T IN THE fflGH COURT OF JUDICATURE AT BD..ASPUR CHHATTISGARH MISELLANEOUS APPEAL (C) N0. - 'J_\0 OF 2009 (MEMORANDUM OF APPEAL UNDER SECTION 173 OF THE MOTOR VEH1CLES ACT, 1988) APPELLANT Krishna Kumar Singh Rathore, S/o CLAIMANT ( ^<^ ,..--fl",.Wi Ranshore Singh Rathore, aged about 51 ,,' [.^y.bV'^' ^IM^ years, R/o - Laxmi Nagar, Raipur, '"T^ ^''T'^.. -•" District Raipur (C.G.) %.^-;^<ys;'^^L|^i)- .-\-». •-' . ^U-ST' •^ .-V VERSUS RESPONDENT NON-CLAIMANT (Z—The United Insurance Company Limited, Through- Divisional Manager, Divisional Office, Krishna Complex, Jail Road, Raipur, District Raipur (C.G.) 'y 1 m"-^' 1 ijili'... • ^^•^' MEMORANDUM OF APPEALUNDER SECTION 173 OF THE MOTOR VEHICLES ACT, 1988 HIGH COURT OF CHHATTISGARH AT BILASPUR SB: Hon'ble Shri Justice R. L. Jhanwar, M.A.(CtNo.210of2009 APPELLANT (Claimant) RESPONDENT Non-Claimant Krishna Kumar Singh Rathore Versus The United Insurance Company Limited ORDER For Pronouncement of Order \e\ .01.2011 Sd/- R.L. Jhanwar Judge HIGH COURT OF CHHATTISGARH AT BILASPUR SB: Hon'ble Shri Justice R. L. Jhanwar, M.A.(C)No.210of2009 APPELLANT (Claimant) RESPONDENT Non-Claimant Krishna Kumar Singh Rathore, S/o Ranshore Singh Rathore, aged about 51 years, R/o Laxmi Nagar, Raipur, District Raipur (c.G.) Versus The United Insurance Company Limited, Through Divisional Manager, Divisional Office, Krishna Complex, Jail Road, Raipur, District Raipur (C.G.) APPEAL UNDER SECTION 173 OF THE MOTOR VEHICLES ACT. 1988 Appearance: '"""Shri'Shivendu Pandya, counsel forthe'appellant. " Shri H.B.Agrawal, Senior Counsel with Shri Pankaj Agrawal for the respondent. ORDER (Passedon -\9.01.2011) 1 . 1 . '... """"'^T'h'is'is'an appeal by the owhe'r'(appellarit) agaihst th'e brder'dated 31.10.2008 passed by the Additional Motor Accidents Claims Tribunal, Gariaband, Dist. Raipur in Claim Case No. 46/2008 whereby the learned Claims Tribunal has rejected the claim of the appellant. 2. It is not disputed that the appellant is the owner of Maruti Car bearing registration C.G. 04 B 2105 (henceforth 'Maruti Car'), i 3. Brief facts of the case, in a nutshell, are that on fateful day of 26.09.2007 the appellant was going to Raipur to Gariaband along with his colleagues in his Maruti Car. It was pleaded that he was driving the Maruti Car in :utrQost_attentioDi apc), pacefyMy.. nOrt-the wa.y_between the villagp Poad to Kachnaghuruva, suddenly one cow came on cent^rof the road and in order to save that animal, he took his Maruti Car at the edge of road and in that process the said Maruti Car dashed against one tree, as a result ofwhich, he sustained fracture on his right hand and injuries on his chest. — 7--- &; :,', : I'l '%sa& v 2- 3. Seeking compensation of Rs.1,79.000/- under various heads, claim petition was filed pleading that due to accident, he remained in Bed rest for a period of 50 days and his right hand was totally disabled. By flling written statement, the respondent denied the averments made in claim petition. It was specifically pleaded that the appellant was not holding a valid and effective driving licence. It was also pleaded that the appellant has already been paid Rs.16,581/- under Mediclaim Insurance Policy, therefore, the appellant is not entitled to any claim furthermore for personal accident. 4. Both the parties led their evidence before the Tribunal and the Tribunal, on close scrutiny of the evidence on record and submissions made by the parties before it, inter alia held that the appellant has not been able to prove his case against the respondent / insurer foi; getting compensation and accordingly it rejected the claim ofthe appella'nt. It is fhiso~rder,whichisuncfer'chal)engeT3ytheappeIlant. ' 5. Learned counsel for the appellant argued that all of sudden the incident took place in which the appellant sustained injuries including fracture on his right hand and Dr. G.S. Bacchu, who medically examined the appellant, has stated that the appellant sustainedfracture on radius bone of right hand and proved the disability certificate 18% showing permanent disablement. In spite of the said fact being noticed by the Tribunal, it passed the impugned order not even granting:singte!penny which is not sustainable underlaw. Learned counsel drawn attention of this Courttowards Section III of certificate of insurance, by virtue ofwhich, tHe frisurarice"p6licy"c6vers'ffier1sk"of bwrier -' driver. It was argued that the Tribunal ignored the provision of Section 140 of the Motor Vehicles Act, 1988, whereby an amendment was incorporated as early as on 14.11.1994 and by virtue of which the amount of compensation which shall be payable on the principles of no fault liability in case of permanent disablement arising out of an accident was fixed to Rs.25,000/-. On these premises, it was urged by the learned counsel that the impugned order be set aside and the appropriate compensation may be awarded in favour of the appellant. .,__ ____ - I- 3 6. On the other hand, learned counsel for the respondent / insurer argued in support of the impugned award. 