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2009 DIGILAW 189 (JK)

New India Assurance Co. Ltd. v. Gh. Qadir

2009-04-24

MANSOOR AHMAD MIR

body2009
1. Insurer-appellant has challenged the award dated 30th April, 2005 passed by Motor Accidents Claims Tribunal, Kishtwar in Claim Petition no. 14/Claim titled as Ghulam Qadir versus New India Assurance Company Limited and others, by the medium of this appeal on the grounds taken in the memo of appeal. 2. In order to thrash out all the grounds raised in the memo of appeal by the appellant, it is necessary to give a flask back of the case, the womb of which has given birth to the instant appeal. Brief Facts - 3. Ghulam Qadir, Claimant-injured-respondent no.1 filed a claim petition on 14th June, 2003 before the Motor Accidents Claims Tribunal (MACT), Kishtwar for grant of compensation on the ground that he became the victim of a vehicular accident, which was caused by driver, Atta Mohmad-respondent no.3, while driving the offending vehicle i.e. Truck bearing registration no. 115-JKU rashly and negligently on 7th of March, 2003 at Thalaran. Claimant and other persons sustained injuries while as four persons died on spot. The spinal cord of the claimant was injured and he also sustained serious injuries on other parts of the body. He was rushed to hospital and was admitted in SDH Kishtwar and then referred to Government Medical College Hospital, Jammu where he was admitted from 7th March, 2003 to 24th March, 2003. The injuries sustained, have rendered the injured permanent disabled. Claimant has claimed compensation to the tune of Rs. 67,80,000/- as per the breaks up given in Para No. 20 of the claim petition. 4. Insurer-appellant filed objections, while as owner and driver have not filed objections and were set ex-parte. Following issues came to be framed : "1. Whether the petitioner Gh. Qadir, suffered injuries and permanent disablement in a vehicular accident by Truck bearing registration No. 115-JKU on 7.3.2003 at Thalaran which has been caused due to the rash and negligent driving of the vehicle by its driver? OPP 2. In case issue no.1 is proved in affirmative, to what amount of compensation the petitioner is entitled to and from whom? OPP 3. Whether the driver of the offending vehicle was not holding a valid driving licence at the time of the accident, if so what is its effect? OPR-1 4. OPP 2. In case issue no.1 is proved in affirmative, to what amount of compensation the petitioner is entitled to and from whom? OPP 3. Whether the driver of the offending vehicle was not holding a valid driving licence at the time of the accident, if so what is its effect? OPR-1 4. Whether the petitioner was traveling in the said vehicle at the time of the accident and the owner and driver have violated the terms and conditions of the insurance policy, if so how and what is its effect? OPR-1 5. Relief." 5. Claimant-injured-respondent no.1 besides himself examined witness namely Ghulam Rasool, Ghulam Hussain, Ghulam Mustafa and Dr. Ravinder Singh in support of his case. Insurer-appellant has not examined any witness in support of its defence. 6. The Tribunal after scanning the evidence and while keeping in view the arguments of learned counsel for the parties, allowed the claim petition and awarded Rs. 11,12,000/- as compensation in favour of the claimant-respondent no.1. Aggrieved by the same, the insurer-appellant preferred this appeal. 7. Learned counsel for the appellant only disputed the adequacy of compensation during the course of arguments and has not addressed any argument vis-a-vis findings recorded on other issues. The core question is whether the insurer-appellant can question the adequacy of compensation? I deem it proper to thrash this issue a bit later. 8. All the witnesses examined have deposed that driver, Atta Mohmad-respondent no.3, was driving the vehicle rashly and negligently and caused serious and fatal accident, in which four persons died on spot and so many persons sustained injuries, the claimant is one of them. 9. It is apt to reproduce Doctors statement herein, recorded by the Tribunal. "Dr. Ravinder Singh has stated that on 7.3.2003 when he was posted at SDH Kishtwar, one Ghulam Qadir, age 22 years, was brought to the Hospital as a RTA with the following injuries: - 1. Traumatic paraplegia due to injury spine at the level of D-ll/D-12. In addition he was having fracture femur left side and head injury. The patient was referred to G.M.C Jammu on the same day. The certificate bears his signature. The witness has further stated that on the basis of the record, X-rays and general physical examination of the patient, in his opinion the disability of the petitioner is 100% which is permanent in nature. The patient was referred to G.M.C Jammu on the same day. The certificate bears his signature. The witness has further stated that on the basis of the record, X-rays and general physical examination of the patient, in his opinion the disability of the petitioner is 100% which is permanent in nature. The patient is still under treatment and was admitted to Hospital for urinary problems. The petitioner has lost his earning capacity for the whole period and he has to remain bed ridden and is to be taken care throughout life, by one or two attendants. In his cross-examination, the witness has stated that he has based his opinion on the basis of record and clinical examination of the patient." 