Jammu & Kashmir High Court
Bajaj Allianz Insurance Co. Ltd vs Rafiq Ahmed And Another on 10 August, 2020
Equivalent citations: AIRONLINE 2020 J AND K 211
Author: Sanjeev Kumar
Bench: Sanjeev Kumar
HIGH COURT OF JAMMU AND KASHMIR
AT JAMMU
Mac App No. 14/2020
CM Nos. 302/2020 & 304/2020
in
Mac App No. 15/2020
CM No. 306/2020
Mac App No. 16/2020
CM Nos. 307/2020 & 309/2020
Mac App No. 17/2020
CM Nos. 312/2020 & 310/2020
Mac App No. 18/2020
CM Nos. 313/2020 & 315/2020
Mac App No. 19/2020
CM Nos. 316/2020 & 318/2020
Mac App No. 20/2020
CM Nos. 319/2020 & 321/2020
Reserved on:- 22.07.2020
Pronounced on:- 10 .08.2020
Bajaj Allianz Insurance Co. Ltd. ...Appellant(s)
Through:- Mr. Sunny Mahajan, Advocate
(On video Conference/Voice Call
from residence)
V/s
Rafiq Ahmed and another ...Respondent(s)
Through:- Mr. Jagpaul Singh, Advocate
(On video Conference/Voice Call
from residence)
Coram: HON'BLE MR. JUSTICE SANJEEV KUMAR, JUDGE
::: : JUDGMENT
1 This bunch of appeals filed by the Bajaj Allianz General Insurance Company Ltd (hereinafter referred to as the „insurer‟) arises out of a common award dated 30.09.2019 passed by the Motor Accident Claims Tribunal, 2 Mac App 14/2020 cw Connected matters Doda (hereinafter referred to as the „Tribunal‟) whereby in as many as seven claim petitions filed by the claimants who suffered multiple injuries in the motor vehicle accident that took place on 03.02.2013 when the offending vehicle which was being driven by respondent No.2 in a rash and negligent manner lost its control, have been decided by the Tribunal. The offending vehicle was a Balero Pick Up bearing Registration No. JK08B-8408. 2 The claimants, who suffered permanent disabilities of different types, filed claim petitions before the Tribunal seeking compensation from the owner-cum-driver, namely Jai Singh, respondent No.2 herein and also arrayed the insurer as party respondent. It is not in dispute that the offending vehicle was a goods vehicle and the same was insured with the insurer on the date of accident. The insurer alone contested the claim petitions, whereas respondent No.2 despite service chose not to appear and contest the claim petitions. He was, thus, set ex parte. The insurer filed its objections. 3 On the basis of the pleadings of the parties, the Tribunal framed the following issues:
(i) Whether the petitioners named in each claim petitions namely, Meeya Mohammed, Gulla, Mithu, Mohd Shafi, Rafiq Ahmed, Mohd Farid and Mohd Khan were injured in an accident on 03.02.2013 when they were travelling in the offending vehicle No. JK08B-8408 from Dhoni to Latti and when reached at Dasian Pul, the vehicle met with an accident due to rash and negligent driving by the driver respondent No.2 as a result of which the petitioners named above received multiple grievous injuries ? OPP
(ii) Whether respondent No.2 was not holding a valid driving licence at the time of accident ? OPR-1 3 Mac App 14/2020 cw Connected matters
(iii) Whether respondent No.1 is not liable to pay any compensation as the offending vehicle was driven in contravention of the terms and conditions of the Insurance Policy and R/C ? OPR-1
(iv) Whether the petitioners were travelling as an unauthorized passengers in the alleged accident as risk of gratuitous passengers are not covered under the terms and conditions of the insurance policy ? OPR-1
(v) In case issue No.1 is proved in affirmative, whether the petitioners are entitled to any compensation under Motor Vehicle Act and if so from whom and to what extent ? OPP
(vi) Relief ?
4 The claimants besides examining themselves as their own witnesses also produced Dr. M. Zaffarullah, in support their claim. The insurer examined its Senior Legal Officer namely Vikas Rana and Surinder Chib, Junior Assistant in the office of RTO Kathua, in rebuttal.
5 The Tribunal, after analyzing the evidence on record, held issue No.1 proved in favour of the claimants. It was held that the claimants had suffered multiple injuries in the accident that took place on 03.02.2013 when the offending vehicle which was being driven by respondent No.2 in a rash and negligent manner lost its control.
6 Issue No.2, the onus to proof whereof was on the insurer was held not proved.
7 With regard to issue Nos. 3 and 4, the Tribunal held that the claimants were travelling in the goods vehicle as gratuitous passengers and were, thus, not covered under the terms and conditions of the Insurance policy. Relying upon the judgments of Hon‟ble Supreme Court and also of this Court in the case of Javed Ahmed Shah vs. Praveen Bano and others, 2010 (1) SLJ,
4 Mac App 14/2020 cw Connected matters 202, the Tribunal applied the principle of „pay and recover‟. The Insurer was, thus, directed to satisfy the award in the first instance and then recover the same from respondent No.2.
