#motoraccidentclaimtribunal

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Physical disability resulting from an accident has to be judged with reference to the nature of the work being performed

Sarnam Singh v. Shriram General Insurance Company Ltd. & Others

Civil Appeal 3900/2023

Before Hon’ble Mr. Justice Abhay S Oka J & Hon’ble Mr. Justice Rajesh Bindal J

Appeal allowed on 04.07.2023

Fact:

Appellant Sarnam Singh, a gunman at Bharti Hotel Ltd. met with an accident with a tempo on 24.11.2013. He underwent treatment but injury being severe his lower limb was amputated leaving him permanently disabled for the job for which he was employed. At the time of accident, he was aged about 50 years and 05 months drawing salary of Rs. 20,774/- pm and Rs. 800/- towards conveyance allowance.

On account of his inability to discharge his duties for which he was employed his services were terminated w.e.f. 31.5.2015.

Motor Accident Claim Tribunal:

The Motor Accident Claims Tribunal, South District, Saket New Delhi, vide its award dated 18.4.2016, awarded a compensation of ₹ 34,29,800/- as the vehicle was insured, the liability was put on the insurance company. The Tribunal awarded a sum of ₹ 1,50,000/- on account of pain and suffering, ₹ 95,000/- on account of diet, conveyance and attendant charges. In addition, a sum of ₹ 1,00,000/- was awarded on account of loss of amenities.

Appeal before Delhi High Court against award of MACT by Insurance Co.

Shriram General Insurance Company filed appeal before the Delhi High Court against the order of the Tribunal. The High Court vide impugned order dated 25.8.2017, while not finding any fault with reference to any of the findings recorded by the Tribunal, reduced the compensation taking loss of earning capacity of the appellant Sarnam Singh at 80%. The amount of compensation was reduced by ₹ 4,92,205/- and finally the amount determined was ₹ 28,43,000/-. The compensation awarded under other heads was not disturbed.

Aggrieved by the order of the Delhi High Court reducing the amount of compensation awarded by the Tribunal instant Civil Appeal was filed.

Civil Appeal Before Supreme Court (SC) by Appellant Sarnam Singh

Argument of the Appellant Counsel before SC

The order of the High Court reducing the loss of earning capacity to 80% is erroneous as the appellant had suffered amputation of his right lower limb. the functional disability could not be taken as 80%. It should be taken as 100%.

Argument of the Respondent Counsel before SC:

There was error in calculation of the compensation by the Tribunal The same has been corrected by the High Court. There is no error in the order passed by the High Court.

Observation of the Apex Court:

The kind of injury the appellant suffered resulted into permanent disability.

Medical Certificate issued by Board of Doctors is showing disability as 85% with no further possibility of improvement.

Any physical disability resulting from an accident has to be judged with reference to the nature of the work being performed by the person who suffered disability.

The same injury suffered by two different persons may affect them in different ways.

Loss of leg by a farmer or a rickshaw puller may be end of the road as far as his earning capacity is concerned.

Whereas, in case of the persons engaged in some kind of desk work in office, loss of leg may have lesser effect.

Appellant suffered functional disability.

The Tribunal was right in assessing the loss of earning capacity of the appellant at 100% and assessing the compensation accordingly.

The High Court was in error in reducing the loss of earning capacity to 80%,

There is another error in order passed by the High Court in calculating the compensation. The compensation awarded by the Tribunal was taken on ₹ 33,34,800/-.  Whereas, total compensation awarded by the Tribunal was ₹ 34,29,800/- and not ₹ 33,34,800/-

Decision:

The appeal filed by the appellant is allowed. The impugned order passed by the High Court is set aside and the award passed by the Tribunal is restored.

Seema Bhatnagar

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Motor Accident Law refers to the legal rules that ascertain accountability when there is personal or property damage in case of motor vehicle accidents. This area of the law consists of the principles of negligence, especially when it comes to personal injury cases. In the case of a victim of a car accident or kin of the victim, the main concern is to get justice and compensation. The best lawyers in Chandigarh for Motor Accident cases, help in representing MACT cases for the victim himself/herself or for their next of kin in case of death or grave injury.

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‘The Valuable Role of Homemakers : Recognizing the Unseen:’

Arvind Kumar Pandey & others v. Girish Pandey & Another

Civil Appeal 2524/2024

Subject: Motor Accident Claim, Motor Vehicle Act 1988, Section166 of MV Act, Motor Accident Claim Tribunal (MACT), Homemakers Matter, Family First, Legal Insights

Before Supreme Court of India

Heard by the Bench of Hon’ble Mr. Justice Surya Kant J & Hon’ble Mr. Justice K V Viswanathan J

Order: Civil Appeal was allowed on

Background:

Appellant No.1 is the husband, and appellant Nos.2 and 3 are the daughter and son of the deceased Smt. Sushma Pandey.

