Kerala High Court
United India Insurance Co. Ltd. vs Beena on 15 December, 1997
Equivalent citations: 1999ACJ98
Author: A.R. Lakshmanan
Bench: A.R. Lakshmanan, K.A. Abdul Gafoor
JUDGMENT A.R. Lakshmanan, J.
1. The parties to the above two appeals and the subject-matter of the appeals are one and the same. Hence, both the appeals are heard together by consent of both parties. M.F.A. No 35 of 1991 has been filed by the insurance company which is respondent No. 3 before the Motor Accidents Claims Tribunal. The insurance company filed the above appeal against the award of the Tribunal awarding and fixing total compensation of Rs. 83,000. Since a sum of Rs. 14,500 has already been paid by the owner of the vehicle under Exhs. B 1 to B 5, the balance alone was directed to be paid (Rs. 68,500) by the insurance company. It is contended by the insurance company that under Exh. B 7 the liability of insurance company is only Rs. 50,000 and, therefore, the award, by which the Tribunal directed the insurance company to pay the entire amount of compensation, is illegal. Therefore, it is contended that the award for the insurance company insofar as it exceeds Rs. 50,000 is bad in law.
2. M.F.A. No. 663 of 1991 has been filed by the claimant impleading the driver, owner of the vehicle and the insurance company as respondent Nos. 1 to 3 respectively. According to the claimant, she filed an application claiming compensation for the injuries sustained by her in the accident which took place on 22.9.1986. She averred that in the accident she sustained serious injuries and was hospitalised for months together and a number of major operations were performed on her. The vehicle involved in the accident is a stage carriage bus bearing registration No. KLM 1724. The claimant claimed a sum of Rs. 2,50,000 as compensation. The claimant was examined as PW 1. Exhs. A 1 to All were marked on the side of the claimant. No oral evidence was adduced by the driver, owner or the insurance company. Exhs. B 1 to B 7 were marked on the side of the respondents before the Tribunal. The Tribunal, on a consideration of the materials placed on record and considering the nature of injuries and the period of treatment undergone by the claimant, fixed a total compensation of Rs. 83,000 and after giving the credit to a sum of Rs. 14,500 paid by the owner under Exhs. B 1 to B 5, fixed the liability at Rs. 68,500 on the insurance company. We have perused the entire cause papers and also the award of the Tribunal and the exhibits filed before the Tribunal. Exh. A 1 is the treatment certificate dated 23.2.1990 filed in O.P. No. 245 of 1988. It reads as:
The above mentioned patient was got admitted here on 22.9.1986 after an alleged road accident. Injury: Extensive compound multiple bone fracture of her left leg with almost complete traumatic amputation of just below the knee and also foot drop due to lateral popliteal nerve injury. Peripheral circulation was doubtful and it appeared as if she might lose her leg. Treatments given 22.9.1986: Emergency wound clearance operation and bone fractures were fixed using steel plates. 2.10.1986: Skin-grafting operation.
13.11.1986: Long leg plaster given.
15.11.1986: Discharged.
10.12.1986: Admitted, plaster removed, wounds cleaned and a walking plaster applied. 23.12.1986: Discharged. 6.2.1987: Admitted.
10.2.1987: Bone plate and screws removed by operation due to persistent infection. X-ray showed signs of nonunion at tibia. Long leg walking cast re-applied. 25.2.1987: Discharged with crutches for partial weight bearing.
21.7.1987: External wounds healed. Long leg metallic brace given instead of plaster. Foot drop has recovered. 24.11.1987: Admitted and sequestrectomy operation done.
27.11.1987: Discharged.
29.4.1988: All external wounds have healed well.
25.10.1988: X-ray taken showed cross union of the distal fibula to proximal tibia and this has enabled her to walk unsupported. There is shortening of the leg by 1" which is compensated by an equinus contracture at the ankle. 27.10.1989: X-ray taken shows that the cross union has consolidated. Nonunion of tibia persists. She is able to walk unsupported.