8 After returning its finding on the aforesaid issues, the Tribunal held all the claimants entitled to different sums assessed taking into consideration the nature and extent of disabilities suffered by the each claimants. The insurer is aggrieved of the impugned award and has sought to assail the same, inter alia, the following grounds:
(i) That the Tribunal, having held that the claimants were travelling in the offending vehicle as gratuitous passengers and not covered by the terms and conditions of the insurance policy, could not have applied the principle of „pay and recover‟. Given the findings on issue Nos.3&4, the insurer should have been absolved of its liability to indemnify respondent No.2.
(ii) That the assessment of compensation by the Tribunal in each case is arbitrary and exorbitant.
(iii) That the disability certificates relied upon by the claimants have not been issued in accordance with Rule 4 Jammu and Kashmir Persons With Disabilities (Equal Opportunities, Protection of Rights and Full Participation) Rules, 2003 (for short „Rules of 2003‟), in that, the permanent disability certificates can only be issued by the Board of Doctors and not by the Medical Officer, who has not even attended or treated the injured.
9 Mr. Sunny Mahajan, learned counsel appearing for the insurer was at pains to draw a distinction between the passenger travelling in a private vehicle/car and the passenger travelling in the goods vehicle. Referring to the definition of „goods carriage‟ given in Section 2 (14) of the Motor Vehicles Act, 1988 (for short „Act‟), learned counsel submits that no passenger other 5 Mac App 14/2020 cw Connected matters than one who is owner of the goods carried in the vehicle can travel in the goods carriage which is constructed or adapted for use solely for the carriage of goods. He, therefore, argues that any passenger travelling in the goods vehicle gratuitously or for hire is an unauthorized passenger. Section 147 of the Act does not cast any obligation on the insurer to compulsorily register such unauthorized passenger. Learned counsel, therefore, urges that respondent No.2 by permitting the unauthorized passengers to travel in the goods vehicle committed fundamental breach of the terms and conditions of the insurance policy. Further more, the insurance policy issued in favour of respondent No.2 qua the offending vehicle, on the face of it, does not cover the risk of an unauthorized passenger. Relying upon the judgments of this Court rendered in the cases titled "Darshan Singh vs. Oriental Insurance Company, 2013(2) JKJ 36 and S.T.Motors and ors vs. Shabir Lone and anr, 2017 (3) JKJ 20 , learned counsel urges that the Tribunal went absolutely wrong in applying the principle of „pay and recover. He submits that, it is a fit case where the insurer should be totally absolved of its liability to indemnify the owner.
10 On quantum, learned counsel for the insurer contends that the Tribunal was not justified in taking the monthly income of the claimants as Rs.8000/- per month, that too, in the absence of any credible/cogent evidence on record. He further disputes the disability certificates issued by an Assistant Surgeon/Medical Officer, who had not even attended or treated the claimants. It is urged that as provided by Rule 4 of Rules of 2003, a permanent disability certificate can only be issued by the competent Board of Doctors. 11 Per contra, learned counsel for the claimants argues that, though it is now well settled that there is a breach of fundamental terms and conditions of 6 Mac App 14/2020 cw Connected matters the Insurance Policy by the insured, the insurer may not be liable to indemnify the insured, yet the Tribunal, having regard to the benevolent nature of legislation, must apply the principle of „pay and recover‟. 12 Learned counsel for the claimants contends that there is plethora of case law to support his view point. It is submitted that many cases where the insurance company has been held not liable legally to indemnify the insured, the Courts, nonetheless, have directed it to pay the compensation to the 3rd party in the first instance and then recover the same from the insured. In support of his submission, learned counsel for the claimants relies upon the following judgments:
(i) Shivaraj V/s Rajendra and Ors. (2018) 10 SCC 432 (ii). Shivawwa and Anr. v/s Branch Manager N.I.C. (2018) 5 SCC 762 (iii) Manuara Khatun and Ors. V/s Rajesh Kumar Singh and Ors. (2017) 4 SCC 796 (iv) N.I.C. V/s Saju P. Paul and Anr. (2013) 2 SCC 41, (v) N.I.C. V/s Baljit Kour and Anr. (2014) 2 SCC 1,(vii) UIIC V/s K.M. Poonam and Ors. (2015) 15 SCC 297, (viii) Shamanna V/s O.I.C. (2018) 9 SCC 650.
