Patna High Court - Orders
Bipin Bihari Choudhary vs The New India Assurance Compan on 9 April, 2013
Author: Rakesh Kumar
Bench: Rakesh Kumar
IN THE HIGH COURT OF JUDICATURE AT PATNA
Miscellaneous Appeal No. 628 of 2010
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Bipin Bihari Choudhary, Son of Late Sudam Choudhary, resident of
village- Chahuta, P.O. Kamtaul, P.S. Bisfi, District- Madhubani, at
present C/O Sagar Printing Press Campus, Mirzapur Jethiyahi Pokhar,
P.O. Lalbagh, District- Darbhanga.
..............(Claimant)............Appellant.
-Versus-
1. The New India Assurance Company Limited, having its
registered and Head Office at New India Assurance Building, 87,
Mahatma Gandhi Road, Post, Mumbai 400023, through its local Branch
Office at JHA BHAWAN, Mohalla Mirzapur, P.S. Town, District-
Darbhanga.
...............Opposite Party No.1/...Respondent.
2. Ram Autar Yadav, Son of Tunni Yadav, resident of village-
Naya tola, Sundarpur, P.O. Lalbagh, P.S. L.N.M.U., District-
Darbhanga.
...............Opposite Party No.2/...Respondent.
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Appearance :
For the Appellant/s : Mr. Udayan Chaudhary
For the Respondent-I : Mr. Shailendra Kumar
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CORAM: HONOURABLE MR. JUSTICE RAKESH KUMAR
CAV ORDER
8. 9 -04-2013The present appeal under Section 173 of the Motor Vehicle Act, 1988 (hereinafter referred to as 'M.V.Act') has been preferred against the order dated 14-05-2010 passed by Sri Braj Nandan Prasad, learned 2 nd Additional District Judge-cum-Motor Vehicle Claim Tribunal Judge, Darbhanga (hereinafter referred to as 'Claim Tribunal') in Claim Case No. 68 of 2006. By the said order, learned Claim Tribunal has dismissed the claim case. 2 Patna High Court MA No.628 of 2010 (8) dt. 09-04-2013
2 / 14 The appellant filed claim case under Sections 140 and 166 of the M.V.Act, claiming compensation amount of Rs. 5,00,000/- (five lacs), besides payment of actual expenses incurred on his medical treatment to the tune of Rs. 1,50,000/- (one lac & fifty thousand), as on date of filing of the claim case and further Rs. 25,000/- (twenty five thousand) under the same head till 02-06-2009 when his deposition was recorded.
Short fact of the case is that on 26-09-2005, the appellant, namely; Bipin Behari Choudhary boarded a Cammander Jeep, bearing Reg. No. BR-7P-0587 from Bharwara to Darbhanga, however; due to rash and negligent driving by the driver, the Jeep rolled down about 100 yards away from Kashi Line Hotel and brick-kiln on the main road (running from Muzaffarpur to Darbhanga). In the said accident, several passengers sustained injuries and the claimant sustained serious injuries. Subsequently, the claimant was sent to R.K.Ortho Ashram, Madarpur, Darbhanga for treatment. At later stage, he was referred to Patna and he got treatment at Popular Nursing Home, 3 Patna High Court MA No.628 of 2010 (8) dt. 09-04-2013 3 / 14 Ashok Rajpath, Patna, where several operations were conducted, but lastly, his right leg above knee was amputated. At the time of filing of the claim petition, his treatment was still continuing. Before the Claim Tribunal besides oral evidence on behalf of claimant, certified copy of charge-sheet of Simri P. S. Case No. 93 of 2005 dated 26-09-2005 (Ext. '1'), original disablement certificate issued by a Medical Board presided over by the Civil Surgeon, Darbhanga (Ext. '2'), original insurance policy (Ext. '3'), original certificate of fitness of the vehicle (Ext. '4'), certified copy of F.I.R. (Ext. '5'), Mark-sheet of M.A. of the applicant (Ext. '6') and list of original bills of expenses towards treatment etc. (Ext. '7') were brought on record. Besides the appellant, five other witnesses were examined by way of filing their affidavits.
