The New India Assurance Company Ltd. v. Dinesh Nautiyal
2006-08-10
J.C.S.RAWAT, RAJEEV GUPTA
body2006
DigiLaw.ai
JUDGMENT J.C.S. Rawat, J. This appeal 'under section 173, of the Motor Vehicles Act has been filed against the judgment and award dated 15-02-2003 passed by the Motor Accidents Claims Tribunal (hereinafter referred as 'Tribunal'), Uttarkashi in MAC.P. No. 29/2001, whereby the learned Tribunal had awarded a sum of Rs. 20,90,000/- as compensation alongwith interest @ 9% per annum to the claimant injured against the New India Assurance Company Ltd.- appellant. 2. Brief facts of the case are that the claimant- Dinesh Nautiyal (respondent No.1) had filed a claim petition before the Tribunal alleging therein that on 21-10-2000 he was travelling towards Mainol from Bhrahmkhal in offending Jeep No. UP 07-F-0499, which was being driven rashly and negligently by its driver 1 owner Prem Lal Sah (respondent no.2). It was further alleged in the claim petition that the driver of the offending jeep lost his control over it and due to which it fell into a ditch. The claimant- Dinesh Nautiyal had sustained the grievous injuries on his person. An FIR of the said incident was lodged. The injured-claimant was taken to civil hospital, Uttarkashi from where he was' referred to Himaliyan Institute Hospital, Jolligrant for his treatment. Thereafter, he was referred to Indian Spinal Injuries Center, New Delhi where he was treated, but he could not regain his health cent-percent. It was further allege-d in the claim petition by the claimant-injured that he was medically examined by a medical board, who gave a certificate of 100% permanent disability. It had also been alleged that the respondent no. 1injured was the Incarge, Block Development Officer, Development Block, Dudda. He was aged about 42 years and was earning Rs. 10,000/- pm. at the time of incident." In this way, an amount of Rs.31,80,000/- had been claimed as compensation. 3. The opposite parties filed their written statements and contested the case. The New India Assurance Com.- appellant had alleged in the written statement that the offending jeep had no valid registration, permit and fitness certificate at the relevant time. The accident took place not due to carelessness of jeep's driver, but due to locking of its steering. The New India Assurance Com.- appellant had further alleged that the driver had no valid driving licence at the time of accident.
The accident took place not due to carelessness of jeep's driver, but due to locking of its steering. The New India Assurance Com.- appellant had further alleged that the driver had no valid driving licence at the time of accident. The respondent No.2- Prem Lal Sah, who was the driver and owner of the offending jeep, had also filed the written statement in which he had alleged that he was not rash and negligent at the time of accident and the accident occurred due to the locking of the jeep's steering and he lost the control over it and it fell into a ditch. The respondent no.2- Prem Lal Sah had further alleged that he was not liable to pay the compensation to the claimant injured. It was further alleged that offending jeep was insured with the New India Assurance Company- appellant. 4. On the basis of the pleadings, the learned Tribunal framed necessary issues in the case and ultimately, the learned Tribunal had come to the conclusion that the offending jeep fell into the ditch due to rash and negligent driving of its driver- Prem Lal Sah and due to which the claimant-injured had suffered the grievous injuries on his person: It was further held that the jeep's driver had a valid driving licence at the material time and the offending jeep had also a valid registration, permit and the fitness certificate at the relevant time. The injured-claimant became permanent disabled due to the injuries sustained in the accident. It was further held that after the accident he was not able to perform his duties. The learned Tribunal had assessed the age of the injured as 42 years. It was further held that he was earning a sum of Rs. 10,000/- pm or say Rs. 1,20,000/- per annum. The learned Tribunal had applied the multiplier of "14. Thus, the Tribunal had awarded a sum of Rs. 16,80,000/- as compensation. Apart this, Rs. 4, 10,000/- for the medical treatment had been awarded to the injured-claimant. In this way, the learned Tribunal had awarded the compensation of Rs. 20,9'0,000/- along with interest @ 9% per annum in favour of the claimant-injured against the appellant- The New India Assurance Com. Ltd. 5. Feeling aggrieved by this, the New India Assurance Com. Ltd.- appellant has preferred the present appeal. 6.
