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2009 DIGILAW 129 (UTT)

CHANDRA RAWAT v. ICICI LOMBARD PVT.

2009-03-25

B.C.KANDPAL

body2009
JUDGMENT Hon’ble B.C. Kandpal, J. This appeal under Section 173 of Motor Vehicles Act, 1988, has been preferred by the appellant-claimant against the judgment and award dated 27.11.2006 passed by Motor Accident Claims Tribunal/District Judge, Nainital, in M.A.C.P. No. 78/2005, Smt. Chandra Rawat versus M/s ICICI Lombard Pvt. Motor & another. 2. Brief facts of the case, as narrated in the claim, petition, are that on 3.2.2005 at 9.30 p.m. when claimant along with family members was coming to her home from village Futkuan in Alto Car No. U.A. 04B/6524, near Radhaswami Satsang Rampur Road Haldwani, her husband-Narayan Singh took his vehicle on kaccha road due to flash of a truck coming from opposite direction and the said truck came on its wrong side and an unknown vehicle hit the car of the claimant, due to which her car was overturned and her family members sustained injuries. The claimant was taken to Sushila Tiwari Memorial Forest hospital with the help of members of police patrolling car, where she was treated and her C.T. Scan was conducted and seeing her critical condition she was referred to Krishna Hospital, Haldwani and thereafter she was referred to Keshlata Hospital, Bareilly. The claimant claimed a sum of Rupees Five lacs as compensation against the opposite parties. 3. The opposite parties contested the claim petition. Opposite party no. 1 filed its written statement stating therein that claim petition has been filed on wrong and baseless grounds. It is stated that liability to pay the compensation is not of opposite party no. 1. It is also stated that vehicles which hit the vehicle of claimant, were not made party in the claim petition. The said accident had taken place on account of rash and negligent driving of driver of vehicle of claimant and driver of vehicle of claimant was not holding valid driving license. It is further stated that burden to prove the factum of accident is upon the claimant. Opposite party no. 1 had not been given any desired information about the policy. 4. Opposite party no. 2 – Narayan Singh filed written statement admitting therein the factum of accident as well as all other contents of the claim petition. In the additional pleas, it has been stated that speed of car was very slow and opposite party no. 2 was driving the vehicle with valid driving license. 4. Opposite party no. 2 – Narayan Singh filed written statement admitting therein the factum of accident as well as all other contents of the claim petition. In the additional pleas, it has been stated that speed of car was very slow and opposite party no. 2 was driving the vehicle with valid driving license. It has also been stated that opposite party no. 2 had given the information to opposite party no. 1 with regard to the accident. Since vehicle in question was insured with opposite party no. 1, therefore, the liability to pay the compensation is of opposite party no.1. The accident had taken place on account of falling of car in Khad by not using the dipper. The amount of compensation has exorbitantly been claimed by the claimant. 5. The learned Tribunal on the basis of the pleadings of the parties framed necessary issues in the claim petition. Parties led evidence in support of their case. The learned Tribunal after having considered the entire material evidence available on record and hearing learned counsel for the parties decreed the claim petition for a sum of Rs. 90,000/- along with conditional interest of 6% per annum from the date of filing the petition till the date of actual payment, vide judgment and award dated 27.11.2006. 6. Feeling aggrieved by the aforesaid impugned judgment and award, the appellant-claimant has preferred the present appeal before this Court for enhancement of amount of compensation. 7. Heard Sri Z.U. Siddique, learned counsel for appellant-claimant, Sri Sarvesh Agarwal, learned counsel for respondent no. 1 and perused the record. 8. As far as factum of accident is concerned, the learned Tribunal after having considered the entire evidence adduced before it came to the conclusion that on 3.2.2005 at 9.30 p.m. when claimant along with her family members was returning to her home in Car No. U.A. 04B/6524, near Radhaswami Satsang Rampur Road, Haldwani a truck came rashly and negligently from the opposite direction and flashed over driver of car by not using dipper, due to which car met with an accident and Smt. Chandra Rawat sustained serious injuries on her person. I do not find any ground to interfere with the said finding recorded by the Tribunal and the same deserves to be confirmed. 9. The Tribunal further held that on the date of accident car in question was insured with opposite party no. I do not find any ground to interfere with the said finding recorded by the Tribunal and the same deserves to be confirmed. 9. The Tribunal further held that on the date of accident car in question was insured with opposite party no. 1 and it was being driven by driver having valid driving license. I also do not find any infirmity in the said finding recorded by the Tribunal and same deserves to be confirmed. 10. As far as amount of compensation to be paid to the claimant is concerned, the Tribunal has dealt with this point while deciding issue no. 4 in the claim petition. The claimant has filed the bills pertaining to her medical treatment to the tune of Rs. 71,804/-, to which the Tribunal has agreed, but the Tribunal fell into error in awarding a meager sum of only Rs. 18,000/- approximately for suffering physical, mental pain and agony, transportation charges, future medical expenses and other expenses like special diet etc. It is established from the evidence on record that claimant had to be admitted in nursing home for about 10 days. The nature of injuries suffered by the claimant itself indicates that she must have undergone the treatment even after her discharge from nursing home. The three teeth of the claimant had also broken in this accident. Therefore, it is natural that she must have suffered physical, mental pain and agony. I , therefore, am of the view that claimant is entitled to get at least a sum of Rs. 15,000/- for suffering physical, mental pain and agony. The claimant is also to get a sum of Rs. 5,000/- for transportation charges. The claimant is also entitled to get a sum of Rs. 5,000/- for special diet during the period she had undergone the medical treatment. As I have already discussed above that the Tribunal has not awarded any sum for future medical expenses to the claimant. Keeping in view the nature of the injuries sustained by the claimant, I am of the view that claimant is also entitled to get a sum of Rs. 25,000/- for future medical treatment. 11. On the basis of the aforesaid calculation. I come to the conclusion that claimant is entitled to get a total sum of Rs. 71,804/- (rounded Rs. 72,000/-) + Rs. 15,000/- + Rs. 5,000/- + Rs. 5,000/- + Rs. 25,000/- = Rs. 1,22,000/- as compensation. 25,000/- for future medical treatment. 11. On the basis of the aforesaid calculation. I come to the conclusion that claimant is entitled to get a total sum of Rs. 71,804/- (rounded Rs. 72,000/-) + Rs. 15,000/- + Rs. 5,000/- + Rs. 5,000/- + Rs. 25,000/- = Rs. 1,22,000/- as compensation. 12. For the reasons stated above, appeal is liable to be partly allowed. 13. Accordingly, appeal is partly allowed. The impugned judgment and award is modified to the extent that claimant is entitled for a sum of Rs. 1,22,000/- (Rupees one lac twenty two thousand only) as compensation (instead of Rs. 90,000/- as has been awarded by the Tribunal along with conditional interest indicated in the impugned judgment and award.