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Judgment
1)Heard Mr. S.S. Sharma, the learned Senior counsel, assisted by Mr. B.J. Mukherjee, the learned counsel for the appellant. None appears on call for
the respondents No. 1 to 3 although notices have been duly served, as such, this appeal is heard ex-parte against the said respondents.
2) This appeal under Section 173 of the Motor Vehicles Act, 1988 (hereinafter referred to as “MV Actâ€) is preferred against the judgment and
award dated 21.07.2010, passed by the learned Member, Motor Accident Claims Tribunal, Sivasagar in MAC Case No. 31/2008, by which a
compensation of Rs.5,98,900/- together with interest @ 9% per annum from the date of filing of the claim petition till realization and also cost of
Rs.1,000/- was awarded in favour of the respondent No. 1.
3) The case of the respondent No. 1 in brief is that he was working as a handyman of a truck bearing Registration No. AS-04-E-0229. On 09.12.2007
at about 6.30 pm, the respondent No. 3, namely, Binod Singh, who was driving the truck at a high speed in a rash and negligent manner, destroyed a
police barricade on NH 37 near Dehanpur Gaon under Teok P.S., District Jorhat and then dashed the truck against a tree. As a result of the accident,
the respondent No. 1 suffered multiple injuries and he was taken to Assam Medical College and Hospital, Dibrugarh. After undergoing a prolonged
treatment, both his legs were amputated on 19.12.2007 and he was discharged on 26.03.2008. Hence, the respondent No. 1 prayed for compensation
of Rs.27,94,904/- together with interest @ 15% per annum. The appellant as well as the respondents No. 2 and 3 had contested the claim by filing
their written statement. The respondent No. 2, Sunita Devi Singh, the owner of the offending truck admitted the accident and the employment of the
respondent No. 1 and prayed for exonerating her as her vehicle was insured under “Package Policy†which was valid at the time of the accident.
The respondent No. 3, driver of the vehicle, in his written statement disclosed that the driving licence was valid at the time of the accident. However,
he denied that the vehicle was being driven in rash and negligent manner. He admitted that the respondent No. 1 was having a monthly income of
Rs.3,000/- per month and daily allowance of Rs.50/-. The appellant in their written statement, by taking usual pleas, put the respondent No. 1 to strict
proof of their claim and contested the claim on the ground that the claim was unreasonable.
4) In respect of the claim petition, the respondent No. 1 had examined four witnesses including himself as CW.1 and one Gyan Chand Rai was
examined as CW.2. However, he did not turn up his cross-examination petition. So his evidence was expunged. Shri Khiteswar Kalita, I.O. of the
case was examined as CW.3 and one Gouri Shankar Borgohain, the Medical Officer was examined as CW.4. The following documents were
exhibited, viz., (i) Medical Discharge Certificate receipts, vouchers and prescriptions (Ext.1 to Ext. 54), (ii) FIR (Ext.55), (iii) Accident Information
Report (Ext.56). The appellant did not examine any witnesses.
5) On the basis of the pleadings, the learned Tribunal framed the following issues for adjudication:
(i) Whether there was an accident on 09.12.2007 at about 6.30 pm, near Dehapur, District, Jorhat, involving vehicle No. AS-04-E-0229 due to rash
and negligent driving of the driver?
(ii) Whether the claimant was injured in the accident?
(iii) Whether the alleged offending vehicle No. AS-04-E-0229 was duly insured with the opp. Party No. 3 at the relevant date and time of the
accident? And that
(iv) Whether the claimant is entitled to any compensation? If so, from whom and to what extent?
