UNITED INDIA INSURANCE CO LTD Vs. RAM RATTI

JUDGEMENT

(1.) The connected appeals arise out of an accident where a Maruti van, which had a Package Policy, hit against a tree. The driver of the vehicle was injured and a passenger died in the accident. The claim was made for the deceased under section 163A of the Motor Vehicles Act. Although his income was said to be in excess of Rs. 40,000, the claimants restricted the salary to be less than Rs. 40,000. The learned counsel would contend that such kind of concession was not possible and if as a matter of fact, the contention was that deceased was earning more than Rs. 40,000, he could not have filed the claim petition under section 163-A of the Motor Vehicles Act at all. In yet another case, it is a claim by the driver of the vehicle similarly under section 163-A for compensation for injuries sustained. The Tribunal approached the issue from the point of view that it was unnecessary to examine the question of negligence for a claim under section 163-A of the Motor Vehicles Act. While it is correct that negligence need not to be proved, it will be wrong to assume that a claim under section 163-A of the Motor Vehicles Act is possible even for the act of a tortfeasor by the tortfeasor himself. However, the issue will be different for a person, who is a gratuitous passenger in a car, who is not the owner of the vehicle himself. If a claim under section 163-A is not possible for any reason, the case could still be examined under section 166 of the Motor Vehicles Act where the accident by a collision with a tree that was not known to have taken place as a result of any mechanical defect, it must only be understood as resulting from a res ipsa loquitur situation. A vehicle simply does not hit against a tree. If it was not a mechanical defect, the negligence of the driver speaks for itself. In such an event, the passenger in a vehicle is bound to be protected for claim through himself or through the representative in case of death. The liability of the insurance company is, therefore, surely attracted and the award passed by the Tribunal assessing the compensation for the deceased at Rs. 1,60,000 is affirmed and the appeal is dismissed.

(2.) As regards the claim of the driver for injury sustained, the application under section 163-A was not maintainable at all and the reasoning adopted by the Tribunal was erroneous. However, I still do not want to direct the parties to start proceedings afresh under the Workmen's Compensation Act but it will certainly be possible if the driver, who is a workman, gets injured in the accident by his own negligence. In this case, the driver had given evidence to the effect that he had suffered a fracture in his leg and taken treatment at Maharaja Agrasen Hospital, Jind under the care of Dr. Ashok Gupta. He was also said to have been operated upon for reducing the fracture. The disability complained of was that he had a shortening of his limb but the Claims Tribunal found that there was no medical evidence placed except bills to the tune of Rs. 32,961.45. A treatment that has cost him over Rs. 30,000 with operation when medical expenses in PGIMS Rohtak and subsequent treatment in private hospital must have been the result of substantial injuries but unfortunately I have not the benefit of any appropriate evidence to assess the disability or the loss resulting from his injuries. The Tribunal found that the claimant, who was a driver, must have earned Rs. 3,500 per month and the loss of income due to the injuries was assessed at Rs. 10,000. The Tribunal allowed Rs. 40,000 towards medical expenses, Rs. 10,000 for loss of income, Rs. 8,000 for attendant and transportation charges and Rs. 10,000 for pain and suffering, in all an amount of Rs. 68,000 was awarded as compensation. In the reasoning I have adopted that the driver will not be able to maintain an action for compensation under section 163-A, for his own negligent driving, the scale of compensation which the Workmen's Compensation Act could make possible could be assessed if there is any evidence relating to the disability arising out of the accident. Since the evidence is inadequate for assessing compensation for the claim under the Workmen's Compensation Act, I shall set aside the award insofar as it does allow for compensation to the injured. The respondent No. 1, Sajjan Kumar, will have a right to approach the Workmen's Compensation Commissioner and seek for an assessment of compensation in the manner provided by law. The claimant will be at liberty to adduce proof of the bona fide prosecution of the case as justification for not filing the application within time. Under the circumstances, the appeal filed in F.A.O. No. 2445 of 2007 is dismissed and the appeal filed in F.A.O. No. 2446 of 2007 is allowed.