Subsequently, the driver of the offending vehicle appeared and filed written statement and disclosed that offending vehicle, at the relevant time, was under insurance cover of the respondent no. 1/New Indian Assurance Company Limited (hereinafter referred to as 'insurance 4 Patna High Court MA No.628 of 2010 (8) dt. 09-04-2013 4 / 14 company'). The driver of the offending vehicle stated that he was having valid driving licence. Besides this, vehicle in question was having all the relevant certificates for its plying on the road.
The respondent no. 1/insurance company also filed a detailed written statement disputing the claim of compensation by appellant. A petition under Section 170 of the M.V.Act was also filed for allowing insurance company to contest the case on all the points. After hearing the parties, the learned Claim Tribunal framed four issues, which are as follows:-
(i) Whether the M.V.Claim application is maintainable?
(ii) Whether the applicant Bipin Behari Choudhary sustained injury on 26-09-2005 due to accident caused by motor vehicle i.e. Commander Jeep bearing registration no. BR-7P-0587 and whether the said accident was caused due to rash and negligent driving of the driver of the said vehicle or otherwise?
(iii) Whether the applicant is entitled to get compensation, if so, what should be the quantum of the compensation and from whom?
(iv) To what relief or reliefs the applicant is entitled?5 Patna High Court MA No.628 of 2010 (8) dt. 09-04-2013
5 / 14 However, the learned Claim Tribunal took all issues together and came to conclusion that the claimant/appellant completely failed to establish the case and dismissed the claim petition.
Sri Udayan Chaudhary, learned counsel for the appellant had argued that besides oral evidence, there were number of documentary evidences on the record to establish that the appellant had become permanent disabled to the extent of 75%. He further submits that the appellant was having earning of Rs. 4,000/- per month and as such, in view of provisions contained in Schedule - II of the M.V.Act, compensation was to be calculated and claim amount for compensation as well as expenses towards medical treatment to the tune of Rs. 2,00,000/- (two lacs) was required to be paid by the insurance company/respondent no.1. It was argued that due to said accident, right leg above the knee of the appellant was got amputated, but the learned Claim Tribunal, contrary to the medical report and certificate, has recorded its opinion as if he was medical expert and observed that the right leg might 6 Patna High Court MA No.628 of 2010 (8) dt. 09-04-2013 6 / 14 had been amputated, due to disease gangrene in right leg, which develops after sufficient time, whereas, fact remains that after receiving injuries, he was thoroughly treated at Popular Nursing Home, Patna and subsequently, keeping in view the seriousness of the injuries, his right leg above the knee was got amputated and the appellant became permanent disabled. It has been argued that the deceased was earning about Rs. 4,000/- per month by imparting tuition since the appellant was having Master Degree. Besides earning from tuition, he was having earning from agriculture. In the treatment of the appellant, he had incurred huge expenditure. Till the date of the filing of the claim petition, he had already incurred expenditure to the tune of Rs. 1,50,000/- (one lac & fifty thousand) and till the date of deposition, he has incurred further Rs. 25,000/- (twenty five thousand) expenses for his treatment and he was expecting further Rs. 25,000/- (twenty five thousand) for his future treatment and as such, under the head of medical expenses, it was a fit case for directing to pay Rs. 2,00,000/- (two lacs) for his medical expenses, besides 7 Patna High Court MA No.628 of 2010 (8) dt. 09-04-2013 7 / 14 compensation amount, as per Schedule-II of the M.V.Act, to the tune of Rs. 5,00,000/- (five lacs).
