Person sustaining injury, in motor vehicle accident will be compensated by Motor

Accident Claim Tribunal under Section 166 of the Motor Vehicle Act 1988.

[Case Brief] National Insurance Co. Ltd. V/S

Mr. Parvez Framroz Billimoria and Ors.

Case name: National Insurance Co. Ltd. V/S

Mr. Parvez Framroz Billimoria and Ors.

Case number: CIVIL APPEAL NO. 374 OF 2007

Court: THE HIGH COURT OF JUDICATURE BOMBAY

Bench: HON'BLE MR. JUSTICE A. S. CHANDURKAR

Decided on: 22nd DECEMBER, 2018

Relevant Section 173 / Section 166 Motor Vehicles Act 1988

Act/Sections:

 BRIEF FACTS AND PROCEDURAL HISTORY:

1. Insurer challenged the judgement dated August 5 2006 under Section 173 of the Motor
Vehicle Act 1988 referred as Act . Passed by the learnt member, Motor Accident Claim
Tribunal, Mumbai awarding compensation of ₹ 1,23,000/- with interest 6% p.a. from
January 9 1998 till it's recovery.
2. The original claimant has filed cross objections seeking enhancement in the amount of
compensation as granted to the extent of ₹ 10,37,000/-.
3. Brief facts pleaded in the claimant application under Section 166 of the Act, on August
17 1987.The claimant was proceeding on JB road on his scooter, a Lorry bearing No.
MTT- 1890 lost control and dashed the claimants scooter leading to an accident.
4. The claimant suffered injuries as a result of the accident. The claimant was working as a
manager in an automobile garage and because of the accident he suffered loss of earning.
Pleading that the driver of lorry was responsible for the accident.
5. The claimant sought grant of compensation of an amount of ₹ 2,00,000/- with interest the
aforesaid proceedings were filed against the New India Assurance Company Limited.
6. The Motor Accident Claims Tribunal, by its judgment dated on March 22 1995
branded compensation of ₹80,000/- with interest 15% p.a. payable to the claimant as
compensation.
7. However the insurer moved an application for setting aside the order on the ground that
the vehicle was not insured with the said insurer. On September 18 1995 the order dated
March 22 1995 was recalled and the claim petition was restored.
8. Appellant was impleaded as party and it participated in the proceedings before the
Claims Tribunal led evidence and after considering the learned member of the claims
tribunal partly allowed the claim petition and awarded compensation of
₹1,23,000/-.including no fault liability with 6% interest from January 9 1998 till
recovery of that amount.
9. The claimant not being satisfied with the aforesaid judgement filed cross objections
seeking enhancement in the amount of compensation.
10. The procedural history is :
1. Shri Amol Gatne counsel for the appellant submitted that the amount of
compensation is awarded is on a higher side without considering the evidence on
record.
2. Disability certificate produced by the claimant dated April 22 1992 had been
issued merely by seeing the previous medical papers of the claimant. In that
certificate it was not stated that the doctor issuing the certificate had again
examined the claimant.
3. As per the doctor at Exhibit 28 it was submitted that according to the said
witnesses the fracture sustained by the claimant has recovered and thus he could
not identify the same.
4. Claimant did not suffer any permanent disability nor any functional disability. It
was thus submitted that the claims Tribunal erred in accepting the disability
certificate and holding the disability to the extent of 25% .
5. The Claims Tribunal was not justified in awarding an amount of ₹75,000/- to the
claimant on account that the claimant continued in his employment even after the
accident and his services were not terminated on the account of said disability.
6. Absence of evidence with regard to the probable future loss amount of ₹ 75000/-
about it on that account was on higher side. It could be said that the claimant was
entitled for some amount for a period of 6 months in that regard.
7. Counsel placed reliance on the decision in Raj Kumar v. Ajay Kumar -2011(1)
SCC 343 in support of this case. It was further argued that the compensation
could not have been directed to be paid with 6% interest in as much as the other
insurance company had already deposited the amount of compensation in the
court.
8. Upon reconsideration of the evidence on record it was cleared the higher amount
of compensation had been awarded by the Claims Tribunal and the same was
liable to be reduced.
9. Shri Moinuddin Ahmed Khan the learnt counsel for the respondent submitted that
the amount of compensation awarded was a low side. Hi submitted had placed his
salary certificate and he was receiving ₹ 5000/- per month before the accident.
10. The disability certificate at Exhibit 17 was duly proved by examining the doctor
below Exhibit 28.Claimant was required to remain away from work for a period
of 6 months and was asked to visit his doctor on about 40 occasions and he
referred to the 32 medical receipts place on record.
11. As per the claimant the Claims Tribunal did not considered the aspect of loss of
future income in its proper perspective. The amount awarded on various heads
were on a lower side.
12. On proper appreciation of the evidence on record and by applying the correct
legal principles and amount of ₹ 10,37,000/- was liable to be paid towards the
amount of compensation.
 ISSUE BEFORE THE COURT:
1. Whether the insurer has proved that the amount of compensation as granted is on a higher
side.
2. Whether the claimant has proved that the compensation as granted is lesser than the
amount of just compensation and that the amount of compensation deserves to be
enhanced.