In this way, the learned Tribunal had awarded the compensation of Rs. 20,9'0,000/- along with interest @ 9% per annum in favour of the claimant-injured against the appellant- The New India Assurance Com. Ltd. 5. Feeling aggrieved by this, the New India Assurance Com. Ltd.- appellant has preferred the present appeal. 6. Perusal of the record reveals that an application under section 170 of the Motor Vehicles Act was moved by the New India Assurance Company Ltd. for permission to contest the case on merits. The learned Tribunal had allowed the application vide its order dated 14-06-2002. 7. So far as the finding that the accident took place due to rash and negligent during of its driver / owner is concerned, it has not been challenged by the driver / owner of the offending jeep or the appellant- New India Assurance Company. So far as the finding regarding the valid driving licence is concerned, the learned Tribunal had recorded that the driver of the vehicle had a valid licence at the time of the incident. The said findings have not been challenged by the New India Assurance Company before us. As such the said findings had attained the finality. 8. It was contended on behalf of the appellant- New India Assurance Com. Ltd. that the amount of compensation awarded by the learned Tribunal is on the higher side. It was contended that the respondent no. 1- injured had been getting salary continuously during the period of treatment. The injured- respondent no.1 was not removed from his service on the ground that he had been declared unfit for the job. It was further contended that the respondent no.1 had been continuously drawing his salary and as such there was no loss of income. It was further contended that the learned Tribunal had erred in holding that the respondent no.1- injured had become unfit for the job. The learned Tribunal had calculated the compensation assuming that he had lost the earning capacity. The learned counsel for the respondent no.1- injured could not demonstrate if he is incapable of doing the job as to how the injured has been drawing the salary from the department and as to how he has lost his earnings. 9. The appellant has also filed an application bearing No. 7091 /2004 before this Court to seek the permission to admit the additional evidence.
9. The appellant has also filed an application bearing No. 7091 /2004 before this Court to seek the permission to admit the additional evidence. The appellant has stated in that application that the appellant had investigated the matter through the investigator, who had obtained a certificate issued by the claimant's department in which it has been mentioned that the respondent no. 1- injured is still in service and he is getting salary continuously from the department. The appellant had also annexed the salary certificate dated 30-11-2004 issued by the District Social Welfare Officer, Uttarkashi in which it has been specifically mentioned that the respondent no. 1- injured has been working in the office and he has been getting his salary from the department and he is in the pay-scale of Rs. 5000-8000/-. The accident occurred on 21-10-2000 and the learned Tribunal has awarded the compensation on 15-02-2003, whereas the aforesaid certificate was issued by the District Social Welfare Officer, Uttarkashi on 30-11-2004 which shows that the injured was doing the job. The document / certificate filed by the appellant nullifies the findings of the learned Tribunal. 10. Apart this, the learned Tribunal had awarded a sum of Rs. 4,10,000/- for the medical treatment. It is admitted that the respondent no.1- injured is a government servant and he s entitled to get the medical expenses incurred in the treatment. There is no evidence on record as to whether the respondent no.1- injured had got the claim of medical bills from his department, not. The learned Tribunal without verifying this fact had awarded Rs. 4,10,000/- towards the medical treatment. Therefore, it would be just and proper to direct the parties to lead their evidence as to whether the medical bills of the injured had been reimbursed from the department or not. 11. In view of the foregoing discussion, it would be just and proper to remand this matter to the Tribunal. The Tribunal while assessing the damages would consider the certificate filed by the appellant before this Court. It would be just and proper to give an opportunity to the respondent no.1- injured as well as the appellant to adduce the evidence only on the point of quantum of compensation. Both the parties would be at liberty to adduce the evidence only on the point of quantum.
It would be just and proper to give an opportunity to the respondent no.1- injured as well as the appellant to adduce the evidence only on the point of quantum of compensation. Both the parties would be at liberty to adduce the evidence only on the point of quantum. The matter is remanded with the direction to dispose of it expeditiously after giving opportunities to the parties for adducing their evidence only on the point of quantum. The rest of the findings recorded by the Tribunal are hereby confirmed. We are of the view that in order to ascertain the quantum of compensation in light of the observations made above it would be just and proper to remand the matter. However, it is made clear that if the medical expenses would have been reimbursed by the government the Tribunal while assessing the quantum of damages would exclude the same. 12. The Insurance Company had deposited an' amount of Rs. 10,45,000/- in the Registry of this Court. The claimant had withdrawn a sum of Rs. 5,00,000/-. The insurer would be at liberty to withdraw the remaining amount of Rs. 5,45,000/- from the Registry. However, it is made clear that the amount of Rs. 5,00,000/- which had been withdrawn by the claimant shall be adjusted by the Tribunal while awarding the compensation.' 13. The appeal is allowed. The judgment & award dated 15-02-2003 passed by the Tribunal is set aside to the extent of quantum of damages and the case is remanded to the learned Tribunal, who shall decide the case in the light of the observations made above.