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Judgment
With the consent of learned counsel for the parties, the present appeals are being heard and decided by this common order as both the appeals arise
out of the same accident and common judgment.
The present appeals (one filed by Insurance Company and another filed by the claimant) have been filed against the judgment and award dated
03.10.2018 passed by learned Family Court, Banswara in Motor Accident Claims case No.217/2017 (Old No.471/2013) whereby the Tribunal
awarded a sum of Rs.7,88,453/- in favour of the claimant with an interest @ 9% p.a. Brief facts of the case are that on 07.03.2012 at around 07:30
pm, Suresh while traveling on motorcycle met with an accident was dashed by Motorcycle No.RJ 03 SJ 0322 coming from opposite direction. The
said motorcycle was driven rashly and negligently by its rider. In the accident, claimant Suresh Chandra Daanger sustained multiple injuries and was
taken to the hospital at Banswara from where he was taken to Baroda at Specialty Center.
In the circumstances, a claim petition was preferred. Learned Tribunal after framing the issues, evaluating the evidence available on record and
hearing learned counsel for the parties allowed the claim petition of the claimant vide its judgment and award dated 03.10.2018 and awarded a sum of
Rs.7,88,453/- as compensation to the claimant-appellant with an interest @ 9% p.a.
The counsel for the appellant Insurance Company has vehemently submitted that the finding of fact recorded by the Tribunal on issue No.3 is not
correct. He further submits that the FIR was lodged on 10.03.2012 for the accident which occurred on 07.03.2012. In the FIR, the motorcycle which
was insured with the appellant has been falsely implicated just for the purpose of getting compensation in the present case. It is also contended that
there is no reasonable explanation for lodging the FIR after a delay of three days and thus, it can safely be presumed that the motorcycle insured with
the appellant has been fixed for getting the compensation in this case. It is also contended that even as per the site plan prepared by the police during
the course of investigation (Exp.2), it is clear that there was head on collusion between the two motorcycles. Therefore, the motorcycle insured with
the appellant insurance company cannot be fastened with 100% liability to pay compensation in the present case. The counsel for the appellant has
taken this court to the site plan prepared by the police during the course of investigation and empathetically submitted that the point of contributory
negligence is very much available in the present case but the same has not been considered by the Tribunal. The Tribunal fell in error while awarding
100% compensation against the insurance company. The Counsel further submits that the amount awarded in the present case is also excessive as for
six grievous injuries suffered by the Insured, a lump sum amount of Rs.3,00,000/- in total has been awarded. It is further contended that 9% p.a. rate
of interest awarded by the Tribunal on the amount of compensation is also excessive in view of the judgment of Hon'ble Supreme Court in the case of
Anthony V/s the Managing Director, K.S.R.T.C. reported in 2020ACJ 1592, therefore, it is prayed that same may be reduced suitably.
Per contra, supporting the judgment passed by the Tribunal, learned counsel for the claimant-appellant submits that the finding recorded by the
Tribunal on issue No.3 suffers from no infirmity in the light of the judgment of Hon'ble the Supreme Court in the case of Ravi V/s Badri Narayan
relied upon by the Tribunal. Merely delay in lodging the FIR will not defeat the claim preferred by the claimant before the Tribunal. It is also
contended that the Tribunal has rightly taken into consideration the site map prepared by the police during the course of investigation and rightly
concluded that there was complete negligence on the part of the Motorcycle insured with the appellant Insurance Company causing the accident in
which injured Suresh Chandra had sustained grievous injuries. He further submits that the finding of fact recorded by the Tribunal does not require any
interference. It is also contended that injured Suresh Chandra is registered as a Homeopathic Doctor. At the time of the accident, he was practicing
as Homeopathic Doctor and earning a substantial amount. The injured Suresh Chandra was also working on a petrol pump which was owned by his
father and was helping in day to day operations of the petrol pump. Thus, from Homeopathic practice and income derived from Petrol Pump, the
injured was earning an amount of Rs.80,000/- per month and he was also an Income Tax Payee. Thus, the Tribunal has erred while considering
Rs.205/- per day as an income of the injured. Relying upon the judgment of the Hon'ble Supreme Court in the case of Erudhya Priya V/s State
Express Transport Corporation Limited reported at AIR 2020 Sc 4284, the counsel submits that the rate of interest awarded by the Tribunal as 9%
p.a. is perfectly justified. He further submits the Tribunal has erred in deducting an amount of Rs.2,00,000/- on account of personal insurance. He,
therefore, prays that the amount awarded by the Tribunal is meagre and the same is required to be enhanced suitably.
