31 HIGH COURT OF CHHATTISGARH AT BILASPUR Singie Bench : Hon'bie Shri Ditip Raosaheb Deshmykh, J, Miscellaneous Apoeai (C.) No.1344 of 2007 The New india Assurance Company Limited versus Manoj Kumar Sahu and others ORDER Postfor 3-04-2008 Sd/- Dilip Raosaheb Deshmukh Judge HLGH COURT OF CHHATTISGARH AT BILASPUR SlnaSe Bench : Hon'bSe Shri Dlilp Raosaheb DeshmuRh. J. Misce!!aneous AooeaS (C.) No.1344 of 20^7 Appellant The New India Assurance Company Limited, through ~ Divisional Manager the New india Assurance Company Limited, Biiaspur, 2 Floor, Rama Trade Centre, Opposite ~ Rajeev Plaza, Bus Stand, Biiaspur (C.G.) versus Respondents IVIanoj Kumar Sahu, son of Shri K.R.Sahu, aged 32 years, by caste - Te!i, Resident ofWard No.3, Chikhali, behind police Chowki Chikhaii, Rajnandgaon (C.G.) Rupendra Singh Rajput, son of Jai Singh Rajput, aged 30 years, by caste Rajput, Resident of Awdhiyapara, house of Nirmaia Bai, Raipur (Chhattisgarh) through - Giriraj Bagdi, R/b Bagdi Transport. Aapapura, Durg (Driver of Tata 608 Metadore No.CG 04 ZB/0591) Giriraj Bagdi, son of Manmohan Das Bagdi/aged 37 years, by caste Bagdi, R/o Bagdi Transport, Aapapura, Durg (C.G.) (Owner of Tata 608 Metadore NO.CG04ZB/0591) Kheduram Sahu, son of Janak Laj Sahu, aged unknown years, by caste Sahu, Resident C/o Shikharchand Jain, Kachahari Chowk, Dhamtari (Chhattisgarh) (Owner of 407 Metadore No. CG/04/ZB/1385) Divisional Manager, Office the Oriental Insurance Company Limited Kachahari Chowk, Mandlna Manjli, Raipur (C.G.) through - Divisional IVianager & Office, The Orienta! insurance Company Limited, Malwiya Nagar, Durg (C.G.) ADpeal underSection 173 ofthe Motor Vehlcies Act 1988 ^3 Present : Shri Sourabh Sharma, counsel for the appeliant. Shri P.K.C.Tiwari, Senior Advocate with Shri Shashi Bhushan, counsel for respondent No.1 . No one appears for other respondents though served. ORDER (Passed on this 3 a- day of Apri!; 2008) In this appea! by the appeiiant/insurer the award dated 25-09- 2007 passed in Ciaim Case No.47/2006 bythe lind Additional Motor Accidents Claims Tribunai, Durg (henceforth <the Tribursa!') awarding compensation of Rs.1,37,440/- in an injury case is under chailenge. (2) It is not in dispute that the appellant is the Jnsurer of a Tata 608 Matador No.CG 04 ZB/0591 (henceforth 'the Tata 608') owned by respondent No.3 Giriraj Bagdi. (3) On 11-03-2004, head on colijslon took ptece between the Tata 608 driven by respondent No.2 Rupendra Singh Rajput and IVIatador 407 No.CG 04 ZB/1385 (henceforth 'the Matador 407') drh/en by respondent No.1/c!aimant, in which respondent No.t/claimant sustained grievous injury in the right femur bone. A criminal prosecution was launched against respondent NoJ/ciaimant for causing the accident due to rash and negiigent driving who was convicted upon admission ofguiit. (4) The Tribunai fastened the iiabiiity to pay compensation on the appeiianVinsurer after recording a finding that the accident was caused due to the rash and negligent driving of the Tata S08 and awarded compeqsation of Rs.1,37,440/- against the appeliant/insurer. "^. /•-^•^ ••^:^^^, w '%^^Jy ^•^S'L^' ^^^^•^^' ^^ (5) The following questaons arise for determination of this appeai: (A)(i) Whether respondent No.l/daimant had contributed to the accident by rash and negllgent driving ofthe Tata 608? (A)(ii) If yes, whether the compensation awarded by the Tribunal ought to have been apportione^? (B) Whether the compensation awarded by the u> Tribunal wsa on the higher side? (6) Sshri Sourabh Sharma, tearned counsel appearing for the appejlant/insurer and Shri P.K.C.Tiwari, iearned Senior Advocate appearing for respondent No.l/claimant were heard at tength. No one appeared forthe remaining respondents though served. (7) !t is not in dispute that report ofthe accident Vi^s not Sodged by respondent No,1/c!aimant who was prosecuted for causing the accident due to rash and negilgent driving. Admittediy, upon admission of guiit, respondent NoJ./claimant was convicted by a criminai Court for causing the accident due to rash and negiigent drivlng. Respondent No.t/ciaimant has, in para 7 of the cross- examination, ctearly admitted that the accident had occurred between Tata 608 and Matador 407 upon a head on coliision at night whlie thoroughfare on the road was on from both sides. In SuryavBushi vs. Shamia andl others, L»T. (CG) 90, a Division Bench ofthis Court has held that conviction ofthe driver of the 'vehicle in a crimina! Court is admlsslbte in dvll proceedings as prima facie evldence of negligence. Therefore, in .