In Shila Datta (supra), the point of maintainability
of a joint appeal by the owner of a vehicle and the insurer came
up for consideration. Their Lordships observed that there was
no dispute that when an award is made by the Tribunal, the
owner of the vehicle, being a person aggrieved, can file an
appeal challenging his liability on any ground or challenge the
quantum of compensation. An appeal which is maintainable
when the owner of the vehicle files it, does not become nonmaintainable
merely on account of the insurer being a co-
appellant with the owner. When the insurer becomes a coappellant,
the owner of the vehicle does not cease to be a
person aggrieved. This question had come up for consideration
in Narendra Kumar v/s. Yarenissa [1998(9) SCC 202] where
it was held that even in the case of a joint appeal of the insurer
and the owner of the offending vehicle if an award has been
made against the tortfeasor as well as the insurer, even though
an appeal filed by the insurer was not competent, it may not be
dismissed as such. The tortfeasor can proceed with the appeal
after the cause-title is suitably amended by deleting the name
of the insurer.
23] In Shila Datta (supra), Their Lordships also
considered the judgment in Chinnama George and others vs.
N.K. Raju and another [(2000)4 SCC 130] where it held that
a joint appeal would not be maintainable and specifically
observed that this issue did not arise for consideration of the
three Judge Bench in Nicolletta Rohtagi (supra), as the
question therein was whether an insurer could file an appeal.
Their Lordships on a careful consideration were of the view that
the decision in the Chinnama George (supra), to the extent it
holds that a joint appeal is not maintainable, did not lay down
the correct law. As observed in Narendra Kumar (supra), the
owner of the vehicle does not cease to be an aggrieved person
merely because the insurer was ultimately liable under the
terms of the policy or under Section 149 of the Act. If the
owner by himself, can file an appeal as an aggrieved person and
such an appeal is maintainable, we fail to understand how the
presence of the insurer as a co-appellant would make the
appeal not maintainable. Whether the owner joins the insurer
or the insurer joins the owner makes no difference to the fact
that the owner continues to be a person aggrieved. When a
joint appeal is filed, to say that the insurer is not an aggrieved
person and the owner of the vehicle would not be an aggrieved
person, would lead to an anomalous situation and border on an
absurdity. Without entering in the question whether an insurer
is an aggrieved person, Their Lordships made it clear that on
account of the insurer being a co-appellant, would not affect the
maintainability of the appeal.
IN THE HIGH COURT OF BOMBAY AT GOA.
First Appeal No.78/2009 WITH
Cross Objection No.14/2009
UNITED INDIA INSURANCE CO.LTD.
Versus
SHRI GULAM MOHAMMAD,
CORAM : NUTAN D.SARDESSAI, J.
PRONOUNCED ON :22/09/2016.
Citation:2016(6) MHLJ 601
1] This is an Insurer's appeal assailing the Award
passed by the learned Motor Accident Claims Tribunal, South
Goa, Margao dated 10.12.2008 pursuant to which the then
learned Presiding Officer, M.A.C.T. Margao allowed the petition
partly holding the first set of the respondents jointly and
severally liable to pay the compensation in the amount of
`7,03,356/- with interest to the claimants and exonerating the
respondents no.4 and 5 from any liability arising from the same
accident. The cross-objections are at the instance of the original
claimant-respondent no.1 feeling aggrieved by the findings of
the learned M.A.C.T. pursuant to which certain amounts were
not awarded in his favour and pressing for a reversal of the
impugned judgment on the limited extent by the grant of the
said benefits in his favour on various heads set out in detail
therein. Suffice it to say that the parties would be referred to
as the Insurer, the claimant and the respondents for brevity's
sake hereinafter.4
2] Shri A.R. Kantak, learned Advocate for the Insurer
gave a brief account of the accident which had taken place on
10.4.2005 at 15.15 hours on NH-17-A allegedly involving the
truck insured with them and the KTC bus owned by the
respondents no.5 and driven by the respondent no.4 in which
the respondent no.1/claimant had suffered grievous injuries.
He adverted to the judgment under challenge, referred to the
Scene of the accident panchanama and the Accident Report
Forms, apart from the evidence and submitted that the claimant
had failed to show the rashness and negligence of the vehicle
insured with them resulting in the accident. Quite on the
contrary, the accident was an outcome of the fast speed,
rashness and negligence of the KTC bus driver and that of the
motorcycle rider which had resulted in the accident.
3] Shri A.R. Kantak contended that on the quantum
too, the learned MACT had been more than generous in granting
the compensation to the claimant on the head of permanent
disability even though the claimant did not suffer any
impediment in his business despite the 50% permanent
disability. The learned MACT had also committed an error in
considering the income relied upon on behalf of the claimant
which was for the Accounting Year 31.3.2004 when it should
have been counted as 31.3.2005 and 31.3.2006 considering the5
date of the accident as 10.4.2005. These Income Tax Returns
were suppressed and, therefore, an adverse inference had to be
drawn against the claimant. On all these parameters, the
impugned judgment on the aspect of the rashness and
negligence fastened on their vehicle driver had to be released
and the appeal allowed in their favour.
4] Shri S.S. Kakodkar, learned Advocate for the
original claimant adverted to the pleadings, both in the petition
as well as in the written statement filed in defence and
submitted that the accident was an outcome of the rashness
and negligence of the truck driver and no fault could be
attributed either to the claimant or to the driver of the KTC bus
who was rightly exonerated by the learned MACT. His next
contention was that the appeal at the instance of the Insurer
was not maintainable and liable to be dismissed as no
permission was sought under Section 170 of the Motor Vehicles
Act, 1988, (“Act” for short). He relied in Narendra Kumar and
another Vs. Yarenissa and others [1997(2)T.A.C.1(S.C.)]
and Royal Sundaram Alliance Insurance Co.Ltd. Vs. Smt.
Hanamava Yamanappa Jedi & Ors. [2014(3) ALL MR 869].
5] Shri S.S.Kakodkar, learned Advocate for the original
claimant invited attention to the Accident Information Reports in6
respect of the vehicles involved in the accident particularly vis-a
-vis the truck and the bus in question and submitted that the
dash of the truck to the bus was amply established on the right
hand side. He adverted to the sketch accompanying the
panchanama, the position of the truck, post accident, and
submitted that the learned MACT had examined in minute detail
the evidence on record unlike requiring a decision on a
preponderance of probabilities and ultimately absolved the KTC
bus driver and the claimant on the aspect of the rashness and
negligence in driving their respective vehicles. He relied in
Kusum Lata & Ors. V. Satbir and Ors. [AIR 2011 SC 1234],
Bimla Devi & Ors. V. Himachal Road Transport Corpn. &
Ors.[AIR 2009 SC 2819] and Jiju Kuruvila and Others Vs.
Kunjujamma Mohan and others [(2013)9 SCC 166] to wrap
up his argument on the aspect of rashness and negligence of
the truck driver.
6] Shri S.S.Kakodkar, learned Advocate also adverted
to the other evidence on record vis-a-vis the non-consideration
of the vital evidence by the learned MACT qua the different
heads of entitlement of the claimant and submitted that the
learned MACT had not properly appreciated his case and,
therefore, his cross-objections were maintainable and necessary
amounts had to be awarded in his favour. He relied in Sarla7
Verma Vs. Delhi Transport Corporation & Anr. [2009 (4)
ALLMR 429 (S.C.)], K.Suresh Vs. New India Assurance
Company Limited and Another [(2012) 12 SCC 274], Sunil
Kumar Vs. Ram Singh Gaud and others [(2007) 14 SCC 61]
and Raj Kumar Vs. Ajay Kumar and Anr. [2011 (1) ALLMR
402 (S.C.), while pressing for the enhanced compensation. Shri
J. Ramaiya, learned Advocate for the respondent no.4 submitted
that the learned MACT had rightly exonerated the respondent
no.4 and therefore, the impugned judgment did not warrant any
interference in appeal.
7] Shri A.R. Kantak, learned Advocate for the Insurer
in reply once again reiterated that the accident was an outcome
of the rashness and negligence of the KTC bus driver and the
claimant also by adverting to the evidence of the truck driver
and the claimant. His contention further was that even in
accepting the claimant's case that he was riding the motorcycle
behind the bus, it was a case of a contributory negligence at his
instance as otherwise it was inconceivable that the truck could
dash the motorcycle after going to the wrong side of the road
after dashing against the KTC bus. He relied in United India
Assurance Company Limited Vs. Shila Datta and others
[(2011)10 SCC 509]. He once again adverted to the Income Tax
Returns and submitted that there was no evidence on the loss8
of income nor any basis in the Award of the learned MACT to
grant the compensation towards the loss of income. There was
no material available on record to entertain the cross-objections
and allow the compensation on the various heads claimed by
the claimant. The amounts were not rightly awarded in the
absence of any bills and, therefore, the cross-objections had to
be dismissed.
8] The claimant had carved a specific case that he was
proceeding from the bridge towards Vasco on his motorcycle
bearing registration no. GA-06-B-0710 at a moderate speed
behind the KTC bus driven by the respondent no.4 and by
maintaining a safe distance between the two. The tipper truck
insured with the Insurer and driven by the respondent no.1
came at a fast speed, in a rash and negligent manner from the
opposite direction and all of a sudden, the tipper truck went to
its wrong side and brushed against the right rear portion of
the body of KTC bus. The KTC bus driven by the respondent
no.4 in a rash and negligent manner without even signalling
suddenly slowed down the bus and in that process the
claimant who was behind the bus applied the brakes of his
motorcycle as a matter of precaution. However, before he could
stop his motorcycle, the right front side bumper of the truck
which came brushing against the bus collided against his front9
wheel. His motorcycle was pushed behind which fell across the
road at a distance of five mts. facing towards Panaji and its
front wheel was detached. He had fallen off his motorcycle in
that process and sustained injuries entitling him to the amount
claimed in the petition on the various heads.
9] The driver of the truck and the owner had taken a
plea that a Maruti car followed by the KTC bus and the
motorcycle driven by the claimant were proceeding towards
Vasco while the tipper truck was driven by the respondent no.1
and proceeding towards Cortalim. On reaching Sancoale where
there is a culvert, the Maruti car which was in front of the KTC
bus suddenly stopped due to which the bus slowed down and
the claimant who was riding the motorcycle behind the KTC bus
at a fast speed could not control his vehicle resulting in a dash
to Kadamba bus in front of him on the right hand back side and
slipped and dashed against the oncoming tipper truck driven by
the respondent no.1. The truck was driven at a slow speed and
could not pass through the culvert on the road because of the
accident. In short, the respondents no.1 and 2 disputed the
rashness and negligence of the truck driver in the accident.
10] The respondents no.3 who are the Insurer herein
had restricted their defence to that pleaded by the respondents10
no.1 and 2 and restricted their liability to the terms of the
Insurance Policy issued in favour of the respondent no.2. The
respondents no.4 and 5 had specifically taken a plea that the
bus in question was not at all involved in the accident and that
it did not come in contact with the claimant's motorcycle.
