Allahabad High Court
Samarjeet Singh vs Khursheed Khan And 2 Others on 23 November, 2020
Equivalent citations: AIRONLINE 2020 ALL 2652
Author: Kaushal Jayendra Thaker
Bench: Kaushal Jayendra Thaker
HIGH COURT OF JUDICATURE AT ALLAHABAD [A.F.R.] Court No. - 37 Case :- FIRST APPEAL FROM ORDER No. - 2213 of 2019 Appellant :- Samarjeet Singh Respondent :- Khursheed Khan And 2 Others Counsel for Appellant :- Vidya Kant Shukla Counsel for Respondent :- Pawan Kumar Singh,Pawan Kumar Singh,Vijay Prakash Mishra Hon'ble Dr. Kaushal Jayendra Thaker,J.
1. Heard Sri Vidya Kant Shukla, learned counsel for the appellant and Sri Vijay Prakash Mishra, learned counsel for Insurance Company. None appears for the owner and driver of the vehicle involved in the accident.
2. his appeal, at the behest of the claimant, challenges the judgment and award dated 28.5.2019 passed by Motor Accident Claims Tribunal, Kanpur Nagar (hereinafter referred to as 'Tribunal') in MACP No.271 of 2013 re-deciding the matter and reducing the compensation from Rs.3,79,220/-toRs1,19606/with interest at 7 %from date of judgment. The tribunal re decided the entire matter on an application by the owner of the vehicle involved in the accident and against whom the earlier Tribunal had passed judgment and decree holding him solely liable to compensate the claimant exonerating the insurance company. By the subsequent award the tribunal fastened the liability on owner and insurance company but reduced the compensation payable to the claimant injured non tortfessor.
3. According to Sri Vidya Kant Shukla, learned Advocate for the appellant, the application was filed under Order 9 Rule 13 of C.P. Code 1908 (herein after referred as The Code) by the owner of the vehicle as the award was passed against the owner alone as it was held that the owner had failed to prove that the driver who was driving the offending vehicle and who was held to be negligent had a valid driving license. The insurance company was exonerated in the decision rendered on 29 4 2017 which was not challenged. The only reason for requesting, setting aside of the award was that maybe review was not maintainable and therefore an application under Order 9 Rule 13of the Code was filed. The application was made only bringing to the notice that the driver had a proper driving licence and there was no prayer to set aside the entire award so that insurance company can be held liable to satisfy the award as all other facts were proved before the Tribunal and no fresh evidence even after the application under Order 9 Rule 13 was placed before the Tribunal except the x-rox copy of the driving licence of the driver of the offending truck. The owner had not challenged the quantum or compensation awarded to the claimant by the award dated 29.4.2017 which was sought to be reviewed. The owner nor the insurance company requested for rehearing or deciding all the issues afresh. The learned counsel for the appellant has heavily relied on five judgment namely, in Raj Kumar Vs. Ajay Kumar and another, 2010 LawSuit(SC) 1081, Hari Babu Versus Amrit Lal and others, 2019(2) T.A.C. 718 (All.), Mahoora Bano Versus National Insurance Company and others, 2020(1) T.A.C. 688 (S.C.) , Civil Appeal Nos. 1079-4081 of 2019 (National Insurance Company Limited Vs. Mannat Johal & others decided by Supreme Court on 23.4.2019 and also of Allahabad High Court in First Appeal From Order No.3183 of 2009 ( Arun Bajpai Vs. Mushir Ahmad and others, decided on 13.12.2017.
4. Per contra, learned counsel for the insurance company while supporting the judgment of the Tribunal whose judgment is impugned herein relied on decision of Supreme Court in Vijay Singh Vs. Shanti Devi and others, AIR 2017 SC 5672. and hs contended that once an ex-parte decree has been set aside, the matter had to bed decided afresh. The said decision will not apply at the out set as it was in execution petition and both the appeals against the ex-parte decree was filed . The execution petition was filed meanwhile the appellant took the possession. The application of the defendant for setting aside ex-parte decree was allowed throughout which is not the case in our case . We are in the whelm beneficial peace of legislation where the Tribunal was not even asked to reconsider the question of quantum and interest.
