United India Insurance Company Ltd. vs Varthia Hari

U. Durga Prasad Rao, J.—Challenging the award dated 22.09.2008 in O.P. No. 101 of 2006 passed by the MACT-cum-IV Additional District and Sessions Judge, Fast Track Court, Ranga Reddy District (for short "the Tribunal), the appellant-United India Insurance Company Limited preferred the instant appeal on the ground that the compensation is excessive and exorbitant.

The factual matrix of the case is thus:

a) The claimant is a resident of Budlapur village, Doma Mandal, Ranga Reddy District and working as a mason. His case is that on 20.12.2004 at about 1:30 p.m., he boarded into a Jeep bearing No. AP 23 V 289 to go to Pargi along with others and at about 2:00 p.m., when the Jeep crossed Roopkhanpet, the driver of the Jeep drove the vehicle in a rash and negligent manner and thereby the Jeep turned turtle. The claimant and other passengers suffered injuries. As far as the claimant is concerned, he received multiple injuries all over his body including a major injury to his spinal cord. He was shifted to Pargi General Hospital for first aid and as he received major injury to his spinal cord, he was shifted to Osmania General Hospital and took inpatient treatment from 21.12.2004 to 19.01.2005. He pleaded that due to spinal cord injury, he is unable to sit and walk properly and unable to attend normal work and thus, he lost his source of livelihood. On these pleas, the claimant filed O.P. No. 101 of 2006 against respondents 1 and 2 who are the owner and insurer of the offending jeep and claimed Rs. 3,00,000/- as compensation under different heads mentioned in the O.P.

b) First respondent/owner of the Jeep remained ex parte.

c) Respondent No. 2/Insurance Company opposed the claim and filed counter by denying all the material averments of the claim petition. R. 2 disowned its liability on the ground that as per the insurance policy filed by the petitioner, the crime vehicle is authorized to carry 5 passengers excluding the driver of the Jeep but whereas the FIR given to the police by one of the passengers reveals that there were more than 6 passengers in the crime vehicle excluding the driver and due to overloading the jeep turned turtle resulting in the accident and thereby there is a violation of policy condition. Further, R. 2 denied the method and manner of occurrence of the accident as pleaded in the O.P. R. 2 contended that the alleged accident was not reported by the insured, as such it is not liable to pay compensation. Further, R. 2 denied the age, avocation, income of the deceased and urged to put the claimants in strict proof. Finally R. 2 contended that the claim under different heads is excessive and exorbitant and prayed for dismissal of the O.P.

d) During trial, the claimant himself was examined as P.W. 1 and Exs. A. 1 to A. 10 documents were marked. Policy copy filed by R. 2 was marked as Ex. B. 1.

e) A perusal of the award would show that Tribunal having regard to the evidence of P.W. 1 coupled with documentary evidence such as Ex. A1-F.I.R. and Ex. A2-charge sheet held that the accident was resulted due to fault of the jeep driver.

f) Then coming to the quantum of compensation, the Tribunal having observed that the claimant was a Mason, fixed his monthly income at Rs. 3,000/- and assessed the compensation under different heads as follows:

g) Thus the Tribunal granted Rs. 80,000/- with proportionate costs and future interest @ 7.5% p.a. and held that there was violation of the policy as more than 5 persons traveled in the Jeep at the time of the accident and therefore, R.2 shall pay compensation and recover the amount from R. 1.

Hence, the appeal by the appellant/insurance company.

Heard arguments of Sri K. Dhanunjaya Reddy, learned counsel for appellant and Sri K. Lakshman, learned counsel for respondent No. 1/claimant. None appeared on behalf of respondent No. 2 even though notice was served.

a) Learned counsel for appellant while criticizing the quantum of compensation firstly argued that even though the claimant failed to prove Exs. A. 5 to A. 7 - medical bills still the Tribunal granted Rs. 30,000/- towards medical expenditure which is untenable under law. He relied upon the decision reported in United India Insurance Company Limited Vs. Mohd. Khaj Rasool Sayyed @ Mohd. Khaja Main Shaik and Another, and contended that medical bills and medical documents need to be duly proved to claim compensation which is absent here.

b) Secondly, learned counsel argued that though the claimant has not suffered any disability and not proved his disability by examining the Doctor, still the Tribunal granted Rs. 30,000/- for the alleged disability. In view of the above errors, he argued, the compensation was unduly escalated.

He thus prayed to allow the appeal and reduce the compensation.

Per contra, while supporting the award learned counsel for respondent No. 1/claimant argued that in the resultant accident, the claimant suffered fracture injury to his spine and the claimant took treatment for about one month in the Osmania General Hospital, Hyderabad and considering the grievous nature of injuries and prolonged treatment, the Tribunal granted just and reasonable compensation under different heads and there is no need to review the same. He thus prayed to dismiss the appeal.

