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2008 DIGILAW 152 (JK)

Om Parkash v. Oriental Insurance Co. Ltd.

2008-04-29

J.P.SINGH

body2008
1. Claiming compensation of Rs. 1,57,000/- for the damage caused to his house and movables lying therein when vehicle no. JK02G-3929, driven rashly and negligently by Vijay Kumar, its driver had steered off the road near Suankha Morh, Vijaypur and barged into his newly constructed residential house, Om Parkash, the owner of the house had filed claim petition no. 739/claims in Motor Accidents Claims Tribunal, Jammu. 2. His claim petition was contested only by Oriental Insurance Company Limited, the insurer of the offending vehicle because the owner and driver of the vehicle had opted not to appear before the Tribunal to contest the claim. 3. The Tribunal had framed following issues to decide the claim petition, which for facility of reference are reproduced hereunder: - 1) Did the petitioner suffer damage to his property in an accident which occurred on 26.2.2000 due to negligence of the driver of the vehicle bearing No.JK02G-3929? OPP 2) If issue No.1 is proved, what compensation petitioner is entitled to? OPP 3) Relief. O.P.Parties To substantiate the claim, the claimant had appeared as his own witness besides examining Mr. Mohan Lal in support of the claim. No evidence had been led by the Insurance Company. 4. Although the Tribunal had decided issue no.1 in favour of the claimant yet it proceeded to dismiss the claim petition vide its judgment of May 27, 2002 thereby deciding issue no.2 against the claimant. 5. Aggrieved by Tribunals judgment, the claimant-appellant has come up in appeal to this Court seeking setting aside of the impugned judgment and passing an award allowing his claim. 6. I have heard learned counsel for the parties and gone through the records of the Motor Accidents Claims Tribunal. 7. It is no doubt true that the appellant-claimant had not produced any evidence indicating the value of the property i.e. house consisting of two rooms and movables lying therein but the question which falls for consideration in this appeal is as to whether even after coming to the conclusion that the appellants property had been found to have been damaged because of tortious act of the driver and owner of vehicle No. JK02G-3929 in driving the vehicle rashly and negligently, would the Tribunal be justified in refusing grant of compensation to the claimant who had not produced evidence indicating the actual financial loss caused to his property? 8. 8. The Motor Accidents Claims Tribunals have been constituted by the Government under the Motor Vehicles Act, 1988 as a social security measure inter alia, to provide speedier compensation to those who suffer because of the use of Motor Vehicles on the road. Compensation allowable by such Tribunals is guided by what is contained in Section 168 of Motor Vehicles Act. Awarding of "just compensation", as contemplated under Section 168 of the Act would not thus permit throwing out of a claim petition leaving the claimant high and dry even when the Tribunal finds that damage had been caused to his property. 9. In such cases where evidence is not forthcoming as to the actual damage caused to the property, the Tribunal is required to assess and award compensation employing some amount of guess work and some sympathy, keeping in view the nature of damage caused to the property and discomfort suffered by its owner. The Tribunal may thus presume the existence of such facts which it thinks likely to have happened, having regard to the common course of natural events, human conduct and public and private business, of course, in their relation to the facts and circumstances of a particular case, and award compensation on such assessment to the claimant so that the intention of the legislature in providing speedier remedy to the sufferers of the motor accidents was achieved. 10. The evidence produced by the claimant in the present case had established that one of the two rooms of his house had been completely damaged whereas the other room had suffered cracks and the house as such was uninhabitable. Appellant had thus been compelled to hire a house for his shelter at a monthly rental of Rs.800/-. He had specifically stated that the movables including a steel box, television, fan, stabilizer, sewing machine etc. lying in the house at the time of the accident had been completely damaged. 11. The evidence produced by the claimant had remained uncontroverted as the insurance company, contesting the claim had not produced any evidence in rebuttal. 12. The appellant had, assessed the damage caused to two concrete rooms of his house at Rs. 1,00,000/- and the damage caused to the movables at Rs. 30,000/-. He had claimed an amount of Rs. 11. The evidence produced by the claimant had remained uncontroverted as the insurance company, contesting the claim had not produced any evidence in rebuttal. 12. The appellant had, assessed the damage caused to two concrete rooms of his house at Rs. 1,00,000/- and the damage caused to the movables at Rs. 30,000/-. He had claimed an amount of Rs. 35,000/- for inconvenience, mental shock and suffering which he had been unnecessarily put to because of the tortious act of the driver and owner of vehicle no. JK02G-3929. 13. The insurance company, while meeting the pleadings of the appellant had pleaded that the compensation claimed by the appellant was quite exorbitant and unreasonable. In other words, it was only the quantum of compensation which had been disputed by the appellant-insurance company and not the entitlement of the claimant to compensation in the event of his having been found entitled thereto. 14. The Tribunal had, therefore, erred in rejecting appellants claim in toto because the claim petition does not appear to have been decided by the Tribunal in accordance with law. 15. Tribunals finding on issue no.2 cannot thus be justified. 16. Keeping in mind, the laudable intention behind constitution of Claims Tribunals for speedier settlement of claims arising out of the use of motor vehicles, I do not consider it proper to send the base back to the Tribunal to assess the damage caused to the appellants property because of the rash and negligent driving of vehicle no. JK02G-3929, when more than eight years have already passed and appellants claim of compensation for damage to his property remains still unsettled. It is thus considered appropriate to assess the damage caused to the appellants property in view of the provisions of Section 168 of the Motor Vehicles Act. 17. In view of the uncontroverted evidence on records that one of the rooms of appellants house had been damaged and the other had suffered cracks rendering whole of it uninhabitable, compelling the appellant to hire a house at a monthly rental of Rs.800/- for his shelter, I am of the view that "just compensation" for the damage caused to the immovable property of the appellant should not in any case be less than Rs. 20,000/-, which is the minimum amount, which a person may, in the ordinary course of things, spend in raising an unfinished concrete structure of two rooms. 18. 20,000/-, which is the minimum amount, which a person may, in the ordinary course of things, spend in raising an unfinished concrete structure of two rooms. 18. Taking into account the minimum cost of a sewing machine, television set, steel box, automatic stabilizer and a fan, which have been proved to have been damaged as a result of the accident caused by the vehicle, the appellant would be entitled to an amount of Rs. 10,000/- as compensation therefor. Appellant needs to be compensated for the inconvenience caused to him in living in a rented house and paying an amount of Rs.800/- per month as rent. He is, therefore, held entitled to an additional amount of Rs. 10,000/- as compensation, for the inconvenience caused to him in putting up in a rented house rather than in his own house. 19. The appellant is thus entitled to an amount of Rs. 40,000/- by way of compensation for the damage caused to his house and articles lying therein by the rash and negligent driving of vehicle no. JK02G-3929 by its driver and owner. Oriental Insurance Company Limited, being the insurer of the vehicle is required to indemnify the owner and pay compensation to the appellant-claimant. 20. Finding of the Tribunal on issue no.2 is accordingly set aside and substituted, holding appellant-claimant entitled to recover an amount of Rs. 40,000/- along with interest @ 7.5% per annum from the date of filing of claim petition till its realization from the respondents. 21. Oriental Insurance Company shall pay the awarded amount to the claimant within a period of six weeks. 22. Setting aside Motor Accidents Claims Tribunal, Jammus award of May 27, 2002, this appeal is accordingly allowed and an award for recovery of an amount of Rs. 40,000/- along with interest @ 7.5% per annum from the date of filing of claim petition till its realization is passed in favour of the appellant and against the respondents. 23. Oriental Insurance Company Limited is directed to satisfy the award within a period of six weeks.