She was around 50 years old on 26.06.2006 when she was travelling with the respondents in their car.

The vehicle lost control, skidded off and fell into a ditch at about 3.45 p.m., causing the death of Smt. Sushma Pandey.

Facts:

This is the case where Appellants (husband and his two children Son & Daughter) filed a Claim Petition before the Motor Accident Claims Tribunal seeking compensation of Rs.16,85,000/-.

The Tribunal dismissed the Claim petition stating that the vehicle in question was not insured and, therefore, the claim did not lie.

Aggrieved by the dismissal of Claim, the Appellants approached the High Court by way of an appeal.

The High Court allowed the appeal and remanded the matter to the Tribunal.

The Tribunal awarded a sum of Rs.2,50,000/- only to the appellants as compensation.

The Appellants went in appeal, but the High Court dismissed the same on 06.04.2017.

Aggrieved, Appellants filed Civil Appeal before Supreme Court.

Observation of the Apex Court

A Factual Errors

Order passed by the High Court is full of factual as well as legal errors.

The High Court overlooked the fact that the deceased was about 50 years old and not 55 years old.

Similarly, the High Court has committed a patent error in observing that the appellants are not dependent on the deceased (Wife & Mother).

Appellant Nos.2(son) and 3(daughter) were students at the relevant time, and were surely dependent on the parents including their deceased mother.

The High Court again misread the facts while observing that the deceased was travelling in the bus, while actually she was traveling in the car.

B Legal Error

Assuming that the deceased was not employed, it cannot be disputed that she was a homemaker.

Her direct and indirect monthly income, in no circumstances, could be less than the wages admissible to a daily wager in the State of Uttarakhand under the Minimum Wages Act.

C Contribution of a House Wife/Homemaker are invaluable

The role of a homemaker is as important as that of a family member whose income is tangible as a source of livelihood for the family.

The activities performed by a home-maker, if counted one by one, there will hardly be any doubt that the contribution of a home-maker is of a high order and invaluable.

In fact, it is difficult to assess such a contribution in monetary terms.

D Calculation of Compensation

It appears to us that the monthly income of the deceased, at the relevant time, could not be less than Rs.4,000/ p.m. or so.

However, instead of calculating the compensation under different heads, and also keeping in mind the fact that the appellants and the respondents are closely related, and the delinquent vehicle was not insured, we deem it appropriate to allow this appeal in part to the extent that the appellants are granted a lump sum compensation of Rs.6,00,000/- (Rupees six lakhs).

Since the respondents have already paid the amount of Rs.2,50,000/- to the appellants, the balance amount of Rs.3,50,000/- shall be paid by them within six weeks, failing which they shall be liable to pay interest as awarded by the Tribunal.

Seema Bhatnagar

[seemabhatnagar]

National Insurance Company Limited v. Kalawati and Others

FAO No.439/2012

Before High Court of Himachal Pradesh at Shimla

The Bench of Hon’ble Mr. Justice Sushil Kukreja J partly allowed the Appeal of the Insurance Company to the extent of setting aside the liability of payment of penalty. However upheld the order of Workman Compensation Commissioner for payment of compensation and interest by the Insurance Company.

Background

The appeal is filed by the National Insurance Company against the order dt. 05.05.2012 passed by the Commissioner, Employee’s Compensation Solan u/s 30 of Employees Compensation Act awarding compensation amounting to Rs.4,52,760/- with 12% interest per annum.

Fact

Deceased Sunil Kumar was Bus conductor and also worked as coolie for the truck owned by Sukh Pal and was insured with National Insurance Company.

On 22.01.2006 near Durgaghat, Arki the Truck rolled down the valley due to rash and negligent driving of the driver Om Prakash and he died instantly.

It was submitted by the parents of the deceased that their son was working with Respondent Sukh Pal and was getting Rs.5000/- per month as fixed amount and Rs.100/- as daily allowance.

At the time of death Sukh Pal was just 18 years old.

Submission of the owner of the Truck

Sukh Pal died as driver lost control over the truck.

Owner of the Truck denied contention of the parents of the deceased that he was getting fixed amount of Rs. 5000/- per month along with Rs.100/- as daily allowance.

Rather he was getting Rs.1800/- per month and since vehicle was insured with National Insurance Company & Insurance Company is under obligation to indemnify the Truck Owner.

