Madhya Pradesh High Court
Bablu @ Kamalsingh Yadav vs Mahendra Kumar Gupta on 1 March, 2025
Author: Gurpal Singh Ahluwalia
Bench: G. S. Ahluwalia
NEUTRAL CITATION NO. 2025:MPHC-GWL:5244
1 MA. No. 23 of 2010
IN THE HIGH COURT OF MADHYA PRADESH
AT G WA L I O R
BEFORE
HON'BLE SHRI JUSTICE G. S. AHLUWALIA
ON THE 1st OF MARCH, 2025
MISC. APPEAL No. 23 of 2010
BABLU @ KAMAL SINGH YADAV
Versus
MAHENDRA KUMAR GUPTA AND OTHERS
Appearance:
Shri R.P. Gupta - Advocate for appellant.
Shri Nirendra Singh Tomar- Advocate for respondent No.2.
ORDER
This Miscellaneous Appeal, under Section 173 of the Motor Vehicles Act, has been filed against the Award dated 01/10/2009 passed by VI Additional Motor Accident Claims Tribunal Gwalior (M.P.) in Claim Case No.174 of 2008 for enhancement of compensation.
2. The facts, necessary for disposal of the present appeal, in short, are that the appellant was driving a truck bearing registration number MP07-G-6216. It is the case of appellant that on account of failure of the steering wheel, the truck collided against a tree. As a result, appellant sustained a fracture of his left leg and four fingers of his left toe were amputated. Apart from the aforesaid injury, the appellant also suffered a fracture of the tibia and fibula bones of his right leg.
3. The appellant filed an application under section 163-A of the Motor Vehicle Act for the grant of compensation amounting to Rs.8,28,200/-. By the impugned Award dated 01/10/2009, Claims Tribunal held that the appellant did not have a valid driving license, and therefore the insurance company was not liable and Signature Not Verified Signed by: ANAND SHRIVASTAVA Signing time: 3/9/2025 8:46:41 PM NEUTRAL CITATION NO. 2025:MPHC-GWL:5244 2 MA. No. 23 of 2010 awarded Rs. 95,927/- to be paid by respondent No.1.
4. Challenging the Award passed by the Tribunal below, it is submitted by the counsel for the appellant that although the doctor had opined that the appellant has suffered permanent disability to the tune of 34%, but the Claims Tribunal held that the appellant had suffered permanent disability to the extent of 9% only. It is further submitted that the appellant had a valid driving license and, even otherwise, the Tribunal should have applied the principle of pay and recover.
5. Per contra, it is submitted by counsel for Insurance Company that the Insurance Company is liable to indemnify the insured and his driver. Since appellant was driving the vehicle, he cannot be treated as a third party and, therefore, the principle of pay and recover cannot be applied.
6. Heard learned counsel for the parties.
7. It is submitted by the counsel for the appellant that in view of the note appended to Schedule I of Part II of the Workmen's Compensation Act, 1923, it is clear that the complete or permanent loss of use of any limb or member referred to in the schedule shall be deemed to be equivalent of the loss of that limb or member. Therefore, when the appellant had lost three fingers of the left toe, permanent disability should have been treated as equivalent to the loss of the entire limb, whereas the claims tribunal calculated permanent disability to the extent of 9%.
8. Considered the aforesaid submissions.
9. Part II of Schedule I of the Workmen Compensation Act reads as under:-
"B. Toes of right or left foot GREAT TOE Serial No. Description of Injury Percentage of loss of earning capacity 39. Through metatarso-phalanges joint 14 Signature Not Verified Signed by: ANAND SHRIVASTAVA Signing time: 3/9/2025 8:46:41 PM NEUTRAL CITATION NO. 2025:MPHC-GWL:5244 3 MA. No. 23 of 2010 40. Part, with some loss of bone 3 ANY OTHER TOE 41. Through metatarso-phalangeal joint 3 42. Part, with some loss of bone 1 TWO TOES OF ONE FOOT, EXCLUDING GREAT TOE 43 Through metatarso-phalangeal joint 5 44 Part, with some loss of bone 2 THREE TOES OF ONE FOOT, EXCLUDING GREAT TOE 45 Through metatarso-phalangeal joint 6 46 Part, with some loss of bone 3 FOUR TOES OF ONE FOOT, EXCLUDING GREAT TOE 47 Through metatarso-phalangeal joint 9 48. Part with some loss of bone 3 Note : Complete and permanent loss of the use of any limb or member referred to in the Schedule shall be deemed to be the equivalent of the loss of that limb or member."
