2016(4) ALL MR 137
IN THE HIGH COURT OF JUDICATURE AT BOMBAY (NAGPUR BENCH)
A. P. BHANGALE, J.
Harish Dhirajlal Bilakhiya Vs. Ashish Jagdish Upadhya & Ors.
First Appeal No.291 of 2004
13th August, 2015.
Petitioner Counsel: Mr. J.B. GANDHI
Respondent Counsel: Mr. S.C. MEHADIA, Mr. R.A. JAIN, Mrs. S.P. DESHPANDE
(A) Motor Vehicles Act (1988), Ss.166, 147 - Liability of insurer - Involvement of vehicle - Wrong registration number displayed by offending maruti car at time of accident - Admission of owner of car about involvement of car in accident and that display of wrong registration number of car at time of accident - Neither Form AA produced on record nor notice to pay compensation issued by claimant to insurer - Order of Tribunal holding only owner of maruti car liable to pay compensation and exonerating insurer from liability to pay compensation, held proper. 2011(1) ALL MR 402 (S.C.), 2013 ALL SCR 3564 Ref. to. (Para 7)
(B) Motor Vehicles Act (1988), Ss.166, 147 - Liability of insurer - Notice of claim - Notice to pay compensation was not issued by claimant to insurer - Existence of binding insurance contract must be established to hold insurer liable to pay compensation - Insurer exonerated from liability to pay compensation. (Para 7)
(C) Motor Vehicles Act (1988), S.166 - Compensation - Assessment of - Claimant suffered 18% permanent disability in accident and incurred medical expenses of Rs.92,000/- - No documentary evidence to support claim of claimant in respect of his income as a shopkeeper - Tribunal holds income of claimant was of Rs.30,000/- p.a. - Considering age of claimant as 45 years, multiplier of 15 was applied - Compensation also granted under some conventional heads - Compensation of Rs.1,61,000/-, held just and reasonable. 2011(1) ALL MR 402 (S.C.), 2013 ALL SCR 3564 Ref. to. (Para 7)
Mallikarjun Vs. Divisional Manager, National Insurance Company Limited, 2013 ALL SCR 3564=2013 (6) Bom.C.R. 69 [Para 6]
Raj Kumar Vs. Ajay Kumar and Anr., 2011(1) ALL MR 402 (S.C.)=(2011) 1 SCC 343 [Para 6]
The claimant was engaged in the business of selling metal articles and was having a shop at Tilak Road, Akola. On 27.2.2000, when the claimant namely Harish Dhirajlal Bilakhiya was going by his motor cycle from his shop towards his residence at Jatharpeth, Akola, a Maruti Car bearing registration no.MH-30B/7984 dashed the claimant injuring him in his leg, back, shoulder etc. The claimant was rushed to the hospital of Dr. Murarka. It is claimed that he sustained permanent disability of 18% and was required to spend a sum of Rs.92,000/-towards medical treatment etc. According to the claimant, the offending motor vehicle was driven by one Ashish Jagdish Upadhay while one girl Guddi was sitting beside him. When inquiry was made with the R.T.O., it revealed that the motor vehicle bearing registration no.MH-30 B-6139 was, in fact, one Premier Padmini 118NE while coloured car and not a Maruti Car. When inquiry was made with Harish to clarify that wrong number was displayed on the Maruti car, it was clarified that number of the Maruti Car was MH-30 B-7984. Accordingly, the claim was made for sum of Rs.4,00,000/- as compensation for the motor vehicle accident caused by Maruti car bearing registration no.MH-30 B-7984. The learned Member of the Tribunal allowed the claim on 26.8.2003 as against respondent nos. 1 and 2/ owner and driver of the offending motor vehicle. However, the Tribunal dismissed the claim as against the Insurance Company (respondent no.3). The learned Member of the Motor Accident Claims Tribunal by the impugned Judgment and Award dt.26.8.2003 found that the driver of the offending motor vehicle i.e. Maruti Car bearing Registration no.MH-30 B7984 driven rashly and negligently caused motor vehicle accident on 27.2.2000 which resulted in the injuries sustained by the claimant. In other words, it was found that wrong registration number was displayed by the offending motor vehicle as MH-30 B6139 in stead of MH-30 B7984. The Award was passed in the sum of Rs.1,61,000/- in lumpsum payable by respondent no.1 Ashish and respondent no.2 Harish together with 9 % p.a. interest thereupon from 17.10.2001 till realisation of the amount. At the same time, National Insurance Co. Ltd., Akola was exonerated from liability to pay compensation.