5. Brief facts and the list of dates and events and the manner in which the learned Tribunal has passed the award dated 28 5 2019 whereby the owner and the Insurance Company without pleading any positive evidence have been successful in seeing that the compensation awarded to the appellant by award dated 29 4 2017 who by profession was a driver and had suffered huge disability, was practically left without any compensation because of the fault of the owner and the subsequent change in the presiding officer of the Tribunal.
6. The facts would demonstrate that for no fault of the appellant herein, the Tribunal who could not have refused to grant compensation practically non suited, the appellant qua his injuries and disability incurred due to the vehicular accident The subsequent award shows that the Tribunal took over hyper technical stand in not granting any compensation as it was of the view that the claimant had failed to prove his disability as the treating doctor was not examined on oath and disbelieved the medical certificate produced and not objected to be read in evidence by any of the parties.
7. The claim petition was preferred by the claimant contending that on the date of accident, he was serving as driver on vehicle bearing number U.P. -70 BT 4174 Tata AC which the claimant appellant herein was driving. On 17.6.2011 from Bareilly to Kanpur at about 3:00 O'clock at the place of known as Baba Thaba. The driver of the truck bearing truck U.P. 25 T-5823 drove his truck rashly and negligently and the driver rammed into the truck driven by the appellant herein. The appellant had multiple fractures of his lower limbs. He was admitted in the hospital of Dr. Kamlesh Dwivedi. The report of the said accident was reduced to writing on 20.6.2011 in Police Station at Katra, Bareilly. Later on he shifted and was hospitalized at Siddh Vinayak Hospital, Bareilly thereafter he was shifted to Navyug Nursing Home, Kanpur. Later on he remained as aa indoor patient in Navyug Nursing Home, Kanpur from 29.6.2011 to 15.7.2011, thereafter also his treatment continued and he was unable to drive any vehicle as a paid driver. The owner of the truck, namely, Khursheed Khan filed a joint reply on his behalf and the driver contending that it was claimant who was driving the vehicle in a rash and negligent manner. It was contended in written statement that the driver of the truck owned by opponent no 1 had a valid driving license and the vehicle was insured with Shree Ram General Insurance Company Limited and the insurance cover note was filed at Exhibit-106 G. The insurance company also filed its reply of denial.
8. The Tribunal framed three issues. The first issue related to negligence of the driver of U.P. 25 T-5823 namely opponent The issue no. 2 was whether the accident occurred due to the negligence of the claimant himself and Issue no. 3 related to from whom and how much compensation the claimant was entitled.
9. The claimant produced several documents namely 9G was discharge card of Navyug Nursing Home, Kanpur, 10 G was his driving licence, 11G was his medical certificate issued the by Medical Board. He had submitted several bills of his medicines. There was certificate of his disability at Exhibit 86 and 87. His salary certificate was at 101G and 102 G. He had also filed the charge sheet which was laid against Sukh Pal. The FIR, X-ray and photographs showing the injuries caused to him were at Exhibit- 125G and 126G.
10. The owner produced documents being permit and the policy of insurance. The respondent no. 3 did not produce any document nor was any witness examined.
