* THE HON’BLE SRI JUSTICE U. DURGA PRASAD RAO
+ M.A.C.M.A No.2626 of 2009
%06.06.2014
Between:
The New India Assurance Co. Ltd., Rep. by its Deputy Manager, Secunderabad. Appellant AND Mudam Kistaiah and another …. Respondents ! Counsel for Appellant : Sri Sriman ^ Counsel for Respondent No.1 : Sri P. Venkateswarlu < Gist:
> Head Note:
? Cases referred:
1) (2011) 1 SCC 343
2) (2002) 7 Supreme Court Cases 456
3) 2014(1) ALD 111 (SC)
4) AIR 2012 SC 86
5) 2011 ACJ 2418 SC HON’BLE SRI JUSTICE U. DURGA PRASAD RAO
M.A.C.M.A. No. 2626 of 2009
JUDGMENT:
Aggrieved by the Award dated 09.04.2008 in O.P.No.964 of 2001 passed by the Chairman, M.A.C.T-cum-I Additional District Judge, Nizamabad (for short “the Tribunal”), the second respondent in the OP/New India Assurance Company Limited preferred the instant MACMA.
The respondent No.1 in the appeal is the claimant and respondent No.2 is the first respondent before the Tribunal.
2) The factual matrix of the case is thus:
a) The case of the claimant is that on 28.11.2000, at about 11.00 A.M., while he was returning to the bank from post office by walk, at Indira chowk, Kamareddy town, one lorry bearing No.ATG 72 belonging to 1st respondent came from back side in a rash and negligent manner and hit the claimant and the front left wheel of the lorry ran over the right leg of the claimant and thereby he sustained grievous crush injuries on his right leg and hands, chest and injuries all over the body. Immediately, he was shifted to Government Hospital, Kamareddy, from there he was shifted to Sai Vani Super Specialty Hospital, Hyderabad wherein he underwent treatment for one month. His right leg was surgically amputated three times i.e. on 28.11.2000, 8.12.2000 and 14.12.2000 and his leg was removed upto knee level. The claimant incurred expenditure of Rs.1,50,000/- for treatment, lodging and boarding, transport etc., and he needs another Rs.1,50,000/- for artificial limb, fixation, corrective surgery, medicines, extra nourishment etc. On these pleas, the claimant filed OP No.964 of 2001 against respondents 1 and 2, who are the owner and insurer of the offending vehicle and claimed Rs.10,00,000/- as compensation under different heads mentioned in the OP.
b) Respondent No.1 opposed the claim contending that the claimant himself emerged on the road all of a sudden and fell down and sustained simple injuries without any touch or dash by the vehicle, and the claimant sustained injuries only due to his own negligence and fault. The lorry of this respondent is insured with the 2nd respondent and the liability of the 1st respondent has to be indemnified by the 2nd respondent.
c) Respondent No.2/New India Insurance Company opposed all the material averments made in the petition. It contended that the alleged accident took place due to negligence of the claimant, and hence, insurer is not liable to pay compensation. It denied the occurrence of the accident and the claimant receiving injuries in the accident. It denied the licence of driver of the lorry, road-worthiness of vehicle to ply and ownership of respondent No.1. It further denied the policy.
d) During trial P.Ws.1 and 2 were examined and Exs.A.1 to A22 were marked on behalf of claimant. Policy copy filed by the 2nd respondent was marked as Ex.B1.
e) A perusal of the award would show that issue No.1 which relates to occurrence of accident is concerned, the Tribunal basing on the evidence of PW1 concluded that the accident was occurred due to the fault of the lorry driver. Issue No.2 which relates to quantum of compensation and liability of the respondents is concerned, the Tribunal granted total compensation of Rs.7,15,788/- (rounded off to Rs.7,16,000/-) with costs and interest @ 7.5% p.a against respondents, under different heads as follows:
For disability - Rs.5,11,718/-
For pain and suffering - Rs.1,00,000/- For clutches and artificial leg - Rs. 30,000/- Medical expenses - Rs. 69,070/- Attendant & Transportation charges - Rs.
5,000/-
Total Rs.7,15,788/-
Hence the appeal by the 2nd respondent/New India Assurance Company Limited.
3) Heard arguments of Sri Sriman, learned counsel for appellant/New India Assurance Insurance Company and Sri P. Venkateswarlu, learned counsel for first respondent/claimant.
R.2 is not necessary party in the appeal.
