JUDGMENT
I.A. Ansari, J.
1. This is an appeal made under Section 173 of the Motor Vehicles Act, 1988 (in short, MV Act, 1988) against the award, dated 10.5.2005, passed by the learned Member, MACT, Nagaland, Dimapur, in MACT Case No. 169 of 2002, whereby the learned Tribunal has directed the appellant herein to pay to the claimant/respondent a sum of Rs. 5,19,176 as compensation with further direction that the payment shall be made within a period of one month from the date of the award and, in default thereof, to pay interest @ Rs. 9% p.a. on the awarded amount from the date of filing of the Claim Petition, i.e., from 5.10.2002, till the date of payment of the entire awarded amount
2. We have heard Mr. P.B. Paul, learned CGSC appearing on behalf of the appellant, and Mr. A.R. Sharma, and learned Counsel appearing for the claimant-respondent.
3. The claimant-respondent herein instituted a Claim petition seeking compensation under Section 166 of the MV Act, 1988, against the appellant and 3 others, the case of the claimant being, in brief, thus : The claimant used to be a hawker and sell readymade garments by moving from place to place and earn thereby a sum of about Rs. 5,000 per month. The claimant had gone to Peren area in connection with business and stayed in the Labour camp, at Peren, for the night. On the following day, i.e. on 20.6.2001, at about 6.30 A.M., the claimant got into the vehicle of the GREF, which was to go to Peren town. When the vehicle was about to reach Peren town, the vehicle left the road and went down the road 200 ft. The accident, which so took place, resulted into the death of three occupants of the said vehicle and as many as 37 persons including the claimant got injured. From the place of accident, the claimant was shifted to the Civil Hospital, Peren, in unconscious state and was given first-aid there. From the Civil Hospital, Peren, the claimant was shifted to the Civil Hospital, Dimapur, and was discharged from there on 24.6.2001. The petitioner sustained fracture of his right femer and remained at the Civil Hospital, Dimapur, from 20.6.2001 to 24.6.2001 and, thereafter, the petitioner took discharge from the said hospital and went to his hometown, in U.P., and got himself treated, initially, at Bolia and, then, in the Institute of Medical Sciences and NSS Hospital, at Banaras, where he was operated and an iron rod was inserted into his right femer so that he could stand up and he was discharged from there after about one month. For the purpose of his treatment, the claimant incurred expenses to the tune of Rs. 3,48,118 and he still needs about Rs. 60,000 for yet another operation, which he has to undergo in order to take out the iron rod, which had been inserted into his right leg. The claimant, in all, made a claim for payment of Rs. 8,39,720 as compensation for pecuniary loss, expenses for treatment, pain and suffering and loss of amenities of life, the case of the petitioner being that he had been disabled from carrying on his business and his loss was total.
4. The appellant herein, as the owner of the alleged offending vehicle, filed their written statement and contested the claim proceedings, wherein they contended, inter alia, that the claimant was not one of the occupants of the vehicle, which had met with accident, at Peren road, on 26.2.2001 and that the Union of India was not liable to pay any compensation to the claimant. The learned Tribunal framed as many as 10 issues and recorded evidence adduced by the parties concerned. The proceedings concluded by delivery of the impugned dated 10.5.2005, aforementioned.
5. We may point out, at the very outset, that though a number of grounds were taken in the Memorandum of Appeal by the appellants, the appeal has been, eventually, argued, on behalf of the appellant, on three grounds, namely (i) that the claimant-respondent was not one of the occupants of the vehicle, which had met with the accident, (ii) that the claimant was, at best, a gratuitous passenger and even if the claimant is found to have travelled in the said vehicle, he, bring a gratuitous passenger, was not entitled to any compensation, and, (iii) that the amount of compensation determined by the learned Tribunal is excessive, unreasonable and illegal.
6. While considering the grievance of the appellant that the claimant was not an occupant of the vehicle, in question, at the relevant point of time, what is of paramount importance to note is that the fact that the vehicle, in question, belonging to the GREF, met with an accident, on 20.6.2001, at Peren road and resulted into the death of, at least, 3 persons and caused injuries to as many as 37 persons are not in dispute. The only question, therefore, that we are required to determine is as to whether the claimant was one of the occupants of the said vehicle. In this regard, what we notice is that the claimant, in his claim application submitted an Accident Information Report, issued by the Peren P.S. under Rule 115 of the M.V. Rules. This report, which is Ext. l, does mention the name of the claimant as a person, who had sustained injuries in the accident, which had been taken place, on 20.6.2001, at Peren Road, involving a vehicle of the GREF.
7. Coupled with the above, what is also required to be noted is that the claimant had made an application under Section 140 of M.V. Act, 1988, claiming compensation on the basis of no fault liability. Since the appellant had raised objection that the claimant was not travelling in the vehicle aforementioned at the time of the said accident, the I.O. of the case was examined by the learned Tribunal and in his examination, this Officer dearly stated that he was posted at the place of accident and on receiving the information regarding the accident, he had visited the place of accident, but before the could arrive there, the injured persons had already been shifted to Peren Hospital, whereupon he had visited the said hospital and, amongst the injured lying there, he had found the claimant as an injured person. Though the I.O. was cross-examined on behalf of the appellant, nothing specifically could be elicited from his cross-examination to show that what this officer had deposed was untrue or false. As a matter of fact, to a pointed question put to him, on behalf of the appellant, this officer replied by saying that he would be able to identify the other injured persons too if they were produced before the court. This assertion of the officer went wholly unchallenged by the appellant. This undisputed assertion of the I.O. makes it clear that the officer had, indeed, visited the hospital aforementioned and that amongst the injured lying there, he had found the claimant too. After recording the evidence of the I.O., the learned Tribunal passed an interim order, on 3.6.2003, wherein the learned Tribunal had specifically recorded that the officer was examined, he had identified the claimant as one of the injured persons and that the factum of the accident, involvement of the vehicle belonging to GREF and the injury sustained by the claimant had not been disputed. It was, on the basis of these conclusions, reached by the learned Tribunal that the learned Tribunal had directed payment of a sum of Rs. 25,000 as interim award and this payment was made by the appellant without raising any objection thereto at any stage thereafter.
