United India Insurance Company Ltd. , Chennai v. D. Babu
2010-04-29
A.ARUMUGHASWAMY
body2010
DigiLaw.ai
Judgment :- For the injury sustained by one Babu/petitioner on 23.01.1995 in a motor accident, he has filed compensation application. After testing the evidence of PWs.1 & 2 and RW.1 and Exs.P1 to P10 and Exs.B1 to B9, the Tribunal awarded a sum of Rs. 5,24,000/- as compensation. Against which the Insurance Company has filed the appeal and the petitioner/claimant has filed Cross objection. 2. The vehement contention of the appellant/Insurance Company is that the finding of liability on the appellant is incorrect. He further submits that the Tribunal has failed to note that the van was not insured with the appellant at the time of the accident and the same was insured with the appellant only from 23.01.1995 at 02.15 p.m. and there was no policy covering the vehicle at 10.00 a.m. on that day. Questioning the liability on the face of the coverage of timing, the present appeal has been filed. It is not in dispute that the injured is a rider of motorcycle, which colluded with the van. The Tribunal fixed the rash and negligence aspect on the driver of the van. Against which there is no much debate. 3. The vehement contention of the appellant is that the policy has been issued only on 23.01.1995 at 02.15 p.m, i.e., subsequent to the accident. Hence the liability could not be fastened on the Insurance Company and the appeal has to be allowed. Learned counsel for the respondent/claimant contended that neither original nor duplicate has been produced, but only a xerox copy has been produced. Perusal of Exs.R5 to R7 would reveal that Ex.R5 is a concocted and fabricated document, which is prepared only to produce before this Court. Hence, the respondent/claimant prayed that the appeal has to be dismissed and Cross Objection has to be allowed. 4. To prove the genuineness of the policy, the appellant has produced Exs.R5 to R7. From the perusal of the above documents, it is clear that Ex.R5 (dated 23.01.1995 at 2.15 p.m.) is the xerox copy of the policy in question. Ex.R6, (dated 23.01.1995 at 2.10 p.m.) was issued prior to Ex.R5 and Ex.R7 (dated 23.01.1995 at 2.25 p.m) was issued subsequent to Ex.R5. The vehement contention of the respondent/appellant is that Ex.R5 has not been served copy and it is only a xerox copy.
Ex.R6, (dated 23.01.1995 at 2.10 p.m.) was issued prior to Ex.R5 and Ex.R7 (dated 23.01.1995 at 2.25 p.m) was issued subsequent to Ex.R5. The vehement contention of the respondent/appellant is that Ex.R5 has not been served copy and it is only a xerox copy. Once the Insurance Company has relied on the policy, it is for the Insurance Company to prove the same before the Court, by calling upon the original or duplicate copy or the policy in its custody to prove that at the time of issuance of the certificate itself, they have mentioned the timing. They have not produced duplicate or original, but they produced only the xerox copy of the same. From the perusal of Ex.R5, it is clear that a letter ‘A’ has been printed on the right side middle end of the Insurance Policy, whereas in Ex.R6, the Policy Number has been printed on the top of the right side. This is the first aspect of the suspicion. Ex.R6, said to have been issued prior to the policy in question, carries No.052707. The document Ex.R5 carries No. 278847. Further Ex.R6 also carries a printed number in the printed from itself. In Ex.R5, which is the disputed document, only a machine number has been affixed. Rear side of Ex.R5 has not been printed in the xerox copy, whereas in Ex.R6, it was printed as “1000 pads/8-95 PERF”. From this it is clear that it might have been prepared even after 1995 not prior to that. Further Ex.R5 does not have the printed number, but it has scroll handed machine number. Therefore, I am of the view that non production of duplicate will also create a suspicion in the mind of the court. Hence, the defence taken by the appellant that the policy covers only from 2.15 p.m, ie., immediately after the accident, has not been proved. Under this juncture, I am of the view that the view taken by the Tribunal in this regard has be confirmed and hereby confirmed. 5. The next point for consideration is quantum. The age of the petitioner at the time of the accident was 39. A salary certificate has been produced for Rs. 5,522/-. The Tribunal has taken the salary as Rs.5,500/- per month. From the evidence of PW.2, Doctor it is seen that the petitioner’s right leg, below the knee has been amputated.
5. The next point for consideration is quantum. The age of the petitioner at the time of the accident was 39. A salary certificate has been produced for Rs. 5,522/-. The Tribunal has taken the salary as Rs.5,500/- per month. From the evidence of PW.2, Doctor it is seen that the petitioner’s right leg, below the knee has been amputated. The doctor opined the disability as 80%. But, this Court is of the view that it is proper to fix the disability at 63%. Therefore, the disability has been fixed as 63% and the loss of income has been fixed Rs.3,465/- per month, which is rounded off to Rs.3,500/-. Hence, the loss of income per annum is Rs.42,000/-. The proper multiplier in this case is 17. Hence, the total loss of income becomes Rs.7,14,000/-. Therefore, the compensation of Rs.5,24,000/- arrived by the Tribunal is very reasonable, even though the distribution of the award by the Tribunal is not correct. Therefore, the award amount arrived by the Tribunal is hereby confirmed. The claimant has filed additional documents, viz., cash bills for Rs. 17,650/- and Rs. 28,650/-for fixing artificial leg. Therefore, I am of the view that Rs. 30,000/- can be awarded for artificial leg, in addition to the above compensation. However, since the Cross Objection has been filed with 1923 days delay, I am inclined to award Rs.15,000/- only for artificial leg. 6. With the above modification, Civil Miscellaneous Appeal is dismissed. Cross objection is allowed by increasing the total compensation awarded by the Tribunal by Rs. 15,000/-. Consequently, connected miscellaneous petition is closed. No costs.