13 On quantum, it is submitted that neither the disability certificate nor the competence of Doctor, who had issued the same was in question before the Tribunal. It is submitted that the insurer in its objections has never disputed the disability certificates on any count and, therefore, it does not lie in the mouth of the insurer to raise the issue of fact for the first time in the appeal. He further submits that the Tribunal, upon proper appreciation of evidence and looking to the different kinds of disabilities suffered by the claimants, has passed the impugned award which is quite just and fair. 14 Apart from meeting the arguments of learned counsel for the insurer, learned counsel for the claimants also raises the issue of maintainability of 7 Mac App 14/2020 cw Connected matters the appeals insofar as they challenges the quantum of compensation. It is submitted that the appeals other than on the grounds which are available to the insurer under Section 149 of the Act are not maintainable, unless the insurer has taken the permission of the Tribunal under Section 170 of the Act. 15 This argument of learned counsel for the claimants has been countered by learned counsel for the insurer by placing reliance upon the judgment of the three Judge Bench of Hon‟ble Supreme Court rendered in the case of United India Insurance Co.Ltd vs Shila Datta & Ors, 2011 ACJ 2724 16 Having heard learned counsel for the parties and perused the record, I find following questions emerged for consideration in these appeals.
(i) Whether in case of a bodily injury or death of a gratuitous passenger travelling in a goods vehicle, the insurer is completely absolved of its liability to indemnify the insured and pay compensation to the claimants. ?
(ii) Whether under the Act and the Rules framed thereunder, it is mandatory for the claimants to place on record the permanent disability certificates issued by the Board of Doctors or some other prescribed authority ?
(iii) Whether the insurer which is impleaded by the claimants as party respondent in the claim petition is competent to maintain the appeal under Section 173 of the Act on the grounds other than those available to it under Section 149 of the Act even when it has not obtained requisite permission from the Tribunal in terms of Section 170 of the Act ?
17 Question No.1- liability of the insurer vis-à-vis a gratitutous/unauthorized passenger in the goods vehicle. 18 The issue vehemently raised by the insurer is no longer res integra. In the case of New India Assurance vs Asha Rani, 2003 ACJ 1 , the Hon‟ble Supreme Court while overruling its earlier judgment rendered in the case of 8 Mac App 14/2020 cw Connected matters New India Assurance Company vs. Satpal Singh and Ors. (2000) 1 SCC 227 authoritatively held that the insurance company cannot be made liable for the risk of the owner who allows passenger to travel in a goods vehicle. In the said case, the Hon‟ble Supreme Court was dealing with a matter where the accident had happened prior to amendment of 1994 to the Act. The three Judge Bench, after taking note of different provisions of the old and new Act in paragraph 26 held thus:
In view of the changes in the relevant provisions in 1988 Act vis-a-vis 1939 Act, we are of the opinion that the meaning of the words "any person" must also be attributed having regard to the context in which they have been used i.e. 'a third party'. Keeping in view the provisions of 1988 Act, we are of the opinion that as the provisions thereof do not enjoin any statutory liability on the owner of a vehicle to get his vehicle insured for any passenger travelling in a goods vehicle, the insurers would not be liable therefor.
It was further noticed by the Apex Court that Section 149 (2) of the 1988 Act enables the insurers to raise defences against the claim of the claimants. In terms of clause (c) of sub section 2 of Section 149 of the Act one of the defences which is available to the insurer is that the vehicle in question has been used for a purpose not allowed by the permit under which the vehicle was used. The use of goods vehicle for carrying passengers would be clear violation of the permit and therefore such a statutory defence available to the insurer would be obliterated if the decision in Satpal Singh's case (supra) is to be followed.
19 The said judgment was later followed by another three Judge Bench in the case of M/S. National Insurance Co. Ltd vs Baljit Kaur And Ors, (2004) 2 SCC 1. In the said case, the question for consideration before the Hon‟ble Supreme Court was; whether an insurance policy in respect of a goods vehicle would also cover gratuitous passenger, in view of the 9 Mac App 14/2020 cw Connected matters legislative amendment in 1994 to Section 147 of the Motor Vehicles Act, 1988. It may be recalled that in the case of Asha Rani (supra), the Hon‟ble Supreme Court was confronted with a case where accident had taken place prior to amendment of 1994. What was held by the Supreme Court in the said case may be reproduced hereunder:
"It is therefore, manifest that in spite of the amendment of 1994, the effect of the provision contained in Section 147 with respect to persons other than the owner of the goods or his authorized representative remains the same. Although the owner of the goods or his authorized representative would now be covered by the policy of insurance in respect of a goods vehicle, it was not the intention of the legislature to provide for the liability of the insurer with respect to passengers, especially gratuitous passengers, who were neither contemplated at the time the contract of insurance was entered into, nor any premium was paid to the extent of the benefit of insurance to such category of people".
20 The upshot of the aforementioned discussion is that instead and in place of the insurer, the owner of the vehicle shall be liable to satisfy the award.
