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Judgment
S.N. Satyanarayana, J—The second respondent - insurance company in MVC. No. 204/2010 on the file of MACT, Kolar has come up in MFA. No. 10149/2013 challenging the quantum of compensation as well as liability to pay compensation awarded by tribunal. In the said appeal, claimant has filed cross objection No. 24/2014 seeking enhancement of compensation. At the request of counsel for parties, both the appeal and cross objection are taken up for final disposal at the stage of admission since the lower court record is received.
Brief facts leading to appeal and cross objection are as under:
The case of claimant before tribunal is that he was inmate of lorry bearing registration No. AP.05/V.1348. On 1.4.2009 at about 2.45 am., when aforesaid lorry was proceeding towards Chennai from Srinivasapura, near Papangudi GWT Road of Sriperambadu Taluk of Kanchpuram district of Tamil Nadu due to rash and negligent driving of driver of said lorry, it went and dashed against another lorry bearing registration No. KA-08/2485 resulting in fracture of left fibula at proximal 1/3rd and traumatic amputation of right leg to claimant. It is stated that because of aforesaid injuries claimant was hospitalized for 70 days, during which period surgery was conducted to ampute the right leg and so far as left leg is concerned, the same was treated conservatively and said fracture is said to be healed completely. In the claim petition filed by him, the tribunal on appreciation of pleadings, oral and documentary evidence available on record proceeded to allow the claim petition awarding compensation in a sum of Rs. 9,31,500/- and saddled the liability to pay said compensation on the insurer of lorry bearing registration No. AP.05/V.1348 in which claimant was travelling.
The insurer of lorry bearing registration No. AP.05/V.1348 being aggrieved by the finding of tribunal in fastening liability on it has come up in appeal firstly on the ground that claimant was cleaner of lorry insured with it. Therefore, claimant should be considered under the provisions of W.C. Act but not under Section 166 of M.V. Act. Secondly, he would submit that the liability to pay compensation on it will have to be exonerated on the ground that said lorry was not having valid fitness certificate at the relevant point of time. Thirdly it is the contention of learned counsel that the compensation awarded on various heads is on higher side and the same is required to be reduced.
Per contra, the counsel for cross objector/claimant would submit that though the tribunal has awarded just and proper compensation on all counts, it has failed to award compensation under the head loss of marital prospects, for which no compensation is awarded.
After hearing the learned counsel for appellant-insurer of lorry and cross-objector/claimant it is noticed that as on the date of issuing insurance policy, the insurer knew that fitness certificate would be coming to an end on a particular date. Therefore, the insurer should have restricted the policy only till the date of fitness certificate was valid. When it has extended coverage of policy beyond the period of fitness certificate, it implies that it has accepted to indemnify the liability of owner of lorry even beyond the validity period of fitness certificate. Therefore, having accepted the coverage for said period, it is not open for insurance company to put forth that defence at this length of time to get over its liability. Therefore, that ground is rejected.
(i) So far as second ground which is urged with reference to restricting the claim under W.C. Act provisions, this Court is not agreeable to accept that line of argument, for the reason that in the instant case, the insurance company has accepted wider liability by collecting additional premium. When it has accepted additional premium for wider liability, then it is precluded from pleading that liability should be restricted to provisions of W.C. Act. Therefore, even second ground does not hold water.
(ii) Now coming to third ground regarding quantum of compensation, for amputation of right leg the tribunal has awarded future loss of earning, loss of amenities in addition to compensation under pain and suffering. While the compensation is awarded under three different heads, compensation under pain and suffering at Rs. 1,50,000/- is on higher side and the same is restricted to Rs. 1,00,000/- by reducing the same by Rs. 50,000/-.
(iii) So far as loss of future earning is concerned, though claimant has examined the owner of lorry by producing certificate issued at a later date as if he was getting salary at the rate of Rs. 5750/-, the same cannot be accepted, for the reason that it is has come into place with the connivance of claimant and owner of lorry under whom he was working. In that view of the matter, this Court feel that in the facts and circumstances the same should be taken at Rs. 5,000/- pm., with loss of earning capacity at 50% and relevant multiplier 16. If the compensation is reassessed accordingly, the claimant is entitled to loss of future earning at Rs. 4,80,000/- as against Rs. 5,52,000/- awarded by tribunal, i.e., another sum of Rs. 72,000/- is required to be reduced on that count.
(iv) So far as loss of income during laid up period is concerned, the same is required to be calculated on the same basis on which loss of future earning is calculated, which would come to Rs. 30,000/- at Rs. 5,000/- pm., for six months instead of Rs. 34,500/- awarded by tribunal, thereby reducing a sum of Rs. 4,500/- on that count.
With this, total compensation which this Court feel awarded in excess on the aforesaid counts is to the tune of Rs. 1,26,500/-.
At this juncture, the argument advanced by learned counsel for cross objector is considered. As urged by counsel for cross objector he is entitled to compensation for loss of marital prospects, for which another sum of Rs. 50,000/- is awarded to claimant. With this, this court hold that the excess compensation which is awarded by the tribunal is only to the tune of Rs. 76,500/- or in other words, total compensation which the claimant is entitled to is in a sum of Rs. 8,55,000/- as against Rs. 9,31,500/- awarded by tribunal.
In that view of the matter, the appeal filed by insurer and cross objection filed by claimant are allowed in part. The judgment and award dated 1.8.2013 passed in MVC. No. 204/2010 on the file of MACT, Kolar is modified.
In view of the appeal of insurer being allowed in part, the amount in deposit to the extent of Rs. 8,55,000/- with interest is ordered to be sent to tribunal for disbursement to claimant. If any excess amount is found, the same shall be refunded to appellant. In the alternative, if there is any shortage in the amount in deposit by the insurer the same shall be deposited by the appellant within four weeks from the date of receipt of copy of judgment in this proceedings.