8. It is also pertinent to note that the claimant had produced the discharge slip (Ext. 2) from the Civil Hospital, Dimapur. This discharge slip records the claimant’s occupation as a personnel from GREF and shows, as has been contended by the claimant, that he was admitted on 20.6.2001 and discharged from the said hospital on 24.6.2001, and the diagnosis was that he had sustained fracture of right femer. In the case at hand, we also find that the learner Tribunal had called for the records from the Peren Hospital and this report too indicated that the claimant was brought to Peren Hospital along with several other injured persons on 20.6.2001 and that he was shifted to Dimapur Civil Hospital after he was given first-aid.
9. We also note that in support of their case that the claimant was not an occupant of the vehicle aforementioned, the appellant examined the Commandant of the 59 RCC as their witness. This officer had deposed that as per their records, no one other than the departmental people had travelled in the said vehicle on the day of the accident. However, to the question put to him in the cross-examination, on behalf of the claimant, if he had maintained any record of the occupants, who had entered into the vehicle after it left the Camp, this Officer replied in the negative. Hence, merely on the ground that here is no official records maintained by the appellant to show that the claimant had travelled in the said vehicle, it cannot be conclusively held that the claimant did not travel in the vehicle aforementioned as deposed to by him.
10. Situated thus, we are unable to give any credence to the plea of the appellant that the claimant was not one of the occupants of the vehicle, which had met with the accident. This inference gets strengthened from the fact that the said Commandant, 59 RCC had, in his cross-examination, deposed that he had no comment to offer as regards the fact as to whether the statement of the I.O., Report of the Medical Officer, Peren, or the Discharge Slip, issued by the Civil Hospital, Dimapur, are true or false. Thus, the oral and the documentary evidence adduced by the claimant, in support of his claim, clearly proved that the claimant was one of the occupants of the vehicle, which had met with the accident, and he had sustained injuries in the said accident.
11. In view of what has been discussed and pointed out above, we have no hesitation in holding, and, in fact, affirming the finding of the learned Tribunal that the claimant-respondent was one of the occupants of the vehicle, in question, and that he had sustained fracture of his right femer in the said accident.
12. Turning to the question as to whether the appellant, as owner of the vehicle, is liable to pay any compensation to the claimant on the ground that the claimant was a gratuitous passenger, what may be noted is that from the evidence on record, it is abundantly clear that the claimant had, indeed, travelled and met with the accident without making any payment therefor. The claimant was, thus, undoubtedly, a gratuitous passenger. However, when owner of a vehicle lifts any passenger on the road, he remains liable to make payment of compensation for the injuries, which may be sustained by such an occupant of the vehicle. The law only exempts an insurer from indemnifying the owner of the vehicle for the death of, or injury caused to, a gratuitous passenger unless premium has been obtained, in this regard, by the insurer. Viewed thus, it is clear that the appellant, as owner of the vehicle, cannot disclaim the liability on the ground that the claimant was a gratuitous passenger.
13. Turning, now, to the question of quantum of compensation, what may be noted is that the claimant had claimed that his earning, as a hawker of readymade garments, was about 5,000 rupees per month. The learned Tribunal, however, thought it fit to assume that the monthly earning of the claimant was Rs. 3,500. In view of the fact that the petitioner had, in the face of the overwhelming evidence on record, sustained disability to the extent of 50%, the learned Tribunal treated pecuniary loss of the claimant at the rate of Rs. 17,000 per month. As the age of the claimant was 34 years, the learned Tribunal, by using 17 as multiplier, calculated pecuniary loss suffered by the claimant to the tune of Rs. 3,57,000. On giving our utmost consideration to this aspect of the matter, we do not find any arbitrariness or illegality in the assessment of the compensation, which has been made by the learned Tribunal on this aspect of the case. This apart, the claimant had claimed that he had spent a sum of Rs. 3,40,000 for his treatment. However, since the claimant could produce Cash Memo for a sum of Rs. 1,27,176, in this regard, the learned Tribunal awarded the said sum of Rs. 1,27,176 as the sum payable for the expenses incurred by the claimant. The claimant had also made a claim of Rs. 60,000 as expenses for future treatment. The learned Tribunal has, however, determined a sum of Rs. 30,000 under this head for future treatment. We notice that the fact that the claimant is required to undergo another operation to take out the iron rod at the hospital aforementioned, at Banaras, was not seriously disputed by the appellant. In this view of the matter, the sum of Rs. 30,000, which the Tribunal had fixed, cannot be treated as exorbitant or excessive. The learned Tribunal allowed the claimant special damages to the tune of Rs. 30,000 not only for pain and suffering, but also for loss of amenities of life. The total compensation, thus, came to a sum of Rs. 5,44,176.
14. On a close and minute scrutiny of the evidence on record, we do not find any illegality or factual infirmity in the conclusion reached by the learned Tribunal that the claimant-respondent is entitled to receive, in all, Rs. 5,44,176.
15. What crystallizes from the above discussion is that the impugned award, dated 10.5.2005, cannot, in the face of the materials on record, be termed as illegal, perverse or arbitrary. The impugned award, therefore, in our firm opinion, needs no interference.
16. In the result and for the foregoing reasons, this appeal fails and the same shall accordingly stand dismissed.
17. Send back the LCRs.