21 The legal position was, thus, authoritatively enunciated by the Hon‟ble Supreme Court, but the Judgment was provided to have prospective effect having regard to the fact that earlier the law was not clear on the point. The Supreme Court though absolved the insurer of its liability to pay compensation to the third party, yet applied the principle of „pay and recover‟. The relevant observations of the Hon‟ble Supreme Court in this regard are noteworthy and are reproduced hereunder:
"We, therefore, are of the opinion that the interest of justice will be sub- served if the appellant herein is directed to satisfy the 10 Mac App 14/2020 cw Connected matters awarded amount in favour of the claimant if not already satisfied and recover the same from the owner of the vehicle. For the purpose of such recovery, it would not be necessary for the insurer to file a separate suit but it may initiate a proceeding before the 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".
22 The issue raised in these appeals by the learned counsel for the insurer with all vehemence at his command is no longer res integra. This Court in the case of Bajaj Allianz General Insurance Company vs. Satya Devi and others (MA 197/2014) decided on 14.01.2020 has thoroughly thrashed the law on the point and held in paragraph 21 of the judgment as under:
"Having regard to the facts and circumstances of the case and the law laid down by the Supreme Court in the similar cases, I am of the view that this is a fit case where direction should go to the insurer to pay the compensation to the claimants and then recover the same from the insured. Such direction would be in consonance with the laudable object sought to be achieved by the benevolent provision i.e., Section 166 and other concomitant provisions of the Motor Vehicle Act. Regarding quantum of compensation, despite vehemence of learned counsel for the insurer, I could not find that the amount awarded is, by any stretch of reasoning, on higher side. In the premise, this appeal, being devoid of merit, stands dismissed. The awarded amount, if deposited in the Registry of this Court, shall be released in favour of the claimants as per the terms and conditions of the award and after proper verification.
23 The judgment of this Court in the case of Satya Devi (supra) is based on a detailed analysis of the judgments rendered in the case of National Insurance Co. Ltd. vs. Baljit Kaur & Ors., (2004) 2 SCC 1, National Insurance Co. Ltd. vs. Challa Upendra Rao & Ors., (2004) 8 SCC 517, National Insurance Co. Ltd. vs. Kaushalaya Devi & Ors., (2008) 8 SCC 11 Mac App 14/2020 cw Connected matters 246, National Insurance Co. Ltd. vs. Roshan Lal, [Order dated 19.1.2007 in SLP(c) No. 5699 of 2006], MA 197/2014 and National Insurance Co. Ltd. vs. Parvathneni & Anr., (2009) 8 SCC 785 Manuara Khatun & Ors vs Rajesh Kumar Singh, (2017) 4 SCC 796 National Insurance Co. Ltd. v. Saju P. Paul, (2013) 2 SCC 41.
24 The facts of the aforesaid cases are identical to the facts of Satya Devi and, therefore, the judgment rendered by this Court in the case of Satya Devi applies on all fours to these appeals as well. The first question is, thus, answered in the following manner:
That the insurer may not be legally liable to indemnify the owner for the bodily injury or death of a person travelling in the insured vehicle (goods carriage) as gratuitous/unauthorized passenger, but keeping in view the benevolent object of the Act, the principle of „pay and recover‟ would apply. Notwithstanding the fact that the insurer in such case may not legally liable to indemnify the owner, yet it would, in the first instance, satisfy the award by making the payment to the third party and thereafter shall have the recovery rights against the insured.
25 Question No. 2- Competent authority to issue the disability Certificate 26 Neither the Motor Vehicles Act, 1988, nor the Rules framed thereunder provide for any particular form of the disability certificate. There is no provision in the Act and the rules framed thereunder that a permanent disablement certificate must always be issued by the Board of Doctors as is the position under Rule 4 of the Rules of 2003.
27 It may be noted that with the reorganization of erstwhile State of Jammu and Kashmir and coming into the existence of Union Territory of Jammu and Kashmir, it is the „Rights of Persons with Disabilities Act, 2016‟ (for short "Act of 2016") that is now applicable to the Union Territory of 12 Mac App 14/2020 cw Connected matters Jammu and Kashmir. The aforesaid Act has been legislated with a view to give effect to the United Nations Convention on the rights of persons with disabilities and for matters connected therewith or incidental thereto. 28 The provisions of the aforesaid Act and the rules framed thereunder may not be of a much use for determining the issue raised in these appeals by the learned counsel for the insurer. The Act is different in its approach and applicability.