Rather the tipper truck coming from the opposite direction gave
a dash to the motorcycle driven by the claimant and there was
no contact at all between the bus and the claimant's
motorcycle. The tipper truck initially gave a dash to the bus
and thereafter to the motorcycle which the claimant was riding
right behind the bus and he stopped the bus to see the
damages caused to it. The tipper truck was driven in a rash and
negligent manner, at a very fast speed due to which the driver
lost control, came on the wrong side of the road and gave a
dash to the motorcycle which was driven without keeping a
safe distance. In short, the respondents no.4 and 5 washed off
their hands qua the accident and restricted the cause of the
accident to the acts of the claimant himself and the truck driver.
11] The parties had gone to trial based on the issues
framed by the learned Presiding Officer and in the course of
which several witnesses were examined and the documents
produced to substantiate their individual cases. It would,
therefore, be apt to advert to the evidence to assess whether11
the learned MACT had properly appreciated the material while
fastening the liability on the truck driver and consequently on
the Insurer to pay the compensation to the claimant. Before
considering this aspect of the matter, i would deal with the issue
on the maintainability of the appeal at the instance of the
Insurer considering the plea raised on behalf of the claimant
that no such appeal was maintainable in the absence of any
permission being granted to the Insurer by the Tribunal under
Section 170 of the Act and without the insured being a party to
the appeal.
12] Narendra Kumar (supra), was an appeal by
Special Leave with the group of appeals in view of the cleavage
of authority, with some High Courts taking a view that a joint
appeal by the Insurance Company and the owner or the driver
of the offending vehicle was not competent in its entirety and
the other High Courts taking a view that an appeal of the owner
or the driver of the vehicle would be competent though not joint
appeal i.e. the Insurer's appeal alone may be incompetent. All
these appeals were arising out of a single accident which took
place on 10.6.1987 wherein the taxi-car and the truck were
involved in head-on-collision and all the six persons occupying
the taxi-car died in the accident, five on the spot and one a little
later. Their legal representatives filed the petitions before the12
Motor Accident Claims Tribunal, Jaipur which awarded the
compensation in favour of the legal representatives of all the
victims holding the owner as well as the driver of the truck
liable for damages alongwith the Insurance Company in varying
amounts and besides certain other directions were given.
13] In Narendra Kumar (supra), the owner of the
truck and the Insurance Company filed joint appeals in the High
Court of Rajashthan, Jaipur Bench against the Award and the
claimants also filed appeals for enhancement of the
compensation which were allowed by the High Court. A learned
Single Judge of the High Court held that the joint appeals were
not maintainable at the instance of the owner and the Insurance
Company and directed their dismissal giving rise to an appeal
before a Division Bench of the High Court which came to be
disposed off by the judgment dated 12.4.1993 affirming the
view of the Single Judge giving rise to the appeal by special
leave.
14] In Narendra (supra), Their Lordships of the Apex
Court considered certain relevant provisions of the Motor
Vehicles Act, 1939 (“Old Act” for short hereinafter) namely
Section 95 regarding the requirement of a Policy of Insurance,
Section 96(1) and (2) and observed that the scheme of Section13
96 to the extent relevant therefore, is that before an insurer can
be saddled with the liability to pay the amount awarded to the
claimants, it was necessary that he must have prior notice of
the institution of the proceedings before a judgment is given so
that if he has the defences set out in Clauses (a) to (c) available
to him, he may seek to be joined as a party to the proceedings
and raise all or any of those defences. It was, therefore, obvious
on a plain reading of the aforesaid three sections of sub-section
96 that before an Insurer can be saddled with the liability to
answer judgment, he must have notice of the proceedings and
an opportunity to defend on all or any of the grounds
enumerated in Clauses (a) to (c) of sub-section (2) of Section
96, if the same, in the facts and circumstance of the case, are
available to the Insurer. Once that opportunity is made
available, sub-section (6) of Section 96 contemplates that the
Insurer shall not be entitled to avoid his liability to any person
entitled to the benefit of such judgment otherwise than in the
manner provided by sub-section (2).
15] In Narendra Kumar (supra), Their Lordships next
considered Section 110-C (2-A) outlining the procedure and
powers of the Claims Tribunal constituted under the Act, its
powers to direct the impleadment of the insurer if it is satisfied
that there is collusion between the person making the claim14
and person against against whom it is made or the person
against whom the claim is made has failed to contest the claim.
Their Lordships also considered Section 110-D providing for
appeals and subject to sub-section (2) any person aggrieved by
an award of the Claims Tribunal may prefer an appeal to the
High Court within the prescribed period. It was thus clear on a
plain reading of the aforesaid provisions that the claims must be
preferred against the tort-feasers and notice thereof must go to
the Insurance Company and if all or any of the defences set out
in sub-section (2) of Section 96 are available to the Insurance
Company and it seeks to be impleaded as a party, it may be so
impleaded and allowed to raise all or any of those contentions.
16] In Narendra Kumar (supra), Their Lordships were
equally seized of the fact that the claimants normally make the
Insurance a party to the claim application which by itself may
not confer a right of appeal on the Insurer. The grounds on
which the insurer can defend the action commenced against
the tort-feasers are limited and unless one or more of those
grounds are available, the Insurance Company is not and
cannot be treated as a party to the proceedings and for that
reason the Courts have consistently taken a view that the
Insurance Company has no right to prefer an appeal under
Section 110-D of the Act unless it has been impleaded and15
allowed to defend on one or more of the grounds set out in
sub-section (2) of Section 96 or in the situation envisaged by
sub-section (2-A) and Section 110-C of the Act. The question,
however, was if such a joint appeal is preferred must it be
dismissed in toto or can the tort-feasers, the owners of the
offending vehicle be permitted to pursue the appeal while
rejecting or dismissing the appeal of the Insurer. In the
ultimate, it was held that in their opinion even in case of a joint
appeal by an insurer and the owner of the offending vehicle if
an award has been made against the tort-feasers as well as the
insurer even though the appeal filed by the Insurer is not
competent it may not be dismissed as such and the tort-feasers
can proceed with the appeal after the cause title is suitably
amended by deleting the name of the Insurer and dismissed the
appeals.
17] In Hanamava Yamanappa (supra), a learned
Single Judge of this Court held that where the Insurance
Company was made a party in the claim petition and permitted
to contest the claim petition on merits but it had not obtained
the permission of the Tribunal as required under Section 170(b)
of the Act, held that in absence of such a permission, the
appeal of the Insurance Company challenging the merits of the
award would not be maintainable. In the brief facts, the Insurer
was the respondent no.3 in the petition filed by the respondent
nos.1, 2 and 3 claiming the compensation of `36,00,000/- on
account of the death of her son and the brother of the claimants
no.2 and 3 in a vehicular accident on the stated date and time.
The appellant as the respondent no.3 had denied that the
deceased had died due to the injuries sustained in the accident
and also denied that the deceased was the owner of the two
tipper trucks and having the stated income, that the amount
claimed by the claimants was excessive and exorbitant and the
claimants were not entitled to the compensation as claimed in
the petition though admitting that they had issued a policy in
respect of the tipper truck owned by the respondent no.2.
18] In Hanamava Yamanappa (supra), the Tribunal
found the evidence inspiring and held that the claimants had
proved the rashness and negligence of the truck driver insured
with the appellants and granted the compensation in their
favour. The driver and the owner of the offending vehicle had
not challenged the judgment and award and the appeal was
filed by the Insurer alone when an objection was raised on
behalf of the claimants to the maintainability of the appeal filed
by the respondents no.3-Insurance Company. Reliance was
placed on the judgment of the Apex Court in National
Insurance Company Limited Vs. Nicolletta Rohtagi
[2002(4)ALLMR 874] on behalf of the claimant amongst other
while reliance was placed in United India Insurance
Company Limited Vs. Shila Datta and others [(2011) 10
SCC 509] on behalf of the Insurer.
19] In Hanamava Yamanappa (supra), the learned
Judge considered Nicolletta Rohtagi (supra), where the
question for consideration was where an insured had not
preferred an appeal under Section 173 of the Act against an
award given by the Tribunal, whether it was open to the insurer
to prefer an appeal against the award passed by the Tribunal
questioning the quantum of compensation, as well as the
finding on the negligence of the offending vehicle. The Three
Judge bench of the Hon'ble Apex Court in Nicolletta Rohtagi held
that unless the conditions precedent specified in Section 170 of
the Act were satisfied, an Insurance Company had no right of
appeal to challenge the award on merits. However, in a
situation, where there was a collusion between the claimants
and the insured or the insured did not contest the claim and
further the Tribunal did not implead the Insurance Company to
contest the claim, in such cases it was open to an insurer to
seek the permission of the Tribunal to contest the claim on the
ground available to the insured or to a person against whom a
claim had been made. If the permission is granted and the18
insurer is allowed to contest the claim on merits in that case it
is open to the insurer to file an appeal against an award on
merits if aggrieved. This judgment was however, pending
consideration before the Apex Court in a large number of cases.
20] In Shila Datta (supra), the correctness of the
judgment in Nicolletta Rohtagi (supra) was assailed on the
premise that the liability of the insurer to reimburse the insured
on two premises namely 1) compensation and 2) whose liability
would be to pay, as envisaged under sub-section (1) of Section
149 vis-a-vis the right of the aggrieved persons to prefer an
appeal in terms of Section 173 of the Act, had not been
considered in the backdrop of the history in which sub-section
(1) of the Section 149 was enacted. In view of these questions
raised in the matter, Their Lordships were of the opinion that it
was a fit case where the matter should be referred to a larger
Bench and directed accordingly so that the records of the case
be placed before the Hon'ble the Chief Justice of India for
appropriate orders.
21] In Shila Datta (supra), their Lordships also
formulated questions which arose for their consideration in
regard to the position of an insurer under the Act namely the
insurer can contest the Motor Accidents Claim on merits, in
particular, in regard to the quantum, in addition to the grounds
mentioned in Section 149(2) of the Act for avoiding liability
under the policy of insurance and whether an insurer can prefer
an appeal under Section 173 of the Act, against an award of the
Claims Tribunal, questioning the quantum of compensation
awarded. In view of the points urged by the insurer, Their
Lordships considered the relevant legal provisions namely
Sections 149, 147, 163(A), 168, 170 and 173 of the Act and
observed that the reference to these provisions were to show
that an award by the Tribunal could not be seen as an
adversarial adjudication between the litigating parties to a
dispute, but a statutory determination of compensation on the
occurrence of an accident, after due enquiry, in accordance with
the statute.
22] In Shila Datta (supra), the point of maintainability
of a joint appeal by the owner of a vehicle and the insurer came
up for consideration. Their Lordships observed that there was
no dispute that when an award is made by the Tribunal, the
owner of the vehicle, being a person aggrieved, can file an
appeal challenging his liability on any ground or challenge the
quantum of compensation. An appeal which is maintainable
when the owner of the vehicle files it, does not become nonmaintainable
merely on account of the insurer being a co-
appellant with the owner. When the insurer becomes a coappellant,
the owner of the vehicle does not cease to be a
person aggrieved. This question had come up for consideration
in Narendra Kumar v/s. Yarenissa [1998(9) SCC 202] where
it was held that even in the case of a joint appeal of the insurer
and the owner of the offending vehicle if an award has been
made against the tortfeasor as well as the insurer, even though
an appeal filed by the insurer was not competent, it may not be
dismissed as such. The tortfeasor can proceed with the appeal
after the cause-title is suitably amended by deleting the name
of the insurer.
