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Judgment
Both these appeals are disposed of by this common judgment.
M.F.A. No. 7648/2005 is filed by the insurer and M.F.A. No. 3888/2005 is filed by the claimants.
The insurer is trying to avoid the liability on the ground that the claimant was travelling as a passenger in a goods vehicle and further the compensation awarded is excessive.
The claimant is in appeal seeking enhancement.
Insofar as the contention regarding liability is concerned, learned Counsel appearing for the insurer would press into service a ruling of this Court in M.F.A. Nos. 6440/2005 and 5333/2005 decided 5.01.2011, which would relate to the same accident, wherein this Court has observed that the insurance company is exonerated from satisfying the amount on the ground that the claimant therein was travelling as a passenger in the goods vehicle. Insofar as the quantum is concerned, he submits that it is excessive and it is to be scaled down.
Learned Counsel appearing for the claimant submits that the claimant has suffered fracture of femur. He further submits that the amount awarded under the heading of pain and suffering and loss of amenities requires modification.
We have perused the papers.
Apparently, the specific case made out by the claimant is that he was a loader in the vehicle in question.
We notice that the vehicle is Swaraj Mazda, which is undoubtedly a goods carrier. We notice that due to the accident, the claimant has suffered the injuries as noted in Exs. P2, P6 and P8.
Indeed, insofar as the actionable negligence is concerned, we notice that the finding recorded by the Tribunal has been confirmed in the other appeal, which has been referred to above. It is not necessary for us to go into the said question. The two questions which would fall for consideration in these appeals, are:
(i) Whether the insurer is liable to satisfy the award?
(ii) Whether the compensation awarded is just and proper?
We propose to take up the second point for consideration inasmuch as what would be the compensation awardable to the claimants in respect of the injuries suffered by him. Indeed, we notice that the injuries suffered by the claimant is fracture of femur. It is his case that he was 45 years and was earning a sum of Rs. 3.000/- p.m. Indeed, the Doctor has spoken to about the resultant disability due to the injury. He has been examined as P.W. 2. Indeed, Exs. P2, P6 and P8 would support the deposition. We notice that the learned member of the tribunal has awarded a sum of Rs. 25,000/- under the heading pain and suffering and a sum of Rs. 10,000/- under the heading loss of amenities. We propose to increase the compensation awardable only under these two heads. Insofar as medical expenses are concerned, the actuals has been paid.
Insofar as the liability is concerned, we notice that a specific averment is made in the claim petition that he was a loader. Undoubtedly, the vehicle in question is a goods vehicle, which requires a coolie or a loader. Indeed, we also notice that it is a package policy, wherein the driver and two others are insured and additional premium has been collected towards two employees. We are of the view that once additional premium is collected in respect of two employees it would also cover the loader. Hence, we are of the view that the insurance company is liable to satisfy the award.
Insofar as the decision, which is pressed into service by the learned Counsel appearing for the insurer, we notice that the specific case made, out by the claimant in the said appeal is that he was travelling in the vehicle as a passenger.
Insofar as the finding recorded by this Court in the said appeals, on facts is proper. But however, that is not the case here. We also notice that there is a suggestion by the counsel appearing for the insurer that the claimant was travelling as a passenger but net as a loader. Indeed, we are of the view that these two facts would clearly indicate that the claimant was a loader. Hence, the insurer is liable to satisfy the claim. Thus, the compensation awardable to the claimants would be as follows:
(i) Pain and suffering Rs. 50,000/-
(ii) Loss of income during the period of treatment
Rs. 8,000/-
(iii) Medical expenses Rs. 20,000/-
(iv) Loss of amenities Rs. 35,000/-
Total Rs. 1,13,000/-
Thus, the total compensation awardable to the claimants would be Rs. 1,13,000/-. Hence, the following order:
(i) Appeal filed by the insurer stands dismissed.
(ii) Appeal filed by the claimant is allowed in part.
(iii) The compensation awardable to the claimant would be Rs. 1,13,000/-.
(iv) The enhanced compensation shall carry interest at the rate of 6% p.a. from the date of petition till the date of deposit.
(v) Insurance Company to satisfy the award.
(vi) Both the appeals stand disposed of accordingly.
(vii) The amount in deposit in M.F.A. 7648/2005 to be transferred to the Tribunal.