it was the insured who allowed the vehicle to be driven by a person not duly licenced due to which the accident occurred and, therefore, in those circumstances, the Insurance Company was held liable. In the present case, admittedly the owner and driver have not appeared in the witness box and, therefore, it cannot be said that the owner had taken precautions to hand over the vehicle to duly licenced driver. As such, the said judgment has no application.
Consequently, the finding on a part of issue No.3 regarding the liability of Insurance Company on account of violation of policy conditions is upheld.
However, a question does arise for consideration regarding issue of direction to Insurance Company to first satisfy the awarded amount in favour of the claimant and recover the same from the owner of the vehicle. The Madhya Pradesh High Court in the case of Mohsin (supra) relying on the judgment of Hon'ble
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Apex Court in Oriental Insurance Co. Ltd. Vs. Zaharulnisha & Ors. : (2008) 12 SCC 385 has held that the Insurance Company should pay and recover the amount from the owner.
The Hon'ble Supreme Court in a recent case of New India Assurance Co. Ltd. Vs. Vimal Devi & Ors. : 2011 (3) TAC 17 relying on the 'Avoidance of Certain Terms and Right of Recovery' clause in the policy and provisions of Section 96 of the Motor Vehicles Act, 1939 (which is in pari materia with Section 149 of the Act of 1988) upheld the direction to the Insurance Company to make payment to the claimant and to recover its dues from the owner of the vehicle.
In the present case, similar clause 'Avoidance of Certain Terms and Right of Recovery' has been specifically relied on in policy Ex.NA-1.
As such, in view of the fact that claimant is a third party and following the judgments of Hon'ble Supreme Court in the case of Zaharulnisha (supra) & Vimla Devi (supra) respondent No.1 – Insurance Company shall be liable to pay compensation to the appellant – claimant in the first instance and shall have a right of recovery from respondent Nos.2 and 3.
In the result, the appeal filed by the claimant is partly allowed. The impugned judgment and award passed by the Tribunal is modified to the extent that the claimant shall be entitled to a sum of Rs.3,73,3000/- instead of Rs.49,000/-, the enhanced amount shall carry interest @ 6% per annum from the date of filing claim petition i.e. 16.05.2002 from the
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respondents. Since the respondent No.3 was not in possession of a valid and effective driving licence and the offending vehicle was insured with respondent No.1 – Insurance Company, therefore, respondent No.1 shall be liable to pay compensation to the appellant claimant in the first instance and shall have a right of recovering from respondent Nos. 2 and 3 by filing execution petition. No costs.
(ARUN BHANSALI), J.
A.K.Chouhan/- 75
3 issues framed by the court
Whether the High Court should modify the compensation awarded by the Tribunal for mental disability and income loss to the injured claimant.
Whether the Insurance Company is liable to pay compensation in the first instance and subsequently recover the amount from the vehicle owner given the driver lack of valid license.
The order directing the Insurance Company to pay first and recover later was proposed and applied.
Colour shows how this judgement treated each authority
Sohan Lal Passi Vs. P. Sesh ReddyDistinguished¶25
Sohan Lal Passi Vs. P. Sesh Reddy : AIR 1996 SC 2627 · Who else cites this
Mohsin Vs. The Oriental Insurance Co. Ltd.Referred¶25
Mohsin Vs. The Oriental Insurance Co. Ltd. & Ors. : MACD 2009 (1) (M.P.) 11
Sarla Verma Vs. Delhi Transport CorporationApplied¶45
Sarla Verma Vs. Delhi Transport Corporation : 2009 (6) SCC 121 · Who else cites this
Oriental Insurance Co. Ltd. Vs. ZaharulnishaApplied¶51
Oriental Insurance Co. Ltd. Vs. Zaharulnisha & Ors. : (2008) 12 SCC 385 · Who else cites this
New India Assurance Co. Ltd. Vs. Vimal DeviApplied¶54
New India Assurance Co. Ltd. Vs. Vimal Devi & Ors. : 2011 (3) TAC 17
3 provisions across 1 enactments
Smt. Girdhar Kanwar
The New India Assurance Co. Ltd.
Firoz Khan
Ganga Singh
Arun Bhansali
As recorded by the court registry
Judgements on the same questions, provisions and authorities, from every court