23] In Shila Datta (supra), Their Lordships also
considered the judgment in Chinnama George and others vs.
N.K. Raju and another [(2000)4 SCC 130] where it held that
a joint appeal would not be maintainable and specifically
observed that this issue did not arise for consideration of the
three Judge Bench in Nicolletta Rohtagi (supra), as the
question therein was whether an insurer could file an appeal.
Their Lordships on a careful consideration were of the view that
the decision in the Chinnama George (supra), to the extent it
holds that a joint appeal is not maintainable, did not lay down
the correct law. As observed in Narendra Kumar (supra), the
owner of the vehicle does not cease to be an aggrieved person
merely because the insurer was ultimately liable under the
terms of the policy or under Section 149 of the Act. If the
owner by himself, can file an appeal as an aggrieved person and
such an appeal is maintainable, we fail to understand how the
presence of the insurer as a co-appellant would make the
appeal not maintainable. Whether the owner joins the insurer
or the insurer joins the owner makes no difference to the fact
that the owner continues to be a person aggrieved. When a
joint appeal is filed, to say that the insurer is not an aggrieved
person and the owner of the vehicle would not be an aggrieved
person, would lead to an anomalous situation and border on an
absurdity. Without entering in the question whether an insurer
is an aggrieved person, Their Lordships made it clear that on
account of the insurer being a co-appellant, would not affect the
maintainability of the appeal.
24] In Hanammava Yamanappa (supra), the learned
Judge of this Court considered the judgment of the Three Judge
Bench of the Hon'ble Apex Court in Shila Datta (supra), where
the questions were framed for consideration namely whether
the insurer could contest the claim on merits in particular with
regard to the quantum in addition to the grounds mentioned in
Section 149(2) of the Act for avoiding the liability under the
Policy of Insurance and whether the insurer could prefer an
appeal under Section 173 of the Act against the award of the
Tribunal questioning the quantum of compensation awarded.
The Hon'ble Apex Court held that when an Insurer is impleaded
as a party respondent to the claim petition as contrasted from
merely being a noticee under Section 149(2) of the Act, its
rights were significantly different. The Act did not require the
claimants to implead the insurer as a party respondent. But if
the claimants chose to implead insurer as party, not being a
noticee under Section 149(2) of the Act, the insurer could urge
all the grounds and not necessarily the limited grounds
mentioned in Section 149(2) of the Act. If the insurer is already
a respondent it need not seek the permission of the Tribunal
under Section 170 of the Act to raise grounds other than those
mentioned in Section 149 (2) of the Act. It further observed
that if the insurer is only a noticee and not a party respondent,
having regard to the decision in Nicolletta Rohtagi it could
defend the claim only on the grounds mentioned in Section 149
(2) and not any grounds relating to the merits available to the
insured respondents.
25] In Hanamava Yamanappa (supra), the learned
Single Judge of this Court also considered the case of Rekha
Jain Vs. National Insurance Company Ltd. And Ors.[2013
ALL SCR 2833] where the insurer was impleaded before the23
Tribunal as a party respondent and the Division Bench of the
Apex Court relying on the judgment in Nicolletta Rohtagi held
that the Insurance Company could not have challenged the
finding without obtaining the permission as required under
Section 170(b) of the Act, to avail the defence of the insured to
contest the case. For that matter, the learned Judge also
considered the judgment in Josphine James Vs. United India
Insurance Co.Ltd. And another [2013 SAR(Civil)1143] where
the insurer was impleaded before the Tribunal as a party
respondent and the Division Bench of the Hon'ble Apex Court
considering the judgment in Nicolletta Rohtagi as well as that in
Shila Datta(supra), held that the ratio of Nicolletta Rohtagi
would still be applicable in the present case. In the ultimate it
was held that the appeal at the instance of insurer was not
maintainable.
26] Considering these judgments in Nicolletta Rohtagi
and Shila Datta of the Three Judge Bench of the Hon'ble Apex
Court, the appeal of the insurer is maintainable without any
leave being sought of the Tribunal under Section 170 of the Act.
27] In Kusum Lata (supra), the Two Judge Bench of the
Hon'ble Apex Court held that where a vehicle driven rashly hit
the victim and sped away it was natural for the brother of the24
victim who was seriously injured and requiring medical aid not
to note the number of the offending vehicle and therefore, the
involvement of the offending vehicle in the accident could not
be doubted. Bimala Devi (supra), held that the claimants have
to establish their case merely on the touchstone of the
preponderance of probability and the standard of proof beyond
reasonable doubt could not be applied.
28] Jiju Kuruvila (supra), held that the mere position
of the vehicle after the accident as shown in the scene mahazar
cannot give substantial proof as to the rashness and negligence
on the part of one or the other. When two vehicles coming from
the opposite directions collide, the position of the vehicles and
its directions etc., depends on a number of factors like the
speed of the vehicles, the intensity of the collision, the reason
for the collision, the place at which one vehicle hit the other
etc. From the scene of the accident one may suggest or
presume the manner in which the accident was caused but in
the absence of any direct or corroborative evidence, no
conclusion could be drawn as to whether there was negligence
on the part of the driver and in the absence of such or direct
corroborative evidence, the Court cannot give any specific
finding about the negligence on the part of an individual. 25
29] The claimant had examined himself setting out his
case as pleaded in the petition and produced the documents
namely the Scene of accident panchanama alongwith the sketch
apart from the extract of the Station Diary and materially the
Accident Report in support of his case on the issue of rashness
and negligence. He had remained unshaken in his crossexamination
that he was at a distance of seven mts. behind the
KTC bus which had stopped and seeing which he had applied
the brakes. At that time the tipper truck came from the right
hand side, dashed against the KTC bus on the right hand side
and thereafter gave a dash to him. He clarified that the tipper
truck gave a dash to the rear right side of the KTC bus and
thereafter dashed against his motorcycle. He had categorically
denied the suggestion put to him at the instance of the truck
driver and the owner apart from the Insurer that he could not
control his motorcycle and gave a dash to the KTC bus resulting
in the accident.
30] The claimant for that matter had categorically
denied the case that after his impact with the KTC bus his
motorcycle went on the right side and dashed against the
oncoming tipper truck and denying altogether the suggestion
that the tipper truck was not driven in a rash and negligent
manner or that he was at fault and responsible for the26
accident. He was equally unshaken on his statement about the
impact of the truck with the KTC bus and denied the suggestion
that there was no impact between the two. The Scene of
accident panchanama reveals the position of the vehicles
involved in the accident namely the truck and the motorcycle
which were more than ten mts. apart and the motorcycle at a
distance of five mts. behind the KTC bus on the road of the
width of eight mts. The Panchanama also reflects that there was
a dent to the right rear portion of the KTC bus on account of the
impact of the truck bumper. There was also a dent to the front
right bumper of the truck.
31] The Accident Report of the tipper truck reveals that
there were scratch marks on the front bumper on the right hand
side and a dent on the front right hand side of the wheel
mudguard fender cover. There was a dent on the right side of
the fuel tank of the motorcycle and the front head light was
broken while there was a dent on the rear mudguard on the
right hand side and materially a dent on the body panel on the
right hand side above the rear bumper at approximately 1.3
mts. from the ground level to the KTC bus in question. In that
context, it was the contention of Shri Kantak, learned Advocate
for the Insurer that the contact of the truck with the KTC bus
was completely ruled out on an appraisal of the damages seen27
on the rear right hand side of the bus. His contention howsoever
appealing does not stand to reason in the face of the very
location of the dent marks and in the absence of any history of
these dents being pre-existing i.e. prior to the accident.
Moreover, the learned MACT had apprised itself of the evidence
led by the claimant and his witnesses and clearly come to a
finding that the accident was an outcome of the rashness and
negligence of the truck driver with no fault of the claimant
and/or the driver of the KTC bus.
32] Parvez (Aw2) examined by the claimant in support
of his case had reiterated in his affidavit that while he was
returning towards Vasco he had noticed his friend standing at
the main four-road junction and given a lift to him. On
reaching Sancoale he had noticed the motorcyclist riding his
motorcycle ahead of him by 10 mts. at a moderate speed in the
direction of Vasco and he followed the motorcycle for about half
a minute or so and maintaining the same distance while driving
his vehicle at a speed 40-45 kms. per hour. He noticed the KTC
bus in front of the motorcycle at a distance of 15–20 mts.
ahead of his car suddenly stop as a tipper truck came from the
opposite direction at a fast speed which gave a dash on the
right side of the KTC bus and he clearly heard the sound of the
impact.28
33] Parvez (Aw2) had noticed the motorcycle rider
riding at a safe distance behind the KTC bus who managed to
stop his motorcycle but nonetheless the tipper driver who
dashed the KTC bus suddenly turned more to the right and
dashed against the motorcycle. There was clear visibility to him
from his car and the motorcycle apart from the KTC bus and
immediately he had applied the brakes and stopped his car on
the extreme left-side of the kutcha portion of the road to avoid
any collision with the oncoming tipper truck. He noticed the
motorcyclist fall off his vehicle on the road and his motorcycle
pushed behind to some distance and only then did he realise
that the motorcycle was of his father and the rider lying injured
on the road was none other than his father. The police had
arrived at the spot shortly thereafter and arranged to shift his
father to the Chicalim Cottage Hospital.
34] There was no reason for the learned MACT to
disbelieve his testimony considering also the fact that on his
version his father was riding the motorcycle with a helmet and
in that situation it is quite understandable that the witness
would not have recognized his father riding the motorcycle
ahead of him. He categorically denied the suggestion that due
to the sudden stopping of the KTC bus, his father who was
riding at a fast speed gave a dash to the bus and in that process29
skidded and dashed against the truck coming from the opposite
direction. From his testimony too, the Insurer was not able to
show that there was any fault either of the KTC driver or of the
claimant himself resulting in the accident.
35] The original respondents had examined the
registered owner of the truck who merely stated that there was
no fault of the truck driver in the accident and against whom
the police had not even filed a chargesheet. The truck driver
was examined as Narayan (Rw2) who buttress his case that the
Maruti car was followed by the KTC bus proceeding towards
Vasco while he was driving the truck towards Cortalim. On
reaching Sancoale where there was a culvert, the Maruti car
ahead of the KTC bus suddenly stopped and due to which the
bus slowed down and the motorcycle driven by the claimant
behind at a fast speed could not control his vehicle and dashed
against the right rear side due to which the motorcycle slipped
and dashed against the truck driven by him. He was not at fault
and the accident was solely due to fault of the motorcycle rider.
36] The respondents no.4 and 5 had examined their
driver Dilip (Rw3) who stated during the cross-examination that
the impact of the truck was on the right rear side of the bus
from the right rear side of the truck while maintaining that the30
truck was driven at a fast speed. Shri Kantak, learned Advocate
for the Insurer picked on this statement at random to show that
the case of the claimant was further improbabalised on the
rashness and negligence of the truck driver but which cannot be
read in isolation in the face of the other clinching material on
record. This witness had maintained that the accident had
taken place exactly at the spot where there was a Five Star
Laundry and maintained that the truck was driven at a fast
speed though he could not spell out its speed. He had
categorically denied the case put to him on behalf of the
claimant that he had stopped his bus without showing any
signal or that there was any negligence on his part. Rather he
had maintained that while he was in the process of taking the
bus to the bus-stop towards his left, the oncoming truck had
dashed against his bus.
