Madhya Pradesh High Court
Sudha Jain vs Mahendra Kumar Jain And Ors. on 29 September, 2005
Equivalent citations: 2006ACJ1401
JUDGMENT S. Samvatsar, J.
1. M.A. Nos. 500 and 583 of 2000 both these appeals arise after a common award dated 28.4.2000 passed by Second Additional Member Judge, Motor Accidents Claims Tribunal, Gwalior in Claim Case No. 34 of 1994. Appeal No. 583 of 2000 is preferred by the insurance company for exoneration from payment of compensation while Appeal No. 500 of 2000 is filed by claimant for enhancement of compensation.
2. The brief facts of the case are that on 10.5.1993 the claimant Sudha Jain was sitting as a pillion rider on the scooter driven by her husband, respondent No. 1. The number of the scooter was MBH 1737. At about 9.30 p.m. they were going to attend a marriage ceremony. When they reached near M.P. Roadways Depot, respondent No. 1 due to excessive speed of the scooter lost his control and the scooter fell down in a ditch near P.W.D. Govt. Bungalow.
3. This accident has resulted in fracture in femur bone in her left leg. Femur bone was completely damaged in the accident. Claimant was taken to hospital where she was treated. She has to undergo a prolonged treatment including 4 surgical operations. A steel rod was inserted in her leg and her leg was shortened by 1.5". Claimant filed a claim petition. Initially the claim petition was filed for payment of compensation of Rs, 2,91,500. However, subsequently the claim petition was amended and valued at Rs. 4,91,500. The Claims Tribunal after appreciating the evidence on record has awarded an amount of Rs. 1,20,000 for general damages, Rs. 45,000 for medical expenses and Rs. 23,168 towards pain and suffering. Thus the Claims Tribunal has awarded an amount of Rs. 1,90,000 plus interest at the rate of 9 per cent per annum. Claims Tribunal has also awarded interest at the rate of 12 per cent per annum in the event the amount is not paid within a period of 2 months from the date of award.
4. As regards appeal of the insurance company is concerned the main contention raised by the insurance company is that insurance company is not at all liable for payment of compensation as the husband of the claimant was driving the vehicle. He cannot be compensated for his own wrong. The insurance company has also raised a plea that risk of pillion rider is not covered under the insurance policy. The insurance company has also stated that claim petition is filed in collusion between the claimant and respondent No. 1 who were husband and wife. According to insurance company the accident has not at all taken place. The amount of quantum is also under challenge by the insurance company. The counsel for the claimant has raised a preliminary objection about the maintainability of the part of the appeal filed by the insurance company challenging the fact of accident and the quantum.
5. According to the learned Counsel for the claimant the insurance company can confine its appeal only to the extent of defences provided under Section 149(2) of Motor Vehicles Act. In reply to the argument counsel for the insurance company urged that insurance company was given permission under Section 170 of the Motor Vehicles Act to contest the claim petition on the grounds other than the grounds mentioned in Section 149 Sub-section (2). The counsel for the appellant urged that the permission dated 6.5.1998 granted by the Tribunal is not a permission in the eyes of law. According to the counsel for claimant order sheet dated 6.5.1998 recorded by the Claims Tribunal shows that the insurance company has not filed any application for seeking permission on the ground of collusion between the claimant and the owner. Moreover, as per Section 170 of the Act it is necessary for the court to record its reasons for granting permission.
6. To appreciate the argument advanced by the counsel for the petitioner, this Court has perused order sheet dated 6.5.1998. The order sheet says that Mr. Agrawal, counsel for the insurance company has expressed his desire to contest the claim petition on all the issues and orally prayed for permission under Section 170 of the Motor Vehicles Act. Parties heard. Defendant No. 1 has filed his written statement. However, considering the entire circumstances of the case Mr. Agrawal is granted permission to contest the claim petition on all the issues.
