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Judgment
L. Narayana Swamy, J.—The insurer and claimant are in appeal, questioning judgment and award. The Insurer questioned the liability. The claimant seeks for enhancement. Since challenge made by insurer on liability, the case of the insurer is taken at the first instance.
The fact leading to the case are that the injured had met with an accident on 22.01.2012, at about 7.00 p.m., while he was travelling on two wheeler motor cycle bearing No. KA-33/E-9841 as a pillion rider and said motor cycle met with an accident, in which, the claimant has suffered grievous injuries. The brother of the claimant, who happens to be coming on another vehicle on two wheeler, is an eye witness to the said accident and he has filed complaint. The Tribunal by its judgment and award dated 23.1.2014 awarded total compensation of Rs. 19,10,758/-.
The grounds urged by the insurer are that there is a delay in filing the complaint and same is not explained properly, which itself proves false implication of the vehicle in the case, for wrongful claim.
As per the compliant, the accident took place on 22.12.2012 and the complaint was lodged on 23.12.2012 and in the compliant, the complainant had refereed the nature of vehicle as auto. Since the vehicle number was not mentioned in the complaint, there was no occasion for the Investigating Officer to investigate the matter in order to register the case for negligence, as against the autorickshaw driver. However, the owner of the vehicle voluntarily surrendered before the Investigating Officer on 6.2.2013 and on the same day, the vehicle was seized and panchanama was also drawn on the same day. The learned counsel for insurer submits that there was no eyewitness to the accident, except the complainant. So the identification of the vehicle and involvement was very doubtful. Secondly, it is submitted that the vehicle was registered under the Motor Vehicle Rules of Andhra Pradesh and there was no valid permit to enter into the boundary of Karnataka State and for want of permit, the case should have been dismissed by the Tribunal.
The driver of the vehicle was not having any valid driving licence. The Tribunal ought to have looked into the matter. However, awarding compensation is an error and hence impugned judgment is to be set aside.
The learned counsel for the claimant has submitted to dismiss the appeal filed by the insurer, as the owner of the vehicle has surrendered his vehicle on 6.2.2013 and the insurer would have taken steps by examining the Investigating Officer. But since IO is not examined, the facts pertaining to the investigation, cannot be substantiated before this court in respect of the permit the learned counsel submits that the vehicle was not used in the Karnataka State and no violation of permit is committed. Though the owner of the vehicle was in border area of Karnataka-Andhra Pradesh States and the said vehicle was not used for the commercial purpose and it is stated that on behalf of the owner of the said vehicle, it was taken to the garage for repair works and the same is covered U/Sec. 66(p) of Motor Vehicles Act which is an exemption for the purpose of permit and further the owner of the vehicle was having valid driving licence and the insurer could not have raised such questions, since in the cross examination of RW-1 has admitted the fact of having valid driving licence.
Further the learned counsel for the insurer submits that the Tribunal has committed an error in rejecting the application filed for summoning the documents from the owner of the vehicle and he has also made necessary application to examine the RTO of Andhra Pradesh State and the said applications have been rejected and he has issued legal notice to the owner of the said vehicle to produce DL and permit of the vehicle.
We have heard both the learned counsels.
The question raised by the insurer is in respect of delay in lodging complaint, surrendering the vehicle and also drawing the panchanama. It is an undisputed fact that the arrest of the driver of the offending vehicle, production of the documents and drawing of the panchanama is on the same day i.e., on 6.2.2012 and there was an eyewitness to the accident. Be that as it may, when the investigation is in dispute or disputed by the insurer, he should have examined the investigating officer, but no such application is made to summon the I.O. Under these circumstances, the investigation reports or documents cannot be disputed before this court. The non-examination of the Investigating Officer is fatal on the part of the insurer. Hence, the delay in filing the compliant, surrendering of the vehicle and drawing panchanama, cannot be taken into consideration at this stage. Hence, the said submission is rejected.
The learned counsel for insurer has produced copy of the permit in respect of a particular contract carriage given by Transport Department, Andhra Pradesh under Rule 174(iii) of the Andhra Pradesh Motor Vehicles Rules 1989 and condition of this permit, it is referred in condition No. 6 that
Route/Area for which the permit is valid: Within a radius of 60 KMs from the residence of the owner without touching Hyderabad City prohibited to ply on all national High Ways excluding Municipal and Gram Panchayat Limits.