Submission of the Insurance Company

Insurance Company denied that deceased Sukh Pal was engaged as conductor by the Truck Owner.

Insurance Company denied that the deceased Sukh Pal was getting Rs. 5000/- per month.

Issues as framed by Motor Accident Claim Tribunal (MACT)

Whether the deceased was engaged as conductor & coolie by the truck owner and he died in the course of employment.

Whether the deceased falls under the definition of workman as defined under Workman Compensation Act.

Whether petitioners(parents) are entitled for compensation & if so to what extent & from whom.

Whether the driver of the vehicle was not having valid and effective driving license.

Order of the MACT

Respondents are liable to pay compensation amounting to Rs.4,52,760/- with interest @12% per annum one month after 22.02.2006 failing which liable to pay interest as per law.

Aggrieved by the order of MACT, Insurance Company filed First Appeal before High Court.

High Court framed substantial question of law

Whether order of the MACT can be sustained?

Whether the MACT was correct in awarding interest?

Submission of the Insurance Company before High Court

Insurance company’s contention was it is not liable to pay penalty as awarded by the Workman Compensation Commissioner.

As this amount was awarded against the owner of the Truck as it was owner’s default for which Insurance Company is not liable.

Observation of the High Court

The insurance company is not liable for payment of penalty.

It is the owner of the Vehicle liable for payment of penalty.

Wherefore, the order of the Workman Compensation Commissioner to the extent of directing Insurance Company to pay penalty to the petitioner (parents of the deceased) is set aside.

Insurance Company is only liable to pay compensation with Interest.

Order

Insurance Company is exonerated from the payment of penalty and it shall be paid by the owner of the truck within a period of two months from the date of judgement.

Seema Bhatnagar

[seemabhatnagar]

‘Re marriage is no ground for denying compensation to the widow’

The IFFCO TOKIO General Insurance Company Limited v. Smt. Bhagyashri Ganesh Gaikwad & 2 Others

First Appeal 111/2019

Before Bombay High Court

Background

Sakharam Gaikwad on 15.05.2010 was riding the motorcycle Ganesh (deceased) was a pillion rider on his motorcycle.

Sakharam was crossing Mumbai-Pune Road for going towards Kamshet. At the relevant time, the Respondent No.1 drove his rickshaw in rash and negligent manner and thereby dashed to the motorcycle.

Consequently, both Sakharam and deceased Ganesh fell down on road, sustained multiple injuries.  Ganesh died while taking treatment.

The offence was registered against the Respondent No.1 rickshaw driver.

The Claimants filed Claim Petition for getting compensation before the Motor Accident Claim Tribunal (MACT). The Tribunal passed judgment and order which is challenged by the Insurance Company.

Submission of the Counsel of the Appellant Insurance Company

The Respondent No.1(Rickshaw Driver) drove the offending rickshaw outside the jurisdiction and thereby violated the terms and conditions of the permit granted to him. As such the Appellant is not liable to pay any compensation to the Claimants.

The permit to ply offending rikshaw was for Thane district only. The incident occured outside Thane district.

The Claimant No.1(Wife of deceased Ganesh) remarried after the death of Ganesh. Hence, she is not entitled for the compensation and income of deceased is considered is on  the higher side. Hence, their Appeal be allowed.

Submission of the Counsel of the Respondent Claimant’s

The offending rickshaw had permit to drive the rickshaw.

At the time of filing of compensation claimant was widow of the deceased Ganesh.

She was just 19 years old.

Just because she re married cannot be a ground of denying compensation to her.

The deceased was earning Rs. 10,000/- pm from welding work and Tribunal ordered compensation of Rs.5000/-pm. Hence, appeal of the Insurance Company be dismissed.

The Tribunal has not awarded consortium amount, amount for funeral expenses and loss of estate.

Issues before Bombay High Court

Breach of permit by Rickshaw driver

Remarriage of the deceased’s wife

Income of the deceased

Consortium Amount

Issues Dealt by the Bombay High Court

Issue No.1

Tribunal Awarded compensation for an amount of Rs.10,89,754/-

The breach of terms and conditions of insurance policy are quite different than the breach of terms and conditions of permit issued by the RTO Authority.

The permit was issued for the purpose of plying the rickshaw and giving the service within the District Thane. However, it does not preclude the Opponent No.1 to carry the rickshaw out of the jurisdiction of District Thane. I do not find any infirmity in it.

I do not see merit in the contention of learned Counsel for appellant that there was breach of terms and conditions of insurance policy.

Issue No. 2

At the time of death of her husband the claimant was 19 years old.