29 Section 142 of the M.V. Act only defines the term „permanent disablement‟, but does not lay down as to who would be competent to certify such disablement. Even under the Employees Compensation Act and the rules framed thereunder, it is a qualified medical practitioner, who is competent to issue certificate of permanent disablement. 30 In view of the statutory position, it would not be possible for this Court to hold that permanent disablement certificate produced by the injured- claimants must be one issued by the competent authority prescribed under the Act of 2016 and the Rules framed thereunder. However, this Court cannot lose sight of the fact that some of the Doctors who may be qualified Medical Practitioner have been issuing permanent disablement certificates indiscriminatory, though, they have neither attended, nor treated the injured. The certificates of such medical practitioner are more often than not obtained by the claimants for ulterior considerations. For example, an injured, who has all along been treated in the Government Medical College goes to Doda to get the disablement certificate from some medical officer who is known for liberally issuing such certificates for ulterior consideration. 31 I have confronted with many such cases where some of the Doctors have indulged in unethical practice of issuing the permanent disability 13 Mac App 14/2020 cw Connected matters certificates to the injured in the motor vehicle accidents to bolster their claims before the Tribunal. Some of the medical certificates produced by the claimants indicate permanent disablements which do not commensurate with the injuries they have received in the accident. There is no accountability of such Doctors. The credibility of Doctors and the certificates issued by them is oftenly in serious doubt.
32 Although in the instant case, I would not like to go into the validity, authenticity or genuineness of the medical certificates relied upon by the claimants for the reason that these medical certificates were never disputed by the insurer, nor any relevant question pertaining to the genuineness of the certificates was ever put to the Doctor when he appeared in the witness box. However, I take this an opportunity to provide some uniformity in the issuance of disability certificates issued for the purpose of claiming compensation under the Motor Vehicles Act.
33 True, it is, that the Motor vehicles Act, 1988 and the Rules framed thereunder do not provide for an authority which is competent to issue the permanent disability certificates. But it is always desirable that the disability certificate is issued by the Doctor who has attended and treated the injured claimant. I am not oblivious to the fact that many a times, procuring such Doctor for evidence before the Tribunal is not free from difficulties. At this juncture, I am reminded of the observation made by the Apex Court in Raj Kumar vs. Ajay Kumar, 2011 (1) SCC 343. It is apt to reproduce the relevant paragraph hereunder:
"We may in this context refer to the difficulties faced by claimants in securing the presence of busy Surgeons or treating Doctors who treated them, for giving evidence. Most of them are reluctant to appear before Tribunals for obvious reasons 14 Mac App 14/2020 cw Connected matters either because their entire day is likely to be wasted in attending the Tribunal to give evidence in a single case or because they are not shown any priority in recording evidence or because the claim petition is filed at a place far away from the place where the treatment was given. Many a time, the claimants are reluctant to take coercive steps for summoning the Doctors who treated them, out of respect and gratitude towards them or for fear that if forced to come against their wishes, they may give evidence which may not be very favorable. This forces the injured claimants to approach `professional' certificate givers whose evidence most of the time is found to be not satisfactory. Tribunals should realize that a busy Surgeon may be able to save ten lives or perform twenty surgeries in the time he spends to attend the Tribunal to give evidence in one accident case. Many busy Surgeons refuse to treat medico-legal cases out of apprehension that their practice and their current patients will suffer, if they have to spend their days in Tribunals giving evidence about past patients. The solution does not lie in coercing the Doctors to attend the Tribunal to give evidence. The solution lies in recognizing the valuable time of Doctors and accommodating them. Firstly, efforts should be made to record the evidence of the treating Doctors on commission, after ascertaining their convenient timings. Secondly, if the Doctors attend the Tribunal for giving evidence, their evidence may be recorded without delay, ensuring that they are not required to wait. Thirdly, the Doctors may be given specific time for attending the Tribunal for giving evidence instead of requiring them to come at 10.30 A.M. or 11.00 A.M. and wait in the Court Hall. Fourthly, in cases where the certificates are not contested by the respondents, they may be marked by consent, thereby dispensing with the oral evidence. These small measures as also any other suitable steps taken to ensure the availability of expert evidence, will ensure assessment of just compensation 15 Mac App 14/2020 cw Connected matters and will go a long way in demonstrating that Courts/Tribunals show concern for litigants and witnesses.
34 Having given my thoughtful consideration to all the aspects of the matter, particularly the growing nexus between some of the injured and few unscrupulous medical practitioners, I am of the view that uniform guidelines need to be laid down to provide for issuance of permanent disability certificate by a qualified medical practitioner. Although the rules framed under the Act of 2016 do not, ipso facto, apply to the certificates to be produced before the Tribunal for compensation, yet I am of the view that permanent disability certificates to be produced by the injured in the motor accident claims must always be issued by the District Board of Doctors headed by the Chief Medical Officer of the District. It would be desirable that the Board is constituted of the Doctors who have specialized in the Discipline of Orthopedic, Neurology, ENT and Ophthalmology etc., depending upon the nature of the injury suffered by the claimants. It shall be the duty of the CMO of the concerned District within whose jurisdiction the injured resides to entertain the request of such injured for issuance of permanent disability certificates on priority. It may further be provided that in case the claimant who claims permanent disablement in the motor accidents has not produced the relevant disability certificate issued by the aforesaid Board of Doctors, it shall be the duty of the Tribunal to refer such injured claimant to the Board for his/her examination and opinion with regard to the permanent disability, if any, suffered by the injured. These guidelines shall be followed by all the Tribunals across the Union Territory of Jammu and Kashmir and Union Territory of Ladakh in all pending as well as future cases. No medical/disability certificate, other than one issued in the manner aforesaid, shall be relied and treated admissible in evidence.