7. Having heard rival submissions of the parties, 1 have perused the impugned order including record of the Tribunal. In the present case, the only point that arises for consideration in this appeal is whether or not the appellant should adequately compensated. A perusal of pleadings and evidence of the appellant (A.W.1) would clearly reveal that the appellant got injuries including fracture on his right hand in the motor accident. In support of his pleadings and evidence, the appellant has examined Dr. G.S.Bacchu A.W.2, who has deposed that the appellant remained admitted in Hospital for one day i.e. 26.9.2007 and on the second dayi.e. 27.9.2007 operation was done. He further deposed that upon seeing X- ray report of the appellant, radius bone of right hand was fractured. He also found that the appellant was unable to move his hand for writing and for puttjng button. He further depose.d that he has issued Ex.P.18 i.e. certificate of disablement showing that the appellant suffered 18% permanent disability. A perusal of Ex.P.11 would make it clear that the appellant has sustained fracture on mid shaft radius and for that the appellant produced Ex.P.12, which is a medical certificate showing that the appellant was suffering from fracture on both bones of right forearm and was advised to take complete bed rest w.e.f.26.09.2007 till 18.11.2007. Ex.P.18 is a Certificate of Disability which shows that the appellant sustained 18% permanent disability and the same has also been proved by Dr. G.S. Bacchu A.W.2. Thus, it is dear that for the injuries including fracture sustained by the appellant, the appellant was examined ,by Dr. G. S. Bachhu A.W.2, who, after examination, has issued Certificate of Permanent Disability which is exhibited as Ex.P.18. 8. Now, 1 shall deal with Section III mentioned in Ex.D.1, a certificate of Insurance. Section - III deals with Personal Accident Cover for owner- driver. It clearly reveals that for the death, entitlement of 100% compensation is prescribed, for'the loss of one limb or sight of one eye, entitlement of 50% compensation is prescribed, for the loss of two limbs or sight of two eyes or one limb and sight of one eye, entitlement 6f 100% compensation would be given and for permanent total disablement from injuries other than named above, the injured would be entilled for 100% h compensation. Moreover, in the policy of insurance, it is clearly mentioned that the compensation shall be payable under only one of the items (i) to (iv) above in respect of the owner-driver arising out of anyone occurrence and the total liability of the insurer shall not in fhe aggregate exceed the sum of Rs.2 lakhs during any one period of insurance, as shown in proviso (A) of Section III of the agreement. Thus, it is clear that the risk of compulsory personal accident of owner - driver is covered by the insurer only upto Rs.2,00,000/- and if the owner - driver is involved in any persona] accident, he would be entitled for Rs.2,00,000/-. In the present case, the appellant is owner of the Maruti Car and on the date of incident, hewas driving the vehicle and unfortunately he metwith accident and got injuries. Further, the appellant is an Advocate by occupation and definitely he could not have attended to his duties and for that he could have suffered monetary loss. Taking all these aspects into consideration, the Tribunal should have granted asum of Rs.25,000/- under the principles of no fault liability. It is a matter of common knowledge that the Tribunals are required to adequately compensate the victims / sufferers. But in this case, the learned Tribunal did not consider the above aspects and thereby committed illegality. 1/f, According to Section III - Personal Accident Cover for owner- Driver, the insurance compariywill be responsible only when the owner- driver dies or sustains 100% injures in the motor accident which 'goes to show that the insurer shall not pay the aggregate exceed the sum'of Rs.2 lakhs if owner-driver involves in anyone occurrence, as shown in items (i) to (iv) as mentioned in the proviso (A) of the Section III of the agreement However, ifthe owner-driversustainslessthan 100% injuries inthe motor accident, then what amount should be granted to the injured is not given in that insurance agreement. It means that if the owner - driver or injured sustains less than 100% injuries, then in that situation also the insurance company shall be liable to pay compensation according to pereentage of permanent disability or injyrjes systained by the injured. In the present case, amount of Rs.2,00,000/- is maximum compensation which is fixed by the insurer if 100% injuries or permanent disablement is found. In this case, according to Dr. G.C.Bacchu A.W.2, the appellant suffered 18% permanent disablement, therefore, the liability of insurance company should be upto 18% out of Rs.2,00,000/-. Thus, the appellanVinlyred_wiU r get 18% compensation out of Rs.2,00,000/- i.e. amount of Rs.36,000/- would come as compensation for the injuries sustained by him in the motor accident. In policy agreement if the insurer once fixed the limited liability of 100% or 50% of injuries, then the insurer is not liable to pay more than that amount and if the injuries are found less than 100% or 50%, even then the insurer is also liable to pay compensation irrespective of injuries sustained by the injured / sufferer in the motor accident. 10. Learned counsel for the parties submitted that with a view to avoid any possible dispute between the parties about the period for which the claimant is entitled to receive interest on the amount so awarded, the amount of interest on the amount so awarded may be quantified in this appeal itself. l/ Considering all the relevant aspects of the matter, 1 quantify the amount of interest on the amount of Rs.36,000/- at Rs.4,000/-. Thus,the appellant / claimant ,is entitled to receive Rs.40,00,0/- as: tQtal compensation forthe injuries sustained by him in the motor accident. 1^. The respondent - insurer is granted three months' time for depositing the total sum of Rs.40,000/- before the concerning Claims Tribunal. If the amount of Rs.40,000/- is not deposited within stjpulated time, then the said amount shall carry interest at 6% per annum from the dateof ordertill its realization. No order as to costs. Sd/- R.L. Jhanwar Judge ^"