11. Issue nos. 1 and 2 are not in dispute before this Court but it is necessary to jot down the same that the Tribunal considered the driver of the other vehicle to be solely responsible for the accident. The issue no.3, the Tribunal considered his income on the basis of his evidence, basis of x-ray plates, basis of medical certificate that he was entitled to a sum of Rs.84,220/- towards medical expenses. As far as permanent disability is concerned, he has testified on oath that the medical board had examined him and he was declared to be disabled to the effect of 50%. The arguments of Insurance Company were that he had got his license renewed, therefore, it cannot be said that he had been rendered without any work. The said submission did not find favour with the Tribunal . The Tribunal considered his income to be Rs.4,000/- per month and held that his yearly income would be Rs.48,000/. The Tribunal considered his loss of income to be 40% and relied on authoritative decisions squarely covering the issue of admissibility of documents namely, decision titled Oriental Insurance Company Limited Versus Surendra Umrao and another, 2007(3)TAC 40 (Allahabad) and Raj Kumar Versus Ajai Kumar and another, 2011(1) TAC page 785 (SC). as the age of the claimant was in the age group of 40-45, multiplier of 15 was granted. He was awarded as sum of Rs.2,000/- for diet and Rs.5,000/- to be considered for mental shock suffering bringing the amount of Rs.3,79,220/-with 9% interest from date of filing of the claim petition till deposit of amount this was as per first award dated 29 4 2017 The Tribunal at the end instead of giving recovery rights held the owner responsible exonerating the Insurance company. It is this exoneration of the insurance company which has caused all the problems for the claimant the reason being immediately after the judgment and decree was drawn, the claimant through his Advocate gave a notice to the owner to pay him the amount. The owner did not file review application for limited purpose or an application under section 151 of the Code but an application under Order 9 Rule 13 of the Code was filed may be because he was advised that review may not be maintainable,due to old decision of this high court, his application under Order 9 Rule 13of Code wherein he had contended that he had given all documents to his advocate who had not produced the same. The owner produced the xerox copy of driving license of his driver.
12. The application depicted that it was a dispute between insurance company and the owner and the claimant consented for decree to be sent aside. The decree came to be set aside on 29.11.2018 it had proceeded ex-parte against the original defendant no. 2 and 3 namely the driver and the insurance company on that date the advocate for claimant and owner were present..
13. On 28.11.2018 the application under Order -9 Rule 13 of the Code which could not have been granted was allowed, however, as that has not been challenged, the same is not delved into its correctness or otherwise,.
14. On 28.11.2018 the decree was set aside under Order 9 Rule 13 of the Code and framing fresh issue being issue no.4 about license. The reason for filing the application was to show that the the driver of the vehicle had proper driving licence and that exoneration of the insurance company was not call for. The Tribunal after passing the said order allowing the application as the order sheet goes to shows order was passed on 30.11.2018 and the matter was kept on 3.12.2018 for hearing or evidence of of the defendants.
15. On 20.12.2018 the matter was further fixed on 7.3.2019 again it was listed on 7.3.2019, 16.3.2019, 3.4.2019 and 16.5.2019. The record does not show that after the matter was restored to file by the Tribunal, the Tribunal ever listed the matter for further evidence of the claimant. The new presiding officer heard the matter on 21.5.2019 and on 25.5.2019 and the Tribunal listed the mater for pronouncement of judgment. The impugned judgment whereby the Tribunal very strangely accepted the finding on issue no.2 of the earlier award and answered newly framed issue no 4 but though it was called upon only to decide newly framed issue no 4 decided all issues without any new recording of evidence or calling upon the claimant to adduce evidence and practically as narrated herein above reviewed the award of predecessor and did not take into consideration the decision of this High Court in Oriental Insurance Company ( supra) instead though no one had cited the decision of the Calcutta High Court in Sudhir Bhuiya Vs. National Insurance Company Limited reported in (2005) ACJ 509. The said decision does not lay down straight jacket formula that the genuineness of documents must be fabricated. It was no body case that the document of Medical Board was fabricated. It is given by the head of the Kanpur Medical Board. The insurance company or the owner had also not doubted the veracity of the said document. Even in the proceeding which were concluded the said document was believed and there was a tacit acceptance of the same despite that the Tribunal of its own misread the said decision . The fact had to be proved by following principles of natural justice which unfortunately the Tribunal itself did not follow. The Tribunal very strangely accepted the X-rox copy of driving license produced by the owner subsequently without adducing any fresh evidence as is borne out from the record, the Tribunal decided issue no. 4 accepting the x-rox copy of the driving licence. The opponent namely the owner took adjournment on 7.3.2019 and he did not examine anybody. The x-rox copy of the document produced along with application Order 9 Rule 13 of the Code has been accepted by the Tribunal . The photo copy of driving licence of Sukh Lal and x-rox copy of Form 54 was produced by the owner on 3.12.2018 . From 3.12.2018 till the judgment the record does not show that any evidence whatsoever was laid by the opponent owner herein save and accept producing the x-rox copy of the driving licence of the driver even without examining who had issued the same accepted the xerox copy of the driving license of the driver of the truck who was held negligent and very strangely disbelieved the medical certificate issued in favour of the claimant by the competent medical board and not by private doctor and the claimant was taken totally unaware and was not even aware that the Tribunal had ever called upon to produce any fresh evidence in support of his claim.