10. There is no rebuttal led by the insurer-appellant, owner and driver-respondent no.3, thus, issue No.1 came to be rightly determined by the Tribunal. Issue No.2 is to be decided while dealing with the arguments of learned counsel for the appellant. 11. In so far as issue No.3 is concerned, insurer-appellant has not led any evidence, thus, has failed to discharge the onus, therefore, issue no.3 was to be decided against the insurer. However, I have gone through the record and the evidence on the file, which prima facie indicates that the driver was holding a valid driving licence at the relevant point of time. Thus, the Tribunal has rightly decided issue No.3. In so far as issue No.4 is concerned, the onus of this issue was upon the insurer-appellant to prove that owner has committed any willful breach. Appellant-insurer has not led any evidence, thus, has failed to discharge the onus, therefore, issue No.4 came to be rightly decided in favour of the claimant and against the insurer. Now coming to the argument advanced by learned counsel for the appellant and to issue No.2. 12. Learned counsel for the appellant argued that appellant-insurer had moved an application under Section 170 of the Motor Vehicle Act for permission to contest the claim petition on all grounds available to the owner and driver, but the Tribunal has not passed any order thus it is presumed that permission was granted. 13. While going through the minutes of the trial court file, it appears that insurer-appellant had moved an application under Section 170 of the Motor Vehicles Act on 16th March, 2004 for grant of permission and claimant was asked to file objections. 13. While going through the minutes of the trial court file, it appears that insurer-appellant had moved an application under Section 170 of the Motor Vehicles Act on 16th March, 2004 for grant of permission and claimant was asked to file objections. Thereafter issues came to be framed, but application has remained with the file without recording the findings. The appellant has cross-examined the witness or the claimants on all counts, thus it can be said that appellant was allowed to contest the claim petition on all grounds. 14. It is worthwhile to mention that the appellant has not led any evidence then how it can be said that compensation awarded is excessive in any way. The injured, who is 22 years of age, has become permanently disabled forever and it is a case of paraplegia. Virtually his life has become burden forever and has to, remain dependent on others for whole of his life and live with the support of attendants. The Tribunal has rightly applied the multiplier of seventeen, but has taken his income at Rs.3000/- which is too meager while keeping in view the income of daily wager or labourer nowadays. However, the injured has not disputed the same, thus the compensation awarded, under the heads-loss of future earnings is maintained. 15. Learned counsel for the appellant has argued that l/3rd was to be deducted. The arguments of learned counsel for the appellant is devoid of any force. It is not a case of death, but is a case of permanent disablement and all the injuries have made him permanently wreck and shattered his physical frame, hopes, expectations and other amenities of life. He has undergone and has to undergo through mental shock, pain and agony. 16. The Tribunal has awarded Rs. 2 lacs under the head mental shock, pain and agony, Rs. 2 lacs under the head loss of amenities of life, Rs. 50,000/- on account of medical and incidental expenses. Keeping in view the life span and the young budding age of the injured, Rs. 2 lacs under the head loss of amenities of life, mental shock, pain and agony are very meager. 17. The injured has undergone shock, pain and agony from the year 2003 till to-date and has to undergo shock, pain and agony for the entire of his life, he would not get a good match. 18. 2 lacs under the head loss of amenities of life, mental shock, pain and agony are very meager. 17. The injured has undergone shock, pain and agony from the year 2003 till to-date and has to undergo shock, pain and agony for the entire of his life, he would not get a good match. 18. The record indicates that claimant has spent more than Rs. 50,000/- as medical expenses. He was taken to SDK Kishtwar wherefrom he was shifted to Government Medical College Hospital, Jammu and was there for eighteen days and it appears that he was entitled at least Rs. 1 lac under the head medical expenses incurred while exercising guess work and was also entitled to Rs. 1 lac more for future medical and incidental expenses. 19. However, the injured has not questioned the compensation award. Thus, findings (supra) are maintained. 20. While going through the record and Doctors certificate, it can be safely held that the injured requires attendant throughout his life, but no relief/compensation came to be granted under the said head, but the injured has not questioned the same neither by cross-objections nor by the medium of appeal. 21. In the given circumstances, the compensation awarded is to be maintained, except so far it relates to `interest. The Tribunal has awarded interest wrongly. The claimant is entitled to interest for an amount of Rs. 50,000/- awarded under the head medical expenses at the rate of 6% from the date of institution of petition till its final realization and for rest of the amount at the rate of 6% from the date of impugned award till its final realization. Accordingly, appeal is disposed of and impugned award is modified.