She filed a Claim Petition for getting compensation as a widow and as a legal representative of the deceased.

During pendency of the Claim petition, she re-married.

One cannot expect that for getting compensation of deceased husband, the widow has to remain widow for life time or till getting compensation.

Considering her age, and at the time of accident, she was wife of deceased, is sufficient ground that she is entitled for the compensation. Moreover, after death of husband remarriage can’t be a taboo to get a compensation.

Issue No.3

No evidence was produced on record in respect income from fabrication work.

The income from agricultural work can be considered as supervisory income.

Hence, notional income (i.e. Rs.5000/) considered by the Tribunal is proper.

Issue No.4

The consortium amount is being awarded to the legal heirs of deceased on the basis of parental consortium, spousal consortium and filial consortium. The Claimants are entitled for consortium amount. Hence, I am considering the consortium amount.

There are three Claimants each Claimant is entitled Rs.40,000/- as consortium amount. Wherefore, they are entitled for Rs.1,20,000/- as consortium and Rs.15,000/- for funeral expenses and Rs.15,000/- for loss of estate. Total comes to Rs.1,50,000/-.

Since Tribunal has awarded Rs.70,000/- as consortium amount. Wherefore, out of Rs. 1,50,000/-, Rs.70,000/- be deducted & claimants are entitled for Rs. 80,000/-

Order

Appeal of the Insurance Company was dismissed.

The Claimants are entitled for Rs.80,000/- as additional amount @ 7.5% per annum from 1 October 2017 till realization of the amount.

The Appellant is directed to deposit the additional amount along with accrued interest thereon within four weeks, after receipt of this order.

The Claimants are permitted to withdraw the additional amount along with accrued interest thereon.

The statutory amount be transmitted to the Tribunal.

Parties are at liberty to withdraw it as per rule.

Seema Bhatnagar

[seemabhatnagar]

When is the Insurance Company, liable for Insurance Claim Payment?

The New India Assurance Company Limited v. Gain Singh & 4 others

Appeal no. 1219/ 2001, Before High Court of Rajasthan at Jaipur

Appeal was allowed in favor of the Insurance Company

Insurance Company would be liable for payment of claim when any liability to a third party is caused by or arising out of the use of the vehicle in a public place, and against death or bodily injury to any passenger of a public service vehicle caused by or arising out of the use of vehicle in a public place.

However, when an accident occurs by the vehicle plied by the employee of the owner of the vehicle who has insured the vehicle is liable to cover an employee of the insured in respect of bodily injury or death arising out of and in the course of his employment.

Background

An appeal was filed by the Insurance Company seeking to set aside the award Passed by Motor Accident Claim Tribunal, Beawar, Ajmer directing the appellant to pay compensation of Rs. 4,38,000/- with interest @ 9% per annum to the claimants/respondents w.e.f. the date of filing the claim petition.

Argument of the Appellant Insurance Company

The deceased himself was driving the insured vehicle, hence, he could not be covered under Insurance Policy as per the proviso of Motor Vehicle Act 147 (1) of the Act of 1988 and the claimants is entitled to claim compensation only under the Workmen Compensation Act, 1923.

Fact

The deceased Shankar Singh was driving the trolla when the driver of the truck caused accident due to which the driver Shankar Singh died.

A claim under Section 163A of the Act of 1988 was filed for getting compensation of Rs.11,22,000/- before the Tribunal.

The claim petition filed by the claimants was allowed by the Tribunal.

Observation of the Court

The counsel for the claimants/respondents is not in a position to controvert this legal aspect of the matter that when the deceased driver himself was driving the insured vehicle than the claim under Section 163A of the Act of 1988 is not maintainable against the Insurance Company. The claimant may get the compensation under the provisions of Workman Compensation Act of 1923.

The Tribunal without touching the legal issue raised by the Insurance Company, has held that the appellant is liable to pay the compensation under the provisions of the Act of 1988.

When the driver of the insured vehicle is plying the said vehicle, and if such vehicle meets with an accident, the liability of the Insurance Company would be restricted to payment of compensation under the provisions of WC Act 1923.

Decision

When admittedly the vehicle in question was being driven by the deceased driver in the course of employment of the owner of the vehicle, hence, the liability of the Insurance Company in terms of the Insurance policy would have to be restricted to the one enforceable under the WC Act of 1923.

The appeal was allowed with the direction to the Tribunal in the impugned award to modify its order and recalculate the amount of compensation as per provisions of WC Act, 1923.

The owner of the vehicle would be liable to satisfy the remaining part of the award.

Seema Bhatnagar