37] Dilip (Rw3) had further stated that he had covered a
distance about 1.5 mts. from the culvert which was from the
rear portion of his bus and moreover there were slight scratches
on his bus due to the brushing of the truck on the rear side of
the bus. Shri A.R. Kantak, learned Advocate for the Insurer tried
to split hairs on the premise that his statement on the bus
having covered only 1.5 mts. from the culvert belied the case of
the claimant that the truck was driven at a fast speed, in a rash31
and negligent manner as otherwise the truck driver would not
have been in a position to manoeuvre the truck and halt it on
its left side on the culvert and at barely 10.5 mts. distance from
the motorcycle. Howsoever appealing this argument, it is
inconceivable in the facts borne out from the records. His other
contention that the motorcycle rider could have been overtaking
the bus from behind is also not tenable inasmuch as there was
no plea in defence to that effect and, therefore, such a
contention hypothetically carved out in the course of arguments
cannot stand the test of legal scrutiny.
38] Suffice it to say that he too was unshaken on his
version that he was not instrumental in the accident and even
otherwise on the aspect of any rashness or negligence of the
motorcycle rider. The learned MACT therefore, on a
consideration of the material at large before her had fairly
concluded that the case of the claimant appeared more probable
and that the negligence and rashness of the truck driver was
established and materially there was no rashness and
negligence of the bus driver. This finding of the learned MACT
does not call for any interference at the instance of the Insurer.
What would, therefore, remain for consideration is the challenge
to the Award on the quantum of the compensation awarded in
favour of the claimant and conversely whether the claimant is32
entitled to the enhanced compensation on the premise that
certain heads of expenses were erroneously not awarded in his
favour by the learned MACT.
39] In K.Suresh (supra), the Hon'ble Apex Court
reiterated the concept of just compensation and made a clear
distinction on the payment of the amount towards the
permanent disability and the misconception that no further
amount could be awarded relating to the loss of earning
capacity. Their Lordships held that the view of the High Court
that no compensation can be granted towards the permanent
disability once the compensation is computed for the loss of
earning capacity and loss of future earning was unsustainable.
It considered the judgment in R.D. Hattangadi Vs. Pest
Control (India) (P) Ltd.[(1995) 1 SCC 551) where it had held
that damages could be under the head of pecuniary damages
and non-pecuniary damages and ultimately holding that the loss
of earning capacity had also to be compensated apart from the
loss on account of the permanent disability.
40] In Sunil Kumar (supra) Sunil Kumar was driving his
truck towards Bargi with one Ramesh when a dumper truck
came from the opposite direction in a rash and negligent
manner and hit the mini truck driven by the appellant due to33
which he sustained grievous injuries on his leg and suffered
three fractures including one at the tibia. An F.IR. was lodged
and the claim was filed against the owner of the dumper truck
apart from the Insurance Company before the MACT claiming
the compensation of `8,20,000/-.The Tribunal awarded the
compensation of `45,000/- for the 45% permanent disability
and other amounts with interest till payment giving rise to the
appeal before the High Court of Madhya Predesh at Jabalpur
and dismissed by the impugned order. It was contended on his
behalf that he could not pursue his vocation of driving any
longer and the Tribunal as well as the High court grossly erred
in not awarding the compensation towards the loss of his
earning capacity. Their Lordships found substance in the
submission put forth on his behalf vis-a-vis the Tribunal and the
High Court had not awarded the compensation towards the loss
of future income. This is besides observing that the disability
suffered by him would surely reduce his earning capacity and,
therefore, requiring to be compensated for the loss of earning.
Thus, considering his income, the extent of permanent
disability, the total loss of income was computed at `2,59,200/-
apart from the interest.
41] In Rajkumar (supra), Their Lordships of the Apex
Court held that for assessment of just compensation the34
principles which may be summarised are that all injuries or
permanent disabilities do not result in a loss of earning capacity,
the percentage of permanent disability with reference to the
whole body of a person cannot be assumed to be the
percentage of loss of earning capacity and the doctor who
treated an injured claimant and who examined him
subsequently to assess the extent of permanent disability can
give evidence only with regard to the permanent disability and
the loss of earning capacity is something that will have to be
assessed by the Tribunal with reference to the evidence in its
entirety and finally that the permanent disability may result in
different percentages of loss of earning capacity in different
persons depending upon the nature of profession, occupation or
job, age, education and other factors.
42] Coming to the quantum, the claimant had examined
himself and brought on record the fact that he had suffered
50% permanent disability as per the ALIMCO Scale on account
of the restrictions in the movement of the right knee. This
aspect of his testimony was corroborated by the examination of
Dr. S.S. Nadkarni (Aw8) who had certified that the patient
would face difficulty in brisk walking, climbing, squatting as well
as grasping objects in the left upper limb. Nonetheless he had
maintained that such a person would show improvement with35
physiotherapy and that the claimant had informed that he had
undergone physiotherapy. The claimant had besides stated that
due to nature of the injuries suffered by him he had undergone
massage treatment with Dr. Abhilash Mony and incurred an
expense of `48,000/- and with Dr. Sayad Hasan for
physiotherapy and incurred an expense of `55,500/- apart from
incurring the expenses on transport of `63,450/- and the heads
of attendant charges, hospital bills, medical bills etc.
43] The claimant had produced bills to substantiate his
case and even otherwise there was no singular dispute despite
his cross-examination on the nature and extent of the injuries
suffered by him, the treatment undertaken and the expenses
incurred under various heads but for the bare suggestion that
he had not incurred the expenses and was not entitled to the
compensation in the amount claimed by him. He had examined
Dr.Hasan (Aw3) who had stated that he was running a
Physiotherapy and Orthocare Centre at Vasco Vasco being an
Orthopaedic Consultant and Physiotherapist and the claimant
was regularly attending the physiotherapy treatment with him
from 18.5.2005. The claimant had paid him the total amount of
`55,500/- as his Consultancy charges in two installments of
`28,500/- and `27,000/- and he had issued him the receipts in
the nature of the Certificate. He too was unshaken on the36
amounts received by him from the claimant and the claimant
having undergone the physiotherapy treatment with him.
44] Dr. Moni (Aw5) had reiterated that the claimant was
under his treatment from 16.6.2005 till 20.2.2006 and besides
the treatment, he was supplying Ayurved medicines to the
claimant, who had paid him the total amount of `48,000/-. He
maintained during his cross-examination that he had given
treatment to the claimant who had difficulty in the movement
of his leg and that he had received the money from him towards
the oil massage. Dr. Alberto (Aw7) had confirmed that the
claimant was examined in the Apollo Victor Hospitals where he
was attached as a Consulting Orthopaedic Surgeon and who
had reported with a history of road traffic accident with injuries
to the right knee, injury to the right popliteal artery and open
wounds to the left elbow and long segment avulsion of the left
radial artery. He had vascular injury to the left upper limb and
right lower limb and there was complete disruption of the right
knee joint with global instability. He was unshaken on the
manner and the extent of the injuries suffered by the claimant
and the treatment undertaken at the Apollo Victor Hospitals,
Margao. In that backdrop, the learned MACT had referred to
the testimony of Dr. Alberto (Aw7), held that his testimony was
unshaken in the cross-examination and allowed the amount37
under the head of medical expenses.
45] The learned MACT had however disbelieved the
version of the claimant that he had undergone physiotherapy
treatment despite the fact that he was not required to plead his
evidence and the fact that he had produced two receipts by the
examination of Dr. Sayad Hasan. The learned MACT also chose
to disbelieve his version on the premise that the claimant had
not produced any reference letter from the Apollo Victor
Hospitals to Dr. Sayad Hasan and on that premise disallowed
the amount towards the physiotherapy costs incurred by him.
The learned MACT ought not to have taken a hypertechnical
view and disallowed the claim of the claimant on that head
when there was no singular dispute of the fact that he had
suffered 50% permanent disability. To that extent therefore, the
claim of the claimant is allowed in the amount of `55,500/-
towards the head of physiotherapy treatment juxtapositioned
with the nature and the extent of the injuries suffered by him.
46] The learned MACT was also in error not to grant him
the charges towards the oil massage treatment and assuming
that the said amount was on the higher side, nothing should
have prevented the learned MACT to have made a rough
estimate and awarded a considerate amount on that head. In38
that context, the claimant is awarded an amount of `20,000/-
towards the massage treatment incurred by him having found
the amount of `48,000/- on the higher side and excessive. The
claimant had examined one Shahjahan (Aw6) who had stated
that he had suffered injury to his right knee and was walking
with the help of crutches with great difficulty. His taxi was hired
by the claimant to take him to the hospital and back and also
to the physiotherapy clinics etc., and that for all these purposes
he was paid an amount of `60,000/- in eight installments
towards which he had issued separate receipts to the claimant.
47] Shahjahan (Aw6) had spelt out the particulars of the
vehicle owned by him, assured to produce the ownership
documents and was materially unshaken that his taxi was hired
by the claimant to take him to the hospital and back and for
physiotherapy and related treatments. It was completely lost
on the learned MACT that the claimant had suffered lower limb
injuries for which he could not be expected to travel by public
transport and that he would be required to engage a private
vehicle to take him, back him and forth. There was no basis
therefore for the learned MACT to disallow the bills towards
travelling and which are accordingly awarded in the claimant's
favour. 39
48] The claimant had produced the Income Tax Returns
showing his income at `1,09,711/- for the Accounting Year
31.3.2004. The contention of Shri A.R.Kantak, learned Advocate
for the Insurer was that he had failed to prove the income for
the subsequent Accounting Years and therefore the learned
MACT was in error to give weightage to these Returns and to
award compensation accordingly in his favour. i am unable to
subscribe to the contention of Shri A.R.Kantak, learned
Advocate inasmuch as the earnings of the claimant prior to the
accident would be relevant and a guiding consideration for
computing the loss of income. The learned MACT had
considering 50% disability and the earnings of the claimant
computed his entitlement on that count to `4,38,845.68 which
in my assessment cannot at all be faulted.
49] The learned Tribunal, however, ought to have
considered the loss of income considering the nature and the
extent of these injuries and the resultant disability. The
claimant is, therefore, awarded a reasonable amount of
`2,00,000/- on that head. The learned MACT took a very
restricted view and despite the extent of permanent disability
suffered by him, the various treatments undergone from time
to time awarded him a measly sum of `5000/- towards the pain
and suffering which is enhanced to `50,000/- being just and40
reasonable in the circumstances of the case. Therefore, the
claimant is held entitled to an amount of `11,08,855.54
rounded upto `11,09,000/- being the just compensation in the
circumstances of the case. To that extent the cross-objections of
the claimant are found tenable and accordingly partially allowed
raising the compensation to `11,09,000/- from that awarded
amount by the Tribunal of `7,03,356/- with interest.
50] In the result, therefore, Insurer's appeal is
dismissed and the cross-objections are partly allowed.
