Reliance General Insurance Company Limited vs Bharat Mulchand Jain & Anr.

This Appeal under Section 173 of the Motor Vehicle Act (for short ‘MV Act’) takes exception to the judgment and award dated 18/03/2021 passed in MACP No. 62/2017, whereby the injury claim filed ^KADAM by the original claimant came to be allowed directing payment of compensation of Rs.29,96,310/- with interest at the rate of 7% per annum.

It is the case of the Appellant- Insurer that the Tribunal has failed to take into consideration, objections raised by the Insurer to the grant of compensation on the ground that the driver of the offending vehicle was not holding valid and effective license on the date of accident and therefore, the Insurer is not liable to pay compensation. It is further claimed that due to the negligence of the rider of the motorcycle bearing No. MH 02 DP 8113 accident occurred and hence, no liability can be fastened upon the Insurer to pay the compensation to the claimant. It is further claimed that since the motorcycle which was rode by victim is also involved in the accident, only Appellant/Insurer cannot be held liable for the same. It is further claimed that the victim has failed to establish his income and hence, only notional income at the most could have been considered by the Tribunal. It is also claimed that the victim has failed to establish the injuries caused to him. On other grounds exception is taken to the impugned judgment and award.

Learned Counsel for the Appellant Insurer submits that from the police papers it can be seen that the claimant has contributed to the occurrence of the accident. It is his further submission that on the basis of the salary certificate it cannot be accepted that the claimant was drawing salary of Rs.32,000/- and even the income accepted by the Tribunal to the extent of Rs.18,000/- is excessive. He also argued that for want of any evidence in order to prove the medical expenses so also disability, the claim is not sustainable.

Learned Counsel for the claimant opposed the Appeal and sought enhancement of the compensation. To support her submission she placed reliance on the judgment in case of Pappu Deo Yadav v. Naresh Kumar & Others, AIR 2020 SC 4424 which permits grant of enhancement of compensation to the claimant without filing separate Appeal or cross objection. It is contended that there is evidence led before the Tribunal with regard to the expenses required for processes. It is argued that having regard to the age of claimant, and considering the average lifespan, higher amount than the one granted by the Tribunal is entitled to the claimant under this head. It is also claimed that the Tribunal has failed to take into consideration future prospects/income while determining the amount of compensation. It is also claimed that the Tribunal has erred in accepting the disability of the claimant to the extent of 50% when the said disability has been assessed by Dr. Lokare to the extent of 70%. On this submission, enhancement of the compensation is sought. The Insurer has raised number of issues in the written statement for denial of the liability to pay compensation but there is no evidence led before the Tribunal to substantiate the same. The burden upon the Insurer to prove that the driver of the offending vehicle was not having a valid and effective license, however, since there is no evidence led before the Tribunal to prove the said fact, the contention of the Appellant does not deserve acceptance.

As far as the claimant is concerned, he stated into the witness box and depose about the manner in which the accident has occurred. From the cross examination nothing is elicited in order to discard his testimony. In absence of any contrary evidence being led, there no reason to accept any negligence on the part of the claimant in occurrence of the accident. Furthermore, the charge-sheet has been filed against the driver of the offending vehicle and there is nothing on record to indicate that the said charge-sheet has been challenged by the driver at any point of time. Thus, the evidence on record is sufficient to hold that the driver of the offending vehicle was solely responsible for causing the accident.

In so far as the employment and income of the claimant is concerned, apart from examining himself on oath, he led evidence of Bhimraj Jain, partner of Maniratna Jewellers. Learned Tribunal however, has not accepted the said case of the claimant and restricted his income to the extent of Rs.18,000/- per month. In the facts of the case and having regard to the nature of evidence on record, this Court finds no reason to cause interference therein. In view of the judgment in case of National Insurance Company Limited Vs. Pranay Sethi and Ors.,AIR 2017 SC 5157, the Tribunal was required to take into consideration future prospects which has not been taken into consideration herein this case.

In view of the judgment in case Pappu Deo Yadav v. Naresh Kumar & Others (supra) it is settled position of law that even without filing appeal or cross objection, it is open for the claimant to seek enhancement of the compensation. In view of the same, and following judgment in case of Pranay Sethi and Ors. (supra) the claimant is entitled for compensation by adding future prospects.

As far as the nature of injury and disability caused to the claimant is concerned, he suffered amputation of left leg. The medical evidence on record substantiates the nature of injury, medical expenses and the disability caused to the claimant. The objection raised to the testimony of Dr. Lokare is that he was not treating doctor, however, merely because the doctor who had assessed the disability has not treated the injured, the disability assessment cannot be rejected. There is nothing brought on record for the cross examination of Dr. Lokare that he is not expert in assessing the disability. The learned Tribunal has not accepted the disability as assessed by the doctor only on the ground that he is not the treating doctor. This ground for reducing the assessed disability is wholly unjustified. In absence of any challenge to the expertise of the doctor in assessment of the disability, it was not open for the Tribunal to not to accept the same. Having regard to the nature of the injury which has resulted into amputation of the leg it is held that the claimant sustained 70% of permanent disability.

It has come on record that the claimant has spent Rs.1,65,000/- towards artificial leg (prosthesis). There cannot be any dispute with regard to the fact that the artificial leg has life time of about five years maximum. Having regard to the age of the claimant at the time of occurrence of the accident, he would require at least 3 prosthesis legs. The claimant, therefore, is entitled to receive a sum of Rs.1,65,000 x 3 = 4,95,000/-.

Having regard to the above discussion, appeal stands dismissed. However, the judgment and award passed by the Tribunal is modified in the following terms.

In view of this, following order is passed.

In view of disposal of Appeal, pending applications if any, stand disposed of.