3. The learned Counsel for the appellant/claimant submitted in support of the appeal that evidence of eye witness who is independent witness was sufficient to prove that there was involvement of Maruti vehicle in the accident and that there was genuine mistake on the part of respondent no.2 to display number given on the receipt of tax Authority. According to the learned Counsel for the appellant, the Tribunal erred in not relying upon the evidence of appellant regarding involvement of the Maruti car. The learned Tribunal erred to hold that principle of Vicarious liability of Insurer would come into play only when involvement of the vehicle is undisputed. It also erred to fix responsibility for the accident upon the Insurance Company. Hence, it is prayed that the impugned Judgment and Award be set aside and the claim of the claimant against all respondents jointly be allowed to fix liability upon them to pay compensation jointly and severally.
4. It appears that claimant Harish Bilakhiya was examined in the Tribunal. According to him, on 27.2.2000, at about 1.00 p.m. when he was crossing Ratanlal Plot square towards Tower by his motor vehicle bearing no.2892 driven at a moderate speed by left side of the road, one Maruti car hit him exactly in the midst of the square and the claimant was thrown in the air. Due to heavy jerk of that maruti car driven in negligent manner, the injured fell down and the motor cycle also fell on him. He was taken to Murarka hospital. At the relevant time, he was not in a position to notice registration number of the offending motor vehicle, but he came to know that it was a Maruti car with registration number displayed as MH-30 B-6139. When the claimant gave notice to owner of the car (Exh.27), the owner replied through his Advocate at Exh.28 and gave exact registration number of Maruti car which gave dash to the claimant. Police had registered F.I.R in respect of accident (copy Exh.29); spot panchanama (Exh.30) was drawn. The injured underwent surgery and was hospitalised for 12 days and remained bed ridden for seven months and spent the sum of Rs.1,40,000/- towards medical treatment. Exh.31 to 35 are medical papers. In the result, the claimant was unable to walk and was limping while walking. The claimant got Disability Certificate (Exh.40) and after about seven months from the date of accident, he started attending his shop with crutches. He had to engage auto @ Rs.1,500/- p.m. for about seven months. He was earning monthly income of Rs.25,000/- p. m. Thus, according to the claimant, he had claimed compensation in the sum of Rs.4,00,000/-.
5. Learned Counsel for the appellant argued that the claimant had to send notice through Advocate to the owner of the offending motor vehicle on 6.3.2001, of which reply was given on behalf of owner of the offending motor vehicle. The Owner did not dispute that his Maruti 800 car was involved in the accident on 27.2.2000 at Ratanlal Plot square. It was driven by Ashish Upadhyay and Ku. Suchita @ Guddi was sitting by his side. According to owner, he had displayed registration no.MH-30 B-6139 at the time of the accident. It was bona fide mistake as owner came to know subsequently that registration number of his car is, infact, MH-30 B-7984 and not MH-30 B-6139. Thus, according to owner of the offending motor vehicle, the Maruti car number was wrongly displayed at the time of the accident. On behalf of the appellant, it is submitted that it was not disputed by owner of the offending motor vehicle that his Maruti car bearing registration no.MH-30 B-7984 caused accident and number of the same was by mistakenly displayed as MH-30 B-6139 at the time of accident. The Tribunal found that the claimant was entitled to recover a sum of Rs.1,61,000/- in lumpsum from respondent nos. 1 and 2 and not from respondent no.3 National Insurance Company. The Tribunal exonerated Insurance Company on the ground that owner of the offending motor vehicle admitted liability. It is submitted on behalf of the appellant that the Insurance Company ought not to have been exonerated as there was no dispute about involvement of the offending motor vehicle Maruti, of which registration number was wrongly displayed at the time of accident. Learned Counsel for the appellant contended that compensation ought to be enhanced in favour of the claimant for loss of earning capacity during medical treatment and afterwards for his 18% earning disability. On behalf of respondent, on the other hand, it is submitted that compensation awarded is excessive for 18% permanent disability.