7. The contention raised by the counsel for the appellant is that under Section 170 of the Motor Vehicles Act permission to contest the claim petition can be given--where in the course of any inquiry, the Claims Tribunal is satisfied that--
(a) there is collusion between the person making the claim and the person against whom the claim is made, or
(b) the person against whom claim is made has failed to contest the claim, in that case the Claims Tribunal may, for reasons to be recorded in writing, direct that the insurer who may be liable in respect of such claim, shall be impleaded as a party to the proceeding and in case insurer is already a party then grant him permission to contest the claim on all the issues.
8. In the present case there are no allegations about collusion between the claimant and the owner of the vehicle nor the court has given any such finding. The court below has also not recorded any reasons in the writing for giving such permission. When the section provides that Tribunal may, if satisfied for reasons to be recorded in writing, grant permission then it is necessary for the court to arrive at a conclusion that there is collusion between the parties and record its satisfaction that there is collusion between the claimant and the owner and then after recording these reasons grant permission. In the present case, the court has not at all given any finding about the collusion or its satisfaction about the collusion. The court has not assigned any reason for granting permission, hence, the permission is not valid permission in the eyes of law. To support this contention counsel for appellant has relied on the judgment of the Apex Court in case of Shankarayya v. United India Insurance Co. Ltd. .
9. In reply to this argument the counsel for the respondent have relied on number of judgments of this High Court including Mangilal v. Parasram 1970 ACJ 86 (MP), which is a Full Bench decision of this Court; United India Insurance Co. Ltd. v. Member, M.A.C.T., Lakhimpur ; New India Assurance Co. Ltd. v. Celine ; Sarjubai v. Gurudip Singh , counsel for the insurance company has also relied on the judgment of Apex Court in case of United India Insurance Co. Ltd. v. Jyotsnaben Sudhirbhai Patel .
10. In that case the Apex Court while dealing with the provisions of Section 170 of the Motor Vehicles Act has observed that unfortunately the Tribunal while passing an order on the petition filed under Section 170 of the Act has only stated that permission was granted though the mandate of Section 170 of Motor Vehicles Act states that the Tribunal while passing an order shall record its reason. The Supreme Court however, in the facts of the case held that order passed by Claims Tribunal should not prejudice the rights of the insurance company in that case the driver and the owner of the vehicle were ex parte.
11. Considering this fact the Supreme Court has held that it is very much evident in this case that driver and the owner of the case did not file written statement and failed to contest the proceedings and the Tribunal could have granted the permission merely by recording this finding. In a situation contemplated by Clause (b) of Section 170 nothing more was required than recording undisputed fact. For failure to do so, the insurance company shall not be made to suffer prejudice and, therefore, in that case held that the appeal filed by the insurance company was maintainable.
12. On the other hand the Apex Court in case of Shankarayya v. United India Insurance Co. Ltd. , has laid down that the insurance company when impleaded as a party by the court can be permitted to contest the proceedings on merits only if the condition precedent mentioned in Section 170 are found to be satisfied and for that purpose insurance company has to obtain an order in writing from the Claims Tribunal which should be a reasoned order by the Claims Tribunal. Unless the procedure is followed the insurance company cannot have a wider defence on merits than what is available to it by way of statutory defence.
13. In that case insurance company in his written statement has stated that in case the insurer did not choose to appear in the proceedings and contest then the insurance company is desirous to get proper order under Section 170 of the Act. Insurance company did not file any application under Section 170 for getting permission. However, it appears that the insurance company was allowed to join the issues on merits and the award was passed. Against which insurance company preferred an appeal and the High Court allowed the appeal on merits and reduced the claim. The Supreme Court held that the appeal preferred before the High Court was not maintainable in absence of an order granting permission under Section 170. The Apex Court in the aforesaid case has considered the provisions of Section 170 and held that insurance company can be permitted to contest the proceedings on merits only if the condition precedent mentioned in the section is satisfied and for that purpose the insurance company has to obtain an order in writing from the Claims Tribunal which should be a reasoned order by the Tribunal. Unless the procedure is followed the insurance company cannot have a wider defence.
