Kamal vs Shri Gotam and Others National Insurance Company Ltd. Vs Kamal and Others

Arun Bhansali, J.—These appeals are directed against the judgment and award dated 30.05.2007 passed by the Motor Accident Claims Tribunal, Banswara (''the Tribunal''), whereby, the Tribunal has awarded a sum of Rs. 75,636/- alongwith interest @ 6% per annum from the date of filing application for compensation (''the application'') i.e. 29.04.2006 as compensation. While the appellant Insurance Company seeks exoneration from liability to pay compensation, the claimant seeks enhancement of compensation. The facts in brief may be noticed thus : claimant Kamal was standing on the side of the road when respondent Gotam driving a dumper bearing registration No. RJ03/G-1572 collided with him, resulting in grievous injuries to the claimant; an application was filed seeking compensation of Rs. 5,06,000/- with the averments that claimant was aged 35 years and, while2 working as driver, he used to earn Rs. 6,000/- per month as driver and Rs. 1,00,000/- annual by agricultural operations.

A reply to the application was filed by the Insurance Company and the averments contained in the application were denied; it was also submitted that the driver of the dumper was not in a possession of valid and effective driving licence and the vehicle had no valid permit.

The trial Court framed four issues. On behalf of the claimant, he himself was examined as AW-1 and exhibited 52 documents and on behalf of the Insurance Company NAW-1 C.P. Sharma was examined and insurance policy Exhibit-A/1 was produced.

After hearing the parties, the Tribunal came to the conclusion that the accident occurred on account of rash and negligent driving by driver of the dumper, which resulted in simple and grievous injuries to the claimant; the driver was in possession of valid and effective driving licence; the Insurance Company failed to prove the violation of policy condition relating to valid permit; while assessing the amount of compensation, the Tribunal awarded sum of Rs. 14,636/- as per medical bills, Rs. 45,000/- for permanent disablement, Rs. 10,000/- for physical pain and mental agony, Rs. 6,000/- for attendance, conveyance and diet.

It is submitted by learned counsel for Insurance Company that the Tribunal fell in error in coming to the conclusion that there was no violation of policy condition relating to valid permit and, consequently, the Insurance Company could not have been3 held liable for payment of compensation. Reliance was placed on judgment of Hon''ble Supreme Court in National Insurance Co. Ltd. Vs. Challa Bharathamma and Others, . It was further submitted that the appeal filed by the claimant has no substance as the compensation awarded is just and reasonable.

Learned counsel for the claimant submitted that the award of compensation is wholly inadequate and the same deserves to be enhanced keeping in view that the claimant has suffered 21% disablement and, as he was working as a driver, he cannot undertake the said work any more. It was submitted that the Insurance Company has failed to produce any evidence in support of its contention regarding lack of valid permit and, therefore, the Tribunal was justified in holding the Insurance Company liable for payment of compensation.

I have considered the rival submissions. So far as the issue raised by the appellant Insurance Company regarding absence of valid permit is concerned, it would be seen that the Insurance Company failed to lead any evidence in support of its contention except for a bald statement by NAW-1 C.P. Sharma that the owner of the dumper was not in possession of valid permit. As to what efforts were made by the Insurance Company regarding finding out the fact as to whether the dumper was being operated under a valid permit or not, no word in this regard has been stated by the said witness. In absence of any valid admissible evidence to show that the vehicle in question was being operated without valid permit, it4 cannot be said that the owner of the vehicle has violated the policy condition and, consequently, the Insurance Company cannot be exonerated from its liability. So far as judgment of Hon''ble Supreme Court in the case of Challa Bharathamma (supra) is concerned, violation of policy condition was proved on record in the said case, whereas, there is total absence of such a proof in the present case and, consequently, the said judgment has no application.

Hon''ble Supreme Court in the case of Raj Kumar Vs. Ajay Kumar and Another, has laid down the guidelines for award of compensation in case of permanent disablement and it has been held that while assessing compensation, the Tribunal has to determine as to what extent the permanent disablement has affected the earning capacity of the claimant and not the nature of disablement and the percentage only. In the present case, it is the specific case of the claimant that he was working as a driver and produced his driving licence Exhibit-47 and his passport as Exhibit-48. It was claimed that the injured was earning Rs. 6,000/- per month while working as a driver, however, no cogent evidence was produced to support the amount of salary.

The medical board has found 21% disablement as far as the claimant is concerned and in its report, which was produced as Exhibit-12, it has found said disablement at 12% qua the hip and 9% qua the knee and in total 21% disablement. The disablement of 21% therefore is qua the left lower limb only and for driver of a vehicle, whose disability qua hip and knee is 12% 5 and 9% respectively, it can safely be said that his earning capacity as such driver would be severely impaired.

So far as the income of the injured is concerned, keeping in view that the accident occurred on 06.03.2006 and the fact that the claimant was in possession of a driving licence (Exhibit-47) and a passport as well (Exhibit-48), which clearly indicate that his prospects of working as a driver were bright, which were severely impaired.

The claimant was aged 35 years at the time of accident and, therefore, in overall facts and circumstances of the case, the income of the claimant is assessed at Rs. 3,600/- per month and on account of the said disablement, the claimant would be entitled to 3600 x 12 x 16 x 21/100 = 1,45,152/- towards permanent disablement and the award passed by the Tribunal awarding a sum of Rs. 45,000/- only towards permanent disablement stands modified. The award of compensation under other heads does not call for any interference as the same is just and reasonable in the facts and circumstances of the case. Consequently, the appeal filed by the Insurance Company is dismissed and the appeal filed by the claimant is partly allowed. The award impugned passed by the Tribunal is modified to the extent that the claimant would be entitled to a sum of Rs. 1,75,788/- as compensation alongwith interest @ 6% per annum from the date of filing application i.e. 29.04.2006. The amount of compensation be paid by the Insurance Company to the claimant within a period of two months. No costs.