Comments: She has now a disability of 40 per cent due to shortening, scarring and limping.
The above certificate clearly shows that the claimant has sustained extensive compound multiple bone fracture of her leg with almost complete traumatic amputation of just below the knee and also foot drop due to lateral popliteal nerve injury. She was in the hospital for several months. Bone plate and screws were removed by operation due to persistent infection. X-ray showed signs of non-union at tibia. There is shortening of the leg by 1" which is compensated by an equinus contracture at the ankle and that the claimant has a disability of 40 per cent due to shortening, scarring and limping. Before Tribunal other documents were also filed.
3. The Tribunal held that the accident had occurred due to the negligence of the driver. On the question of quantum, the Tribunal, on a consideration of the vouchers and evidence adduced, awarded a sum of Rs. 1,500 as transport expenses and Rs. 16,500 for treatment expenses and disallowed a sum of . 5,000 for extra nourishment. For pain and suffering the claimant claimed a sum of Rs. 50,000. Considering Exh. A 1, the Tribunal awarded a sum of Rs. 10,000. Having held that the claimant had sustained serious injuries and because of the accident she remained unmarried, the Tribunal has not taken into account the 40 per cent disability and the mental agony undergone by the claimant in undergoing treatment for several months in the hospital. The Tribunal has taken into account only a sum of Rs. 275 as the monthly loss and adopting a multiplier of 20, the Tribunal has fixed a sum of Rs. 66,000 as the total loss of income due to the injury and further deducted 16th for meeting the uncertainties of life and awarded the balance of Rs. 55,000 as compensation for permanent disability.
4. We are of the view that the approach made by the Tribunal in awarding the compensation is unrealistic and not satisfactory. As already noticed, the claimant has sustained serious injuries and has also not married because of the accident, At the time of accident she was only 16 years. The interest of justice and fairness will amply be met if we fix the compensation at Rs. 1,00,000 taking into consideration the totality of the circumstances of the case and apportion the same in the manner indicated herein below.
5. Under Exh. B 7, the liability of the insurance company is limited to only Rs. 50,000. The liability of Rs. 50,000 has been clearly mentioned in the policy. Under Section 95 Sub-clause (2) (b) (i) the liability is limited to Rs. 50,000 in all, in respect of persons other than passengers carried for hire or reward. In this case, the claimant was standing at the bus stand waiting for the bus. She, therefore, comes under the category mentioned in Section 95, Sub-clause (2) (b) (i). Learned counsel for the bus owner contended that since it is a comprehensive policy the liability of the insurance company is unlimited and, therefore, the insurance company is liable to pay the entire compensation awarded. We are unable to accept the above contentions of the learned Counsel for the owner of the vehicle. The Supreme Court in New India Assurance Co. Ltd. v. Shanti Bai 1995 ACJ 470 (SC), in an identical case held that in view of the comprehensive policy, the liability of the insurance company is only to the extent as per the statute and the comprehensive insurance does not automatically cover the liability with regard to third party risk for an amount higher than the statutory liability and that only entitles the owner to claim reimbursement for loss and damage to the vehicle.
6. In view of the above rulings, we are of the view that the statutory liability of the insurance company has to be fixed only at Rs. 50,000 as mentioned in the policy and as per the provisions of Section 95, Sub-clause (2) (b) (i) of the Motor Vehicles Act. The balance of Rs. 50,000 by way of compensation shall be paid by the owner and driver of the vehicle. The Tribunal has already given credit to a sum of Rs. 14,500 paid by the owner to the claimant under Exhs. B 1 to B 5, produced by the owner before the Tribunal. Giving credit to the said sum, the balance payable will come to Rs. 35,500. Both the parties shall pay the compensation now awarded together with interest at the rate of 12 per cent per annum from 11.3.1987, the date of filing of the petition, till the date of realisation.
7. Both the appeals are disposed of accordingly and the order of the Motor Accidents Claims Tribunal is modified as above. However, there will be no order as to costs.