1 By way of filing this appeal under Section 173 of the Motor Vehicles Act, 1988 the appellant has challenged the judgment and order dated 31st December 2004 passed by the learned Motor Accident Claims Tribunal (Aux.), Jamnagar in MAC Petition No.410 of 1992 whereby the Tribunal has partly allowed the claim petition filed by the claimant.
2 The short facts of the present appeal are that the respondent – original claimant was driving his Taxi Car bearing No.GJ 10 T 1755 with passengers and he was going from Jamnagar to Khambhalia. It is his case that when the said Car reached near Naghedi Patiya, at that time the other motor car bearing registration No.GJ 3 A 1215 came there in a rash and negligent manner from the opposite direction and dashed with the Taxi Car of the claimant due to which he sustained grievous injuries. The claimant therefore filed claimant petition claiming compensation of Rs.2,60,000 under different heads. The Tribunal awarded Rs.1,36,000 to the claimant out of which 10% was deducted towards his contributory negligence and awarded Rs.1,22,400/-.
3 On the point of contributory negligence the Tribunal has discussed evidence in paragraph 19 of the judgment wherein the Tribunal observed that the claimant was negligent to the extent of 10% for the occurrence of the accident. On the point of income, the Tribunal has considered income of the claimant at Rs.5000 per month including future economic prospects. As the respondent sustained disability to the extent of 10% the future economic loss was assessed at Rs.500 per month and Rs.6,000 per annum. Looking to his age of 32 years, the Tribunal adopted multiplier of 12 and assessed Rs.72,000 to be his future economic loss. Over and above, the Tribunal awarded Rs.8,000 towards Pain, Shock and Suffering, Rs.7500 as actual loss of income, Rs.8,000 towards medicines and treatment, Rs.4500 towards Attendant charges, Rs.3,000 towards special diet, Rs.3,000 towards transportation, Rs.30,000 towards damage caused to the vehicle. Thus, in all Rs.1,36,000 was considered to be his economic loss out of which 10% was deducted towards his contributory negligence and awarded Rs.1,22,400 against which this appeal is preferred by the insurance company.
4 Learned counsel for the appellant submitted that though the claimant has sustained the whole body disability at 5%, the Tribunal has committed an error in considering the disability at 10%. He next contended that the Tribunal has committed an error in awarding Rs.30,000 as damage to the car though as per the insurance policy the limit is prescribed as Rs.6,000.
5 Learned counsel for the respondent has, on the other hand, supported the order of the Tribunal and prayed that no interference is called for.
6 The income of the injured at the relevant point of time was Rs.2,500 per month and the Tribunal has committed an error in assessing it at Rs.5,000 per month. At the most, it can be assessed at Rs.3,750 considering the future economic aspects of the injured. The Tribunal has again committed an error in considering the disability at 10% and awarding Rs.500 per month. In fact, at page 13 of the judgment itself the Tribunal has considered the whole body disability at 5% and therefore the future economic loss should be Rs.187.50 per month at Rs.2250 per annum. Looking to the age of the claimant, the multiplier should be 16 and therefore the amount that can be awarded under the head of future economic loss should be Rs.36,000/-.
7. In the case of National Insurance Co. v. Prembai Patel and others, reported in 2005(6) SCC 172 the Honourable Supreme Court has observed as under :-
13. The insurance policy being in the nature of a contract, it is permissible for an owner to take such a policy whereunder the entire liability in respect of the death of or bodily injury to any such employee as is described in sub-clauses (a) or (b) or (c) of proviso (i) to Section 147(1)(b) may be fastened upon the insurance company and insurance company may become liable to satisfy the entire award. However, for this purpose the owner must take a policy of that particular kind for which he may be required to pay additional premium and the policy must clearly show that the liability of the insurance company in case of death of or bodily injury to the aforesaid kind of employees is not restricted to that provided under the Workmen's Act and is either more or unlimited depending upon the quantum of premium paid and the terms of the policy.
15. Though the aforesaid decision has been rendered on Section 95(2) of the Motor Vehicles Act, 1939 but the principle underlying therein will be fully applicable here also. It is thus clear that in case the owner of the vehicle wants the liability of the insurance company in respect of death of or bodily injury to any such employee as is described in clauses (a) or (b) or (c) of proviso (i) to Section 147(1)(b) should not be restricted to that under the Workmen's Act but should be more or unlimited, he must take such a policy by making payment of extra premium and the policy should also contain a clause to that effect. However, where the policy mentions "a policy for Act Liability" or "Act Liability", the liability of the insurance company qua the employees as aforesaid would not be unlimited but would be limited to that arising under the Workmen's Act.”
I am of the opinion that the contention raised by the appellant is required to be accepted. The liability of the insurance company is liable upto 6,000/- and the Tribunal has committed an error in awarding Rs.30,000 towards damage to the car.
8. Therefore, the respondent is entitled to get the following amounts:
============= Total Rs.76,000 Out of the same, as the claimant is held negligent to the extent of 10% for the accident, he is entitled to get Rs.68,400/- only whereas the Triubnal has awarded Rs.1,22,400. Therefore, the excess amount of Rs.54,000 is required to be refunded to the insurance company along with interest and costs. The judgment and award of the the Tribunal is modified to the aforesaid extent. The appeal is allowed partly with no order as to costs.
(K.S.Jhaveri, J.) *mohd