I have considered the submissions made at the bar, gone through the judgment passed by the Tribunal and also perused the relevant record of the
case.
So far as the first point with respect to delay in lodging the FIR is concerned, it is noted that the accident occurred on 07.03.2012 for which an FIR
was lodged on 10.03.2012. The fact that claimant Suresh Chandra was seriously injured and he was taken to the hospital at Banswara and thereafter,
at Baroda was fully proved before Tribunal. In the circumstances, it is presumed that the entire family was involved in the treatment of the injured and
therefore, the delay of three days in lodging the FIR cannot said to be fatal in the present case.
As far as contention of the counsel for the Insurance Company that the Tribunal has committed error in recording the finding that the appellant was
100% negligent for causing the accident. It is seen that in the site plan prepared by the police, the place of accident is shown on the left side of the
road and since the insured motorcycle was coming from opposite direction, it traveled on the wrong side, collision took place on the left side of the
road on which the injured Suresh Chandra was driving his motorcycle. Thus, as per the site plan, it can be presumed that it was the fault of the insured
motorcycle which was coming from the opposite direction and hit the motorcycle of the injured which was being driven on the correct side. Thus, the
observation of the tribunal on issue no.3 cannot be faulted with. For brevity, the observation of the Tribunal on issue No.3 is quoted as under:-
,
(Contributory Negligency) , 2
2
. 1
Contributory Negligency
Thus, the finding recorded by the Tribunal on issue No.3 is just and proper and the same requires no interference by this court.
As far as the contention of learned counsel for the Insurance company with regard to payment of Rs.3,00,000/- for the six grievous suffered by the
injured Suresh Chandra is concerned, it is an admitted position that injured had suffered six grievous injuries. As per the medical documents, the same
is proved beyond doubt. It is also a fact that for the injuries suffered in the accident, the injured remained in the hospital for almost 45 days. Therefore,
the amount awarded towards pain and suffering cannot be said to be excessive. The same is, therefore, held to be an appropriate amount in the
present case.
So far as the contention raised by learned counsel for claimant Suresh Chandra is concerned, it is noted that admittedly no documentary proof in
support of claimant's practicing as a Homeopathic doctor and income derived from Petrol Pump was produced before the Tribunal, therefore, the
Tribunal was perfectly justified in taking into consideration the per day income of the appellant as Rs.205/- i.e. minimum wages of a skilled labour
prevailing at the time of the accident. The argument of learned counsel for the claimant, therefore, is noted to be rejected as no documentary evidence
was produced before the Tribunal. The Tribunal was also justified in deducting an amount of Rs.2,00,000/- which admittedly the claimant had received
on account of his personal insurance, therefore, there is no infirmity on that count committed by the Tribunal.
As far as interest awarded by the Tribunal @ 9% p.a. is concerned, it is observed that the accident occurred in the year 2012 and the claim petition
was filed before the Tribunal in the year 2018, therefore, considering the judgments of the Hon'ble Supreme Court as relied upon by both the parties,
interest of justice will be met if the rate of interest awarded by the Tribunal is reduced from 9% p.a. to 7.5% p.a. from the date of filing the claim
petition till the same is paid.
In view of the discussions made above, the appeal filed by the Insurance Company is partly allowed. The amount of compensation as awarded by the
Tribunal vide its judgment and award dated 03.10.2018 is maintained and the same is directed to be paid by the insurance company to the claimant
with an interest @ 7.5% from the date of the application. The amount of compensation shall be deposited in the saving account of the claimant.
As far as the appeal preferred by claimant Suresh Chandra is concerned, the amount awarded by the Tribunal appears to be a 'just compensation' in
the present case and there is no scope for enhancing the same. Therefore, the appeal filed by the claimant is dismissed being bereft of merit.
The record of the Tribunal be sent back forthwith.