16 Mac App 14/2020 cw Connected matters 35 The Registrar General of this Court shall ensure that copy of this judgment is circulated to all the Judicial Officers of the Union Territory of Jammu and Kashmir and Union Territory of Ladakh, more particularly those acting as Presiding Officers of the Motor Accident Claims Tribunals. 36 Question 3:
The issue raised by Mr. Jagpal, learned counsel for the claimants with regard to the maintainability of the appeal by the insurer on quantum is no longer res integra. The Hon‟ble Supreme Court in the case of United India Insurance Co. Ltd vs Shila Datta 2011 ACJ 2724 has already set the issue at rest.
37 In the aforesaid case, three Judge Bench was hearing a reference on following two questions of law:
(i)Whether the insurer can contest a motor accident claim on merits, in particular, in regard to the quantum, in addition to the grounds mentioned in section 149(2) of the Act for avoiding liability under the policy of insurance?
(ii) Whether an insurer can prefer an appeal under section 173 of the Motor Vehicles Act, 1988, against an award of the Motor Accident Claims Tribunal, questioning the quantum of compensation awarded?
38 The Supreme Court after discussing the provisions of the Act and the judgments of the Hon‟ble Supreme Courts particularly a three Judge Bench Judgment in the case of National Insurance Co. Ltd., vs Nicolletta Rohtagi And Ors 2002 (7) SCC 456 in paragraph 11 held thus:
"Therefore, where the insurer is a party- respondent, either on account of being impleaded as a party by the tribunal under section 170 or being impleaded as a party-respondent by the claimants in the claim 17 Mac App 14/2020 cw Connected matters petition voluntarily, it will be entitled to contest the matter by raising all grounds, without being restricted to the grounds available under section 149(2) of the Act. The claim petition is maintainable against the owner and driver without impleading the insurer as a party. When a statutory notice is issued under section 149(2) by the tribunal, it is clear that such notice is issued not to implead the insurer as a party- respondent but merely to put it on notice that a claim has been made in regard to a policy issued by it and that it will have to bear the liability as and when an award is made in regard to such claim. Therefore, it cannot, as of right, require that it should be impleaded as a party-respondent. But it can however be made a party-respondent either by the claimants voluntarily in the claim petition or by the direction of the Tribunal under section 170 of the Act. Whatever be the reason or ground for the insurer being impleaded as a party, once it is a party-respondent, it can raise all contentions that are available to resist the claim"
39 In view of the aforesaid authoritative precedent, the plea of Mr. Jagpal Singh learned counsel for the claimants that the appeals may not be maintainable on the ground that the insurer had not sought any permission under Section 170 of the Act to contest the claim petitions on merits is without substance and cannot be accepted. It may be noted that in the instant case, the owner despite service had chosen not to appear and contest the claim petitions and the claimants have on their own impleaded the insurer as party respondent.
40 From the perusal of impugned award, it further transpires that the insured without any objection from the claimants, cross-examined the witnesses of the claimants on all available grounds. In that view of the matter, the appeals are held maintainable.
18 Mac App 14/2020 cw Connected matters 41 For the purpose of quantum, the appeals are required to be considered separately.
Mac App 14/2020 42 In the case on hand, admittedly the claimant was 27 years old and had no definite source of income. It has come in the evidence that the claimant was in the business of sheep rearing and agriculture work and as rightly observed by the Tribunal, there was no concrete evidence led by the claimant to prove his income. The Tribunal has however taken the income of the injured as Rs.8000/- in the year 2013 which appears to be on the higher side. Even if we take the injured to be a skilled worker, his income in the year 2013 could not have been more than Rs.5000/- per month. No exception, however, could be found with the view of the Tribunal in assessing the loss of earning capacity as 15%. With the kind of injuries suffered by the claimant, his earning capacity would definitely be affected to the extent of 15%. There could be difficulty in performing the work of sheep rearing and agriculture. In terms of the principle laid down by the Supreme Court in the case of Pranay Sethi (supra) and keeping in view the age of the deceased which has been proved as 27 years, an addition of 40% is required to be made to the established income of the claimant. I have also noticed that the Tribunal instead of applying multiplier of 17 has wrongly applied multiplier of 16.
