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Judgment
K. Govindarajulu
Respondent No. 2 in MVC.No. 328/2000 on the file of the Principal Civil Judge(Senior Division) and MACT Hubli is the appellant. The parties will be referred according to their ranking before the MACT for convenience.
Facts necessary for the consideration of the appeal are as follows:
The case of the claimant is that on 28.8.1999, claimant was travelling in Maruthi Car 800 bearing registration No. MH01/S-6847 on official tour to Goa along with an official Praveen Kumar. On his way back, respondent No. 4 was driving the Maruthi Car. Then, the driver of the Luxury Bus bearing registration No. KA25/A-2096 has driven the vehicle rashly and negligently and hit the Maruthi car on account of it, he sustained injuries, so, seeks for compensation of Rs. 16,00,000/-.
The Insurance Company has resisted the claim of the claimant, in para No. 5 of the written statement filed by the Insurance Company, it calls upon the claimant to prove the accident, its impact, also contend that the police have registered a case against driver of Maruthi Car, so the Company is not liable to pay compensation.
While considering the evidence, the learned Member of the Tribunal has found that the driver of the Maruthi Car and also driver of the Luxury bus both are negligent and quantified the contributory negligence at 50%, directed the Insurance Company to pay the compensation awarded in a sum of Rs. 4,63,500/-.
The learned Advocate for the appellant - Insurance Company vehemently contended that it is the case of the claimant that the driver of the lorry was negligent so, the- Tribunal cannot direct the driver of the insurer of the car to pay the compensation. This is contrary to the pleadings, material assertions in the pleadings. In view of the settled position of law that any amount of evidence without there being pleading, finding given has to be set aside, so seeks for absolving the Company. Also contend that quantum of compensation awarded is on the higher side, as the disability is only 30% to the limb and not to the body, so seek for ordeRs.
On the other hand, learned Advocate for the claimant supports the finding, plead for dismissal of the appeal.
In the light of the above, the accident is admitted, apportionment on the aspect of negligence on the drivers of both the vehicles, quantum of compensation is disputed. So, the Court has to consider these two aspects.
It is true there is force in the submission that any amount of evidence without pleading will not enure to the benefit of a party. If the Insurance Company intended to place reliance on this stand in law as a ground for defence, it had an opportunity to file an application under Order I Rule 10 and seek dismissal of application, but the Insurance Company/appellant herein has not done so. Further, the appellant having participated in the proceedings, it has subjected itself to the jurisdiction of the Court to give a finding on the aspect of negligence also. So, the principles u/s 114 of the Evidence Act are attracted. So, the submission of the learned Advocate for the Insurance Company that the case against the Insurance Company ought to have been dismissed, in view of the stand of the claimant is not attracted in the facts of the case. So, it is rejected.
In regard to the quantum of compensation, the disability certificate marked is Ex.P. 11. It also includes the particulars of the injury as the one referred to in the wound certificate. The particulars narrated in Ex.P. 11 reads as follows:
On X-ray he found to be having:
� Fracture shaft femur lower 3rd Rt.
� Fracture Olecranon Rt.
He was operated with Close Interlocking nailing for femur, Open Reduction tention band wiring for Olecranon on 31.08.1999. He was discharged on 15.09.1999 with 8 weeks bed rest advise.
The Doctor has further certified that the pattern has come to the Hospital on 13.9.1999, 4.12.1999, 12.4.2000 for further treatment. While so, the Doctor assesses the disability of the claimant at 30%. The same is accepted by the learned Member of the Tribunal, quantifies the disability of the whole body at 12% and awards a sum of Rs. 3,24,000/-. Ex.P.13 relied by the claimant is a certificate issued by the Management wherein the claimant is working. Ex.P. 13 discloses the claimant being on sick leave for 169 days. So, it probablize after the sick leave, the claimant has attended the job. This probablize that the claimant has to further prove that there is a reduction in the pay on account of the accident to seek compensation under the head of loss of earning capacity. No such evidence is placed before the Court. Further, Ex.P. 13 do not contain even the date. So, the reasoning of the learned trial Judge at para 22 in assessing the disability at 12% is not called for. It is liable to be set aside. Further, it is the settled law that calculation of the disability to award the loss of earning capacity is a subject which has to be assessed from different angles including the loss of earning capacity and loss of wages. There is no material evidence to show the loss of wages, after the accident so the sum awarded under the head of loss of earning capacity at Rs. 3,24,000/- is not sustainable. So, it is liable to be set aside. Regarding other heads, the compensation awarded do not require interference So, the claimant is entitled for compensation of Rs. 4,63,500 - Rs. 3,24,000= Rs. 1,39,500/-. So, appeal is allowed in part. The excess amount in deposit be paid to the Insurance Company, rest of the amount be transferred to the Tribunal for payment.