JAM SINGH Vs. BHARAT

JUDGEMENT

(1.) THIS order shall also govern the disposal of MA No. 3865/09 as in both the appeals, the award under challenge is dated 30.9.2009 passed by MACT, Sardarpur in claim case No. 83/08 whereby the claim petition filed by the appellant was allowed and compensation of Rs. 2,29,880/ - was awarded on account of injuries sustained by the appellant.

(2.) IN MA No. 154/2010 which is the appeal filed by the claimant/appellant, prayer is for enhancement of the amount while in MA No. 3 865/09 which is the appeal filed by the respondent No. 3/Insurance Company, prayer is for setting aside of the award as respondent No. 3 has wrongly been held liable for payment of compensation.

(3.) LEARNED counsel submits that learned Tribunal assessed the income @ Rs. 3,000/ - per month and after deducting 1 /3rd towards personal expenses, assessed the permanent disability as 42% and after applying the multiplier of 16, calculated the amount of permanent disability. Learned counsel submits that right hand of the appellant is amputated from the shoulder and as per medical evidence adduced, permanent disability was 85% in the hand and 32% in leg which was wrongly assessed by the learned Tribunal as 42%. It is submitted that appellant was hospitalised from the date of accident till 11.3.2008. It is submitted that no amount has been awarded in other conventional heads. Similarly, learned Tribunal also committed error in assessing the income @ Rs. 3,000/ - per month. So far as liability is concerned, learned counsel submits that appellant was possessing the valid driving licence which is Ex. P/141. In alternate, it is submitted that even if it is assumed that offending vehicle was the transport vehicle and appellant was possessing the licence of LMV, then too appellant is entitled. For this contention, reliance is placed on a decision in the matter of Jitendra Kumar v. Oriental Insurance Company Ltd., 2003 (II) MPWN 140 (SC) = 2003 (III) ACJ 1441 wherein van caught fire due to mechanical reasons and was damaged, Insurance Company repudiated the claim on the ground that driver was not holding a valid driving licence, the Hon. apex Court held that incident occurred due to no fault of the driver, therefore, Insurance Company cannot repudiate the claim for damages on the ground the driver of the vehicle had no valid licence. Further reliance is placed on a decision in the matter of Kaushnuma Begum v. New India Assurance Co. Ltd., 2001 ACJ 428 wherein front tyre of jeep burst while in motion, vehicle became unbalanced and turned turtle, crushing to death a person walking on the road, the Tribunal held that there was neither rashness nor negligence in driving the vehicle, the Hon. apex Court held that owner of the vehicle is liable for damages to a person who suffered on account of accident even if there is no negligence on the part of the driver or owner. Lastly reliance is placed on a decision in the matter of National Insurance Company v. Swam Singh, 2005 (1) JLJ 85 = 2004 ACJ 1. It is submitted that appeal be allowed and amount be enhanced.