14. In the present case the order passed by Tribunal is definitely a cryptic order, passed on an oral request of the counsel for the insurance company. The Claims Tribunal has not recorded any reasons. Present case falls under Sub-clause (a) of Section 170 which requires that the permission can be granted by the Tribunal only if Tribunal is satisfied that there is collusion between the claimant and the insured. So while granting permission under Section 170 the Claims Tribunal is bound to record the reason. In absence of the reasons the insurance company cannot contest the claim on merits.
15. The judgment of Apex Court in case of United India Insurance Co. Ltd. v. Jyotsnaben Sudhirbhai Patel , is distinguishable as the said case was covered by Sub-clause (b) of Section 170. Only thing which was required for granting permission was that the insured has failed to contest the claim which is apparent on the face of record and, therefore, even in absence of recording the said fact the permission granted by cryptic order cannot be said to be contrary to the section. This is not a situation in the present case, here the insurance company is seeking permission on the ground of collusion and for collusion the court has to record its satisfaction by reasoned order. The counsel for the appellant submitted that in the present case the claimant and the insured are husband and wife and, therefore, collusion is apparent on the face of record. This argument cannot be accepted merely because the claimant and the insured are husband and wife, it cannot be said that there is collusion between them. The collusion has to be established by sufficient material on record. It is true that Claims Tribunal could have recorded this reason for holding that there is collusion between parties but this is also not done in the present case. Even the insurance company has not filed any application under Section 170 alleging the collusion between the parties.
16. In such circumstances, the permission granted by the court below cannot be held to be valid permission in the eyes of law and the insurance company cannot be permitted to contest the case on that ground.
17. As regards the ground available to the insurance company under Section 149 is concerned the insurance company has raised a plea that the insurance company has covered only third party risk and the person who is boarded on the vehicle and a passenger is not covered under the third party. In the present case the pillion rider was the wife of the insured and, therefore, she is not covered under the term third party. The Division Bench of this Court in case of National Insurance Co. Ltd. v. Tanuja M.A. No. 725 of 2000; decided on 23.5.2005, has considered this aspect of the argument and held that except insurer and the insurance company all persons are third party. The pillion rider who is injured is also a third party to the insurance policy and, therefore, his risk is covered. Thus this question is fully answered by this Court in Tanuja's case (supra). The counsel for the insurance company has tried to demonstrate that the view taken by the Division Bench is not correct, however, so far as this Court is concerned this Court is bound to follow the said judgment. Hence in light of the judgment of the Division Bench, I hold that insurance company is liable to pay the amount of compensation for the injuries sustained by the claimant.
18. Now, the only question remaining is about the quantum. In the present case the age of the injured is 35 years. She is B.A. (Pass) and there is nothing on record to show that she was an earning member. According to her own statement she is housewife.
19. Considering this fact her income for assessment of compensation is to be taken on notional basis, i.e., at the rate of Rs. 15,000 per year. It has come on record that in the said accident she has suffered fracture of femur bone. Immediately after the accident she was taken to Dr. A.K. Dubey. Exh. P1 is the X-ray report. Thereafter she was taken to Dr. V.P. Midda and thereafter she was admitted in a private hospital of Dr. Chandak. Dr. Midda has been examined in the case as AW 3. He has stated that he has examined the claimant on 11.5.1993, i.e., on the next date of the accident. She was examined by Dr. Dubey on 10.5.1993. Exh. P1 is the examination report of Dr. Dubey. This witness knows the signature of Dr. Dubey. He says that he has worked with him for a number of years and has acquainted with his signature. According to him, the claimant was operated on 15.5.1993. Claimant was admitted in the hospital for a week and he was visiting her daily during this period. Claimant was discharged after a week. He advised the claimant to take X-ray every month. He has advised the lady to use crutches. He has examined her for 7 months. He