16. Very strangely, the learned Tribunal brushed aside the government document produced and which was earlier not challenged and accepted by the earlier presiding officer and the insurance company. The Tribunal accepted the xerox copy of the driving license and held the insurance company liable the question is should it hold the adverse against the claimant whose claim was already accepted by the earlier Tribunal and could the Tribunal review not relying on the decision of jurisdictional high court the answer is the Tribunal could not have reviewed the compensation awarded without any further pleadings or contrary evidence led after the order of under 9 Rule 13 of the Code was passed.
17. While going through several commentaries on powers under order 9 rule 13 0f the Code the undersigned could not find any authoritative pronouncement on this issue as it appears that the owner was advised to file application under Order 9 Rule 13 as may be. He was advised that the review may not be tenable. The earlier tribunal has cited and relied and has even discussed decision cited by the appellant herein of jurisdictional High Court that the Allahabad High Court but the later tribunal in her zeal to decide against the claimant very conveniently relied on the decision of Calcutta High Court (supra) and and of the Apex in Raj Kumar Versus Ajay Kumar ( infra ) which should not have been done.
18. However as this is appeal filed under Section 173 of Motor Vehicle Act, 1988 this Court will even assume that the powers vested in the Tribunal reconsidered the issue of compensation. It should be noted here that the Tribunal again made an error in erroneously interpreting the decision of Calcutta High Court and misreading the judgment of Apex Court in Raj Kumar Vs. Ajay Kumar and another, reported in (2011) 1 SCC 343. The High Court of Allahabad which is a jurisdictional High Court has in its judgment referred by the earlier Tribunal held that medical documents which are produced and it which are public document under the Evidence Act have to be believed. It was nobody case that the compensation could not be granted. The error which is error on the face on record has to be corrected. Recently the Apex Court has deprecated the decision where the Tribunals have taken hyper technical stand and have applied strictly the trappings of Civil Procedure and or criminal procedure. It can also be seen from the different angle that if the insurance company was not impleaded but if it is shown that it was liable in that case also under Section 170 of the Motor Vehicle Act, 1988 could have been impleaded later on also under Section 166, it is not always compulsory to array insurance company. IN this case also thue Tribunal could have exercised its powers under Section 168 read with Section 169 of the Act. The Tribunal ought to have considered that the fresh lis was between the owner and the insurance company and not between the claimant and the owner or the insurance company whereby the Tribunal granted interest under Section 171 of Act from the date of the judgment. The judgment was delayed not be cause of the appellant but because of the application filed by the owner. Hence, the said order is also bad.
19. It has been time and again held that trappings of civil and criminal proceedings cannot be applied in a very strict manner. I am fortified in my view by the decisions in Sunita and others Vs. Rajasthan State Road Transport Corporation and Another, 2019 LawSuit (SC)190, Mangla Ram Vs. Oriental Insurance Company Limited and Others, 2018 (5) SCC 656 and Vimla Devi and others Vs. National Insurance Company Limited and another, (2019) 2 SCC 186.
20. The compensation is ordered to be reassessed in view of the submission made by learned counsel for the appellant and in view of and in view of the decision in F.A.F.O. No.2389 of 2016 (National Insurance Co. Ltd. Vs. Smt.Vidyawati Devi And 2 Others) decided on 27.7.2016. The Allahabad High Court in a recent decision dated 31.7.2019 in FIRST APPEAL FROM ORDER No.3222 of 2004 ( Smt. Patti Devi Alias Suman Tripathi And another Versus Sita Ram Gupta And Others) and also in First Appeal From Order No. 113 of 2020 decided on 8.12.2017 wherein in this Court has held as under which is reproduced herein:-
"
1. Heard Sri Nagendra Kumar Singh for the appellant and Sri N.K. Srivastava for the respondents.
2. This appeal challenges the order dated 31.10.2001 passed by Motor Accident Claims Tribunal, Deoria, in M.A.C.P. No.599 of 1996.