NUTAN D.SARDESSAI, J
mukund
Print Page
of a joint appeal by the owner of a vehicle and the insurer came
up for consideration. Their Lordships observed that there was
no dispute that when an award is made by the Tribunal, the
owner of the vehicle, being a person aggrieved, can file an
appeal challenging his liability on any ground or challenge the
quantum of compensation. An appeal which is maintainable
when the owner of the vehicle files it, does not become nonmaintainable
merely on account of the insurer being a co-
appellant with the owner. When the insurer becomes a coappellant,
the owner of the vehicle does not cease to be a
person aggrieved. This question had come up for consideration
in Narendra Kumar v/s. Yarenissa [1998(9) SCC 202] where
it was held that even in the case of a joint appeal of the insurer
and the owner of the offending vehicle if an award has been
made against the tortfeasor as well as the insurer, even though
an appeal filed by the insurer was not competent, it may not be
dismissed as such. The tortfeasor can proceed with the appeal
after the cause-title is suitably amended by deleting the name
of the insurer.
23] In Shila Datta (supra), Their Lordships also
considered the judgment in Chinnama George and others vs.
N.K. Raju and another [(2000)4 SCC 130] where it held that
a joint appeal would not be maintainable and specifically
observed that this issue did not arise for consideration of the
three Judge Bench in Nicolletta Rohtagi (supra), as the
question therein was whether an insurer could file an appeal.
Their Lordships on a careful consideration were of the view that
the decision in the Chinnama George (supra), to the extent it
holds that a joint appeal is not maintainable, did not lay down
the correct law. As observed in Narendra Kumar (supra), the
owner of the vehicle does not cease to be an aggrieved person
merely because the insurer was ultimately liable under the
terms of the policy or under Section 149 of the Act. If the
owner by himself, can file an appeal as an aggrieved person and
such an appeal is maintainable, we fail to understand how the
presence of the insurer as a co-appellant would make the
appeal not maintainable. Whether the owner joins the insurer
or the insurer joins the owner makes no difference to the fact
that the owner continues to be a person aggrieved. When a
joint appeal is filed, to say that the insurer is not an aggrieved
person and the owner of the vehicle would not be an aggrieved
person, would lead to an anomalous situation and border on an
absurdity. Without entering in the question whether an insurer
is an aggrieved person, Their Lordships made it clear that on
account of the insurer being a co-appellant, would not affect the
maintainability of the appeal.
IN THE HIGH COURT OF BOMBAY AT GOA.
First Appeal No.78/2009 WITH
Cross Objection No.14/2009
UNITED INDIA INSURANCE CO.LTD.
Versus
SHRI GULAM MOHAMMAD,
CORAM : NUTAN D.SARDESSAI, J.
PRONOUNCED ON :22/09/2016.
Citation:2016(6) MHLJ 601
1] This is an Insurer's appeal assailing the Award
passed by the learned Motor Accident Claims Tribunal, South
Goa, Margao dated 10.12.2008 pursuant to which the then
learned Presiding Officer, M.A.C.T. Margao allowed the petition
partly holding the first set of the respondents jointly and
severally liable to pay the compensation in the amount of
`7,03,356/- with interest to the claimants and exonerating the
respondents no.4 and 5 from any liability arising from the same
accident. The cross-objections are at the instance of the original
claimant-respondent no.1 feeling aggrieved by the findings of
the learned M.A.C.T. pursuant to which certain amounts were
not awarded in his favour and pressing for a reversal of the
impugned judgment on the limited extent by the grant of the
said benefits in his favour on various heads set out in detail
therein. Suffice it to say that the parties would be referred to
as the Insurer, the claimant and the respondents for brevity's
sake hereinafter.4
2] Shri A.R. Kantak, learned Advocate for the Insurer
gave a brief account of the accident which had taken place on
10.4.2005 at 15.15 hours on NH-17-A allegedly involving the
truck insured with them and the KTC bus owned by the
respondents no.5 and driven by the respondent no.4 in which
the respondent no.1/claimant had suffered grievous injuries.
He adverted to the judgment under challenge, referred to the
Scene of the accident panchanama and the Accident Report
Forms, apart from the evidence and submitted that the claimant
had failed to show the rashness and negligence of the vehicle
insured with them resulting in the accident. Quite on the
contrary, the accident was an outcome of the fast speed,
rashness and negligence of the KTC bus driver and that of the
motorcycle rider which had resulted in the accident.
3] Shri A.R. Kantak contended that on the quantum
too, the learned MACT had been more than generous in granting
the compensation to the claimant on the head of permanent
disability even though the claimant did not suffer any
impediment in his business despite the 50% permanent
disability. The learned MACT had also committed an error in
considering the income relied upon on behalf of the claimant
which was for the Accounting Year 31.3.2004 when it should
have been counted as 31.3.2005 and 31.3.2006 considering the5
date of the accident as 10.4.2005. These Income Tax Returns
were suppressed and, therefore, an adverse inference had to be
drawn against the claimant. On all these parameters, the
impugned judgment on the aspect of the rashness and
negligence fastened on their vehicle driver had to be released
and the appeal allowed in their favour.
4] Shri S.S. Kakodkar, learned Advocate for the
original claimant adverted to the pleadings, both in the petition
as well as in the written statement filed in defence and
submitted that the accident was an outcome of the rashness
and negligence of the truck driver and no fault could be
attributed either to the claimant or to the driver of the KTC bus
who was rightly exonerated by the learned MACT. His next
contention was that the appeal at the instance of the Insurer
was not maintainable and liable to be dismissed as no
permission was sought under Section 170 of the Motor Vehicles
Act, 1988, (“Act” for short). He relied in Narendra Kumar and
another Vs. Yarenissa and others [1997(2)T.A.C.1(S.C.)]
and Royal Sundaram Alliance Insurance Co.Ltd. Vs. Smt.
Hanamava Yamanappa Jedi & Ors. [2014(3) ALL MR 869].
5] Shri S.S.Kakodkar, learned Advocate for the original
claimant invited attention to the Accident Information Reports in6
respect of the vehicles involved in the accident particularly vis-a
-vis the truck and the bus in question and submitted that the
dash of the truck to the bus was amply established on the right
hand side. He adverted to the sketch accompanying the
panchanama, the position of the truck, post accident, and
submitted that the learned MACT had examined in minute detail
the evidence on record unlike requiring a decision on a
preponderance of probabilities and ultimately absolved the KTC
bus driver and the claimant on the aspect of the rashness and
negligence in driving their respective vehicles. He relied in
Kusum Lata & Ors. V. Satbir and Ors. [AIR 2011 SC 1234],
Bimla Devi & Ors. V. Himachal Road Transport Corpn. &
Ors.[AIR 2009 SC 2819] and Jiju Kuruvila and Others Vs.
Kunjujamma Mohan and others [(2013)9 SCC 166] to wrap
up his argument on the aspect of rashness and negligence of
the truck driver.
6] Shri S.S.Kakodkar, learned Advocate also adverted
to the other evidence on record vis-a-vis the non-consideration
of the vital evidence by the learned MACT qua the different
heads of entitlement of the claimant and submitted that the
learned MACT had not properly appreciated his case and,
therefore, his cross-objections were maintainable and necessary
amounts had to be awarded in his favour. He relied in Sarla7
Verma Vs. Delhi Transport Corporation & Anr. [2009 (4)
ALLMR 429 (S.C.)], K.Suresh Vs. New India Assurance
Company Limited and Another [(2012) 12 SCC 274], Sunil
Kumar Vs. Ram Singh Gaud and others [(2007) 14 SCC 61]
and Raj Kumar Vs. Ajay Kumar and Anr. [2011 (1) ALLMR
402 (S.C.), while pressing for the enhanced compensation. Shri
J. Ramaiya, learned Advocate for the respondent no.4 submitted
that the learned MACT had rightly exonerated the respondent
no.4 and therefore, the impugned judgment did not warrant any
interference in appeal.
7] Shri A.R. Kantak, learned Advocate for the Insurer
in reply once again reiterated that the accident was an outcome
of the rashness and negligence of the KTC bus driver and the
claimant also by adverting to the evidence of the truck driver
and the claimant. His contention further was that even in
accepting the claimant's case that he was riding the motorcycle
behind the bus, it was a case of a contributory negligence at his
instance as otherwise it was inconceivable that the truck could
dash the motorcycle after going to the wrong side of the road
after dashing against the KTC bus. He relied in United India
Assurance Company Limited Vs. Shila Datta and others
[(2011)10 SCC 509]. He once again adverted to the Income Tax
Returns and submitted that there was no evidence on the loss8
of income nor any basis in the Award of the learned MACT to
grant the compensation towards the loss of income. There was
no material available on record to entertain the cross-objections
and allow the compensation on the various heads claimed by
the claimant. The amounts were not rightly awarded in the
absence of any bills and, therefore, the cross-objections had to
be dismissed.
8] The claimant had carved a specific case that he was
proceeding from the bridge towards Vasco on his motorcycle
bearing registration no. GA-06-B-0710 at a moderate speed
behind the KTC bus driven by the respondent no.4 and by
maintaining a safe distance between the two. The tipper truck
insured with the Insurer and driven by the respondent no.1
came at a fast speed, in a rash and negligent manner from the
opposite direction and all of a sudden, the tipper truck went to
its wrong side and brushed against the right rear portion of
the body of KTC bus. The KTC bus driven by the respondent
no.4 in a rash and negligent manner without even signalling
suddenly slowed down the bus and in that process the
claimant who was behind the bus applied the brakes of his
motorcycle as a matter of precaution. However, before he could
stop his motorcycle, the right front side bumper of the truck
which came brushing against the bus collided against his front9
wheel. His motorcycle was pushed behind which fell across the
road at a distance of five mts. facing towards Panaji and its
front wheel was detached. He had fallen off his motorcycle in
that process and sustained injuries entitling him to the amount
claimed in the petition on the various heads.
9] The driver of the truck and the owner had taken a
plea that a Maruti car followed by the KTC bus and the
motorcycle driven by the claimant were proceeding towards
Vasco while the tipper truck was driven by the respondent no.1
and proceeding towards Cortalim. On reaching Sancoale where
there is a culvert, the Maruti car which was in front of the KTC
bus suddenly stopped due to which the bus slowed down and
the claimant who was riding the motorcycle behind the KTC bus
at a fast speed could not control his vehicle resulting in a dash
to Kadamba bus in front of him on the right hand back side and
slipped and dashed against the oncoming tipper truck driven by
the respondent no.1. The truck was driven at a slow speed and
could not pass through the culvert on the road because of the
accident. In short, the respondents no.1 and 2 disputed the
rashness and negligence of the truck driver in the accident.
10] The respondents no.3 who are the Insurer herein
had restricted their defence to that pleaded by the respondents10
no.1 and 2 and restricted their liability to the terms of the
Insurance Policy issued in favour of the respondent no.2. The
respondents no.4 and 5 had specifically taken a plea that the
bus in question was not at all involved in the accident and that
it did not come in contact with the claimant's motorcycle.
