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Judgment
Sanjay Yadav, J—Contesting parties are represented.
There is a delay of 16 days in filing this Appeal under Section 173 of M.V. Act, 1988, the condonation whereof is being sought vide I.A. No. 47/2015. Claimant respondent No. 1 is represented. No reply is filed. For the reasons stated in paragraphs 4, 5, 6 and 7 sufficient cause is shown preventing the appellant from filing the Appeal within time. Consequently, delay condoned.
With consent of learned counsel for the contesting parties, the matter is heard.
This Appeal at the instance of Insurance Company is directed against the Award dated 30.7.2014 passed in Motor Accident Claim Case No. 37/2013.
Respondent No. 1/Claimant having sustained injuries on 22.3.2012 in an accident caused by the offending Tractor bearing Registration No. MP47
AG4763 resulting in amputation of both the legs filed the claim case for compensation of Rs. 6,95,000/- on the ground that due to rash and negligent act of the driver of offending vehicle he sustained the injury.
The Claims Tribunal discarding the denial of the allegation of rash and negligent Act by driver and owner, and the defence by the Insurance Company that there was a breach of Insurance Policy, awarded the compensation of Rs. 8,04,706.90/-, holding that the injury was caused by the motor vehicle, accordingly jointly and severally held owner, Driver and Insurance Company liable for compensation.
The Award is being challenged by the Insurance Company mainly on the ground of computation of income and that the victim was traveling on the tractor when accident took place. To substantiate these submissions, learned counsel for the Appellants has relied on the statement of claimant himself deposing that he was asked to stand on rotavator while the Tractor was being operated in the agricultural field. It is contended that this action of the driver in causing the victim to stand over rotavator was contrary to policy.
As regard to contentions that the amount of compensation more than claimed has been awarded in the considered opinion of this Court since the victim had lost both the legs the same resulted in 100% disability. Trite it is that the victim of motor accident are entitled for just compensation.
The Claims Tribunal taking into consideration that the age of the victim being 40 years and was found to have been earning Rs. 150 per day i.e. Rs. 4500/- per month and as there was hundred percent disability and relying on the decision in Raj Kumar Vs. Ajay Kumar and Another, (2011) ACJ 1 : (2011) 2 RCR(Civil) 101 : (2010) 12 SCALE 265 : (2011) 1 SCC 343 : (2011) 1 SCC(Cri) 1161 : (2011) 1 TAC 785 , assessed the compensation in lieu of permanent disability as Rs. 675000/- and by adding Rs. 93456 towards medical expenses, Rs. 5000, towards conveyance Rs. 10000/- towards diet Rs. 11250 towards loss of income and Rs. 10000 towards pain and suffering. Thus the total sum awarded is Rs. 804706/-.
It has been held in Ningamma and Another Vs. United India Insurance Co. Ltd., (2009) ACJ 2020 : AIR 2009 SC 3056 : (2009) CLT 1334 : (2009) 8 JT 262 : (2009) 156 PLR 796 : (2009) 8 SCALE 244 : (2009) 13 SCC 710 : (2009) 8 SCR 683 : (2009) 6 UJ 2949 : (2009) AIRSCW 4916 : (2009) 5 Supreme 127 -
"34 - Undoubtedly, Section 166 of the MVA deals with "Just Compensation" and even if in the pleadings no specific claim was made under Section 166 of the MVA, in our considered opinion a party should not be deprived from getting "Just Compensation" in case the claimant is able to make out a case under any provision of law. Needless to say, the MVA is beneficial and welfare legislation. In fact, the court is duty bound and entitled to award "Just Compensation" irrespective of the fact whether any plea in that behalf was raised by the claimant or not."
In Yadava Kumar Vs. The Divisional Manager, National Insurance Co. Ltd. and Another, (2010) 10 SCC 341 : (2010) 10 SCR 746 -
"15 - It goes without saying that in matters of determination of compensation both the Tribunal and the Court are statutorily charged with a responsibility of fixing a "just compensation''. It is obviously true that determination of a just compensation cannot be equated to a bonanza. At the same time the concept of "just compensation'' obviously suggests application of fair and equitable principles and a reasonable approach on the part of the Tribunals and Courts. This reasonableness on the part of the Tribunal and Court must be on a large peripheral field. Both the Courts and Tribunals in the matter of this exercise should be guided by principles of good conscience so that the ultimate result become just and equitable."
Further it has been held in Kavita Vs. Deepak and Others, (2012) ACJ 2161 : AIR 2012 SC 2893 : (2012) 7 JT 595 : (2013) 169 PLR 140 : (2012) 4 RCR(Civil) 273 : (2012) 7 SCALE 500 : (2012) 8 SCC 604 : (2012) AIRSCW 4771 : (2012) 6 Supreme 261 -
"18 - The term "disability", as so used, ordinarily means loss or impairment of earning power and has been held not to mean loss of a member of the body. If the physical efficiency because of the injury has substantially impaired or if he is unable to perform the same work with the same case as before he was injured or is unable to do heavy work which he was able to do previous to his injury, he will be entitled to suitable compensation. Disability benefits are ordinarily graded on the basis of the character of the disability as partial or total, and as temporary or permanent. No definite rule can be established as to what constitutes partial incapacity in cases not covered by a schedule or fixed liabilities, since facts will differ in practically every case.
In light of the principles laid down in the aforementioned cases, it is suffice to say that in determining the quantum of compensation payable to the victims of accident, who are disabled either permanently or temporarily, efforts should always be made to award adequate compensation not only for the physical injury and treatment, but also for the loss of earning and inability to lead a normal life and enjoy amenities, which would have been enjoyed but for the disability caused due to the accident. The amount awarded under the head of loss of earning capacity are distinct and do not overlap with the amount awarded for pain, suffering and loss of enjoyment of life or the amount awarded for medical expenses."
In the case at hand taking into consideration the nature of injury sustained the compensation award being just, no indulgence is warranted.
As to second contention, the evidence on record reveals that the tractor was being used for cultivation in the agriculture field and during operation whereof, the claimant who was asked to stand on the rotavator to maintain operational balance that due to rash and negligent act of the driver he sustained the injuries. The Claims Tribunal in paragraph 29 has returned following findings-
The finding being based on evidence on record and no perversity having been shown, no indulgence is caused. No other grounds have been raised. Consequently, Appeal fails and is dismissed.
However no costs.