4 ) Learned counsel for appellant impugned quantum of compensation mainly on two grounds:
a) Firstly, he argued that the Tribunal erred in granting Rs.69,070/- towards medical expenses inspite of clear admission by the claimant that the entire medical expenditure was borne by the bank authorities. His admission would show that the claimant did not incur any medical expenditure out of his pocket and therefore, he does not deserve compensation in this regard. Hence, said amount has to be deducted from the compensation.
b) Secondly, he argued that the Tribunal committed grave mistake in granting Rs.5,11,718/- as compensation for disability. He submitted that even if Ex.A.8—disability certificate is believed, the disability of 60% as mentioned in it indicates only the physical disability and said percentage of physical disability need not necessarily result in equal percentage of functional disability. Depending upon the adverse effect of the physical disability on the employment and earnings of a victim, the Tribunal has to assess the functional disability and grant just compensation accordingly. However, in the instant case, the Tribunal blindly accepted the physical disability as mentioned in Ex.A.8, though no Doctor who issued Ex.A.8 was examined and accepted the 60% of physical disability as equal percentage of functional disability and estimated the compensation. In fact the claimant who was an employee of the bank, did not suffer any loss of earnings due to his disability as he continued in service and retired on attaining superannuation. Thus, indeed there was no monetary loss due to the physical disability suffered by him. In such an event, the Tribunal ought to have granted only a minimum compensation for his physical disability which resulted in loss of basic amenities instead of granting compensation for loss of earning power, since there was no functional disability and monetary loss. He relied upon the decision reported in Raj
[1]
Kumar vs. Ajay kumar and another on the principle of assessing the functional disability basing on the physical disability.
Thus, he prayed to reassess the compensation and reduce the same by allowing the appeal.
5 a) Per contra, learned counsel for 1st respondent/claimant firstly argued that the appeal challenging the quantum of compensation is not maintainable since the appellant/Insurance Company failed to obtain requisite permission under Section 170 of Motor Vehicles Act from the Tribunal. He argued that in a decision reported in National Insurance Company Ltd.,
[2]
Chandigarh v. Nicolletta Rohtagi and others the Hon’ble Apex Court held that Insurance Company cannot prefer appeal challenging the quantum of compensation without obtaining permission from the Tribunal under Section 170 of the M.V. Act and same fact was reiterated in Josphine James vs. United
[3]
India Insurance Co. Limited and another . Hence the appeal is liable to be dismissed in limini.
b) Secondly, learned counsel argued that the department’s reimbursing medical expenditure has nothing to do with the Tribunal granting medical expenditure and the appellant cannot seek for deduction of that amount from the compensation.
c) Thirdly, he argued that immediately after discharge from hospital, the claimant was forced to quit the job under Voluntary Retirement Scheme (VRS) as he was unable to attend his duties as head pune because of amputation of his right leg below knee and thereby he suffered loss of income. He argued that the claimant still had eight more years of service and in view of his forced retirement he incurred monetary loss and in that context the functional disability is 100% but the Tribunal while computing compensation restricted it to 60% only and hence the appellant cannot contend that the compensation is high side.
He thus prayed to dismiss the appeal.
6 ) In the light of above rival arguments, the points for determination in this appeal are:
1) Whether the appeal by Insurance Company is not maintainable challenging the quantum of compensation for want of permission from the Tribunal under Section 170 of the M.V. Act?
2) Whether the compensation awarded by the Tribunal is just and reasonable or needs reassessment?
7) POINT No.1: This point is concerned, it may be noted that no doubt in Nicolletta Rohtagi’s case (2 supra), it was observed that unless an order is passed by the Tribunal permitting the insurer to avail the grounds available to an insured or any other person against whom a claim has been made, it is not permissible to the insurer to contest the claim on the grounds which are available to the insured or to a person against whom a claim has been made. However, the correctness of the above judgment was challenged before a Three Judges Bench in the case of United India Insurance Company Ltd. vs. Shila Datta
[4]
and others . Five points were raised before the said Bench.
Point No.1 concerns with the right of Insurance Company to contest on all grounds apart from grounds mentioned under Section 149 (2) of the M.V. Act—as a mere noticee and as a party.
a) Discussing the rights of the insurer to contest on all grounds, when he was voluntarily impleaded as party by the claimants, Apex Court in Para 8 has held thus:
“8 . The Act does not require the claimants to implead the insurer as a party Respondent. But if the claimants choose to implead the insurer as a party, not being a noticee under Section 149(2), the insurer can urge all grounds and not necessarily the limited grounds mentioned in Section 149(2) of the Act. If the insurer is already a Respondent (having been impleaded as a party 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.”
