Judicial Analysis Court Copy Headnote Facts Arguments Court observation

1997 Supreme(Cal) 363

HIGH COURT OF CALCUTTA
Satyabrata Sinha & Bhaskar Bhattacharya, JJ.
United India Insurance Co. Ltd.
Vs
Smt. Sipra Brahma & Anr.
Kanan Kumar Kundu & Anr.
From Award of Motor Accident Claims Tribunal F.M.A. No. 150 of 1996 & C.O.T. No. 3897 of 1995 with F.M.A. No. 450 of 1995 & C.O.T. No. 616 of 1996
Decided on : September 12, 1997

Advocates Appeared:
B. Chowdhury, P. K. Pahari for the appellant;
J. R. Chatterji, Gautam Kr. Thakur for the respondents.

An insurance company cannot challenge the quantum of compensation awarded by the Motor Accident Claims Tribunal unless it can establish one of the specific grounds of defense enumerated in Section 149(2) of the Motor Vehicles Act, 1988.

Headnote:
MOTOR VEHICLES ACT - INSURANCE - APPEALS - MAINTAINABILITY - CROSS-OBJECTION - QUANTUM OF COMPENSATION - ADMISSIBILITY OF MEDICAL CERTIFICATES - NON-OBSERVANCE OF RULES - AWARD UNDER SECTION 140 - ENHANCEMENT OF COMPENSATION.
Fact of the Case:

The appellant insurance company challenged the awards passed by the Motor Accident Claims Tribunal in favor of the respondents, who were injured in a road accident. The insurance company contended that the appeals were maintainable, that the medical certificates showing permanent incapacity of the respondents were not admissible in evidence, that the claim applications should not have been entertained due to non-observance of the West Bengal Motor Vehicles Rules, and that the amount of compensation was excessive.
Finding of the Court:

1. The appeals filed by the insurance company were not maintainable as per Section 149(2) of the Motor Vehicles Act, 1988, which restricts the insurer's right to defend an action to specific grounds and does not allow for general defenses. 2. The cross-objection filed by the respondents was maintainable since the insurance company could prefer an appeal under Section 173 of the Motor Vehicles Act. 3. The medical certificates showing permanent incapacity were admissible in evidence as the appellant insurance company did not question their admissibility before the Tribunal and had the opportunity to cross-examine the doctors who issued the certificates. 4. Non-observance of the West Bengal Motor Vehicles Rules regarding the annexing of relevant documents with the claim applications was considered a directory provision, and the Tribunal could point out the defects for rectification. 5. An award passed under Section 140 of the Motor Vehicles Act could be enhanced by the court if the actual quantum of compensation payable to the applicant was not arrived at and a formal award was not passed after taking into account the interim award.
Issues: 1. Whether the appeals filed by the insurance company were maintainable? 2. Whether the cross-objection filed by the respondents was maintainable? 3. Whether the medical certificates showing permanent incapacity of the respondents were admissible in evidence? 4. Whether the claim applications should have been entertained due to non-observance of the West Bengal Motor Vehicles Rules? 5. Whether the amount of compensation awarded by the Tribunal was excessive?
Ratio Decidendi: 1. Section 149(2) of the Motor Vehicles Act, 1988, restricts the insurer's right to defend an action to specific grounds and does not allow for general defenses. Therefore, the appeals filed by the insurance company challenging the quantum of compensation and the occurrence of the accident were not maintainable. 2. The cross-objection filed by the respondents was maintainable since the insurance company could prefer an appeal under Section 173 of the Motor Vehicles Act. 3. The medical certificates showing permanent incapacity were admissible in evidence as the appellant insurance company did not question their admissibility before the Tribunal and had the opportunity to cross-examine the doctors who issued the certificates. 4. Non-observance of the West Bengal Motor Vehicles Rules regarding the annexing of relevant documents with the claim applications was considered a directory provision, and the Tribunal could point out the defects for rectification. 5. An award passed under Section 140 of the Motor Vehicles Act could be enhanced by the court if the actual quantum of compensation payable to the applicant was not arrived at and a formal award was not passed after taking into account the interim award.
Final Decision: The appeals filed by the insurance company were dismissed as not maintainable. The cross-objection filed by the respondents was allowed to the extent of enhancing the compensation awarded by the Tribunal.