Rather the tipper truck coming from the opposite direction gave
a dash to the motorcycle driven by the claimant and there was
no contact at all between the bus and the claimant's
motorcycle. The tipper truck initially gave a dash to the bus
and thereafter to the motorcycle which the claimant was riding
right behind the bus and he stopped the bus to see the
damages caused to it. The tipper truck was driven in a rash and
negligent manner, at a very fast speed due to which the driver
lost control, came on the wrong side of the road and gave a
dash to the motorcycle which was driven without keeping a
safe distance. In short, the respondents no.4 and 5 washed off
their hands qua the accident and restricted the cause of the
accident to the acts of the claimant himself and the truck driver.
11] The parties had gone to trial based on the issues
framed by the learned Presiding Officer and in the course of
which several witnesses were examined and the documents
produced to substantiate their individual cases. It would,
therefore, be apt to advert to the evidence to assess whether11
the learned MACT had properly appreciated the material while
fastening the liability on the truck driver and consequently on
the Insurer to pay the compensation to the claimant. Before
considering this aspect of the matter, i would deal with the issue
on the maintainability of the appeal at the instance of the
Insurer considering the plea raised on behalf of the claimant
that no such appeal was maintainable in the absence of any
permission being granted to the Insurer by the Tribunal under
Section 170 of the Act and without the insured being a party to
the appeal.
12] Narendra Kumar (supra), was an appeal by
Special Leave with the group of appeals in view of the cleavage
of authority, with some High Courts taking a view that a joint
appeal by the Insurance Company and the owner or the driver
of the offending vehicle was not competent in its entirety and
the other High Courts taking a view that an appeal of the owner
or the driver of the vehicle would be competent though not joint
appeal i.e. the Insurer's appeal alone may be incompetent. All
these appeals were arising out of a single accident which took
place on 10.6.1987 wherein the taxi-car and the truck were
involved in head-on-collision and all the six persons occupying
the taxi-car died in the accident, five on the spot and one a little
later. Their legal representatives filed the petitions before the12
Motor Accident Claims Tribunal, Jaipur which awarded the
compensation in favour of the legal representatives of all the
victims holding the owner as well as the driver of the truck
liable for damages alongwith the Insurance Company in varying
amounts and besides certain other directions were given.
13] In Narendra Kumar (supra), the owner of the
truck and the Insurance Company filed joint appeals in the High
Court of Rajashthan, Jaipur Bench against the Award and the
claimants also filed appeals for enhancement of the
compensation which were allowed by the High Court. A learned
Single Judge of the High Court held that the joint appeals were
not maintainable at the instance of the owner and the Insurance
Company and directed their dismissal giving rise to an appeal
before a Division Bench of the High Court which came to be
disposed off by the judgment dated 12.4.1993 affirming the
view of the Single Judge giving rise to the appeal by special
leave.
14] In Narendra (supra), Their Lordships of the Apex
Court considered certain relevant provisions of the Motor
Vehicles Act, 1939 (“Old Act” for short hereinafter) namely
Section 95 regarding the requirement of a Policy of Insurance,
Section 96(1) and (2) and observed that the scheme of Section13
96 to the extent relevant therefore, is that before an insurer can
be saddled with the liability to pay the amount awarded to the
claimants, it was necessary that he must have prior notice of
the institution of the proceedings before a judgment is given so
that if he has the defences set out in Clauses (a) to (c) available
to him, he may seek to be joined as a party to the proceedings
and raise all or any of those defences. It was, therefore, obvious
on a plain reading of the aforesaid three sections of sub-section
96 that before an Insurer can be saddled with the liability to
answer judgment, he must have notice of the proceedings and
an opportunity to defend on all or any of the grounds
enumerated in Clauses (a) to (c) of sub-section (2) of Section
96, if the same, in the facts and circumstance of the case, are
available to the Insurer. Once that opportunity is made
available, sub-section (6) of Section 96 contemplates that the
Insurer shall not be entitled to avoid his liability to any person
entitled to the benefit of such judgment otherwise than in the
manner provided by sub-section (2).
15] In Narendra Kumar (supra), Their Lordships next
considered Section 110-C (2-A) outlining the procedure and
powers of the Claims Tribunal constituted under the Act, its
powers to direct the impleadment of the insurer if it is satisfied
that there is collusion between the person making the claim14
and person against against whom it is made or the person
against whom the claim is made has failed to contest the claim.
Their Lordships also considered Section 110-D providing for
appeals and subject to sub-section (2) any person aggrieved by
an award of the Claims Tribunal may prefer an appeal to the
High Court within the prescribed period. It was thus clear on a
plain reading of the aforesaid provisions that the claims must be
preferred against the tort-feasers and notice thereof must go to
the Insurance Company and if all or any of the defences set out
in sub-section (2) of Section 96 are available to the Insurance
Company and it seeks to be impleaded as a party, it may be so
impleaded and allowed to raise all or any of those contentions.
16] In Narendra Kumar (supra), Their Lordships were
equally seized of the fact that the claimants normally make the
Insurance a party to the claim application which by itself may
not confer a right of appeal on the Insurer. The grounds on
which the insurer can defend the action commenced against
the tort-feasers are limited and unless one or more of those
grounds are available, the Insurance Company is not and
cannot be treated as a party to the proceedings and for that
reason the Courts have consistently taken a view that the
Insurance Company has no right to prefer an appeal under
Section 110-D of the Act unless it has been impleaded and15
allowed to defend on one or more of the grounds set out in
sub-section (2) of Section 96 or in the situation envisaged by
sub-section (2-A) and Section 110-C of the Act. The question,
however, was if such a joint appeal is preferred must it be
dismissed in toto or can the tort-feasers, the owners of the
offending vehicle be permitted to pursue the appeal while
rejecting or dismissing the appeal of the Insurer. In the
ultimate, it was held that in their opinion even in case of a joint
appeal by an insurer and the owner of the offending vehicle if
an award has been made against the tort-feasers as well as the
insurer even though the appeal filed by the Insurer is not
competent it may not be dismissed as such and the tort-feasers
can proceed with the appeal after the cause title is suitably
amended by deleting the name of the Insurer and dismissed the
appeals.
17] In Hanamava Yamanappa (supra), a learned
Single Judge of this Court held that where the Insurance
Company was made a party in the claim petition and permitted
to contest the claim petition on merits but it had not obtained
the permission of the Tribunal as required under Section 170(b)
of the Act, held that in absence of such a permission, the
appeal of the Insurance Company challenging the merits of the
award would not be maintainable. In the brief facts, the Insurer
was the respondent no.3 in the petition filed by the respondent
nos.1, 2 and 3 claiming the compensation of `36,00,000/- on
account of the death of her son and the brother of the claimants
no.2 and 3 in a vehicular accident on the stated date and time.
The appellant as the respondent no.3 had denied that the
deceased had died due to the injuries sustained in the accident
and also denied that the deceased was the owner of the two
tipper trucks and having the stated income, that the amount
claimed by the claimants was excessive and exorbitant and the
claimants were not entitled to the compensation as claimed in
the petition though admitting that they had issued a policy in
respect of the tipper truck owned by the respondent no.2.
18] In Hanamava Yamanappa (supra), the Tribunal
found the evidence inspiring and held that the claimants had
proved the rashness and negligence of the truck driver insured
with the appellants and granted the compensation in their
favour. The driver and the owner of the offending vehicle had
not challenged the judgment and award and the appeal was
filed by the Insurer alone when an objection was raised on
behalf of the claimants to the maintainability of the appeal filed
by the respondents no.3-Insurance Company. Reliance was
placed on the judgment of the Apex Court in National
Insurance Company Limited Vs. Nicolletta Rohtagi
[2002(4)ALLMR 874] on behalf of the claimant amongst other
while reliance was placed in United India Insurance
Company Limited Vs. Shila Datta and others [(2011) 10
SCC 509] on behalf of the Insurer.
19] In Hanamava Yamanappa (supra), the learned
Judge considered Nicolletta Rohtagi (supra), where the
question for consideration was where an insured had not
preferred an appeal under Section 173 of the Act against an
award given by the Tribunal, whether it was open to the insurer
to prefer an appeal against the award passed by the Tribunal
questioning the quantum of compensation, as well as the
finding on the negligence of the offending vehicle. The Three
Judge bench of the Hon'ble Apex Court in Nicolletta Rohtagi held
that unless the conditions precedent specified in Section 170 of
the Act were satisfied, an Insurance Company had no right of
appeal to challenge the award on merits. However, in a
situation, where there was a collusion between the claimants
and the insured or the insured did not contest the claim and
further the Tribunal did not implead the Insurance Company to
contest the claim, in such cases it was open to an insurer to
seek the permission of the Tribunal to contest the claim on the
ground available to the insured or to a person against whom a
claim had been made. If the permission is granted and the18
insurer is allowed to contest the claim on merits in that case it
is open to the insurer to file an appeal against an award on
merits if aggrieved. This judgment was however, pending
consideration before the Apex Court in a large number of cases.
20] In Shila Datta (supra), the correctness of the
judgment in Nicolletta Rohtagi (supra) was assailed on the
premise that the liability of the insurer to reimburse the insured
on two premises namely 1) compensation and 2) whose liability
would be to pay, as envisaged under sub-section (1) of Section
149 vis-a-vis the right of the aggrieved persons to prefer an
appeal in terms of Section 173 of the Act, had not been
considered in the backdrop of the history in which sub-section
(1) of the Section 149 was enacted. In view of these questions
raised in the matter, Their Lordships were of the opinion that it
was a fit case where the matter should be referred to a larger
Bench and directed accordingly so that the records of the case
be placed before the Hon'ble the Chief Justice of India for
appropriate orders.
21] In Shila Datta (supra), their Lordships also
formulated questions which arose for their consideration in
regard to the position of an insurer under the Act namely the
insurer can contest the Motor Accidents Claim on merits, in
particular, in regard to the quantum, in addition to the grounds
mentioned in Section 149(2) of the Act for avoiding liability
under the policy of insurance and whether an insurer can prefer
an appeal under Section 173 of the Act, against an award of the
Claims Tribunal, questioning the quantum of compensation
awarded. In view of the points urged by the insurer, Their
Lordships considered the relevant legal provisions namely
Sections 149, 147, 163(A), 168, 170 and 173 of the Act and
observed that the reference to these provisions were to show
that an award by the Tribunal could not be seen as an
adversarial adjudication between the litigating parties to a
dispute, but a statutory determination of compensation on the
occurrence of an accident, after due enquiry, in accordance with
the statute.
22] In Shila Datta (supra), the point of maintainability
of a joint appeal by the owner of a vehicle and the insurer came
up for consideration. Their Lordships observed that there was
no dispute that when an award is made by the Tribunal, the
owner of the vehicle, being a person aggrieved, can file an
appeal challenging his liability on any ground or challenge the
quantum of compensation. An appeal which is maintainable
when the owner of the vehicle files it, does not become nonmaintainable
merely on account of the insurer being a co-
appellant with the owner. When the insurer becomes a coappellant,
the owner of the vehicle does not cease to be a
person aggrieved. This question had come up for consideration
in Narendra Kumar v/s. Yarenissa [1998(9) SCC 202] where
it was held that even in the case of a joint appeal of the insurer
and the owner of the offending vehicle if an award has been
made against the tortfeasor as well as the insurer, even though
an appeal filed by the insurer was not competent, it may not be
dismissed as such. The tortfeasor can proceed with the appeal
after the cause-title is suitably amended by deleting the name
of the insurer.