3. I am pained that a girl of 16 years of age, who was before the Tribunal, was awarded a sum of Rs.1 Lac but on an application being made that Insurance company joined should have been New India and not United India. The Tribunal reduced the compensation to Rs.2,000/-. The new incumbent Judge undertook the entire exercise of writing afresh new judgment and reduced the claim to a sum of Rs.2,000/- holding that it was not proved that she had suffered partial disablement and holding that the Insurance company would be liable to pay compensation only from the date it was impleaded.
4. This appeal is filed at the behest of the claimant, who has sued through her legal heir as she was minor at the time of accident.
5. Learned counsel for the claimant has submitted that the claimant had sustained fracture and the amount of Rs.2,000/- could not have been awarded reviewing earlier judgment. The Tribunal could not have reviewed its earlier decision awarding Rs.1,00,000/- with interest. The review was not permissible. Even it is submitted that out of the said accident, one person has died which shows the gravamen and impact of the accident, this Court has perused the paper-book and the record of the lower court and though it is not submitted in this case, earlier the matter was decided in absence of the owner wherein United India Insurance Company was impleaded as party - respondent but with whom there was no brevity of contract of the owner.
6. In view of the decision of UPSRTC Vs. Km. Mamta and others, reported in AIR 2016 SCC 948, the accident having taken place is not in dispute. The claimant not being negligent is not in dispute. The claimant was awarded a sum of Rs.1 Lac is the very same claim vide judgment dated 27.4.2000 is also not in dispute but the said award was against the owner as the claimant could not prove that the vehicle was insured. The owner/ claimant thereafter came in review to show that the vehicle was insured but was insured with New India Insurance Company Limited. The Tribunal of its own decided all the issues afresh. The mute question is could the Tribunal review its own judgment Suo Motu on all issues and alter the amount awarded in favour of a destitute poor minor injured claimant, who had suffered the injuries.
7. It is admitted position of fact that the injuries sustained by the minor would cause permanent partial disability, is what is held earlier, and that is why a learned Judge of the Tribunal held in favour of the appellant vide judgment dated 27.4.2000 and awarded a sum of Rs.1 Lac as he had become permanent disabled being a young girl. Her left leg was damaged even after filing of the appeal and the claim petition even in the year 2016 and 2008, the position still continues when she filed application for expeditious hearing.
8. The judgment dated 27.4.2000 was never objected by the claimant or owner or insurance company. An application was given to correct the name of the insurer immediately after the owner was held liable.
9. Section 170 of the Motor Vehicles Act read with Section 166 reads as follows:-
"170. Impleading insurer in certain cases.-- 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 the claim is made has failed to contest the claim, it 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 proceedings and the insurer so impleaded shall thereupon have, without prejudice to the provisions contained in sub-section (2) of Section 149, the right to contest the claim on all or any of the grounds that are available to the person against whom the claim has been made.
166. Application for compensation.-- (1) An application for compensation arising out of an accident of the nature specified in sub-section (1) of section 165 may be made--
(a) by the person who has sustained the injury; or
(b) by the owner of the property; or
(c) where death has resulted from the accident, by all or any of the legal representatives of the deceased; or
(d) by any agent duly authorised by the person injured or all or any of the legal representatives of the deceased, as the case may be:
Provided that where all the legal representatives of the deceased have not joined in any such application for compensation, the application shall be made on behalf of or for the benefit of all the legal representatives of the deceased and the legal representatives who have not so joined, shall be impleaded as respondents to the application.
(2) Every application under sub-section (1) shall be made, at the option of the claimant, either to the Claims Tribunal having jurisdiction over the area in which the accident occurred, or to the Claims Tribunal within the local limits of whose jurisdiction the claimant resides or carries on business or within the local limits of whose jurisdiction the defendant resides, and shall be in such form and contain such particulars as may be prescribed:
Provided that where no claim for compensation under section 140 is made in such application, the application shall contain a separate statement to that effect immediately before the signature of the applicant.
