The appellant has filed this First Appeal From Order under Section 173 of the Motor Vehicles Act, 1988 against the judgment and award dated 26.07.2005, passed in the Motor Accident Claim Petition No.192 of 2002 by the Motor Accident Claims Tribunal/Additional District Judge, Court No.8, Lucknow.
The Motor Accident Claim Petition No.192 of 2002 was filed by the appellant-Smt.Sarita Verma claiming compensation to the tune of the Rs.2,99,400/- as detailed in paragraph 22 of the claim petition alongwith interest at the rate of 15% per annum.
The claim petition was filed by the appellant stating therein that while she was going with her husband on Scooter to the Medical College on 16.04.2001, the driver of Indica Car having registration No.UP-78-AA-4038 driving rashly and negligently smashed the Scooter from the back side. On account of the said accident the appellant got serious injuries.
None appeared on behalf of owner of the vehicle i.e. respondent no.1. The claim petition has been decided exparte against him. The respondent no.2 i.e. Insurance Company filed a written statement denying the accident and serious injuries to the appellant. Further it was contended that even if it is proved that the accident had occurred then it was on account of negligence in driving the Scooter so the insurance Company is not liable to indemnify for the loss.
On the basis of the pleadings of the parties the following issues were framed:-
"1& D;k fnukad 14-6-2001 dks yxHkx 10%00 cts fnu ifjorZu pkSjkgs ds ikl tuin y[kuÅ esa bafM;k dkj iath;u la0& ;w0ih0&78,-,[email protected] ds pkyd }kjk rsyh o ykijokgh ls ;kfpuh ds LdwVj esa VDdj ekj nsus ds dkj.k nq?kZVuk ?kfVr gqbZ ftlls ;kfpuh dks pksVsa vk;h\ 2& D;k mijksDr nq?kVZuk ds le; dfFkr nq?kVZuk djus okyh dkj iath;u la0& ;w0ih0&78,-,[email protected] ds pkyd ds ikl oS/k izys[k ugha Fks\ 3& D;k dfFkr nq?kZVuk ds le; nq?kZVuk djus okyh dkj iath;u la0& ;w0ih0&78,-,[email protected] U;w bafM;k bU';ksjsUl da0fy0] y[kuÅ foi{kh la0 2 ds }kjk chfer Fkh\ 4& ;kfpuh fdruh /kujkf'k crkSj {kfriwfrZ ,oa fdl i{kdkj ls ikus dh vf/kdkfj.kh gS\"
The appellant had filed the prescription of the hospital and report of injury (all photocopies) alongwith the list-C. By list-C-32 the appellant had filed the consultation prescription of Dr.Sanjay Singh, the annual income of the appellant and receipts of the medical stores. In list C-29 the appellant had filed prescription of Balrampur Hospital, X-Ray report of the Jaw of the appellant and injury report of the Balrampur Hospital alongwith News published in the News papers and licence of the driver of the vehicle and photocopies of the prescription of the K.G.M.C., report of the Pathology and charge sheet.
The respondent no.2-New India Assurance Company Limited has filed cover note of the policy and information of Bank of India, Cheque and information of Cheque bounce given by the Bank of India.
Smt. Sarita Verma-claimant appellant, Madan Gopal and Shri Payare Lal Verma were examined as P.W.1, P.W.-2 and P.W.-3 respectively. On behalf of respondent no.2-Insurance Company Shri Sameer Kumar Saxena was examined as D.W.-1.
After considering the pleadings of the parties, evidence and material available on record, the learned Tribunal allowed the claim petition and awarded a sum of Rs.5,000/- as compensation alongwith interest @ 7.5% from the date of presentation of claim petition.
Heard Shri Prakash Chandra, Advocate holding brief of Shri P.L.Verma, learned counsel for the appellant and Shri Dinesh Kumar, learned counsel for respondent no.2. None appeared on behalf of respondent no.1 despite service of notice.
Submission of learned counsel for the appellant is that while the appellant was going with her husband on Scooter at about 10 a.m. on 16.04.2001 from her house to Medical College, the driver of Indica Car No.UP-78-AA-4038, driving rashly and negligently coming from the side of Hazaratganj, smashed the Scooter from the back side while the Scooter was turning from Parivartan Chowk to Medical College. The Scooter fell down and the face of the appellant was injured from the divider of Parivartan Chowk, by which she got serious injuries and bone of her Jaw was broken and four tooths were extracted. She had also received serious injuries on the other parts of body. The accident was so severe that the appellant got unconscious. She was immediately rushed to the Balrampur Hospital and treated there. Thereafter she was referred to Medical College.
After examining the witnesses the learned Tribunal had found that the accident was proved and the issues were decided in favour of the appellant. The Driving licence of the owner of the Indica Car and registration certificate have also been found valid. So far as the question of insurance of the Indica Car is concerned, it was required to be proved by the respondent no.1 i.e. the owner but he did not appear before the Claims Tribunal. The policy cover note of the India Car was proved by the D.W.1, but the Insurance Company had stated that since the cheque of premium could not be encashed as it was not honored by the bank therefore the insurance was not valid, but the learned Tribunal relied on the case of the Apex Court reported in (2000) ACC 751 (SC) and held that the Insurance Company is liable to pay the compensation. The learned Tribunal has wrongly and illegally held that the receipts of medicines are not admissible because the Doctor, with the consultation of whom the medicines were purchased, was not produced for evidence and cross examination relying on case of Calcutta High Court reported in 2005 (1)TAC 66 (Cal.);Sudhir Bhuiya Versus National Insurance Company Limited and others but the same is perverse because the treatment of the appellant was conducted in the Government Hospital and Medical College and the medicines were purchased on the prescription of Balrampur Hospital and Medical College except for one prescription of private Doctor i.e. Dr.Sanjay Singh.
