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Judgment
S.K. Kar, J.—Being aggrieved by the judgment and order dated 5.6.2002 passed by the Member, MACT, Aizawl in MACT Case No. 134/99, United India Insurance Co. Ltd. has preferred this petition under article 226/227 of the Constitution of India.
Respondent No. 1. Sh. Lalnunmawia has suffered personal injury and claimed compensation before the Claims Tribunal with the statements that vehicle No. ZRM-9785 (Truck) met with an accident on 6.7.1998 near Vairengte, as a result, he sustained injury and he was hospitalised from 7.7.1998 to 27.8.1998, claiming compensation of Rs. 10 lakhs. Respondent No. 2 Smt. Thangliani was the owner of the offending vehicle.
The claim was contested by the petitioner, seeking relief, as per provision of Section 170 of the Motor Vehicle Act, 1988, on all of any of the grounds available to the owner of the vehicle stating, inter alia, that the claim was not maintainable, wanting in cause of action etc. etc. The allegations were denied together with the submission that the amount of compensation claimed was ''highly exorbitant'' and the victim admittedly being gratuitous passenger in the offending vehicle, there being violation of conditions of Insurance Policy, and defective steering system of offending vehicle as per M.V.I. report, etc., and there was no case of a negligence driving for which insurer cannot be made liable.
The learned Tribunal framed as many as six issues for decision but answered all the issues taking them together in the impugned judgment, finally awarding compensation of Rs. 2,05,290 alongwith 12% interest if and when the award is not satisfied within one month from the date of the order etc.
I have heard learned counsel Mr. A. R. Malhotra appearing for the petitioner as well as Mr. Vanlalenmawia learned counsel appearing for the respondent No. 1. None appeared for the respondent No. 2. Lower Court Records was called for and perused.
The main ground for assailing the impugned judgment and order is that the victim was a gratuitous passenger and was not covered by Insurance Policy and the amount awarded by the Tribunal was ''highly exorbitant'' and there was no proper appreciation of evidence and the interest of 12% was allowed exceeding the prevalent norms of nine per cent per annum.
Considering the entired matter in its proper perspective and taking into account, the submission made before me, I find that after motor vehicle (Amendment) Act, 1994, coming to effect from 14.11.1994 now there is no scope to exclude gratuitous passenger from the Insurance cover. New India Assurance Company Vs. Shri Satpal Singh and Others, As far as factual position in the case, the Insurance Company contested of the claim raising several pleas but no witness was examined by it to substantiate of any of its factual plea save by way of cross-examination of the witnesses examined by the claimant. Thus, there is no specific evidence to show any violation/breach of policy condition. Exhibit 13 is photocopy of the Insurance Certificate which does not contain any such specific provisions about the number of passengers to travel in the vehicle concerned. Therefore, I find on these ground the award of the Tribunal cannot be assailed by the petitioner as contended in course of argument.
It is submitted by the petitioner that the learned Tribunal recorded absolutely no basis for quantifying ''general damages'' at Rs. 2 lakhs. That in spite of the settled principle of awarding interest at 9% p. a. by the Hon''ble Apex Court the Tribunal wrongly allowed interest at the rate of 12% and thereby committed an error.
On perusal of the impugned judgment I find that the learned Tribunal failed to record decisions on each and every issues separately thereby violating the mandatory provisions of law as given by order XIV of C.P.C. It is the settled question of law that if issues are framed, decision is to be recorded on each and every issues with appropriate reasons. However, this omission on the part of the Tribunal will not effect the award on merit and will remain only as a procedural error not effecting the award.
Going through the entire volume of evidence adduced by the claimant, I find that the concerned Police Officer and Doctor have been examined and they have established the case of accident and sustaining of permanent disability by the victim of the accident. The victim himself was not examined as he has lost his voice due to the accident. However, it has been rightly pointed out before me by the petitioner that evidence on record had failed to establish the income of the injured person the same (evidence) being infirmed and not acceptable. The Tribunal did not assess any amount on the head of loss in profits and therefore non-consideration of the evidence in so for quantum of the income is not disturbing the findings in the instant case.
In the context it is to be noted that compensation in personal injury cases is assessed on certain fixed principle and under definite counts of heads'' which are as follow :
"A. Pecuniary loss:
(a) Expenses incurred for treatment etc.
(b) Loss of income and earning due to the sustaining injuries :-
(i) Up to the date of trial from the date of accident.
(ii) Probable in future years due to incapability, etc.
B. Non-pecuniary loss :
(a) Pain and sufferings (including mental shock, etc. for grievous injuries).
(b) Loss of expectation of life.
(c) Loss of amenities in life."
In any case, there will have to be some kind of arbitrariness in the quantification of the compensation under these different heads, because there will be hardly any materials to assess the exact amount on ground of loss of amenities in life or loss of expectation of life or pain suffering, etc., as the case may be. The amount of 2 lakhs granted by the Tribunal may be splited-up in these different heads. It is to be noted here that losing his voice permanently is a fatal blow to the victim of the accident and he should get a scope to avail more sophisticated treatments to try his luck to get back his voice. On that eventuality if a sum of fifty thousand be assessed on the ground of loss of amenities it may not be on the higher side. He has also suffered approximately for one month and 20 days due to hospitalisation which may be quantified as loss of around 10 to 20 thousands. Similarly, an amount of 30 thousands may be assessed on the ground of loss of expectation of life which amounts will approximated total to a sum of Rs. 1 lakh and in that event, it may not be said that the amount assessed by the Tribunal is much on the higher side.
Coming to the question of interest, however, I find that the Tribunal committed a mistake in view of the settled law given by the case of Smt. Kaushnuma Begum and Others Vs. The New India Assurance Co. Ltd. and Others, where it has been held that a rate of interest should not be more than 9% per annum. In a recent judgment also the Hon''ble Apex Court took similar view reported in H.S. Ahammed Hussain and Another Vs. Irfan Ahammed and Another, where it was held that the rate of interest should be 9% from the date of filing the petition till realisation.
In view of the discussion as aforesaid, I find that the award, in the background of the facts stated as above, should be as follows :
"A. Pecuniary loss:
(a) Expenses incurred for treatment etc., Rs. 5,290.00
(b) Loss of income and earnings due to the sustaining injuries :-
(i) Upto the date of trial from the date of accident. ... (no evidence) (ii) Probable in future years due to incapability etc. (for treatment etc.) .... Rs. 50,000.00
B. Pecuniary loss :
(a) Pain and sufferings (including mental shock, etc., for grievous injuries) .... Rs. 20,000.00 (b) Loss of expectation of life .... Rs. 30,000.00 (c) Loss of amenities in life .... Rs. 50,000.00." Rs.1,55,290.00
Allowing a further consideration that the victim is defendant on others for his livelihood and has become permanently handicapped a further allowance may be made raising the sum of compensation to one lakh seventy five thousand including no fault. There should be a direction to keep out of the awarded sum an amount of fifty thousand in fixed deposit for five years, at option of claimant, for extension upto ten years, if advised.
The interest on the awarded sum should be 9% simple interest per annum from date of petition till realisation. It is directed that learned Tribunal will pass orders in the guidelines given in this judgment and award of the learned Tribunal will stand modified and varied to that extent,
Petition partly allowed. No costs.