UNITED INDIA INSURANCE CO LTD Vs. BANWARI LAL

JUDGEMENT

(1.) AS both these appeals have been filed under Section 173(1) of the Motor Vehicles Act and challenge is made to an award dated 25th January, 2008 passed by the Motor Accident Claims Tribunal, Hoshangabad, in Accident Claim Case No.66/2004, both these appeals one by the Insurance Company challenging the liability imposed upon the Insurance Company and the other by the claimant for enhancement of compensation, are being decided by this common order.

(2.) FACTS in brief goes to show that on 15th May, 2003 claimant Banwari Lal was travelling in a vehicle bearing MP No.4H 4514 (a Jeep). It is said that the vehicle was being driven by respondent No.1 Shahid Khan, it was owned by respondent No.2 Rewashanker and was insured with respondent No.3 United India Insurance Company Ltd., Itarsi. It is further said that the jeep was being driven by respondent No.1 Shahid Khan in a rash and negligent manner and it turned turtle due to the aforesaid rash and negligent driving near "Bhopal Tiraha". As a result seven or eight passengers travelling in the jeep sustained injury. The claimant Banwari Lal is said to have sustained a fracture in his nose. As a result he was admitted in the District Hospital, Hoshangabad, where he underwent certain surgery of the nose and was discharged after one month. It is said that as a result of the accident, there is disfiguration on his face due to some damage to the nose, his sense of smelling has been reduced, his hearing power has been reduced and further contending that he was earning about Rs.150/ - per month and because of the accident his earning capacity has also reduced due to the permanent disablement suffered, a claim petition was filed under Section 166 of the Motor Vehicles Act claiming a compensation of Rs.17,65,000/ -. Even though respondent No.2, the owner of the vehicle appeared and filed a written statement but thereafter as they did not appear both respondents No.1 and 2 were proceeded exparte. Respondent No.3 Insurance Company appeared and filed an objection to say that the vehicle was registered as a private vehicle but was being used as a Taxi and as there is violation of the policy condition, the insurance company cannot be held liable. Based on the material that came on record, learned Court below framed six issues. Issue No.1 was as to whether the vehicle in question met with an accident on 15.5.2003 because of the rash and negligent driving of the driver and whether in the accident the claimant suffered the injuries as indicated herein above ? This issue has been answered positively in favour of the claimant. Issue No.2 was as to whether the applicant has sustained permanent disablement of his nose due to the accident ? The issue is answered in the positive by saying that the claimant has suffered permanent disablement of his nose. Issue No.3 was as to whether the vehicle was being driven in contravention to the terms and conditions of the Insurance policy ? This issue has been answered against the Insurance company by holding that Insurance Company has not proved this fact. Issue No.4 was as to whether at the time of the accident the claimant was 40 years of age and earning Rs.150 per month ? This issue has been answered by holding that at the time of accident claimant was 45 years of age. He was only a Majdoor earning Rs.30 to 40/ - per day. Issue No.5 was as to whether the claimant was entitled to the compensation of Rs.17,65,000/ - ? This issue has been answered by holding that the claimant is only entitled to compensation of Rs.70,000/ -.

(3.) CHALLENGING the award Banwari Lal the claimant has filed M.A. No.264/2009 seeking enhancement of compensation on the ground that once the claimant is found to have suffered permanent disability of the nose, he should be awarded compensation by treating him to be permanent disabled, to earn Rs.150/ - per day. It is said that once a case of permanent disability is made out, the learned Tribunal should have awarded appropriate compensation. Contending that the compensation has not been properly assessed commensurate to the injury and the disability sufferend by claimant M.A. No.264/2009 is an appeal by the claimant under Section 173(1) seeking enhancement of compensation.