(3) **** (4) The Claims Tribunal shall treat any report of accidents forwarded to it under sub-section (6) of Section 158 as an application for compensation under this Act."
and, therefore, the impleadment of an Insurance company is not a must but under Section 168 (3), which reads as follows:-
"168. Award of the Claims Tribunal.--
(1) ..................................................
(2) ..................................................
(3) When an award is made under this section, the person who is required to pay any amount in terms of such award shall, within thirty days of the date of announcing the award by the Claims Tribunal, deposit the entire amount awarded in such manner as the Claims Tribunal may direct."
10. In this case, it was the owner, who was the person saddled with the liability to make payment in the Ist judgment. However, he came before the Tribunal showing that his vehicle was insured with New India Insurance Company Limited. The said amount of compensation could not have been altered by the Tribunal. Therefore, the Tribunal has erred in holding that the claimant was entitled to only Rs.2,000/- which is farce-able amount. The Tribunal held that the rate of interest would be from the date of award which is also not permissible. The concept granting interest is as per Section 171 of the Motor Vehicles Act, which reads as follows:-
"171. Award of interest where any claim is allowed.-- Where any Claims Tribunal allows a claim for compensation made under this Act, such Tribunal may direct that in addition to the amount of compensation simple interest shall also be paid at such rate and from such date not earlier than the date of making the claim as it may specify in this behalf."
and, therefore, the Tribunal has committed an error in granting interest only from the date the Insurance company was impleaded. The interest was already ordered to be paid from the date of claim petition by order dated 27.4.2000, therefore, non-grant of interest is perverse. The Insurance company has to be saddled with entire liability to indemnify the claimant if it feels that there is some dispute between the Insurance company and the owner. Non-joining of Insurance company is not fatal for grant of interest.
11. The Tribunal in this case has not exercised its judicial discretion. In this case, there was no delay on the part of the appellant as it was informed that United India was the Insurance company and this information was given by the owner of the vehicle. If it was wrongly given, the claimant cannot be made to suffer. The first point of time when they came to know that it was New India Insurance Company Limited, an application was immediately moved so as to implead it as a party - respondent.
12. The owner of the Truck never appeared before the Tribunal and as the motorcyclist was not held to be at all negligent, the burden shifted on the owner of the Truck. The said decision was rendered on 27.4.2000 by Sri N.B. Singh, IInd Addl. District Judge, Deoria, who in paragraph no.13 held as follows:-
"Km. Rinku was 17 years of age at the time of accident. She had received grievous injuries whose descriptions have already been mentioned in the body of this judgment earlier and it has also been stated that she should obtain quite a handsome amount of compensation as her leg and hand both were fractured. The amount of compensation has been claimed which is excessive. According to the provisions mentioned in Schedule-II of the M.V. Act, she is entitled for Rs.15,000/- towards medical expenses, Rs.5,000/- for injuries sustained by her but for loss of her future life she is awarded Rs.80,000/- (eighty thousand) so that she may spend her life easily in future. Thus, the total amount of compensation which she can claim shall be Rs.1,00,000/- (one lakh) payable by Opp.party no.1. Over this amount she can claim interest at the rate of 12% per annum with effect from the date of presentation of claim petition i.e. 20.12.1996 till the entire sum is paid."
13. The applicant and also owner gave an application immediately after she came to know the name of New India Insurance Company. All that the Tribunal had to do was mulcted the liability on the Insurance company instead it started denovo proceeding. The respondent herein - Satnam Singh, owner of the Truck also appeared and gave this factual data and, therefore, there was no point for re-deciding other issues except issue no.2, which reads as under:-
"Issue No.2: Insurance company has alleged in this issue that the driver of the truck had no valid driving licence at the time of accident. The case has proceeded ex-parte against opposite party no.1 who is owner of the Truck. Neither owner of the Truck nor its driver had appeared before this court to say that the driver had valid licence at the time of driving of the truck. Therefore, I decide this issue in favour of Insurance company."