43 For the foregoing reasons, the claimant is entitled to the compensation in the following manner:
Loss of future earning Rs.2,14,200/-
Pain and suffering Rs.50,000/-
19 Mac App 14/2020 cw
Connected matters
Inconvenience & keeping an attendance Rs.5,000/-
Medical expenses Rs.20,000/-
Special diet Rs.5,000/-
Total Rs.2,94,200/-
44 The award is modified to the aforesaid extent. The other terms and
conditions of the impugned award including payment of interest shall remain unchanged.
Mac App No.15/2020 45 In the case on hand, admittedly the claimant was 40 years old and had no definite source of income. It has come in the evidence that the claimant was in the business of sheep rearing and agriculture work and as rightly observed by the Tribunal, there was no concrete evidence led by the claimant to prove his income. The Tribunal has however taken the income of the injured as Rs.8000/- in the year 2013 which appears to be on the higher side. Even if we take the injured to be a skilled worker, his income in the year 2013 could not have been more than Rs.5000/- per month. No exception, however, could be found with the view of the Tribunal in assessing the loss of earning capacity as 30%. With the kind of injuries suffered by the claimant, his earning capacity would definitely be affected to the extent of 30%. There could be difficulty in performing the work of sheep rearing and agriculture. In terms of the principle laid down by the Supreme Court in the case of Pranay Sethi (supra) and keeping in view the age of the deceased which has been proved as 40 years, an addition of 40% is required to be made to the established income of the claimant. I have also noticed that the Tribunal instead of applying multiplier of 15 has wrongly applied multiplier of 14.
20 Mac App 14/2020 cw Connected matters 46 For the foregoing reasons, the claimant is entitled to the compensation in the following manner:
Loss of future earning Rs.3,78,000/-
Pain and suffering Rs.60,000/-
Inconvenience & keeping an attendance Rs.5,000/-
Medical expenses Rs.20,000/-
Future medical expenses
for removal of rod Rs.10,000/
Special diet Rs.5,000/-
Total Rs.4,78,000/-
47 The award is modified to the aforesaid extent. The other terms and
conditions of the impugned award including payment of interest shall remain unchanged.
Mac App 16/2020 48 In the case on hand, admittedly the claimant was 28 years old and had no definite source of income. It has come in the evidence that the claimant was in the business of sheep rearing and agriculture work and as rightly observed by the Tribunal, there was no concrete evidence led by the claimant to prove his income. The Tribunal has however taken the income of the injured as Rs.8000/- in the year 2013 which appears to be on the higher side. Even if we take the injured to be a skilled worker, his income in the year 2013 could not have been more than Rs.5000/- per month. No exception, however, could be found with the view of the Tribunal in assessing the loss of earning capacity as 15%. With the kind of injuries suffered by the claimant, his earning capacity would definitely be affected to the extent of 15%. There could be difficulty in performing the work of sheep rearing and 21 Mac App 14/2020 cw Connected matters agriculture. In terms of the principle laid down by the Supreme Court in the case of Pranay Sethi (supra) and keeping in view the age of the deceased which has been proved as 28 years, an addition of 40% is required to be made to the established income of the claimant. I have also noticed that the Tribunal instead of applying multiplier of 17 has wrongly applied multiplier of 16.
49 For the foregoing reasons, the claimant is entitled to the compensation in the following manner:
Loss of future earning Rs.2,14,200/-
Pain and suffering Rs.50,000/-
Inconvenience & keeping an attendance Rs.5,000/-
Medical expenses Rs.20,000/-
Special diet Rs10,000/-
Total Rs.2,99,200/-
50 The award is modified to the aforesaid extent. The other terms and
conditions of the impugned award including payment of interest shall remain unchanged.
Mac App 17/2020 51 In the case on hand, admittedly the claimant was 80 years old and had no definite source of income. The Tribunal found the claimant herein entitled to a lump sump amount of Rs.1.00 lac as compensation on account of pain and suffering suffered by him and medical expenses as neither he produced any certificate regarding his injuries nor has placed on record bills/vouchers with regard to his treatment.
22 Mac App 14/2020 cw Connected matters In that view of the matter, the award does not call for any interference. Let the claimant be paid compensation of Rs.1.00 lac as has been paid by the Tribunal.
Mac App 18/2020 52 In the case on hand, admittedly the claimant was 38 years old and had no definite source of income. It has come in the evidence that the claimant was in the business of sheep rearing and agriculture work and as rightly observed by the Tribunal, there was no concrete evidence led by the claimant to prove his income. The Tribunal has however taken the income of the injured as Rs.8000/- in the year 2013 which appears to be on the higher side. Even if we take the injured to be a skilled worker, his income in the year 2013 could not have been more than Rs.5000/- per month. No exception, however, could be found with the view of the Tribunal in assessing the loss of earning capacity as 30%. With the kind of injuries suffered by the claimant, his earning capacity would definitely be affected to the extent of 30%. There could be difficulty in performing the work of sheep rearing and agriculture. In terms of the principle laid down by the Supreme Court in the case of Pranay Sethi (supra) and keeping in view the age of the deceased which has been proved as 38 years, an addition of 40% is required to be made to the established income of the claimant. I have also noticed that the Tribunal instead of applying multiplier of 15 has wrongly applied multiplier of 14.
