The Allahabad High Court has directed the Oriental Insurance Company Limited to pay a compensation of Rs 23,69,971 to a girl who became disabled in a collision between a Maruti van and a truck.
A single-judge bench of Justice Vipin Chandra Dixit passed this order while hearing an appeal filed by a minor girl through her mother.
The first appeal from order has been filed on behalf of claimant appellant for enhancement of compensation against the judgment dated 8.8.2007 passed by Motor Accident Claims Tribunal/Additional District Judge, Bulandshahar in M.A.C.P (minor through her mother Vs Bishambhar Singh and another) by which compensation of Rs 1,08,875 along with 6% interest has been awarded in favour of claimant-appellant on account of injuries received by her.
The facts of the case are that on 22.8.2005, the claimant-appellant was returning from Agra to Bulandshahr by a Maruti van along with her other family members and at about 12 noon when they reached near Village Gijrauli, District Hathras, the truck which was coming from opposite direction hit the van.
The truck was being driven by its driver very rashly and negligently. The claimant-appellant had received grievous injuries in the accident and has become permanently disabled. The first information report was lodged against the truck driver in Police Station Kotwali, Hathras, which was registered as Case under Sections 279, 338, 304A I.P.C.
The claim petition was filed on behalf of claimant-appellant (minor) through her mother under Sections 166 and 168 of Motor Vehicles Act claiming compensation of Rs 36,05,000. The claim petition was registered as MACP.
As per claim petition, the claimant had received grievous injuries in the accident and had become permanently disabled to the extent of 75%. The age of the claimant was only 2 years at the time of accident.
The opposite party/respondent no 1, who is the owner of the truck, has appeared before the Claims Tribunal and filed his written statement denying the claim allegation. It was pleaded that the truck in question was insured from 15.10.2004 to 14.10.2005. It was also pleaded that registration certificate, insurance and permit of truck as well as driving licence of truck driver was valid and effective on the date of accident.
The opposite party/respondent no 2 the Oriental Insurance Company Limited has also filed its written statement denying the claim allegation but it was admitted that the truck was insured for a third party for the period 15.10.2004 to 14.10.2005. It was pleaded that the accident occurred on account of negligence of drivers of both the vehicles.
It was also pleaded that the owner, driver and insurer of Maruti van were necessary parties but were not impleaded in the claim petition and the claim petition is defective for non-joinder of necessary parties.
The Claims Tribunal after considering the evidence and materials adduced by the parties, had recorded the finding while deciding issues that drivers of both the vehicles were equally negligent and responsible for the accident. The Claims Tribunal has recorded the finding that there was contributory negligence on the part of both the drivers to the extent of 50-50%.
The Claims Tribunal has also recorded the finding that there is no evidence to establish that the Maruti van was insured on the date of accident. The owner of Maruti van was a necessary party, but was not impleaded by the claimant and the claim petition is defective for non-joinder of necessary party.
The Court observed that,
It is admitted fact that the claimant aged about 2 years along with her family members was travelling in a Maruti van and it was a case of composite negligence. The Claims Tribunal has erred in deciding the issue of contributory negligence ignoring the fact that it was a case of composite negligence and it is open to the claimant to claim compensation either from one vehicle or from both the vehicles in view of law laid down by the Apex Court in the case of Khenyei (supra). Since the claim petition was filed claiming compensation from the owner and insurer of the truck, the Claims Tribunal had erred in deducting 50% compensation on account of contributory negligence of the driver of Maruti van.
The Claims Tribunal has also erred in accepting notional income of Rs 15,000 per annum as provided in IInd Schedule of Motor Vehicles Act, 1988 which was inserted in 1994, whereas in the present case the accident occurred on 22.8.2005 and as such the notional income of claimant is accepted as Rs 3,000 per month as provided by the Apex Court in the case of Laxmi Devi (supra) for the accident occurred in 2004.
The Claims Tribunal has not awarded any amount towards future prospects whereas the claimant-appellant is also entitled for 40% future prospects in view of law laid down by the Apex Court in the case of Jagdish vs Mohan reported in 2018(2) TAC 14.
The Claims Tribunal has also erred in accepting 75% loss of earning capacity relying on the disability certificate which discloses 75% disability to the claimant, whereas as per the evidence adduced by claimant before the Claims Tribunal, the claimant-appellant has become permanent disable to the extent of 100%. Loss of income is accepted 100%.
So far as medical expenses are concerned, the claimant had fully proved her medical expenses by producing bills/vouchers of Rs 47,628 and Rs 94,343 before the Claims Tribunal and the Claims Tribunal has erred in awarding only Rs 15,000 for medical expenses. The claimant appellant is entitled for Rs 1,41,971 towards medical expenses incurred till the award passed by the Claims Tribunal. The claimant-appellant has also filed several documents related to the treatment and medical expenses of claimant-appellant amounting to Rs 4,42,000 through application filed under Order 41 Rule 27 CPC dated 9.12.2013.
The Court by order dated 6.4.2017 sent the documents annexed with application under Order 41 Rule 27 CPC to the concerned Claims Tribunal for verification of said documents.
The Claims Tribunal after affording opportunity of hearing to the parties had verified the bills and vouchers filed on behalf of claimant-appellant as additional evidence and submitted its report to the Court by letter dated 7.9.2019. The medical expenses occurred after the judgment and award of Claims Tribunal dated 8.8.2007 till 9.12.2013 (filing application under Order 41 Rule 27 C.P.C) amounting to Rs 4,42,000 were duly verified by the concerned Claims Tribunal.
The respondent Insurance Company has not disputed the fact that aforesaid amount has not been incurred in the medical treatment of claimant-appellant. The claimant-appellant is entitled for medical expenses incurred in her treatment.
The medical treatment of the claimant-appellant is still going on as she is disabled to the extent of 100%. Nothing has been awarded towards future medical expenses. The claimant-appellant is also entitled for Rs 3,00,000 towards future medical expenses looking at the nature of injuries.
The Court further observed that,
The Claims Tribunal had also failed to consider that on account of 100% disability the marriage prospects of claimant-appellant was substantially damaged and the claimant-appellant is subjected to frustration, disappointment, discomfort and inconvenience but nothing has been awarded in the aforesaid account to the claimant-appellant.
The claimant-appellant is also entitled for Rs 3,00,000 for loss of marriage prospects. The Claims Tribunal has awarded only Rs 20,000 towards helping hand ignoring the fact that at the time of accident she was only 2 years old and was 100% disabled. The attendant charges payable to the appellant is assessed as Rs 2,000 X 12 X 15 = Rs 3,60,000.
The Claims Tribunal has also erred in awarding only Rs 5,000 for pain and suffering. The claimant-appellant is entitled for Rs 30,000 for pain and suffering. The Claims Tribunal has also erred in awarding only Rs 4,000 for transportation and Rs 5,000 for special diet which is also unreasonable and is without any basis looking at the nature of injuries as well as disability of the claimant-appellant. The claimant-appellant is entitled for Rs 20,000 for transportation and Rs 20,000 for special diet.
In view of the above, the Court allowed the appeal filed by appellant and award of the Claims Tribunal was modified and compensation awarded by the Claims Tribunal was enhanced from Rs 1,08,875 to Rs 23,69,971. The claimant is also entitled for 6% interest on enhanced amount from the date of award of Claims Tribunal dated 8.8.2007.
The Court directed the respondent no 2 Oriental Insurance Company Limited to pay enhanced amount along with interest within two months from today to the claimant-appellant, failing which respondent Insurance Company is liable to pay interest at the rate of 10% on enhanced amount.