BHUWAN SINGH RAWAT v. ICICI LOMBART PVT. MOTOR GENERAL INSUER
2009-05-01
B.C.KANDPAL
body2009
DigiLaw.ai
JUDGMENT Hon’ble B.C. Kandpal, J. This appeal under Section 173 of the Motor Vehicle Act, has been preferred against the judgment and award dated 27.11.2006, passed by Motor Accident Claim Tribunal/District Judge, Nainital, in MACT Case No. 73/2005, Bhuwan Singh Rawat Vs. M/s ICICI Lombard Pvt. Motors General Insurer. 2. Brief facts of the case are that on 3.2.2005, at about 9.30 P.M. claimant Bhuwan Singh along with his family members was coming to his home from village Futkuan in Alto Car U.A. 04-B/6524. When they reached near Radhaswamy Satsang Rampur Road Haldwani, due to the light of the truck coming from opposite direction, the driver of the Alto Car carried it on kuchha part of the road and in the meantime an unknown vehicle dashed the Alto Car due to which it took overturn and the occupants of the car sustained injuries. The injured persons were carried to Sushila Tewari Memorial Forest Hospital and from there they were shifted to Soban Singh Jeena Hospital Haldwani but looking the precarious condition of the claimant he was referred to Keshlata Hospital Bareilly. The injured sustained fracture on his leg and injuries on his head. The claimant used to do the work in the name and style of M/s New Rawat Electronics. Therefore the claimant has filed petition for compensation. 3. The opposite party No. 1 M/s I.C.I.C.I. Lombard Pvt. Motors General Insurer filed the written statement and alleged that the accident has occurred due to own negligence of the driver of the car. He has not valid and effective driving license. The owner and insurer of the vehicle which dashed the car have not been made party to the petition. The opposite party denied its liability. 4. The opposite party no. 2, owner of the offending Alto Car also contested the claim petition and alleged that the driver of the car was possessing valid and effective driving license. The accident has occurred due to the reason that the truck coming from opposite direction did not give dipper and the car fell in the Khud. The opposite party also contended that the Car was insured with opposite party No. 1 and the liability of the compensation, if any, is upon the shoulder of opposite party no. 1, the insurer of the Car. 5. The learned tribunal on the basis of pleadings of parties framed relevant issues in the claim petition.
The opposite party also contended that the Car was insured with opposite party No. 1 and the liability of the compensation, if any, is upon the shoulder of opposite party no. 1, the insurer of the Car. 5. The learned tribunal on the basis of pleadings of parties framed relevant issues in the claim petition. Thereafter the claimant in support of its case adduced evidence. The opposite parties did not adduce any kind of evidence. 6. The learned tribunal after hearing learned counsel for the parties and considering the entire evidence available on record, decreed the claim petition for a sum of Rs. 1,50,000/- against the insurer/opposite party No. 1 along with interest @ 6% per annum from the date of filing the petition till the date of actual payment. 7. Feeling aggrieved, the claimant has preferred this appeal before this Court. 8. I have heard learned counsel for the parties and perused the record. 9. So far as the factum of accident is concerned, the tribunal has discussed this point on issue no. 1. The claimant Bhuwan Singh has produced himself as P.W.1. He has deposed that when the Alto Car was going near Radhaswamy SatsangRampur Road, suddenly the truck coming from opposite direction flashed light but did not give dipper to the car and came on wrong side, therefore, the driver of the Alto Car carried the car in kuchcha part of the road and an unknown vehicle dashed the car from behind due to which the car was overturned and the occupant of the car sustained grievous injuries. The claimant also deposed that the F.I.R. could not be lodged due to the reason that the truck coming from opposite direction flashed its light and the driver of the car carried it on kuchcha part of the road and in the meantime some unknown vehicle dashed the car. The tribunal has held that the accident has occurred as the truck coming from opposite direction flashed its light and the driver of the Alto Car carried the vehicle on kuchcha part of the road and in the meantime some unknown vehicle dashed the car from behind and the car got overturned in which the claimant and other persons sustained grievous injuries. The tribunal also recorded a categorical finding on issue Nos.
The tribunal also recorded a categorical finding on issue Nos. 2 and 3 that the driver of the offending Car was possessing valid and effective driving license and the car was insured with M/s ICICI Lombard Pvt. Motors General Insurer and the liability to pay compensation is upon the shoulder of the insurer. 10. As far as the amount of compensation to be paid in favour of the claimant is concerned, the tribunal has decided this point while deciding issue No. 4, but the approach of the tribunal awarding the compensation in favour of the claimant appears to be erroneous. It appears that the tribunal has not adopted the practical approach in awarding the compensation. The evidence of Bhuwan Singh Rawat, who is injured in this case, reveals that in the accident his jaw was fractured and 9 teeth were broken. His left leg and left hand were also fractured and he also sustained injuries in his chest. He has also stated that the patella from his left leg was also removed. The evidence adduced by the claimant also indicates that he remained hospitalized w.e.f. 4.2.2005 to 23.2.2005. The accident in this case has taken place on 3.2.2005 at 9.30 P.M. The claimant Bhuwan Singh has produced himself as P.W.1 and Mukesh Chandra Sharma as P.W.2 from Keshlata Hospital Bareilly in order to prove the details pertaining to his medical treatment. The tribunal although has awarded a sum of Rs. 1,21,784/- under the head of medical treatment but for rest of the heads the tribunal has awarded the amount by applying the guesswork. To my mind the amount awarded by the tribunal under other different heads appears to be quite meager. It is quite clear from the evidence available on record that the claimant/appellant has to be taken to hospital several times for his operations and medical treatment. According to the statement of the claimant his medical treatment is still going on at Lucknow. I think that a sum of Rs. 15,000/- would be just and reasonable under the head of transportation charges. Further the claimant/appellant must have suffered the mental pain and physical suffering on account of the injuries sustained by him. I think that a sum of Rs. 20,000/- would be just and reasonable to pay to the claimant for mental pain and agony and physical suffering.
15,000/- would be just and reasonable under the head of transportation charges. Further the claimant/appellant must have suffered the mental pain and physical suffering on account of the injuries sustained by him. I think that a sum of Rs. 20,000/- would be just and reasonable to pay to the claimant for mental pain and agony and physical suffering. The claimant was doing the job of electronics at the time of accident. Although his income has not been established but on account of the injuries suffered by him, I think that the claimant must have suffered financial loss of at least Rs. 15,000/- during the period he remained hospitalized as well as he had taken the medical treatment. As the claimant is still getting medical treatment at Lucknow for the injuries sustained by him, therefore, a sum of Rs. 20,000/- should also be awarded in favour of the claimant for his future medical treatment. I further award a sum of Rs. 8,000/- for nutrition charges and special diet to the claimant. 11. On the basis of the calculation made above, I am of the view that the claimant is entitled for a sum of Rs. 1,21,784/- (medical treatment) + Rs. 15,000/- (transportation charges) + Rs. 20,000/- (mental pain and physical suffering) + Rs. 15,000/- (financial loss) + Rs. 20,000/- (future medical expenses) + Rs. 8,000/- (nutrition and special diet), total = Rs. 1,99,784/-. The claimant is also entitled to get interest on the above awarded amount indicated in the impugned judgment and award. 12. Accordingly, the appeal is partly allowed. The impugned judgment and award is modified upto the extent that the claimant is entitled to get a sum of Rs. 1,99,784/- as compensation from respondent No. 1, M/s ICICI Lombard Private Motors General Insurer, along with interest indicated in the impugned judgment and award, instead of Rs. 1,50,000/- as has been awarded by the tribunal.