b) Then discussing the rights of the insurer to contest on all grounds when he was shown as a mere noticee at the first instance and later impleaded as party by virtue of Section 170 of the Act, the Apex Court in Para 9 has held thus:
“9. Section 170 proceeds on the assumption that a claim petition is filed by the claimants, or is registered suo moto by the tribunal, with only the owner and driver of the vehicle as the Respondents. It also proceeds on the basis that in such a proceeding, a statutory notice would have been issued by the tribunal to the insurer so that the insurer may know about its future liability in the claim petition and also resist the claim, on any of the grounds mentioned in Section 149(2). Section 170 of the Act also assumes that the tribunal will hold an inquiry into the claim, where only the claimants and the owner and driver will be the parties. Section 170 provides that if during the course of such inquiry, the tribunal finds and satisfies itself that there is any collusion between the claimant and the owner/driver or where the owner/driver has failed to contest the claim, the tribunal may suo moto, for reasons to be recorded in writing, direct that the insurer who may be liable in respect of the claim, who was till then only a notice, shall be treated as a party to the proceedings. The insurer so impleaded, without prejudice to the provisions of Section
149(2), will have the right to contest the claim on all or any of the grounds that are available to the driver/owner.”(emphasis supplied)
c) Then summing up the above two instances, it was held thus:
“10. Therefore, where the insurer is a party-respondent, either on account of being impleaded as a party by the tribunal under Section 170 or being impleaded as a party-respondent by the claimants in the claim petition voluntarily, it will be entitled to contest the matter by raising all grounds, without being restricted to the grounds available under Section 149(2) of the Act.”
Needless to emphasise that the observations of the Full Bench are contrary to the view expressed in Nicolletta Rohtagi’s case(2 supra). Ofcourse, regarding points 3 to 5, the Full Bench referred those points to Larger Bench.
8) So when the ratio of Shila Datta’s case (4 supra) is applied to the facts of the present case, it is needless to mention that the present appellant/ Insurance Company was not a mere noticee under Section 149(2) of M.V. Act but it was a party respondent No.2 before the Tribunal being voluntarily added by the claimant. As such, the appellant/Insurer can contest the case on all the grounds and not restricted to Section 149(2) of M.V. Act. Hence the objection of 1st respondent is turned down.
9) POINT No.2: It may be noted that the Tribunal basing on Exs.A.11 to A.19—medical bills granted Rs.69,070/- to the claimant. The contention of appellant is that the bank authorities have paid the medical bills and the claimant has not incurred any expenditure out of his pocket and so he does not deserve any amount. In this regard, in the cross-examination PW.1 admitted
that the medical bills were paid by bank officials directly to hospital authorities and he does not know how much amount was paid by the bank authorities. Therefore, his evidence reveals that the S.B.H, Kamareddy wherein the claimant was working had in fact incurred the medical expenditure. However, the point is whether the tortfeasor and his indemnifier can be exonerated at the expense of the employer of the claimant. Certainly not. In a case of this nature, the correct procedure is that the Tribunal shall ascertain the correct medical expenditure so incurred by the employer, if necessary by giving notice to it and while passing award shall give a direction that the amount of medical expenditure incurred by the employer to be remitted to the employer’s account from out of the compensation amount. In the instant case, unfortunately the Tribunal has not ascertained how much medical expenditure was incurred by the bank authorities. For the lack of such clarity and as the tortfeasors cannot be let off at the expense of benevolent employer, the medical expenditure as granted by the Tribunal is undisturbed.
1 0 ) Then the second argument of the appellant regarding compensation for disability is concerned, it went on the premise that the claimant has not suffered any loss of income due to the amputation of his right leg below knee. I am afraid, this argument is not correct. Since inception, it is the case of claimant that due to pain and suffering and incapacity to work, he was forced to take Voluntary Retirement after discharge from hospital. He denied the suggestion that he attended the duties till the age of his retirement. When Ex.A.5—salary certificate issued by S.B.H, Kamareddy is perused, it was mentioned therein that the claimant has taken VRS from the bank in March, 2001 and by the time of his retirement, his gross salary was Rs.8,884/-. So it is clear that the claimant had taken VRS but not retired after full service. He was aged about 50 years by the time of accident and so still he was left with nearly eight years of service. Even if his bare salary is taken into consideration without adding his future prospects, still the loss of earnings for the remaining period of his service would exceed Rs.5,11,718/- as awarded by the Tribunal. Since the present appeal is not the one filed by the claimant for enhancement of compensation, compensation cannot be enhanced in this appeal in view of the decision reported in Ranjana Prakash and others v. Divisional
[5]
Manager and another . So at the outset, the appellant cannot now contend that the compensation for disability awarded by the Tribunal is on high side.
11) In the result, I find no merits in the appeal and the same is accordingly dismissed by confirming the award passed by the Tribunal in O.P.No.964 of 2001. No costs in the appeal.
As a sequel, miscellaneous applications pending if any shall stand closed.
U. DURGA PRASAD RAO, J Date: 06.06.2014
Note: L.R Copy to be marked: YES/NO
ksm / scs
[1] (2011) 1 SCC 343
[2] (2002) 7 Supreme Court Cases 456
[3] 2014(1) ALD 111 (SC)
[4] AIR 2012 SC 86
[5] 2011 ACJ 2418 SC