6. On behalf of the appellant, reference was made to the ruling in the case of Mallikarjun .vs. Divisional Manager, National Insurance Company Limited reported in 2013 (6) Bom.C.R. 69 : [2013 ALL SCR 3564] to argue that damages for inconvenience, hardship, discomfort, disappointment ought to be granted for injured victim. In the ruling cited, compensation was granted in the sum of Rs.3,75,000/- with 6 % interest p.a. on account of pain and suffering, discomfort, inconvenience and loss of earning, medical and incidental expenses, hospitalisation for 58 days etc. Reference is also made to the case of Raj Kumar vs. Ajay Kumar and another reported in (2011) 1 SCC 343 : [2011(1) ALL MR 402 (S.C.)] regarding principles to grant compensation in such cases. Learned Counsel for the Insurance Company opposed the appeal on the ground that Form AA was not produced on record and notice was not issued to Insurance Company by the owner as well as the insured. It is submitted that compensation granted is excessive. While on behalf of respondent nos. 1 and 2, it is contended that Insurance Company should not have been exonerated. According to the learned Counsel for the claimant, the aspect with regard to conveyance allowance during medical treatment, loss of earnings during medical treatment, pecuniary damages on account of pain and suffering, loss of expectancy and prospects of marriage ought to be considered.
7. After hearing the submissions on record and on perusal of the impugned Judgment and Award, in the light of evidence on record, it appears that the claimant was treated by Dr.Murarka of Akola. He was hospitalised for 12 days and he had also undergone surgery and remained bed ridden for seven months. The claimant was a shopkeeper and suffered disability of 18 %. Dr.Kailash Murarka deposed in support of the claimant that Harish was his patient for two years. He had sustained two fractures in his left leg. He remained hospitalised during the period between 27.12.2000 to 23.12.2000 and there were two fractures on the leg of the claimant. Harish also deposed that, in the receipt Exh.42, Maruti vehicle no. was given as 6139, while receipt Exh.42 mentioned that number really was MH-30 B-2984. In other words, registration no.MH-30 B-6139 was wrongly displayed. According to the claimant, he was a shop keeper and suffered 18 % permanent disability. Considering his age of about 45 years and assuming for the sake of argument that he was a businessman having a shop and underwent medical treatment by incurring expenses of Rs.92,000/-, the learned Tribunal considered the fact that even unskilled person below 18 years of age can claim annual income of Rs.15,000/- for grant of compensation. The Tribunal holds yearly income of Rs.30,000/-and considering the age of 45 years, applied multiplier 15 and then considered 18 % permanent disability. The Tribunal also considered loss of future income and granted sum of Rs.1,61,000/- inclusive of no fault liability along with interest @ 9 % p.a. from the date of Claim Petition till realisation of the amount. The quantum of compensation considering permanent disability of 18 % suffered by the claimant appears just and reasonable in the facts and circumstances of the case. The Insurance Company was also exonerated in view of clear admission by owner of the vehicle about involvement of Maruti Car. Owner had also admitted that registration number of the car was wrongly displayed at the time of accident. In the facts and circumstances, therefore, compensation was payable by owner of the offending motor vehicle as owner was responsible for display of mistaken number at the time of accident. He was responsible to display correct registration number plate of Maruti car. Having considered the facts and circumstances of this case, owner of the offending motor vehicle was liable to pay compensation as awarded by the Tribunal. In the facts and circumstances of the case, the Insurer was rightly exonerated from liability to pay compensation. Form AA was not produced on record. Notice to pay compensation was not issued by the claimant to the Insurer company. Therefore, Insurance Company was exonerated. Looking to the claim that the claimant was in the business of selling metal articles as a hawker, compensation that was awarded was just and proper as against owner of the offending vehicle and the driver thereof. The Insurer was exonerated from liability to pay as the Insurer had not received any notice from the claimant regarding the claim. Existence of binding insurance contract must be established qua the insurer to hold insurer liable to pay compensation. There was no documentary evidence to support the claim in respect of income of the claimant as a shopkeeper. Considering all these factors, therefore, no interference is warranted in the impugned Judgment and Award. The appeal is, therefore, dismissed with costs.