Sri Shailendra Kumar, learned counsel for respondent no.1/New India Assurance Company Limited has vehemently opposed the prayer of the appellant and submits that the learned Claim Tribunal has rightly rejected the claim petition since the claimant/appellant had miserably failed to establish the case that he has suffered injuries in the manner as claimed by the appellant. He submits that the driver of the offending vehicle had appeared before the Claim Tribunal and filed a written statement, wherein, he had made it clear that accident had not occurred due to rash or negligent driving, but same had occurred due to failure of the break of offending vehicle. He further submits that regarding income of the claimant, no cogent evidence was brought on record. He has argued that the expenses in respect of medical treatment have been exaggerated. In sum and substance, he has argued that since there were number of discrepancies in the claimant's case, the learned Claim Tribunal has rightly rejected the 8 Patna High Court MA No.628 of 2010 (8) dt. 09-04-2013 8 / 14 claim petition, which requires no interference.
Besides hearing the parties, I have also perused the material available on record, including Lower Court Record. In support of claim petition, the claimant had examined six witnesses. On the point of accident most of the witnesses are consistent. However, no documentary evidence was brought on record to show income of the claimant. Besides oral evidence, the claimant had brought on record certified copy of charge-sheet, which has been marked as Ext. '1', Disablement Certificate issued by a Medical Board presided over by the Civil Surgeon, Darbhanga showing 75% permanent disablement has been marked as Ext. '2' and insurance policy, Fitness Certificate of vehicle, certified copy of F.I.R., certificate of M.A. in respect of appellant & list of expenses in respect of treatment of the appellant have been marked as Exts. '3', '4', '5', '6' & '7' respectively. On perusal of the F.I.R., it is evident that during investigation, it was found that accident had occurred due to rash and negligent driving by the driver of the vehicle. After the accident, F.I.R., vide Simri 9 Patna High Court MA No.628 of 2010 (8) dt. 09-04-2013 9 / 14 P.S. Case No. 93 of 2005 was registered on 26-09-2005 for the offence under Sections 279, 337 & 338 of the Indian Penal Code against driver of Cammander Jeep, bearing Reg. No. BR 7P-0587 and finally on 31-07-2006, charge-sheet, vide Charge-sheet No. 78 of 2006 was submitted against the driver i.e. respondent no. 2 for offences under Sections 279, 337 & 338 of the Indian Penal Code. So, once during investigation, rash and negligent driving was proved, mere stand taken by the driver before the Claim Tribunal that accident had occurred not due to negligence of the driver, but due to break failure, would not be sufficient to reject the claim petition. On the contrary, after filing of the charge- sheet, it was established that accident had occurred due to rash and negligent driving by the driver of the vehicle. Both evidences i.e. oral and documentary are sufficient to establish that the appellant had suffered permanent disablement to the extent of 75% in a vehicular accident, and only on minor discrepancies, the learned Claim Tribunal was not justified to reject the claim petition. The claim of the appellant is established in view of contents of the F.I.R., 10 Patna High Court MA No.628 of 2010 (8) dt. 09-04-2013 10 / 14 charge-sheet etc. In the case, charge-sheet was submitted, showing the driver of the offending vehicle as rash and negligent, the certificate of the Civil Surgeon, Darbhanga i.e. Ext. '2' further establishes that the appellant has become permanent disabled due to the present vehicular accident. It is not in dispute that offending vehicle at the time of accident was under-insurance cover of the respondent no. 1. Oral evidence are almost consistent to prove the case of the claimant, however; the learned Claim Tribunal, ignoring all those evidences only on trivial points, has rejected the same, which requires interference and as such, order dated 14-05-2010 passed by the Claim Tribunal in Claim Case No. 68 of 2006 is, hereby, set aside.