There is no need to rely on Madhya Pradesh High Court (Gwalior Bench) judgment in ICICI Lumbard General Insurance Company Vs. Shanti; Babli; Chunni; Ramwati; Madho Singh and others, 2015 LawSuit (MP) 208, even without considering these decisions as cited by counsel for appellant, this appeal on the factual matrix is to be allowed.
14. The appeal is allowed. The order dated 27.4.2000 awarding compensation will enure for the benefit of the appellant - claimant. She is awarded a sum of Rs.1 Lac with 9% rate of interest from the date of filing of claim petition till the amount is deposited."
21. The Motor Vehicles Act is a beneficial piece of legislation. Had the Tribunal in our case glanced at the x-ray and the photographs produced it would not have made insensitive award. The claimant - appellant is a driver by profession. Looking to the photographs which are before this Court as the record was summoned goes to show that he was his both lower limb were plated there was rods in do the medical Board opined that he had 50% total disability. Even if we believe that there was such excretion rather the functional disability on the judgment which the Tribunal relied would have permitted the Tribunal to at least hold that the injured was 50% disabled.
22. The award will have to be disturbed even on merits .
23. The Insurance Company having not challenged the subsequent finding that it is liable and must have deposited the amount awarded by the Tribunal. In that view of the matter the calculation also requires to be recalculated as even the earlier Tribunal did not consider adding future loss of income . I am supported in my view by the decision in Mushir Ahmad ) supra) and Hari Babu (supra).
24. It is submitted by Sri Vidya Kant Shukla, Advocate that the earlier Tribunal had considered the income of the claimant to be Rs4,000/- and as .his age was 43 years and was in the age group of 40-45. The multiplier of 15 was given. It is submitted that the income should be considered to be Rs.7,000/- per month and the Tribunal should not have deducted other amount looking to the certificate of salary and that he was driver by profession when the accident occurred. It is further submitted that in view of the decision of Apex Court in the case of Raj Kumar ( supra) the disability should be considered to be 100% as he now cannot drive as a skilled driver. Per contra, the learned counsel for the insurance company now contends that even if this Court feels that the subsequent judgment is bad, the award of the compensation granted by the First Tribunal should be considered and that the subsequent Tribunal has also appreciated the matter on facts as it was hearing matter after the decree was set aside.
25. Looking to the totality of the facts and as they emerge the income should be considered as Rs.5000/-- per month to which 25% will be added under the head of future prospect which would come to Rs.5,000/- + Rs.1250/- which is euqal to Rs. 6250/- per month. Even if we do not consider that the injury has caused, 100% disablement but we may fall back on the certificate as given by the Medical Board which would be 50% disablement for body as a whole, Hence, the claimant would be entitled to Rs.3125/-per month as loss of income, which will be further multiplied by 15. The same is also to be multiplied by 12 and the figure would be Rs. 5,62,500/- to which Rs.50,000/- be added under the non-pecuniary head of pain shock and suffering and Rs.84224/- for medical expenses. The claimant over and above would be entitled Rs.25,000/- under the head of good diet, attended charges and transportation. I am supported in my view by the latest decision of Apex Court in the case of Kajal Versus Jagdish Chand and others, 2020 ACJ 1042 (SC) /- . The Apex Court in Chameli Wali Vs. Municipal Corporation of Delhi, (1986) 4 SCC 503 has held that compensation should normally be granted by the High Court exercising powers under Section 173 from the date of filing of the claim petition till realization. In this case the earlier Tribunal granted the amount from the date of the claim petition as there was no delay caused by the claimant herein. The finding is not recorded by the subsequent Tribunal as to how the appellant protected the proceedings. He appeared before the Tribunal even after the application under Orde 9 Rule 13 was filed as is clear from the order passed in the year 2018 allowing the application under Order 9 Rule 13 of the Code. Thereafter the lis was between the owner and the insurance company and, therefore, finding fault with the claimant was perverse finding which is set aside. The total amount Rs.5,62,000/- + Rs.75,000 + Rs.84,224/- would carry interest at the rate of 7.5%. The insurance company to deposit the difference of the said amount within 12 weeks from today.