23] In Shila Datta (supra), Their Lordships also
considered the judgment in Chinnama George and others vs.
N.K. Raju and another [(2000)4 SCC 130] where it held that
a joint appeal would not be maintainable and specifically
observed that this issue did not arise for consideration of the
three Judge Bench in Nicolletta Rohtagi (supra), as the
question therein was whether an insurer could file an appeal.
Their Lordships on a careful consideration were of the view that
the decision in the Chinnama George (supra), to the extent it
holds that a joint appeal is not maintainable, did not lay down
the correct law. As observed in Narendra Kumar (supra), the
owner of the vehicle does not cease to be an aggrieved person
merely because the insurer was ultimately liable under the
terms of the policy or under Section 149 of the Act. If the
owner by himself, can file an appeal as an aggrieved person and
such an appeal is maintainable, we fail to understand how the
presence of the insurer as a co-appellant would make the
appeal not maintainable. Whether the owner joins the insurer
or the insurer joins the owner makes no difference to the fact
that the owner continues to be a person aggrieved. When a
joint appeal is filed, to say that the insurer is not an aggrieved
person and the owner of the vehicle would not be an aggrieved
person, would lead to an anomalous situation and border on an
absurdity. Without entering in the question whether an insurer
is an aggrieved person, Their Lordships made it clear that on
account of the insurer being a co-appellant, would not affect the
maintainability of the appeal.
24] In Hanammava Yamanappa (supra), the learned
Judge of this Court considered the judgment of the Three Judge
Bench of the Hon'ble Apex Court in Shila Datta (supra), where
the questions were framed for consideration namely whether
the insurer could contest the claim on merits in particular with
regard to the quantum in addition to the grounds mentioned in
Section 149(2) of the Act for avoiding the liability under the
Policy of Insurance and whether the insurer could prefer an
appeal under Section 173 of the Act against the award of the
Tribunal questioning the quantum of compensation awarded.
The Hon'ble Apex Court held that when an Insurer is impleaded
as a party respondent to the claim petition as contrasted from
merely being a noticee under Section 149(2) of the Act, its
rights were significantly different. The Act did not require the
claimants to implead the insurer as a party respondent. But if
the claimants chose to implead insurer as party, not being a
noticee under Section 149(2) of the Act, the insurer could urge
all the grounds and not necessarily the limited grounds
mentioned in Section 149(2) of the Act. If the insurer is already
a respondent it need not seek the permission of the Tribunal
under Section 170 of the Act to raise grounds other than those
mentioned in Section 149 (2) of the Act. It further observed
that if the insurer is only a noticee and not a party respondent,
having regard to the decision in Nicolletta Rohtagi it could
defend the claim only on the grounds mentioned in Section 149
(2) and not any grounds relating to the merits available to the
insured respondents.
25] In Hanamava Yamanappa (supra), the learned
Single Judge of this Court also considered the case of Rekha
Jain Vs. National Insurance Company Ltd. And Ors.[2013
ALL SCR 2833] where the insurer was impleaded before the23
Tribunal as a party respondent and the Division Bench of the
Apex Court relying on the judgment in Nicolletta Rohtagi held
that the Insurance Company could not have challenged the
finding without obtaining the permission as required under
Section 170(b) of the Act, to avail the defence of the insured to
contest the case. For that matter, the learned Judge also
considered the judgment in Josphine James Vs. United India
Insurance Co.Ltd. And another [2013 SAR(Civil)1143] where
the insurer was impleaded before the Tribunal as a party
respondent and the Division Bench of the Hon'ble Apex Court
considering the judgment in Nicolletta Rohtagi as well as that in
Shila Datta(supra), held that the ratio of Nicolletta Rohtagi
would still be applicable in the present case. In the ultimate it
was held that the appeal at the instance of insurer was not
maintainable.
26] Considering these judgments in Nicolletta Rohtagi
and Shila Datta of the Three Judge Bench of the Hon'ble Apex
Court, the appeal of the insurer is maintainable without any
leave being sought of the Tribunal under Section 170 of the Act.
27] In Kusum Lata (supra), the Two Judge Bench of the
Hon'ble Apex Court held that where a vehicle driven rashly hit
the victim and sped away it was natural for the brother of the24
victim who was seriously injured and requiring medical aid not
to note the number of the offending vehicle and therefore, the
involvement of the offending vehicle in the accident could not
be doubted. Bimala Devi (supra), held that the claimants have
to establish their case merely on the touchstone of the
preponderance of probability and the standard of proof beyond
reasonable doubt could not be applied.
28] Jiju Kuruvila (supra), held that the mere position
of the vehicle after the accident as shown in the scene mahazar
cannot give substantial proof as to the rashness and negligence
on the part of one or the other. When two vehicles coming from
the opposite directions collide, the position of the vehicles and
its directions etc., depends on a number of factors like the
speed of the vehicles, the intensity of the collision, the reason
for the collision, the place at which one vehicle hit the other
etc. From the scene of the accident one may suggest or
presume the manner in which the accident was caused but in
the absence of any direct or corroborative evidence, no
conclusion could be drawn as to whether there was negligence
on the part of the driver and in the absence of such or direct
corroborative evidence, the Court cannot give any specific
finding about the negligence on the part of an individual. 25
29] The claimant had examined himself setting out his
case as pleaded in the petition and produced the documents
namely the Scene of accident panchanama alongwith the sketch
apart from the extract of the Station Diary and materially the
Accident Report in support of his case on the issue of rashness
and negligence. He had remained unshaken in his crossexamination
that he was at a distance of seven mts. behind the
KTC bus which had stopped and seeing which he had applied
the brakes. At that time the tipper truck came from the right
hand side, dashed against the KTC bus on the right hand side
and thereafter gave a dash to him. He clarified that the tipper
truck gave a dash to the rear right side of the KTC bus and
thereafter dashed against his motorcycle. He had categorically
denied the suggestion put to him at the instance of the truck
driver and the owner apart from the Insurer that he could not
control his motorcycle and gave a dash to the KTC bus resulting
in the accident.
30] The claimant for that matter had categorically
denied the case that after his impact with the KTC bus his
motorcycle went on the right side and dashed against the
oncoming tipper truck and denying altogether the suggestion
that the tipper truck was not driven in a rash and negligent
manner or that he was at fault and responsible for the26
accident. He was equally unshaken on his statement about the
impact of the truck with the KTC bus and denied the suggestion
that there was no impact between the two. The Scene of
accident panchanama reveals the position of the vehicles
involved in the accident namely the truck and the motorcycle
which were more than ten mts. apart and the motorcycle at a
distance of five mts. behind the KTC bus on the road of the
width of eight mts. The Panchanama also reflects that there was
a dent to the right rear portion of the KTC bus on account of the
impact of the truck bumper. There was also a dent to the front
right bumper of the truck.
31] The Accident Report of the tipper truck reveals that
there were scratch marks on the front bumper on the right hand
side and a dent on the front right hand side of the wheel
mudguard fender cover. There was a dent on the right side of
the fuel tank of the motorcycle and the front head light was
broken while there was a dent on the rear mudguard on the
right hand side and materially a dent on the body panel on the
right hand side above the rear bumper at approximately 1.3
mts. from the ground level to the KTC bus in question. In that
context, it was the contention of Shri Kantak, learned Advocate
for the Insurer that the contact of the truck with the KTC bus
was completely ruled out on an appraisal of the damages seen27
on the rear right hand side of the bus. His contention howsoever
appealing does not stand to reason in the face of the very
location of the dent marks and in the absence of any history of
these dents being pre-existing i.e. prior to the accident.
Moreover, the learned MACT had apprised itself of the evidence
led by the claimant and his witnesses and clearly come to a
finding that the accident was an outcome of the rashness and
negligence of the truck driver with no fault of the claimant
and/or the driver of the KTC bus.
32] Parvez (Aw2) examined by the claimant in support
of his case had reiterated in his affidavit that while he was
returning towards Vasco he had noticed his friend standing at
the main four-road junction and given a lift to him. On
reaching Sancoale he had noticed the motorcyclist riding his
motorcycle ahead of him by 10 mts. at a moderate speed in the
direction of Vasco and he followed the motorcycle for about half
a minute or so and maintaining the same distance while driving
his vehicle at a speed 40-45 kms. per hour. He noticed the KTC
bus in front of the motorcycle at a distance of 15–20 mts.
ahead of his car suddenly stop as a tipper truck came from the
opposite direction at a fast speed which gave a dash on the
right side of the KTC bus and he clearly heard the sound of the
impact.28
33] Parvez (Aw2) had noticed the motorcycle rider
riding at a safe distance behind the KTC bus who managed to
stop his motorcycle but nonetheless the tipper driver who
dashed the KTC bus suddenly turned more to the right and
dashed against the motorcycle. There was clear visibility to him
from his car and the motorcycle apart from the KTC bus and
immediately he had applied the brakes and stopped his car on
the extreme left-side of the kutcha portion of the road to avoid
any collision with the oncoming tipper truck. He noticed the
motorcyclist fall off his vehicle on the road and his motorcycle
pushed behind to some distance and only then did he realise
that the motorcycle was of his father and the rider lying injured
on the road was none other than his father. The police had
arrived at the spot shortly thereafter and arranged to shift his
father to the Chicalim Cottage Hospital.
34] There was no reason for the learned MACT to
disbelieve his testimony considering also the fact that on his
version his father was riding the motorcycle with a helmet and
in that situation it is quite understandable that the witness
would not have recognized his father riding the motorcycle
ahead of him. He categorically denied the suggestion that due
to the sudden stopping of the KTC bus, his father who was
riding at a fast speed gave a dash to the bus and in that process29
skidded and dashed against the truck coming from the opposite
direction. From his testimony too, the Insurer was not able to
show that there was any fault either of the KTC driver or of the
claimant himself resulting in the accident.
35] The original respondents had examined the
registered owner of the truck who merely stated that there was
no fault of the truck driver in the accident and against whom
the police had not even filed a chargesheet. The truck driver
was examined as Narayan (Rw2) who buttress his case that the
Maruti car was followed by the KTC bus proceeding towards
Vasco while he was driving the truck towards Cortalim. On
reaching Sancoale where there was a culvert, the Maruti car
ahead of the KTC bus suddenly stopped and due to which the
bus slowed down and the motorcycle driven by the claimant
behind at a fast speed could not control his vehicle and dashed
against the right rear side due to which the motorcycle slipped
and dashed against the truck driven by him. He was not at fault
and the accident was solely due to fault of the motorcycle rider.
36] The respondents no.4 and 5 had examined their
driver Dilip (Rw3) who stated during the cross-examination that
the impact of the truck was on the right rear side of the bus
from the right rear side of the truck while maintaining that the30
truck was driven at a fast speed. Shri Kantak, learned Advocate
for the Insurer picked on this statement at random to show that
the case of the claimant was further improbabalised on the
rashness and negligence of the truck driver but which cannot be
read in isolation in the face of the other clinching material on
record. This witness had maintained that the accident had
taken place exactly at the spot where there was a Five Star
Laundry and maintained that the truck was driven at a fast
speed though he could not spell out its speed. He had
categorically denied the case put to him on behalf of the
claimant that he had stopped his bus without showing any
signal or that there was any negligence on his part. Rather he
had maintained that while he was in the process of taking the
bus to the bus-stop towards his left, the oncoming truck had
dashed against his bus.