So far as the question of indemnifying the claim by the insurance company of the vehicle is concerned, since at the time of accident, the offending vehicle was under- insurance cover of the respondent no. 1/New India Assurance Company Limited, vide Ext. '3', it was the responsibility of the insurance company to pay the compensation amount to the claimant. Moreover, fitness 11 Patna High Court MA No.628 of 2010 (8) dt. 09-04-2013 11 / 14 certificate of the vehicle i.e. Ext. '4', further makes it clear that the insurer of the vehicle was liable to pay compensation. Fact regarding insurance cover of the vehicle in question at the time of accident has not been disputed even before this Court. Question, which has been raised on behalf of respondent no. 1/insurance company, is the income of the appellant. It has been emphatically argued that no documentary proof, to show income of the claimant, was brought on record and as such, on the basis of notional income, as prescribed in Schedule-II of the M.V.Act, compensation was required to be calculated. Further serious objection was raised on the claim in respect of medical expenditure incurred by the claimant. Since no cogent material was brought on record to show the monthly income, as claimed by the appellant, there is no ground for accepting the income of the appellant as Rs. 4,000/- (four thousand) per month. In such cases, in view of notional income, compensation is required to be calculated. In the present case, accident had taken place in the year 2005 and as such, notional income as prescribed in Schedule II of the 12 Patna High Court MA No.628 of 2010 (8) dt. 09-04-2013 12 / 14 M.V.Act as Rs. 15,000/- (fifteen thousand) per month, would not be just and proper. Repeatedly, it has been held to consider the income at least as Rs. 100/- (one hundred) per day. Meaning thereby, that in the present case, the notional income of Rs. 3,000/- (three thousand) per month would be just and proper and since the claimant has been held 75 % disablement by a Medical Board presided over by the Civil Surgeon, Darbhanga, as per Ext. '2', 25% from Rs. 3,000/- per month is to be deducted and as such, Rs. 2,250/- per month [i.e. Rs. 3000.00 - Rs. 750.00 (i.e. 3000 X 25/100) = Rs. 2250.00], which comes to Rs. 27,000/- per year (i.e. Rs. 2250.00 X 12 = Rs. 27000.00) would be the loss. At the time of accident, the claimant was aged about 44 years and as such, multiplier of 15 would be applicable and thereafter, total compensation amount comes to Rs. 4,05,000/- (four lacs & five thousand) [i.e. Rs. 27000.00 X 15 = Rs. 405000.00].
Now the question is as to whether the claimant is entitled to get compensation against the expenses incurred for his medical treatment. At the time of filing of the claim 13 Patna High Court MA No.628 of 2010 (8) dt. 09-04-2013 13 / 14 petition, the claimant had brought on record number of bills, reports etc. besides list of expenses, which has been marked as Ext. '7'. However, bills and prescriptions, though filed, were not got exhibited in accordance with law and as such, only on perusal of bills and reports, it would be difficult for this Court to come to a definite conclusion regarding the expenses on the treatment of the appellant.
Learned counsel for the respondent no. 1/Insurer of the vehicle had agreed for paying lump-sum medical expenses as per Schedule II of the M.V.Act to the tune of Rs. 15,000/- (fifteen thousand). Since the bills were not got properly exhibited, it would be difficult for this Court to direct the respondent no.1/insurance company to pay medical expenses on the basis of those documents, however; keeping in view the provision contained in Schedule II of the M.V.Act, it would be appropriate to direct for payment of Rs. 15,000/- (fifteen thousand) towards medical expenses and as such, while allowing the appeal, it is directed to pay Rs. 4,05,000/- (four lacs & five thousand), as compensation amount alongwith interest at a simple rate of 6% per year 14 Patna High Court MA No.628 of 2010 (8) dt. 09-04-2013 14 / 14 from the date of filing of the claim petition i.e. 17-10-2006 till the date of payment and further to pay Rs. 15,000/- (fifteen thousand), as medical expenses, in view of Schedule II of the M.V.Act.
Both amounts i.e. compensation amount as well as amount of medical expenses is required to be paid within a period of two months from the date of production/receipt of a copy of this order.
With above observation & direction, the appeal stands allowed without any costs.
(Rakesh Kumar, J.) Anay