On the basis of the aforesaid submissions learned counsel for the appellant submitted that the learned Tribunal has wrongly and illegally allowed the compensation of only Rs.5,000/- for the serious injuries received by the appellant so the judgment and award is liable to be modified and the claim petition is liable to be allowed with cost in accordance with law.
It has further been submitted that the Insurance Company i.e. the respondent no.2 has satisfied the award dated 26.07.2005 of Rs.5,000/- and paid the amount of compensation so plea of the Insurance Company that the insurance was not valid at the time of accident is not tenable. In support of his submissions learned counsel for the appellant has relied on the case of Laxman Versus Divisional Manager, Oriental Insurance Co.Ltd. and another; 2012 ACJ 191.
On the other hand learned counsel for the respondent no.2/the Insurance Company submitted that the insurance of the Indica Car No.UP-78-AA-4038 was not valid on the date of accident because the Cheque of premium given by the owner was dishonored by the bank therefore, the same could not be encashed. Accordingly the policy was cancelled and an intimation to the said effect was given to the owner Dr. Anurag Anand. Accordingly the car was not insured on the date of accident so the Insurance Company is not liable to indemnify the loss.
In regard to the submission of the learned counsel for the appellant that since the insurance company has satisfied the award of Rs.5,000/-, therefore, the plea of no insurance, as cheque was dishonored, is not available, learned counsel for the respondent no.2 submitted that in view of the statutory provisions made in Section 173(2) of the Motor Vehicles Act, 1988 that no appeal shall lie against any award of a Claims Tribunal if the amount in dispute in the appeal is less than ten thousand rupees, the Insurance Company had no option except to pay the awarded amount of Rs.5,000/-.
Learned counsel for the respondent no.2 further submitted that the prescriptions and receipts of medicines were not admitted, so they are required to be proved, but the appellant has failed to prove the same. Accordingly, learned Tribunal has rightly held that the amount of the same is not admissible without proving by producing the Doctor.
On the basis of the aforesaid submissions learned counsel for the respondent no.2 submitted that the appeal is highly misconceived and is liable to be dismissed with costs. In support of his submissions learned counsel for the respondent no.2 has relied on a judgment of Divisional Manager, United India Insurance Co.Ltd. Versus Akhavva and another;2008 (3) T.A.C. 163 (Kant.).
I have considered the submissions of the parties and perused the record.
The appellant was injured in an accident on 16.04.2001 while she was going with her husband on Scooter and driver of Indica Car No.UP-78-AA-4038, driving rashly and negligently, smashed the Scooter from the back side. The appellant had got injuries and bone of her Jaw was broken and four tooths were extracted. The appellant had filed the claim petition claiming compensation and interest on the expenses incurred on the treatment. Learned Tribunal after considering the pleadings and evidences adduced before it, awarded a sum of Rs.5,000/- towards damages, but the medical expenses have not been awarded as the concerned Doctor was not produced.
Submission of learned counsel for the appellant that since the treatment of the appellant was done at the Government Hospital and Medical College, so the Doctors were not required to be produced to prove the prescriptions and the receipts of medicines, is misconceived because the prescriptions and the receipts were not admitted by the respondent/Insurance Company, therefore, unless the same are proved by producing the concerned doctor, the appellant was not entitled for the expenses incurred on the medicines.
It has been held by the Apex Court in the case reported in 2012 ACJ 191; Laxman Versus Divisional Manager, Oriental Insurance Co.Ltd. and another that the term 'compensation' used in Section 166 of Motor Vehicles Act, 1988 would include not only the expenses incurred for immediate treatment but also the amount likely to be incurred for future medical treatment/care necessary for a particular injury or disability caused by an accident. The legal position is not in dispute. But the appellant has failed to prove so she is not entitled.
The argument of the learned counsel for the appellant that since the Insurance Company had paid the damages awarded by the learned Tribunal, so it cannot disown the liability on the ground that the insurance was cancelled before the accident. The argument of the learned counsel for the appellant is misconceived and liable to be repelled in view of Section 173 of the Motor Vehicles Act and the judgment of Karnataka High Court reported in 2008 (3) T.A.C. 163 (Kant.);Divisional Manager, United India Insurance Co.Ltd. Versus Akhavva and another relied by the learned counsel for the respondent/Insurance Company in which it has been held that no appeal can be filed in respect of the awarded amount which is less than Rs.10,000/-, and non-challenge of the award in such cases does not ipso facto leads to the inference that the insurer has admitted the liability in all cases. Relevant paragraph 29 of the case is reproduced as under:-
"29. Last of the contentions urged by the learned Senior Counsel Mr.S.P.Shankar is that the Insurance Company has already satisfied the award in two cases and, therefore, in the present cases also the appellant is liable. I do not find any force in the said submission, because, as rightly pointed out by the learned Counsel Mr.A.N.Krishna Swamy for the appellant, in the two cases in regard to which the award has been satisfied by the appellant, they are related to quantum of compensation which is less than Rs.10,000/-. Therefore, when no appeal can be filed in respect of the award amount which is less than Rs.10,000/-, non-challenge of the award in such cases does not ipso facto leads to the inference that the insurer has admitted the liability in all cases. Therefore, the said ground also lacks merit."
In view of above, I am of the considered opinion that there is no illegality or infirmity in the judgment and award dated 26.07.2005 passed by the learned Claims Tribunal and the same is based on cogent reasoning. The appeal has been filed on misconceived grounds. It is devoid of any merit and liable to be dismissed.
The appeal is dismissed.
No order as to costs.
Office is directed to send back the Lower Court Record forthwith.