26. This is claimant's appeal who has felt aggrieved because of the total insensitivity shown by the Tribunal. While allowing the application under Order 9 Rule 13 of C.P. Code. The application was filed by the owner as during the trial he remained absented after filing his written statement and did not file the license of his driver. On issuance of notice, he appeared before the Tribunal, the Tribunal instead of passing order holding the insurance company liable to pay it ventured to review the entire earlier award not even challenged before it nor any averment was made that entire award required to be re-answered. The Tribunal on premise that the appellant herein claimant did not produce or did not examine the doctor and as the Calcutta High Court had cautioned the Tribunal as reiterated by the Supreme Court in Raj Kumar (supra) case totally disbelieved the medical certificate issued by the Medical Board what pains to this Court is that the Tribunal disbelieved the certificate which was believed by the earlier Tribunal which had already granted compensation which was not the lis between the parties now only granted medical allowance, the question is could this have been done, the answer as given above is an emphatic no shows the total insensitivity of the learned Judge rather the Tribunal makes this Court to Penn all this. The factual matrix of the accident having taking place, the involvement of the vehicle and that the claimant had suffered and he was hospitalized and he was already awarded compensation were admitted questions of facts and already decided. The dates and events go to show that after the order of recall the order has been under Order 9 Rule 13, the Tribunal did not call the witness allowed the defendant owner to file copy of x-ray report of the driving licence of his driver and allowed prayer made by him directing the Insurance Company to make the payment. Strangely while passing the award the Tribunal granted interest only from the date of award by returning a finding that the trial was protracted by the claimant. All this perversity are sought to be answered as this appeal filed under Section 173 of Motor Vehicle Act.
27. The aforesaid facts go to show that the Tribunal committed error apparent on the fact of record and only show that the learned Tribunal does not commit such error in future . A copy of ths judgment be sent to learned Tribunal Smt. Mahulika Chaudhary wherever she is posted by the Registry of this Court so that she may be more cautious in future. Because of the error committed by the her the insurance company will now have to pay more amount to the claimants which is recalcuated on the basis of law as its stands today.
28. This appeal is partly allowed.
Further directions
29. A copy of this judgment be placed before the Registrar General for circulating it to the Tribunals so that in future such mistakes do not occur and the pendency of this High Court does not get increased.
30. On depositing the amount in the Registry of Tribunal, Registry is directed to first deduct the amount of deficit court fees, if any. Considering the ratio laid down by the Hon'ble Apex Court in the case of A.V. Padma V/s. Venugopal, Reported in 2012 (1) GLH (SC), 442, the order of investment is not passed because applicants/claimants are neither illiterate or restic villagers.
31. In view of the ratio laid down by Hon'ble Gujarat High Court, in the case of Smt. Hansaguti P. Ladhani v/s The Oriental Insurance Company Ltd., reported in 2007(2) GLH 291, total amount of interest, accrued on the principal amount of compensation is to be apportioned on financial year to financial year basis and if the interest payable to claimant for any financial year exceeds Rs.50,000/-, insurance company/owner is/are entitled to deduct appropriate amount under the head of 'Tax Deducted at Source' as provided u/s 194A (3) (ix) of the Income Tax Act, 1961 and if the amount of interest does not exceeds Rs.50,000/- in any financial year, registry of this Tribunal is directed to allow the claimant to withdraw the amount without producing the certificate from the concerned Income- Tax Authority. The aforesaid view has been reiterated by this High Court in Review Application No.1 of 2020 in First Appeal From Order No.23 of 2001 (Smt. Sudesna and others Vs. Hari Singh and another) while disbursing the amount.
32. Fresh Award be drawn accordingly in the above petition by the tribunal as per the modification made herein. The Tribunals in the State shall follow the direction of this Court as herein aforementioned as far as disbursement is concerned, it should look into the condition of the litigant and the pendency of the matter and not blindly apply the judgment of A.V. Padma (supra). The same is to be applied looking to the facts of each case.
33. The record be sent back to Tribunal.
34. This Court is thankful to learned advocates for arguing and getting matter disposed of.
Order Date :- 23.11.2020 Mukesh