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2022 Supreme(Gau) 433
IN THE HIGH COURT OF GAUHATI, ASSAM, NAGALAND, MIZORAM AND ARUNACHAL PRADESH
MALASRI NANDI, J.
The New India Assurance Co. Ltd - Appellant
Versus
Shri Ram Prasad Rimal, S/o. Late Padma Prasad Rimal & Ors. - Respondents
MAC App. No. 587 of 2017
Decided On : 15-06-2022
For the Appellant : Mr. A.J. Saikia.
For the Respondents: Mr. S. Khound.
Point of Law: While determining the income of deceased in case of self employed or on a fixed salary, an addition of 40% of the established income should be the warrant where deceased was below age of 40 years.
Headnote:
MV Act, 1988 - Section 166 - Accident - Permanent disability - Compensation Awarded – Challenged – Liability of insurance company - Case is that father of the victim as claimant filed a claim case u/s 166 MV Act, 1988 before MACT, seeking compensation on account of permanent disability of his son in a motor vehicle accident which occurred, alleged that on the date of incident while victim was coming by riding his bicycle from Daragaon to Chepakhowa Town, one Maruti Van coming from same direction in a rash and negligent manner, knocked down victim from behind as a result of which he sustained grievous injuries on his person - From evidence of medical officer, it reveals that son of claimant is not having bowel and bladder sensation, so he needs catheter for drainage of urine and diaper which needs to be changed frequently to prevent urinary infection - Insurance company is directed to pay enhanced amount of compensation. (Para 25 and 26)
Finding of the court :
Learned tribunal in Judgment stated the age of the son of the claimant was 32 years when accident took place and which was not agitated by insurance company. Hence, age of injured be considered as 32 years at the relevant time of accident. So, 40 % should be added along with his established income of Rs.5000/-. Hence the monthly income of victim is considered as Rs.5000/- + 2000 (40%) = Rs.7000/- From evidence of medical officer, it reveals that son of claimant is not having bowel and bladder sensation, so he needs catheter for drainage of urine and diaper which needs to be changed frequently to prevent urinary infection - Since body of son of victim below waist has become paraplegic and he has no control over bladder and bowel movement he regularly requires changing of catheter, diaper etc for which victim would require money for medicine and needed articles - As such under this head he is granted Rs.2, 00,000 - Compensation and award is modified as described above - Insurance company is directed to pay enhanced amount of compensation to claimant in his savings account of any nationalised bank through NEFT - Compensation so awarded will carry an interest @6% per annum from date of filing of case till full and final realization.
Result: Appeal is dismissed.
JUDGMENT :
1. Heard Mr. A.J. Saikia, learned counsel appearing for the appellant/petitioner as well as Mr. S. Khound, learned counsel appearing for the respondent No. 3/Insurance Company.
2. The appellant, Insurance Company i.e. the insurer of the alleged offending vehicle AS01C/3955 has challenged the award passed by the Learned Member MACT, Tinsukia in MAC Case No 134/2011 awarding compensation of Rs.10,77,026/- (Rupees Ten Lakhs Seventy Seven Thousand and Twenty Six) in favour of the injured victim Om Prakash Rimal.
3. The brief fact of the case is that father of the victim Ram Prasad Rimal as claimant filed a claim case u/s 166 MV Act, 1988 before the MACT, Tinsukia seeking compensation on account of permanent disability of his son Om Prakash Rimal in a motor vehicle accident which occurred on 27/10/2010. It is alleged that on the date of incident at about 11 A.M. while the victim was coming by riding his bicycle from Daragaon to Chepakhowa Town, one Maruti Van bearing no AS10C/3955 coming from the same direction in a rash and negligent manner, knocked down the victim from behind as a result of which he sustained grievous injuries on his person. The injured was immediately taken to Sadiya Civil Hospital Chepakhowa but subsequently he was shifted to AMCH, Dibrugarh wherein he was treated as an indoor patient. The factum of accident has not been challenged in this case.
4. Learned counsel for the insurance company has argued that the learned Trial Court had erred in law as well as in fact directing the present appellant to make payment of the entire amount of compensation as there was no valid and affective driving licence of the driver of the offending vehicle in the accident. In absence of valid driving licence, there was no liability of the insurance company. It is also his submission that learned Tribunal had erred not only in not exonerating the present appellant from any liability but also in not discussing the issue in the Judgment.
5. The second limb of argument of the learned counsel for the appellant is that the learned Trial Court has erred in considering alleged disability of the victim as deposed by the doctor and also alleged consequent loss of earning capacity without any materials to show as to how the alleged injuries/ disabilities had affected the service condition he was allegedly doing at the time of accident. It is also argued that the award amount is not only illegal but also arbitrary and suffers from non application of mind and the award of compensation passed by the learned Tribunal deserves to be interfered with.
In support of his submissions, learned counsel for the appellant has placed reliance on the following case law –
2013 (3) T.A.C. 29 S.C. (United India Insurance Company Ltd v. Sujata Arora and others).
6. On the other hand, learned counsel for the respondent/claimant has submitted that the insurance company did not take the plea in the written statement that the driver of the alleged offending vehicle was not having a valid driving licence at the relevant time of accident and the insurance company also failed to prove the fact as well by producing any document or adducing any evidence as such the insurance company is liable to pay the compensation.
In support of his submissions, learned counsel for the claimant has cited the following case laws –
1. (2019) 5 Gauhati Law Reports 492 (Labakanta Mili and others v. New India Assurance Company Ltd)
2. (2018) 5 SCC 762 (Shivawa and another v. National Insurance Company Ltd)
7. I have considered the submissions of learned counsel for the parties and also perused the Judgment of the Trial Court as well as the documents available on record.
8. In the case of United India Insurance Company Ltd v. Lehru reported in (2003) 3 SCC 338, it was observed that the owner at the time of hiring a driver has to check as to whether the driver posses a driving licence, i