In the light of above rival arguments, the point for determination in this appeal is:

Whether the compensation granted by the Tribunal is excessive and needs interference?

POINT: The accident, involvement of the offending jeep and injuries to the claimant are not in dispute. Injuries are concerned, Ex. A. 3-discharge ticked issued by Osmania General Hospital, Hyderabad would show that the claimant took treatment there from 21.12.2004 i.e., on the following day of accident till 19.01.2005. Ex. A. 3 discloses that the claimant suffered spine injury with quadriparesis i.e., diminished activity of the limbs. He was treated conservatively. Where as Ex. A. 4 - medico legal certificate issued by the Government Civil Hospital, Pargi, Ranga Reddy District, wherein the claimant was admitted immediately after the accident would show that the claimant suffered fracture of the hip which is a grievous injury. This is the medical history of claimant.

Now the main argument of the appellant is that the claimant produced Exs. A. 5 and A. 6 - medical bills covering about Rs. 10,400/- said to be issued by S.V. Pooja Hospital and Ex. A. 7-medical bill said to be issued by K.G.N. Ayurvedic Bone Setting Hospital, Mallemoniguda for a sum of Rs. 26,500/- stating that he took treatment in those two hospitals also. However he did not examine any of the doctors concerning to those two hospitals. The Tribunal though observed that Exs. A. 5 to A. 7 are private documents and mere filing is not sufficient and petitioner must examine the author of the bills, however granted Rs. 30,000/- towards medical expenditure without formal proof of Exs. A. 5 to A. 7 which is unjust.

In this regard in the case of United India Insurance Company Limited Vs. Mohd. Khaj Rasool Sayyed @ Mohd. Khaja Main Shaik and Another, it was held that medical certificates and medical bills produced by the claimants require to be proved in the manner provided under Indian Evidence Act. Then coming to the award, in Para 9(iv), the Tribunal no doubt observed that Exs. A. 5 to A. 7 are private documents and so mere filing is not sufficient and the petitioner must examine the author of the bills. It further observed that the petitioner has not examined the author of those bills and so Exs. A. 5 to A. 7 are not proved. Then the Tribunal considering the grievous nature of injuries and cost of living in the year 2004 when the claimant suffered injuries, opined that reasonable amount of Rs. 30,000/-towards medical expenditure and extra nourishment can be awarded which is just and reasonable in its view. Accordingly, the Tribunal granted the said amount towards extra nourishment and medical expenditure. So it is clear that the above amount was granted not basing on Exs. A. 5 to A. 7. In fact Exs. A. 5 to A. 7 would cover an amount of Rs. 36,900/-. However the said amount was not granted by the Tribunal. But considering the nature of the injuries and the cost of medical expenditure and other incidental expenditure, it granted Rs. 30,000/-. Therefore, I see no illegality in it.

The next contention of the appellant is that without the claimant suffering any disability and proving the same, the Tribunal granted Rs. 30,000/- for the alleged disability which is unjust. In this regard, a perusal of Para 9(vi) of the award would show that the Tribunal observed that the petitioner claimed that he suffered disability and not in a position to sit, walk and attend his regular work but he has not produced any proof to that effect. The Tribunal further observed that though there is no medical evidence, since the injury is to the spine, there is every possibility of the injury causing some physical inconvenience to the petitioner and due to the said physical inconvenience, his earning power would be effected. On such observation, the Tribunal granted Rs. 30,000/- under the head loss of earning power due to disability.

In this context, a perusal of the evidence of P.W. 1 would show that he deposed that due to accident he lost his income as he is not in a position to sit, walk, move and attend his regular work. Basing on this evidence, it appears, the Tribunal opined that his physical inconvenience would adversely effect his earning capacity and accordingly granted Rs. 30,000/- as compensation. I am unable to appreciate the observation of the Tribunal in this regard. Physical disability arising out of fracture or dislocation of bone unlike the one arising out of amputation of limb is not visible to naked eye. So a Court cannot come to a conclusion on its own without the help of the medical evidence. Here it appears, the Tribunal assumed the inconvenience arising out of the alleged disability without there being proper medical evidence. The Tribunal placed implicit reliance on the self-serving evidence of the claimant. It must be said that there is no proper evidence to know the alleged physical disability and to quantify the loss of earning power due to the alleged disability. So the claimant does not deserve compensation under this head and therefore, compensation is reduced by Rs. 30,000/-.

In the result, the appeal is partly allowed and the compensation granted by the Tribunal is reduced from Rs. 80,000/- to Rs. 50,000/-. Appellant/Insurance Company shall deposit the compensation amount within one month from the date of this judgment and entitled to recover the same from the 2nd respondent/owner of the Jeep. No order as to costs.

As a sequel, miscellaneous applications if any pending in this appeal, shall stand closed.