10. So far as the note appended to Clause (B) of Part II of Schedule 1 is concerned, it is confined to four toes of one foot, including great toe, and it cannot be made applicable to the entry as mentioned in serial number 40 of Schedule 1 of the Act. In the present case, the appellant had lost three fingers of the left toe, and therefore serial number 40 would apply, which deals with loss of part with some loss of bone. According to the schedule, permanent disability is calculated as 3% for loss of earning capacity. As the appellant had lost three fingers, therefore, the claims tribunal held that the appellant had suffered a permanent disability of 9% for loss of earning capacity.
11. It is submitted by the counsel for appellant that the Claims Tribunal might Signature Not Verified Signed by: ANAND SHRIVASTAVA Signing time: 3/9/2025 8:46:41 PM NEUTRAL CITATION NO. 2025:MPHC-GWL:5244 4 MA. No. 23 of 2010 be right in calculating the total percentage of disability on account of the loss of fingers, but Dr. D.K. Jain (PW-2) has submitted that on account of the formation of Keloid and tenderness in the ankle joint of the right leg, the total disability suffered by the appellant was 25%, and in all, it was alleged that the appellant had suffered 34% loss of earning capacity.
12. Dr. Jain, in paragraph 6 of his cross-examination, has specifically stated that tenderness can be reduced by undergoing physiotherapy. So far as Keloid formation is concerned, it is a condition where the body produces too much collagen, resulting in raised scars. Keloid can be painful or itchy and usually not dangerous. The symptoms of keloid are raised, overgrown tissues that extend beyond the original wound, distinct coloration compared to the surrounding skin, itching and burning sensations at the site of the scar. However, a dermatologist can surgically cut out the Keloid. Keloids can cause emotional distress due to their appearance and may be permanent in nature, but it cannot be held that the formation of Keloids would lead to permanent disability.
13. Under these circumstances, if the Claims tribunal has held that the appellant suffered a permanent disability of 9% loss of earning capacity, then it cannot be said that the findings recorded by the claims tribunal were erroneous or perverse.
14. So far as exoneration of the Insurance Company is concerned, it appears that after the incident took place, respondent No.1 had submitted an overdraft claim with the Insurance Company, which was sanctioned. However, it is clear from the overdraft claim form (Ex.D-2) that respondent No.1 had played fraud with the insurance company. The overdraft claim form submitted by respondent No.1 discloses the name of the driver as Kuldeep Kumar. Therefore, even if the Insurance Company had paid the overdraft claim to the owner, it would not mean that the Insurance Company had accepted its liability because the overdraft claim was taken by the owner (respondent No.1) by committing fraud on the Insurance Signature Not Verified Signed by: ANAND SHRIVASTAVA Signing time: 3/9/2025 8:46:41 PM NEUTRAL CITATION NO. 2025:MPHC-GWL:5244 5 MA. No. 23 of 2010 Company. Fraud vitiates everything. Therefore, merely because the overdraft claim of respondent No.1 was accepted by the Insurance Company, it cannot be said that the Insurance Company is jointly and severally liable to pay the compensation amount along with respondent No.1.
15. In the present case, driving license of appellant was never produced. Although appellant tried to submit his explanation that he lost his driving license in the accident, but it is equally true that he never made any application to the concerned RTO for issuance of a duplicate driving license. He also did not file any application before the Claims Tribunal seeking direction to the concerned RTO office to produce record of his driving license. On the contrary, it appears that the Insurance Company filed an application under section 169 of the Motor Vehicles Act thereby seeking direction to the appellant to produce his driving license. By order dated 16/09/2009, this application was rejected on the ground that the appellant had already expressed that his driving license had been lost. The burden was on the appellant to show that he had a valid driving license and that it has been misplaced due to accident. Since appellant failed to prove that he had a valid driving license and in view of the fact that respondent No.1 had committed fraud on the Insurance Company and thereby taken the overdraft claim, this Court is of considered opinion that the Claims Tribunal did not commit any mistake by exonerating the Insurance Company as well as by not applying the principle of pay and recover.
16. Considering the totality of facts and circumstances of the case, this Court is of considered opinion that no case is made out warranting interference.
17. Accordingly, appeal fails and is hereby dismissed.
(G.S. Ahluwalia) Judge (and) Signature Not Verified Signed by: ANAND SHRIVASTAVA Signing time: 3/9/2025 8:46:41 PM