^'".^-i': ^ ' i ;'Ni»^ "'y ^ ^Aas.®^'' ^ N-^ view of the above mentloned facts and circumstances, the Trlbunal ought to have held that respondent No.t/claimant had contributed equaiiy to the accident and shouid have fastened iiabiijty on the appeilant/jnsurer oniy to the extent of 50% of the totai compensatlon payable. in this view of the matter, it is held that the Ijabiiity of the appeiiant/insurer to pay compensation is oniy to the extent of 50% of the totai compensation payabte. (8) The break-up of the compensation of Rs.1,37,440/- awarded by the Tribunaj is as under: SI.No. Head 1. Towards expenses in treatment 2. Towards transportation expenditure 3. Loss of Jncome for one year 4. Lossoffutureearning 5. Towards pain and sufferlng Totai = AmountfRs.) . 18,000 5,000 36,000 73,440 5,000 1.37.440 (9) The contentjon of Shri Sourabh Sharma, iearned counsel for the appellant/insurer that Dr. Akhitesh Yadav, A<W.-2 had first examlned the ciaimant on 16-04-2007 whereas the accident had occurred on 11-03-2004 and, therefore, the finding recorded by the Tribunal that the ciaimant had suffered 12% permanent disabiiity is erroneous, has force. Dr. Akhilesh Yadav, A.W.-2 admitted that aithough he was a member of the medicai board, the certificate of permanent disability was not issued by the board, He aiso admitted that he had never treated the clalmant. It was also admitted Jn cross- examlnation that' during the span of three years, the disabiiity could have occurred due to improper treatment. The claimant, for reasons ^"'.<—•.- 1 •"'"•^ 1 \^/ ^^^^^!^ 3 best known to him, did not examine the treating doctor. He aiso admitted in para 3 of his statement that he did not undergo any treatment after being discharged from the hosp'rta! and was not undertaking any treatment on the date of evidence. He a!so admitted that he was working as supervisor and earning Rs.1,500/- per month. The fact of being admltted for 22 days in Steei Clty Medical Centre, Bhiiai was aiso not proved by producing and proving the discharge certificate. The fact that despite constitution of a dlstrict medlcal board in Durg, Dr. Akhitesh Yadav, who is a member of the said board, issued a certificate without consuitlng the board, creates a strong susplcion in the truthfuiness of the certificate ExP-8. In the light of the facts and circumstances mentioned above, the Tribunai ought to have heid that no permanent disability v^as caused to the claimant due to the accldent, The amount of Rs.73,440/- awarded by the Tribunal under the head of loss of earnlng due to permanent disabiiity Is, therefore, ilabie to be SQt aside. After deductlng the amount of Rs.73,440/- from the total compensation of Rs.1,37,440/- awarded by the Tribunal, the remalnder comes to Rs.64,000/-. (10) S'snce it has been heid that respondent No.l/claimant had equally contributed to the accident, the liability ofthe appellant/insurer is restricted to 50% of the amount of Rs.64,000/-. Thus, the appeiiant/jnsurer is liable to pay a sum of Rs.32,000/- oniy as compensation. (11) In the resuit, the appeai is allowed. The impugned award is modified to the extent that the appellant/jnsurer is iiable to> pay compensation of Rs.32,000/- on!y to respondent No.l/claimant. The ry? 6 statutory deposit of Rs.25,000/- made by the appeliant/insurer shaii be adjusted towards the compensation so awarded and the iiability of the appeliant/insurer shall be reduced to the remainder oniy. Sd/- Dilip Raosaheb Deshmukh Judge G6pa.al i@ e/