53 For the foregoing reasons, the claimant is entitled to the compensation in the following manner:
Loss of future earning Rs.3,78,000/-
23 Mac App 14/2020 cw
Connected matters
Pain and suffering Rs.40,000/-
Inconvenience & keeping an attendance Rs.5,000/-
Medical expenses Rs.7,000/-
Special diet Rs.5,000/-
Total Rs.4,35,000/-
54 The award is modified to the aforesaid extent. The other terms and
conditions of the impugned award including payment of interest shall remain unchanged.
Mac App 19/2020 55 In the case on hand, admittedly the claimant was 36 years old and had no definite source of income. It has come in the evidence that the claimant was in the business of sheep rearing and agriculture work and as rightly observed by the Tribunal, there was no concrete evidence led by the claimant to prove his income. The Tribunal has however taken the income of the injured as Rs.8000/- in the year 2013 which appears to be on the higher side. Even if we take the injured to be a skilled worker, his income in the year 2013 could not have been more than Rs.5000/- per month. No exception, however, could be found with the view of the Tribunal in assessing the loss of earning capacity as 25%. With the kind of injuries suffered by the claimant, his earning capacity would definitely be affected to the extent of 25%. There could be difficulty in performing the work of sheep rearing and agriculture. In terms of the principle laid down by the Supreme Court in the case of Pranay Sethi (supra) and keeping in view the age of the deceased which has been proved as 36 years, an addition of 40% is required to be made to the established income of the claimant. I have also noticed that the 24 Mac App 14/2020 cw Connected matters Tribunal instead of applying multiplier of 15 has wrongly applied multiplier of 14.
56 For the foregoing reasons, the claimant is entitled to the compensation in the following manner:
Loss of future earning Rs.3,15,000/-
Pain and suffering Rs.40,000/-
Inconvenience & keeping an attendance Rs.5,000/-
Medical expenses Rs.7,000/-
Special diet Rs.5,000/-
Total Rs.3,72,000/-
57 The award is modified to the aforesaid extent. The other terms and
conditions of the impugned award including payment of interest shall remain unchanged.
Mac App 20/20 58 In the case on hand, admittedly the claimant was 55 years old and had no definite source of income. It has come in the evidence that the claimant was in the business of sheep rearing and agriculture work and as rightly observed by the Tribunal, there was no concrete evidence led by the claimant to prove his income. The Tribunal has however taken the income of the injured as Rs.8000/- in the year 2013 which appears to be on the higher side. Even if we take the injured to be a skilled worker, his income in the year 2013 could not have been more than Rs.5000/- per month. No exception, however, could be found with the view of the Tribunal in assessing the loss of earning capacity as 20%. With the kind of injuries suffered by the 25 Mac App 14/2020 cw Connected matters claimant, his earning capacity would definitely be affected to the extent of 20%. There could be difficulty in performing the work of sheep rearing and agriculture. In terms of the principle laid down by the Supreme Court in the case of Pranay Sethi (supra) and keeping in view the age of the deceased which has been proved as 55 years, an addition of 10% is required to be made to the established income of the claimant. I have also noticed that the Tribunal instead of applying multiplier of 11 has wrongly applied multiplier of 10.
59 For the foregoing reasons, the claimant is entitled to the compensation in the following manner:
Loss of future earning Rs.1,45,200/-
Pain and suffering Rs.40,000/-
Inconvenience & keeping an attendance Rs.5,000/-
Medical expenses Rs.7,000/-
Special diet Rs.5,000/-
Total Rs.2,02,000/-
60 The award is modified to the aforesaid extent. The other terms and
conditions of the impugned award including payment of interest shall remain unchanged.
61 Registry shall release the amount in favour of the claimants in terms of the modified award after proper identification and excess amount be refunded back to the insurer.
As directed above, Registrar General of this Court shall ensure that copy of this judgment is circulated to all the Judicial Officers of the Union Territory of Jammu and Kashmir and Union Territory of Ladakh, more 26 Mac App 14/2020 cw Connected matters particularly those acting as Presiding Officers of the Motor Accident Claims Tribunal.
Registry is directed to place a copy of this judgment on the files of each connected case.
(Sanjeev Kumar) Judge JAMMU.
10 .08.2020 Sanjeev.
Whether the order is speaking : Yes Whether the order is reportable: Yes SANJEEV KUMAR UPPAL 2020.08.11 11:27 I attest to the accuracy and integrity of this document