On plain reading of this condition, it goes to show that the vehicle can ply within 60 kilometers from the residence of the owner of the vehicle. Though no materials are placed to prove the residence of the owner of the vehicle, the legal notice issued to the owner of the vehicle, in which the address is refereed and the same is treated that it comes within 60 kilometers radius from the residence of the owner of the vehicle and place of accident. When a permit itself is in dispute by the insurer as referred earlier, the concerned person should have been examined for applicability of the rules under the facts and circumstances of the case. No such efforts are made in examining concerned person from the transport department or I.O.
The submission of the insurer is that his application for summoning the RTO has been rejected. The same would have been challenged, instead of awaiting the order to be passed by MACT. Under these circumstances, the grounds urged by the appellant/insurer in respect of permit, cannot be considered at this stage.
Under Rule 82 of the Motor Vehicles Act, the Tribunal has got powers for summoning the witnesses and also documents. When such is the legal position, rejection of the said application should have been challenged before this court independently, instead of awaiting till the disposal of the claim petitions and under such circumstances, the grounds urged by the insurer have no merit.
Now the appeal filed by the claimant for enhancement of compensation awarded by the Tribunal. The learned counsel for claimant submits that the Tribunal has erred in assessing the disability at 60% as against the doctor''s evidence at 90%. It is submitted that in view of the accidental injury, the claimant is bed ridden and is not in a position to go anywhere without attendant and though doctors have not stated, there is evidence of 90% of disability, that itself shows that the claimant is in a paraplegia position. To substantiate this, the learned counsel for claimant has placed the photograph of injured. In the Tribunal also the photographs and CD were made available. We have seen the photographs and the injured requires an attendant throughout his life and he cannot stand on his leg, walk on plain surface, slips and he cannot climb stairs. There are multiple scares over leg and knee, bone anterior mid tibial of one inch. To prove the disability the claimant has examined the doctors. The injured has sustained grievous injuries, on right tibia and fibula both hip joints, pelvis were fractured besides there was dislocation and disconnection of upper portion of the body. It is seen that the claimant is to be bed ridden throughout his life and he cannot move out from the bed. In the light of the material evidence, we have convinced that the claimant has made out case for enhancement of compensation.
The claimant is suffering from paraplegia and need an attendant for his life and even he cannot move an inch out of bed, without there being any support. On the basis of the same an inference is drawn that he is suffering disability of 100%, accordingly the same is assessed.
The Tribunal has assessed the income of injured at Rs. 6,000/- per month for the accident of the year 2012. Hence, the calculation is 6000 x 12 x 18 = Rs. 2,96,000 and if the same is deducted from the amount already awarded by Tribunal, which comes to Rs. 5,18,400/- and same is awarded under the head loss of future earnings.
Under the head, pain and sufferings, another Rs. 50,000/- has been awarded. Towards attendant charges another Rs. 50,000/- is awarded. In total it comes to Rs. 6,18,400/- in addition to the compensation awarded by Tribunal. The enhanced amount shall carry interest.
As per the direction of this court, the claimant injured was brought before this court by an ambulance stretcher, since he was not able to sit on the wheel chair. The Additional Registrar General, Sri Dharmegoudar was directed to find out his condition. At present the injured was having swelling legs and oozing pus and remained in cathedra in a very weak position.
The learned counsel for the insurer has relied on the decision reported in National Insurance Co. Ltd. Vs. Challa Bharathamma and Others, , where it has been held in para 12 that:
"High Court was of the view that there was no permit, the question of violation of any condition thereof does not arise. The view is clearly fallacious, a person without permit to ply a vehicle cannot be placed at a better pedestal vis-�-vis one who has permit, but has violated any condition thereof. Plying of a vehicle without a permit is an infraction. Therefore, in terms of section 149(2) defence is available to the insurer on that aspect. The acceptability of the stand is a matter of adjudication. The question of policy being operative had no relevance for the issue regarding liability of insurer. High Court was, therefore, not justified in holding the insurer liable."
The insurer is not entitled to take the benefit of judgments, since no evidence and materials were placed and examined in support of validity of the permit for violation of policy. As there is no discussion before the Tribunal and it is not permissible to the insurer to take such ground before this court, since this court cannot record the evidence and cannot mark the documents.
Accordingly, these appeals are disposed of. The amount deposited by the insurance company is ordered to be transmitted to MACT.