JUDGMENT

Satyabrata Sinha, J. : These two appeals at the instance of the United India Insurance Co. Ltd. arise out of judgments dated 18.4.95 & 6.5.95 respectively passed by Sri S.S Sinha, Motor Accident Claims Tribunal Judge, Dakshin Dinajpur, Balurghat.

2. The fact of the matter is as follows:-

On 9.2.92 the applicants-respondents were coming from Islampur to Raiganj by tourist taxi bearing Registration No. WB-59/0129. It appears that the said taxi belonged to one Nilkamal Kundu but the same was hypothecated in favour of U.B.I.

3. The driver of the said vehicle allegedly was driving the vehicle rashly and negligently despite requests made by the Respondents and Ors. not to do so and dashed against a road side tree. As a result whereof the applicants together with one Ashok Chanda, the youngest son of the applicant Smt. Sipra Brahma and Kanan Kumar Kundu were severely injured. The applicant Smt. Sipra Brahma was initially admitted to Raigani S.D. Hospital. The applicant Kanan Kumar Kundu was admitted to Karandighi Hospital whereafter he was shifted to Raiganj Hospital and then again was shifted to Maldah Nursing Home for treatment. For better treatment the applicant Sipra Brahma had to be shifted to Harrington Nursing Home & Diagnostic Centre Pvt. Ltd., Calcutta whereas the applicant Kanan Kumar Kundu was shifted to Kothari Medical Centre and Research Institute, Calcutta. They underwent operations.

4. The applicant Smt. Sipra Brahma was running a business of brick kiln and she had to close down her business as her husband is a patient of high blood sugar and had resigned from the services. She suffered mental shock and disfigurement apart from suffering body, mental pain and agony. Both the applicants, Smt. Sipra Brahma and Kanan Kumar Kundu have become permanently disabled to the extent of 60% and 75% respectively.

5. The learned Tribunal below upon taking into consideration the evidence of the parties allowed the applicant Sipra Brahma compensation under the following heads:-

1. For loss of further earning

@ Rs. 24,000/- P.A for 10 years. Rs. 2,40,000/-

2. For Medical Expenses Rs. 1,00,000/-

3. For pain & suffering Rs. 50,000/-

4. For loss of amenities of life Rs. 10,000/-

5. For disfiguration Rs. 15,000/-

6. For Transport Expenses Rs. 15,000/-

7. For loss of expectation of life Rs. 15,000/-

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Rs. 4,45,000/-

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Whereas applicant Kanan Kumar Kundu was awarded a compensation of Rs. 1,95,000/- under the following heads :

1. For loss of future earning

@ Rs. 12,000/- P.A for 15 years. Rs. 1,80,000/-

2. For medical expenses including Rs. 10,000/-

conveyance charges

3. For pain and suffering Rs. 5,000/-

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Rs. 1,95,000/-

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6. Mr. Biswajit Chowdhury, the learned Senior Counsel appearing on behalf of the appellant has raised a number of contentions in support of these appeals. The learned Counsel firstly submitted that these appeals at the instance of the insurance company is maintainable in view of Division Bench decision of Patna High Court in Hindusthan General Society vs. Dayanath Jha reported in 1970 (40) Comp Cas 796. It was further submitted that reliable evidence had been placed before the learned Tribunal below by both the applicants as regard the damages allegedly suffered by them for their disability as the Doctor concerned has not been examined. It was submitted that it was incumbent upon the appellants to examine Dr. M. S. Ghosh whose certificate had been relied upon. The learned Counsel contends that in view of the decisions in Bengal Coal Co. Ltd. vs. Barhan Gape reported in 1983 Lab IC 685 and Bengal Coal Co. Ltd. vs. Sew Pujan Harijan reported in 1983 Lab. IC the medical certificate showing permanent incapacity of the appellants was not admissible in evidence.

7. It was next contended that in terms of r. 329(3) of the West Bengal Motor Vehicles Rules, it was obligatory on the part of the applicants to annex all the r

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Judicial Analysis

1997 Supreme(Cal) 363

An insurance company cannot challenge the quantum of compensation awarded by the Motor Accident Claims Tribunal unless it can establish one of the specific grounds of defense enumerated in Section 149(2) of the Motor Vehicles Act, 1988.

Cases Referred (13)

Judicial Analysis