 RATIO OF THE COURT:

1. The claimant examined himself at exhibit 8 and deposed that while he was proceeding
on scooter a rashly driven truck dashed him resulting in an accident. The claimant
received injuries on his right hand, head, face and leg.
2. He was admitted at Sion Hospital and there after he was moved to the Parsi General
Hospital . Reproduced various bills to indicate medical expenses.
3. Claimant stated that he spend ₹1500/- for physiotherapy and thereafter operated for
removing the plates and nails and he had also produced bills to that effect. He spent ₹
3000 to find out details of the offending vehicle.
4. Claimant deposed that he was working as a supervisor cum mechanic in the workshop
and was getting ₹ 1500/- per month on account of the accident he didn't attend work for 6
months and hence he was not paid any salary or bonus for that period .
5. He stated that he was not able to work with his left hand and was dependent on the
disability certificate. In further examination admit that he was doing some local work and
was getting ₹2500/-per month. But he had not resigned from his earlier job nor
terminated.
6. Claimant was also examined by an orthopedic named as Dr. Shahane issuing the
disability certificate at Exhibit 17. Doctor issued the certificate only after going through
the medical papers and stated that the disability was to the extent of 25%.
7. The doctor also stated that the fracture sustained by the claimant was now united and
described to say whether it was the same fracture or not . He clarified that there was
restriction of movement due to the said fractures.
8. Evidence indicates that the claimant in terms of accident suffered injuries . His right hand
was fractured and after being treated he had to undergo physiotherapy. As per the doctor
the fractures had been united when he examine the claimant and he could not state
whether the fracture in question was the same one suffered by the claimant in the
accident.
9. In Raj Kumar case the Hon'ble Supreme Court has emphasized the importance of
examining . Doctor who treated the claimant are the doctor who has examined the
claimant subsequently to assess the extent of his permanent disability.
10. At the same time it has been clarified that the percentage of loss of earning capacity is
not the same as the percentage of permanent disability and that loss of earning capacity
has to be assessed by the Tribunal with reference to evidence in entirety.
11. In the present case the doctor who treated and the doctor who assessed are not same.
Dr.Shahane issued the disability certificate after pursuing medical papers. It is accepted
the claimants of a permanent partial disability to the extent of 25%.
12. Claimants own evidence indicates that he was absent from his job for a period of 6
months and he left his own job in the year 1988 and was doing other work and getting
₹2500/- per month.
13. Evidence of the claimant indicates that he was earning more after leaving his earlier job.
When all this material is taken together it is found that the Tribunal has awarded an
amount of ₹ 9000 towards the lost salary for 9 months as well as ₹ 75000 for suffering
25% permanent partial disability.
14. From the claimant on documents it was found that he was earning more then before
leaving factual no future loss of income. The medical expenses have been granted on the
basis of various documents in regard including the medical bills.
15. Demand for pain and sufferings also appears to be reasonable. The amount spent for
travelling when he was undergoing physiotherapy is also been awarded. Interest rate of
6% from January 1998 has also been rightly granted not warranting any interference.
 16. Compensation of ₹ 123000/- is reasonable compensation in the light of evidence on
record and enhancement of the amount of compensation to be granted.

 DECISION HELD BY COURT:

1. The judgement of the Claims Tribunal therefore does not call for any interference. The
judgement dated August 5 2006 in the Claim Application No. 2743 of 1987 stands
confirmed.
2. Order passed on Civil Application No. 3484 of 2014 on October 24 2016. It can be seen
that the claimant had received an amount of ₹ 90000/- from New India Assurance
Company limited on furnishing bank guarantee.
3. Order passed by the Claims Tribunal on September 18 1995 judgement dated March 22
1995 holding New India Assurance Company Limited liable to pay compensation
stands recalled.
4. The complainant shall therefore return the amount of ₹ 90000/- which he has received
from New India Assurance Company Limited by discharging the bank guarantee.
5. The claimant is entitled to receive the entire amount of compensation as deposited by
the appeal and herein along with the accrued interest.
6. The first appeal as well as the cross objection stands dismissed. Parties shall bear
their own cost.

-Author : Aditya Das