6) The issues No. 1 and 2 were taken up together. On the basis of the evidence on record, it was held that at the time of the accident, the respondent
No. 1 was sitting in the cabin of the truck by the side of the driver. It was held that the offending vehicle was being driven by its driver in extremely
rash and negligent manner and at a high speed, causing destruction of a police barricade on the road and that he had dashed the offending vehicle
against a road side mango tree and that the respondent No. 1 was under treatment at the Orthopedic Department of AMCH for compound fracture of
both his legs and fracture of his forearm with intercondylar fracture of the left humerus and both were amputated, accordingly both the issues No. 1
and 2 were decided in the affirmative and in favour of the respondent
7) In respect of issue No. 3, the learned Tribunal had held that the vehicle was duly insured at the time of the accident. In respect of issue No. 4, it
was held that the driver was driving the vehicle with a valid licence and on the basis of evidence, it was held that the monthly income of the
respondent No. 1 was Rs.3,000/- at the relevant time and that he was 18 years of age at the time of the accident. It was held that as the respondent
No. 1 had his option to claim under Section 167 of the MV Act, the compensation cannot be restricted in terms of provisions of the Workmen’s
Compensation Act, 1923. Accordingly, on the basis of the evidence of the Doctor while holding that the respondent No. 1 was admitted in a very
serious condition and he was given the following treatment, (i) wound debridgement and external fixation under anaesthesia was done on 13.12.2007,
(ii) B/L and B/K amputations were done on 19.12.2007, (iii) Revision amputation and skin grafting were done on 12.03.2008 and it was held that the
respondent No. 1 had suffered 100% permanent disablement in legs and had become totally immobile and dependent on other for his rest of life.
Hence, by relying on the case of Oriental Insurance Co. Ltd. Vs. Ram Prasad Varma, AIR 2009 SC 1831, the compensation was computed as
follows:
Compensation (Rs.3,000/- X 12 X 16)Â = Rs.5,76,000/-
Medical Expenses  = Rs.17,900/-
Pain and Suffering  = Rs.5,000/-
Total = Rs.5,98,900/-
The respondent No. 1 was also found entitled to cost of Rs.1,000/- and the entire award was ordered to be paid along with interest @ 6% per annum.
8) The learned Senior counsel for the appellant has relied on the case of National Insurance Co. Ltd. Vs. Prembai Patel & Ors., (2005) 6 SCC 172 to
project that notwithstanding the provisions of Section 167 of the MV Act, the liability of the insurer would be restricted to that arising under the
Workmen’s Compensation Act. Therefore, it is submitted that the appellant’s liability to satisfy the award passed by the learned Tribunal
restricted as against them towards such share as may be apportioned to them under the provisions of Workmen’s Compensation Act. Hence, his
implied submissions insofar as the balance award is concerned, the respondent No. 1 would have right to realize the same from the owner of the
vehicle.
9) Having considered the submission made by the learned Senior counsel for the appellant and the trial court’s record is perused.
10) On a perusal of the judgment of the Hon’ble Supreme Court in the case of in the case of Prembai Patel (supra), it is seen in that case the
truck driver while on duty was driving the truck. The arm bolt of the truck broke down and on account of heavy load and the truck overturned and the
driver was killed instantaneously. In that context, the Hon’ble Apex Court by referring to the various provisions of the MV Act including Section
167 thereof, inter-alia, held that as the insurance policy was a policy for “Act Liabilityâ€, under the nature of policy, the liability of the insurer would
be restricted to that arising under the Workmen’s Compensation Act and directed that the insurer would satisfy the award and its liability would be
restricted to that arising under the Workmen’s Compensation Act and that the owners of the vehicle would be liable to satisfy the remaining
portion of the award. The relevant paragraphs No. 16, 17 and 18 are quoted below:
“16. The High Court, in the impugned judgment, has held that if the legal representatives of the deceased employee approach the Motor Accident
Claims Tribunal for payment of compensation to them by moving a petition under Section 166 of the Act, the liability of the insurance company is not
limited to the extent provided under the Workmen's Act and on its basis directed the appellant insurance company to pay the entire amount of
compensation to the claimants. As shown above, the insurance policy taken by the owner contained a clause that it was a policy for ""Act Liability
only. This being the nature of policy the liability of the appellant would be restricted to that arising under the Workmen's Act. The judgment of the
High Court, therefore, needs to be modified accordingly.
The judgment of the High Court insofar as it relates to quantum of compensation and interest, which is to be paid to the claimants (respondent
Nos. 3 to 6 herein) is affirmed. The liability of the appellant insurance company to satisfy the award would be restricted to that arising under the
Workmen's Act. The respondent Nos. 1 and 2 (owners of the vehicle) would be liable to satisfy the remaining portion of the award.
