V.GOPALA GOWDA, CJ. M.A. NOS.176, 220 OF 1998 (Decided on 19.08.2011) M/S. UNITED INDIA INSURANCE CO.LTD. ……….Appellant. .Vrs. SUNAKAR ROUT & ANR. …..…Respondents. A. MOTOR VEHICLES ACT, 1988 (ACT NO.59 OF 1988) – S.173. = B. MOTOR VEHICLES ACT, 1988 (ACT NO.59 OF 1988) – S.173. For Appellant - M/s. Saktidhar Das, A.K.Nayak, H.S.Satpathy. For Respondents- Mr. Khirod Kumar Das (for R.1). V.GOPALA GOWDA, C.J. M.A. Nos. 176 and 220 of 1998 have been fled by the Insurance Company and the claimant respectively against the judgment and award dated 16th September, 1997 passed by the 2nd Motor Accident Claims Tribunal, Cuttack in Misc. Case No. 1309 of 1989. The Insurance company has assailed the impugned order challenging the correctness of the quantum of compensation determined by the Tribunal at Rs. 25,000/- with interest at 9% per annum from the date of application, i.e. 22.12.1989 and fastening the liability upon it whereas the claimant has prayed for enhancement of the award to the extent of Rs.50,000/- in addition to the amount of Rs. 25,000/- awarded by the Tribunal, urging various facts and legal contentions. 2. The brief facts are stated herein : The claimant-injured met with an accident on 7.5.1989 at about 7. 30 A.M. while he was going towards Cuttack, near village Bainchua the offending dumper truck bearing registration number ORU 9158 suddenly coming from the back side dashed against his cycle overtaking another truck causing head injury and compound fracture in his left hand with multiple injuries on his body. He was treated in S.C.B.Medical College and Hospital, Cuttack for which he spent huge money. Hence he filed the claim petition for compensation of Rs. 80,000/- from both the ower and the Insurer claiming his income at about Rs. 40-80/- per day, he was earning from his rice business. 3. The owner was set ex parte. But the Insurance Company-appellant in MA. No. 176 of 1998 filed written statement contesting the claim. It called upon the petitioner to prove the accident, injuries and insurance of the offending vehicle by adducing proper evidence. 4. On behalf of the claimant three witnesses were examined, documents produced were marked as Exts.1 to 4 and the material objects, the X-Ray exposures of the petitoner, were marked as M.Os. I to VII. On behalf of the insurer, no witness was exaimined but the documents produced, were marked as Exts.A to D. 5. The Tribunal has answered the five issues framed by it, in favour of the claimant. The Tribunal while answering issues and taking the income of the claimant at Rs. 40- 80/- per per day, determined and fixed the compensation at Rs, 25,000/- with interest at 9% per annum from the date of application, i.e. 22.12.1989 keeping in view the nature and gravity of injuries sustained by the claimant, pain and suffering undergone by him, expenses incurred in connection with his treatment and loss of income suffered during the period of his illness holdinig the offending vehicle had valid insurance at the time of accident observing that the insurer is liable to indemnify the owner to pay the compensation awarded. 6. The claimant has preferred the appeal for enhancement of the compensation awarded, on the ground that the award impugned is illegal and erroneous since the Tribunal has not considered and appreciated the oral and documentary evidence and the objects exhibited on his behalf. It is contended that the evidence of the doctor (P.W.3) who opined 30% deformity of left elbow and for removal of screw plate from the hand of the claimant and that he cannot undertake strenuous work and also cannot lift heavy weight by his hand was not taken into consideration. It is further contended that the Tribunal has failed to compute the total period of treatment and has brushed aside the gravity of injuries sustained. That apart the aspect that due to the accident the claimant sustained loss in business for at least one year in the minimum, has not been taken in to consideration by the Tribunal. Therefore, he has prayed that this is a fit case to enhance the compensation awarded. 7. On the other hand the insurer has opposed the appeal filed by the claimant on the basis of the evidence of P.W.3-the doctor, on which reliance is placed by the claimant, stating that the doctor has opined that there may not be any disability after the plate is removed. It is contended that the Tribunal has passed the award rejecting the prayer to hear the eleven cases filed relating to the same accident wherein the occupants of the dumper were injured. It is further contended that the contention of the claimant that he has no idea of injury of any other person in the said accident, points out the falsity of the claim. Therefore, it is prayed that the claim of the claimant is liable to be set aside and the award impugned, need not be interfeed with. 8. In response to the notice, the owner did not appear. Pursuant to the direction of this Court, the present correct address of the owner could not be found out despite investigator appointed by the insurer to trace out the owner. 