New India Assurance Co. Ltd. and Another vs Smt. Indu Nagar and Another

As per R.B. Dixit, J.—Feeling aggrieved by judgment dated 24-8-1995 of Motor Accidents Claims Tribunal, Guna in Claim Petition No. 6/92, the Insurance Company alongwith insured owner of the vehicle have come up in appeal, seeking redress praying for setting aside of award, however, an oral request has been made only of reduction of the amount of compensation.

The learned Counsel of respondent No. 1 has raised a preliminary objection, that the appeal by Insurance Company is not tenable without obtaining permission u/s 173 of the Motor Vehicles Act (for short "the Act") from the Claims Tribunal. However, in our opinion, the Hon''ble Apex Court in its decision in case of United India Insurance Co. Ltd. v. Bhushan Sachdeva and Ors., reported in 2002(1) TAC 621 (SC), has expressed the view that it is open to the Insurance Company to invoke the right u/s 173 of the Act as the insured had failed to appeal against the award passed against him. That being the position, the revision petition filed by the appellant, before the High Court should be treated as an appeal u/s 173 of the Act. In the present case, the owner of the vehicle i. e., insured has also been joined in this appeal with the Insurance Company. The appeal in the circumstances, in our opinion, is maintainable.

The learned Counsel of the appellant has no grudge in so far as the findings of the Claims Tribunal, regarding injuries suffered by claimant are concerned. However, what is disputed is the manner in which the learned Claims Tribunal has assessed the compensation. According to the medical evidence on record, the claimant Smt. Indu Nagar, who was Assistant Professor, in the Govt. Kamla Raja Girls College, Gwalior, was examined by Doctor S.N. Goyal, who found fracture of her spinal cord and there was acute paraplegia below the level of spinal fracture. Functioning of both lower limbs operative scar of about 10" long painful and tender at mid line back from D7 to D L5 level. She requires two stick support for standing and for walk. She also requires back support to sit and stand. She requires foot drop splint support to keep both feet in plantigrade position.

According to Dr. Goyal, the permanent disability was 20% to that of whole body due to fracture of spine and leminectomy operation and 50% disability each of both lower limb due to neurological deficit. On the basis of this medical evidence the learned Counsel of the appellants has submitted that the Trial Court fell in error in awarding compensation meant for 100% disability.

The learned Counsel of respondent No. 1, on the other hand, heavily relying on the decision of this Court in case of New India Assurance Co. Ltd. v. Pradip Kumar and Ors., reported in 2001(1) TAC 597 (MP), contended that in a similar case this Court was pleased to award compensation of Rs. 6,30,000 (Rupees Six lakh and thirty thousand only). However, in this cited case, there was 100% disability. In the facts and circumstances, therefore, the present case is clearly distinguishable from the aforesaid citation.

Applying the formula as laid down in Second Schedule of the Motor Vehicles Act, in Clause 5 (b), in case of permanent partial disablement such percentage of compensation which would have been payable in the case of permanent total disablement as specified under item (a) of Clause 5 is permissible. The learned Claims Tribunal on the count of loss of income came to the conclusion that there was no loss in pay and allowances etc. of the sufferer, however, applied multiplier of 13 on income of Rs. 40,000/- (Rupees Forty thousand only) and assessed compensation as Rs. 4,80,000/- (Rupees Four lakh and eighty thousand only). Since this assessment has been made on the basis of assumption of 100% disability it has to be cut short 50%, ie., Rs. 2,40,000/- (Rupees Two lakh and forty thousand only), adding to it Rs. 1,00,000/- (Rupees One lakh only) as medical expenses and loss of income for a period of one year Rs. 60,000/- (Rupees Sixty thousand only). The total compensation comes to Rs. 4,00,000/- (Rupees Four lakh only).

In so far as interest is concerned, the learned Claims Tribunal has awarded 12% per annum interest, from the date of application. It is submitted by the Counsel for the appellants that the Hon''ble Apex Court in case of Kaushnuma Begum and Ors. v. New India Assurance Co. Ltd. and Ors., reported in 2001 ACJ 428, has held that in view of the reduction of the prevalent rate of interest according to the guidelines of the Reserve Bank, and laid down the criteria of interest at the rate of 9% per annum. Taking into consideration the guidelines of the Hon''ble Apex Court in the case of Kaushnuma Begum (supra), it is directed that in the present case also the claimant is entitled to the interest at the rate of 9% per annum from the date of application on the amount of Rs. 4,00,000/- (Rupees Four lakh only).

In the result, this appeal is partly allowed and it is directed that the claimant is entitled to a compensation of Rs. 4,00,000/- (Rupees Four lakh only) along with interest at the rate of 9% per annum from the date of application. The amount, if any, deposited shall be adjusted accordingly. The remaining amount of compensation should be deposited within two months, failing thereby would entail enhancement of the rate of interest at the rale of 12% per annum.

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