The record shows that no stay order was passed in favour of the appellant. In case the appellant insurance company has deposited the entire
amount awarded by the High Court with the Motor Accident Claims Tribunal or has paid the said amount to the claimants, it will be open to it to
recover the amount, which exceeds its liability under the Workmen's Act, from the owner of the vehicle in accordance with law.â€
11) A perusal of the written statement of the appellant, it is seen that the appellant had not denied that the offending vehicle in question was not
covered by their valid insurance. Merely, the appellant had put the respondent No. 1 to a strict proof that the vehicle was having a valid insurance.
Although the insurance policy is not found to be available in the LCR. However, the appellant is found to have annexed the Certificate of Insurance
along with the memo of appeal. On a perusal of the said Certificate of Insurance, it is seen that the insurance policy was a “Package Policyâ€. The
clause of “limits of liability†as contained in the said certificate, the contents thereof is extracted below: “Limits of Liability:
Under Section-II (i) Death of or bodily injury in respect of any one accident: As per Motor Vehicles Act, 1988.
Under Section-II (ii) Damage to third party property in respect of one claim or series of claims arising out of one event.: Rs.7,50,000/-.â€
12) Therefore, this Court does not find a clause contained in the said certificate that in case of death of or bodily injury, the liability of the appellant
would be restricted to one under the Workmen’s Compensation case as narrated above in the case of Prembai Patel (supra). The nature of
insurance policy in the said case of Prembai Patel (supra) only for “Act Liabilityâ€. Under the circumstances, the Hon’ble Apex Court had
restricted the liability under the Act policy to the extent of compensation payable under the Workmen’s Compensation Act. However, the
distinguishing fact in the present case in hand is that the insurance policy was a “Package Policyâ€. In the opinion of this Court, the ratio of the
case of Prembai Patel (supra) is not found to be applicable and on facts the present case is distinguishable from the facts of the said case of Prembai
Patel (supra).
13) In a very recent judgment of the Hon’ble Apex Court in the case of Jagdish Vs. Mohan & Ors., Civil Appeal No. 2217/2018 (decided on
06.03.2018), the Full Bench of the Hon’ble Apex Court while dealing with the appeal arising out of compensation claim case where both hands of
the appellant who was a carpenter had suffered disability as had suffered 90% permanent disability and his hands were not able to perform any
function, inter-alia, observed in paragraphs 8 and 11 as follows:
“8. In assessing the compensation payable the settled principles need to be borne in mind. A victim who suffers a permanent or temporary disability
occasioned by an accident is entitled to the award of compensation. The award of compensation must cover among others, the following aspects: (i)
Pain, suffering and trauma resulting from the accident; (ii) Loss of income including future income; (iii) The inability of the victim to lead a normal life
together with its amenities; (iv) Medical expenses including those that the victim may be required to undertake in future; and (v) Loss of expectation
of life. In Sri Laxman @ Laxman Mourya v Divisional Manager, Oriental Insurance Co. Ltd , this Court held:
“The ratio of the above noted judgments is that if the victim of an accident suffers permanent or temporary disability, then efforts should always be
made to award adequate compensation not only 2 2011 (12) SCALE 658 5 for the physical injury and treatment, but also for the pain, suffering and
trauma caused due to accident, loss of earnings and victim’s inability to lead a normal life and enjoy amenities, which he would have enjoyed but
for the disability caused due to the accident.†In K Suresh v New India Assurance Company Ltd, this Court adverted to the earlier judgments in
Ramesh Chandra v Randhir Singh and B Kothandapani v Tamil Nadu State Transport Corporation Limited. The Court held that compensation can be
granted for disability as well as for loss of future earnings for the first head relates to the impairment of a person’s capacity while the other relates
to the sphere of pain and suffering and loss of enjoyment of life by the person himself. In Govind Yadav v New India Insurance Company Limited,
this Court adverted to the earlier decisions in R D Hattangadi v Pest Control (India) (Pvt) Ltd., Nizam’s Institute of Medical Sciences v Prasanth
S Dhananka, Reshma Kumari v Madam Mohan, Arvind Kumar Mishra v New India Assurance Company Limited and Raj Kumar v Ajay Kumar and
held thus:
“18. In our view, the principles laid down in Arvind Kumar Mishra v. New India Assurance Co. Ltd. and Raj Kumar v. Ajay Kumar must be
followed by all the Tribunals and the High Courts in determining the quantum of compensation payable to the victims of accident, who are disabled
either permanently or temporarily. If the victim of the accident suffers permanent disability, then efforts should always be made to award adequate
compensation not only for the physical injury and treatment, but also for the loss of earning and his inability to lead a normal life and enjoy amenities,
which he would have enjoyed but for the disability caused due to the accident.†(Id at page 693) 3 (2012)12SCC274 4 (1990) 3 SCC 723 5 (2011) 6
SCC 420 6 (2011) 10 SCC 683 7 (1995) 1 SCC 551 8 (2009) 6 SCC 1 9 (2009) 13 SCC 422 10 (2010) 10 SCC 254 11 (2011) 1 SCC 343 6 These
principles were reiterated in a judgment of this Court in Subulaxmi v MD Tamil Nadu State Transport Corporation12 delivered by one of us, Justice
Dipak Misra (as the learned Chief Justice then was).
