Insurer cannot avoid liability for claimant's misconduct absent proof of statutory defences under Section 149(2) MV Act; just compensation for disability requires demonstrated loss of earning capacity, not percentage alone.

JUDGMENT :

PANKAJ PUROHIT, J.

1. These two appeals arise out of a common motor vehicle accident and common judgment and award passed by learned Tribunal and involve identical questions of fact and law. Accordingly, both the appeals are being disposed of together by this common judgment.

2. The appeal being AO No. 503 of 2012 has been preferred by the Insurance Company seeking absolution from liability, whereas AO No.35 of 2013 has been filed by the claimant seeking enhancement of compensation awarded by the Tribunal to the tune of Rs.1,60,265/-.

3. These proceedings arose out of a motor accident claim petition instituted before the Motor Accident Claims Tribunal, District Pithoragarh, wherein the claimant sought compensation for grievous injuries sustained in a road accident dated 29.06.2009. The learned Tribunal, after appreciating the pleadings and evidence on record, decided the claim petition by judgment and award dated 04.08.2012. The present narration records the factual background, pleadings of the parties, issues framed by the Tribunal and the findings returned thereon.

4. The brief facts of the case are that on 29^th June 2009 at about 05:00 P.M., the claimant-Anil Nath was travelling on a motorcycle of his friend as a pillon-rider bearing registration no. UK-07-U-9313 near Van Vibhag Post, Raywala, Dehradun. At the said place, an Indigo car bearing registration no.UA-09-4848, coming from the opposite direction, collided with the motorcycle. As a result of the accident, the claimant sustained multiple grievous injuries, including severe injuries to his right hand and other parts of the body. He was initially taken to Jolly Grant Hospital, Dehradun and thereafter referred to P.G.I. Chandigarh, where he underwent prolonged treatment including surgeries. The claimant asserted that due to the injuries sustained in the accident, he suffered permanent disability, affecting his physical capacity and quality of life. Consequently, a claim petition under Section 166 of the Motor Vehicles Act, 1988 was filed before the Motor Accident Claims Tribunal seeking compensation.

5. The claimant pleaded that the accident occurred solely due to the rash and negligent driving of the Indigo car by its driver. It was specifically averred that the car was being driven at a high speed and on the wrong side of the road, resulting in a head-on collision with the motorcycle. The claimant further pleaded that he sustained grievous injuries, remained hospitalized for a long duration, underwent multiple surgical procedures including amputation of his right hand, and suffered permanent disability assessed at 80%. It was stated that the injuries caused immense physical pain, mental agony and loss of enjoyment of life. The claimant claimed compensation under various heads including medical expenses, pain and suffering, loss of amenities and permanent disability.

6. The owner of the Indigo car filed his written statements denying the allegations of rash and negligent driving. It was pleaded that his vehicle was being driven carefully and in accordance with traffic rules. According to him, the accident occurred due to negligence on the part of the motorcycle rider. It was also pleaded that the vehicle was duly insured and that the driver possessed a valid and effective driving licence at the time of the accident.

7. The insurance company filed a separate written statement contesting the claim