says that even after 7 months her fracture was not united and he advised her to undergo another operation in December 1993. He has referred the matter to Dr. P.S. Maini at Gangaram Hospital, New Delhi. The claimant got herself operated at Delhi, but even after this operation the bone was not united and in May 1995 she was referred to Apollo Hospital, Madras where she was operated by Dr. R. Gopal Krishan. On the advise of Dr. R. Gopal Krishan in November 1995 she was operated in Garg Nursing Home, Gwalior and her Ex. Terminal Fixed Instrument were removed after this operation. During this period also he was visiting his patient at her house. According to this witness she has suffered 50 per cent permanent disability and her leg was shortened by 1.5". According to this witness the claimant will have a difficulty to sit on the floor and she cannot walk without any support for her entire lifetime. This witness proved all the medical reports, X-ray report, blood report, etc. and the reports of various doctors. There is nothing on the record to disbelieve this witness. Hence, it is held that the claimant has suffered fracture in her femur bone. She was operated 4 times. Twice at Gwalior, once at Delhi and once at Madras. She has undergone treatment from 10.5.1993 to November 1995, i.e., more than one and half years. She has suffered 50 per cent disablement in her leg. Her leg is shortened by 1.5". The counsel for the respondent insurance company has relied on Full Bench judgment of this Court in case of Kamal Kumar Jain v. Tazuddin , to state that permanent disablement cannot be proved without scientific test. It is true that the Full Bench of this Court in that case has held that in a case of fracture permanent disablement can be proved only after the scientific test. However, that is not a universal rule because in case of amputation and shortening of leg permanent disablement is apparent. In the present case the leg of the claimant is shortened by 1.5". This fact is proved by the statement of Dr. Midda, AW 3 and in such circumstances it is not necessary to prove the said disablement by scientific test. Hence I hold that the appellant has suffered 50 per cent permanent disablement in her leg. The question is up to what extent this permanent disablement has affected the earning capacity of the claimant. The claimant is a housewife. Her income on the notional basis is Rs. 15,000 per year. Shortening of leg is to the extent of 1.5" will not affect her working capacity to the extent of 50 per cent though it may affect her working capacity to the extent of 10 per cent. Thus this accident has affected her working capacity to the extent of 10 per cent that means she has suffered a loss of Rs. 1,500 per year. Her age is 35 years and if multiplier of 16 is applied, then her loss of income comes to Rs. 24,600 rounded to Rs. 25,000. The medical bills which are on record show that she spent Rs. 1,69,109.80 on her medical treatment. The Apex Court in case of 2002 (8) Supreme 497, has laid down that this strict rule of evidence is not applicable to the Claims Tribunal. In the present case bills are on record and even though they are not proved by following strict rules of evidence, still this Court can hold that claimant has spent an amount of Rs. 1,69,109.80 on her medical treatment. Hence, there is no reason for disallowing this claim to her. Hence, it is held that the claimant is entitled to an amount of Rs. 1,70,000 towards medical expenses. She is entitled to Rs. 25,000 towards loss of income and an amount of Rs. 50,000 towards pain and suffering. Thus the compensation comes to Rs. 2,44,860. Apart from this amount she must have spent some amount towards travelling charges and special diet, etc.
20. Considering this fact, this Court finds that an amount of Rs. 2,50,000 is just and fair compensation. Hence, this appeal. Appeal filed by the claimant is allowed and the amount of compensation is enhanced from Rs. 1,90,000 to Rs. 2,50,000. As regards interest part is concerned the Claims Tribunal has awarded 9 per cent interest on the claim and has awarded 12 per cent in case the insurance company fails to deposit amount within 2 months from the date of award, but said condition cannot be upheld in view of judgment of Apex Court in case of National Insurance Co. Ltd. v. Keshav Bahadur . Hence, it is held that claimant shall be entitled to 9 per cent interest on the amount awarded by the Claims Tribunal till the date of filing of the appeal and 9 per cent interest on the enhanced part till date of realisation on the amount awarded by the Claims Tribunal and 6 per cent interest on the enhanced amount from the date of filing of the appeal till realisation. Appeal filed by the insurance company stands dismissed. Appellant is also entitled to costs of Rs. 2,500.