In making the computation in the present case, the court must be mindful of the fact that the appellant has suffered a serious disability in which he
has suffered a loss of the use of both his hands. For a person engaged in manual activities, it requires no stretch of imagination to understand that a
loss of hands is a complete 12 Civil Appeal No. 7750 of 2012, decided on 1 November 2012 7 deprivation of the ability to earn. Nothing â€" at least in
the facts of this case â€" can restore lost hands. But the measure of compensation must reflect a genuine attempt of the law to restore the dignity of
the being. Our yardsticks of compensation should not be so abysmal as to lead one to question whether our law values human life. If it does, as it
must, it must provide a realistic recompense for the pain of loss and the trauma of suffering. Awards of compensation are not law’s doles. In a
discourse of rights, they constitute entitlements under law. Our conversations about law must shift from a paternalistic subordination of the individual
to an assertion of enforceable rights as intrinsic to human dignity. The Tribunal has noted that the appellant is unable to even eat or to attend to a visit
to the toilet without the assistance of an attendant. In this background, it would be a denial of justice to compute the disability at 90 per cent. The
disability is indeed total. Having regard to the age of the appellant, the Tribunal applied a multiplier of 18. In the circumstances, the compensation
payable to the appellant on account of the loss of income, including future prospects, would be Rs. 18,14,400/-. In addition to this amount, the appellant
should be granted an amount of Rs. 2 lakhs on account of pain, suffering and loss of amenities. The amount awarded by the Tribunal towards medical
expenses (Rs. 98,908/-); for extra nourishment (Rs. 25,000/-) and for attendant’s expenses (Rs. 1 lakh) is maintained. The Tribunal has declined
to award any amount towards future treatment. The appellant should be allowed an amount of Rs. 3 lakhs towards future medical expenses. The
appellant is thus awarded a total sum of Rs. 25,38,308/- by way of compensation. The appellant would be entitled to interest at the rate of 9 per cent
per annum on the compensation from the date of the 8 filing of the claim petition. The liability to pay compensation has been fastened by the Tribunal
and by the High Court on the insurer, owner and driver jointly and severally which is affirmed. The amount shall be deposited before the Tribunal
within a period of 6 weeks from today and shall be paid over to the appellant upon proper identification.â€
14) On visiting present case, it appears to this Court that the similar fact is being suffered by the respondent No. 1 in the present case. The respondent
No. 1 is a young youth of 18 years at the time of the accident and both of his legs are found to be amputated, it must be presumed that the respondent
No. 1 would be unable to live a normal life together with all amenities and he would be suffering continuous pain and trauma because of the accident
and for person engaged in manual activities, he would definitely suffer complete loss of income in future. Hence, by applying the ratio laid down by the
Hon’ble Supreme Court in the case of Jagdish (supra), this Court does not find any infirmity in the judgment and award passed by the learned
Tribunal in awarding the compensation of Rs.5,98,900/- with cost of Rs.1,000/- along with interest @ 6% per annum from the date of filing of the
claim petition.
15) Accordingly, this appeal fails. The impugned judgment and award dated 21.07.2010, passed by the learned Member, Motor Accident Claims
Tribunal, Sivasagar in MAC Case No. 31/2008 is hereby upheld.
16) The appellant shall now satisfy the balance amount within a period of 1(one) month from today. Upon furnishing the proof of satisfaction of the
award, the Registry may refund the statutory deposit to the appellant.
17) Let the LCR be returned forthwith.