9. After hearing the learned counsel for the parties, the following points would arise for consideration; (i) whether the appeal filed by the claimant is maintainable in law and fastening the liability on the Insurance Company is legal and valid; (ii) whether the claimant is entitled for enhanced compensation, if so, what amount to be awarded in favour of the claimant. The aforesaid points are to be answered in favour of the claimant and against the insurance company having regard to the finding recorded in favour of the claimant on the issues framed by the Tribunal. 10. So far as the first point is concerned, the learned Member of the Tribunal has rightly answered issue no.1 on the basis of the findings and reasons recorded by him in 2 the impugned judgment in respect of the issue no.1 framed therein holding that the claim is maintainable. 11. In so far as the issue nos. 2 to 5 are concerned, the same are also answered by recording reasons at paragraphs 5 to 8 of the impugned judgment after referring to the evidence, the F.I.R., the discharge certificates, out-door tickets and the receipts showing purchase of medicines, blood purchase and the payment of X-ray charges. The evidence of P.W.2 supporting the accident is relied upon by the Tribunal while answering the issue no.2 in favour of the claimant that due to the rash and negligent driving of the driver of the offending vehicle, the accident occurred and the claimant sustained injuries. The Tribunal has observed that the claimant was treated as an indoor patient in S.C.B.Medical College and Hospital, Cuttack from 7.5.89 to 10.5.89 after the accident for treatment. Referring to the discharge certificate, it has observed that the claimant was prescribed for taking medicines and he was advised for regular check up. After removal of plaster, non-union is noticed, for which P.W.3 operated his hand, plate was given and grafting was done. It has been further observed that the petitioner was admitted therein second time for treatment. Further plaster was given after operation which was removed after a few months. It reveals that there has been union of bone but the plate and screw are yet to be removed from his hand. Taking into consideration, the nature and gravity of injuries sustained by the claimant, pain and suffering undergone by him, expenses incurred in connection with his treatment and loss of income suffered during the period of his illness holding the offending vehicle had valid insurance at the time of accident, the impugned award is passed, observing that the insurer is liable to indemnify the owner to pay the compensation awarded. 12. The Tribunal has rightly held that due to the rash and negligent driving of the driver of the offending vehicle, the accident occurred and the claimant sustained injuries. The Tribunal taking into consideration the huge money spent by the claimant for his treatment has awarded compensation of Rs.25,000/- with 9% from the date of claim till the date of realisation. The correctness of the finding of the Tribunal on the accident and injury sustained by the claimant is disputed by the Insurance Company in its appeal, without availing the defence by filing application under section 170 of the Motor Vehicles Act, 1988 hence the same is not sustainable in the eye of law as the insurer has no right to file appeal either questioning the accident or the injury sustained by the claimant or on the quantum of compensation awarded by the claimant. It can only challenge the award on statutory grounds. Therefore, the appeal filed by the insurer is liable to be dismissed and the appeal filed by the claimant is liable to be allowed enhancing the compensation. The Tribunal has not awarded compensation in respect of nourishment and conveyance charges and loss of amenities. On this aspect, the compensation awarded is required to be enhanced. 13. Accordingly the claimant’s appeal is allowed enhancing the compensation under the following heads : In respect fracture Rs. 15,000/-, for pain and suffering Rs. 10,000/-, for medical expenses Rs. 10,000/-, towards loss of amenities Rs. 5,000/-, for transport assistance and nourishment charges Rs. 10,000/-, in total RS. 50,000/- is awarded along with 9%, from the date of claim till the date of realisation, as awarded by the Tribunal. 3 With the aforesaid modification to the impugned judgment, the appeal of the claimant is partly allowed. The appeal of the insurance company is dismissed. The claim is filed in the year 1989 which was disposed of in 1998. The appeals are pending since thirteen years in this Court thereby disentitling the claimant to receive the compensation. Therefore, this is a fit case to impose exemplary cost to see that the Insurance Company shall not file the appeal taking the untenable plea and contentions as has been urged in its appeal, though it has not discharged its onus before the Tribunal by producing cogent evidence in support of its case. Therefore, cost of 5,000/- is imposed on the Insurance Company to be paid to the claimant. The statutory deposit made before this Court may be returned to the claimant along with interest after showing receipt of payment of the award amount. The remaining enhanced compensation amount with interest from the date of application till the date of payment may be either paid or deposited with the Tribunal within four weeks from the date of receipt of the copy of this judgment. Appeal by Claimant partly allowed. Appeal by Insurance Company dismissed. 4