37] Dilip (Rw3) had further stated that he had covered a
distance about 1.5 mts. from the culvert which was from the
rear portion of his bus and moreover there were slight scratches
on his bus due to the brushing of the truck on the rear side of
the bus. Shri A.R. Kantak, learned Advocate for the Insurer tried
to split hairs on the premise that his statement on the bus
having covered only 1.5 mts. from the culvert belied the case of
the claimant that the truck was driven at a fast speed, in a rash31
and negligent manner as otherwise the truck driver would not
have been in a position to manoeuvre the truck and halt it on
its left side on the culvert and at barely 10.5 mts. distance from
the motorcycle. Howsoever appealing this argument, it is
inconceivable in the facts borne out from the records. His other
contention that the motorcycle rider could have been overtaking
the bus from behind is also not tenable inasmuch as there was
no plea in defence to that effect and, therefore, such a
contention hypothetically carved out in the course of arguments
cannot stand the test of legal scrutiny.
38] Suffice it to say that he too was unshaken on his
version that he was not instrumental in the accident and even
otherwise on the aspect of any rashness or negligence of the
motorcycle rider. The learned MACT therefore, on a
consideration of the material at large before her had fairly
concluded that the case of the claimant appeared more probable
and that the negligence and rashness of the truck driver was
established and materially there was no rashness and
negligence of the bus driver. This finding of the learned MACT
does not call for any interference at the instance of the Insurer.
What would, therefore, remain for consideration is the challenge
to the Award on the quantum of the compensation awarded in
favour of the claimant and conversely whether the claimant is32
entitled to the enhanced compensation on the premise that
certain heads of expenses were erroneously not awarded in his
favour by the learned MACT.
39] In K.Suresh (supra), the Hon'ble Apex Court
reiterated the concept of just compensation and made a clear
distinction on the payment of the amount towards the
permanent disability and the misconception that no further
amount could be awarded relating to the loss of earning
capacity. Their Lordships held that the view of the High Court
that no compensation can be granted towards the permanent
disability once the compensation is computed for the loss of
earning capacity and loss of future earning was unsustainable.
It considered the judgment in R.D. Hattangadi Vs. Pest
Control (India) (P) Ltd.[(1995) 1 SCC 551) where it had held
that damages could be under the head of pecuniary damages
and non-pecuniary damages and ultimately holding that the loss
of earning capacity had also to be compensated apart from the
loss on account of the permanent disability.
40] In Sunil Kumar (supra) Sunil Kumar was driving his
truck towards Bargi with one Ramesh when a dumper truck
came from the opposite direction in a rash and negligent
manner and hit the mini truck driven by the appellant due to33
which he sustained grievous injuries on his leg and suffered
three fractures including one at the tibia. An F.IR. was lodged
and the claim was filed against the owner of the dumper truck
apart from the Insurance Company before the MACT claiming
the compensation of `8,20,000/-.The Tribunal awarded the
compensation of `45,000/- for the 45% permanent disability
and other amounts with interest till payment giving rise to the
appeal before the High Court of Madhya Predesh at Jabalpur
and dismissed by the impugned order. It was contended on his
behalf that he could not pursue his vocation of driving any
longer and the Tribunal as well as the High court grossly erred
in not awarding the compensation towards the loss of his
earning capacity. Their Lordships found substance in the
submission put forth on his behalf vis-a-vis the Tribunal and the
High Court had not awarded the compensation towards the loss
of future income. This is besides observing that the disability
suffered by him would surely reduce his earning capacity and,
therefore, requiring to be compensated for the loss of earning.
Thus, considering his income, the extent of permanent
disability, the total loss of income was computed at `2,59,200/-
apart from the interest.
41] In Rajkumar (supra), Their Lordships of the Apex
Court held that for assessment of just compensation the34
principles which may be summarised are that all injuries or
permanent disabilities do not result in a loss of earning capacity,
the percentage of permanent disability with reference to the
whole body of a person cannot be assumed to be the
percentage of loss of earning capacity and the doctor who
treated an injured claimant and who examined him
subsequently to assess the extent of permanent disability can
give evidence only with regard to the permanent disability and
the loss of earning capacity is something that will have to be
assessed by the Tribunal with reference to the evidence in its
entirety and finally that the permanent disability may result in
different percentages of loss of earning capacity in different
persons depending upon the nature of profession, occupation or
job, age, education and other factors.
42] Coming to the quantum, the claimant had examined
himself and brought on record the fact that he had suffered
50% permanent disability as per the ALIMCO Scale on account
of the restrictions in the movement of the right knee. This
aspect of his testimony was corroborated by the examination of
Dr. S.S. Nadkarni (Aw8) who had certified that the patient
would face difficulty in brisk walking, climbing, squatting as well
as grasping objects in the left upper limb. Nonetheless he had
maintained that such a person would show improvement with35
physiotherapy and that the claimant had informed that he had
undergone physiotherapy. The claimant had besides stated that
due to nature of the injuries suffered by him he had undergone
massage treatment with Dr. Abhilash Mony and incurred an
expense of `48,000/- and with Dr. Sayad Hasan for
physiotherapy and incurred an expense of `55,500/- apart from
incurring the expenses on transport of `63,450/- and the heads
of attendant charges, hospital bills, medical bills etc.
43] The claimant had produced bills to substantiate his
case and even otherwise there was no singular dispute despite
his cross-examination on the nature and extent of the injuries
suffered by him, the treatment undertaken and the expenses
incurred under various heads but for the bare suggestion that
he had not incurred the expenses and was not entitled to the
compensation in the amount claimed by him. He had examined
Dr.Hasan (Aw3) who had stated that he was running a
Physiotherapy and Orthocare Centre at Vasco Vasco being an
Orthopaedic Consultant and Physiotherapist and the claimant
was regularly attending the physiotherapy treatment with him
from 18.5.2005. The claimant had paid him the total amount of
`55,500/- as his Consultancy charges in two installments of
`28,500/- and `27,000/- and he had issued him the receipts in
the nature of the Certificate. He too was unshaken on the36
amounts received by him from the claimant and the claimant
having undergone the physiotherapy treatment with him.
44] Dr. Moni (Aw5) had reiterated that the claimant was
under his treatment from 16.6.2005 till 20.2.2006 and besides
the treatment, he was supplying Ayurved medicines to the
claimant, who had paid him the total amount of `48,000/-. He
maintained during his cross-examination that he had given
treatment to the claimant who had difficulty in the movement
of his leg and that he had received the money from him towards
the oil massage. Dr. Alberto (Aw7) had confirmed that the
claimant was examined in the Apollo Victor Hospitals where he
was attached as a Consulting Orthopaedic Surgeon and who
had reported with a history of road traffic accident with injuries
to the right knee, injury to the right popliteal artery and open
wounds to the left elbow and long segment avulsion of the left
radial artery. He had vascular injury to the left upper limb and
right lower limb and there was complete disruption of the right
knee joint with global instability. He was unshaken on the
manner and the extent of the injuries suffered by the claimant
and the treatment undertaken at the Apollo Victor Hospitals,
Margao. In that backdrop, the learned MACT had referred to
the testimony of Dr. Alberto (Aw7), held that his testimony was
unshaken in the cross-examination and allowed the amount37
under the head of medical expenses.
45] The learned MACT had however disbelieved the
version of the claimant that he had undergone physiotherapy
treatment despite the fact that he was not required to plead his
evidence and the fact that he had produced two receipts by the
examination of Dr. Sayad Hasan. The learned MACT also chose
to disbelieve his version on the premise that the claimant had
not produced any reference letter from the Apollo Victor
Hospitals to Dr. Sayad Hasan and on that premise disallowed
the amount towards the physiotherapy costs incurred by him.
The learned MACT ought not to have taken a hypertechnical
view and disallowed the claim of the claimant on that head
when there was no singular dispute of the fact that he had
suffered 50% permanent disability. To that extent therefore, the
claim of the claimant is allowed in the amount of `55,500/-
towards the head of physiotherapy treatment juxtapositioned
with the nature and the extent of the injuries suffered by him.
46] The learned MACT was also in error not to grant him
the charges towards the oil massage treatment and assuming
that the said amount was on the higher side, nothing should
have prevented the learned MACT to have made a rough
estimate and awarded a considerate amount on that head. In38
that context, the claimant is awarded an amount of `20,000/-
towards the massage treatment incurred by him having found
the amount of `48,000/- on the higher side and excessive. The
claimant had examined one Shahjahan (Aw6) who had stated
that he had suffered injury to his right knee and was walking
with the help of crutches with great difficulty. His taxi was hired
by the claimant to take him to the hospital and back and also
to the physiotherapy clinics etc., and that for all these purposes
he was paid an amount of `60,000/- in eight installments
towards which he had issued separate receipts to the claimant.
47] Shahjahan (Aw6) had spelt out the particulars of the
vehicle owned by him, assured to produce the ownership
documents and was materially unshaken that his taxi was hired
by the claimant to take him to the hospital and back and for
physiotherapy and related treatments. It was completely lost
on the learned MACT that the claimant had suffered lower limb
injuries for which he could not be expected to travel by public
transport and that he would be required to engage a private
vehicle to take him, back him and forth. There was no basis
therefore for the learned MACT to disallow the bills towards
travelling and which are accordingly awarded in the claimant's
favour. 39
48] The claimant had produced the Income Tax Returns
showing his income at `1,09,711/- for the Accounting Year
31.3.2004. The contention of Shri A.R.Kantak, learned Advocate
for the Insurer was that he had failed to prove the income for
the subsequent Accounting Years and therefore the learned
MACT was in error to give weightage to these Returns and to
award compensation accordingly in his favour. i am unable to
subscribe to the contention of Shri A.R.Kantak, learned
Advocate inasmuch as the earnings of the claimant prior to the
accident would be relevant and a guiding consideration for
computing the loss of income. The learned MACT had
considering 50% disability and the earnings of the claimant
computed his entitlement on that count to `4,38,845.68 which
in my assessment cannot at all be faulted.
49] The learned Tribunal, however, ought to have
considered the loss of income considering the nature and the
extent of these injuries and the resultant disability. The
claimant is, therefore, awarded a reasonable amount of
`2,00,000/- on that head. The learned MACT took a very
restricted view and despite the extent of permanent disability
suffered by him, the various treatments undergone from time
to time awarded him a measly sum of `5000/- towards the pain
and suffering which is enhanced to `50,000/- being just and40
reasonable in the circumstances of the case. Therefore, the
claimant is held entitled to an amount of `11,08,855.54
rounded upto `11,09,000/- being the just compensation in the
circumstances of the case. To that extent the cross-objections of
the claimant are found tenable and accordingly partially allowed
raising the compensation to `11,09,000/- from that awarded
amount by the Tribunal of `7,03,356/- with interest.
50] In the result, therefore, Insurer's appeal is
dismissed and the cross-objections are partly allowed.
NUTAN D.SARDESSAI, J
mukund
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