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2010 DIGILAW 269 (JK)

National Insurance Co. Ltd. v. Raja Begum

2010-05-13

GH.HASNAIN MASSODI

body2010
1. Smt. Raja Begum wife of Ali Mohammad Bhat resident of Nendwand Pora, Budgam - respondent No.1 herein was on 8th of September 2004, hit by a speeding vehicle bearing Registration No.JK04/9277, at Nendwand Pora, Kiker Mode crossing. The offending vehicle, at the time of accident, was being rashly and negligently driven by Khazir Mohammad Khan son of Abdul Aziz Khan resident of Gondi Pora, Beerwah respondent No.3, in the present Appeal. The vehicular accident resulted in serious injuries to the victim, resulting in her hospitalization and surgery. The victim, soon after recovery, filed a claim petition under section 166 Motor Vehicles Act before the Motor Accident Claims Tribunal, Budgam, for award of compensation. The offending vehicle, being insured with the National Insurance Company Limited - appellant herein, the company was arrayed as a respondent No.1 in the claim petition. The respondents 1 & 2 filed their written statements to the claim petition. However, respondent No.3 - owner of the offending vehicle, opted not to file written statement. Learned Tribunal, on perusal of the pleadings, settled the following issues:- 1. "Whether on 9th September, 2004, Sajad Ahmad Joo, respondent No.2, was driving vehicle bearing registration No.JK04-9277 rashly and negligently and as such hit the petitioner., Mst. Raja,, at Nendvendpora Kikermood crossing which resulted in grievous injuries to the petitioner?(OPP) 2. In case of No. 1 is prove in affirmative, what is percentage of disability caused to the petitioner and to what compensation she is entitled to and from whom? (OPP) 3. Whether there is violation of the terms and conditions of the Insurance Policy, if so, what will be its effect on the present suit? (OPR-1) 4. Relief." 2. The parties were afforded adequate opportunity to substantiate the cases set up by them. The Tribunal, after going through the pleadings and evidence, decided Issue Nos. 1 & 2 in favour of the petitioner in the claim petition and against the respondents. Issue No.3 was decided against Insurance Company. The Tribunal held the claimants to have proved by cogent and convincing evidence that the respondent No.2 in the claim petition, while driving the vehicle No. JK04/9277, rashly and negligently, hit the petitioner at Nendwand Pora, Kiker Mode crossing, resulting in grievous injuries to the petitioner and that the petitioner was entitled to Rs.2.60 Lacs as compensation on account of disability, medical expenses, pain and agony due to the vehicular accident. The Tribunal held the appellant/Insurance Company to have failed to prove that the owner by employing a driver, not having a valid license to drive offending vehicle, had violated the terms and conditions of the Insurance Policy. The Tribunal, accordingly, directed the appellant/ insurance company to pay an amount of Rs.2.60 Lacs with 5% interest from the date of institution of claim petition till realization of the award amount with interest to the claimant. 3. The respondent/claimant on 23rd of November 2009 filed cross objections to the Appeal, complaining that the compensation determined by the Tribunal was not just compensation and required to be enhanced. The respondent/claimant also expressed her reservations regarding rate of interest on the award amount, to which the claimant/respondent was entitled after institution of the claim petition and prayed that the same be enhanced to 9% per annum. The claimant/respondent also assailed maintainability of the Appeal. 4. The Award dated 02.05.2009 is assailed on the grounds that the respondent/claimant failed to adduce any evidence to prove the factum of permanent or partial disability and yet the Learned Tribunal proceeded on assumption that such proof was placed on the file. It is further averred that even if the respondent/ claimant was assumed to have suffered any permanent or partial disability, it did not result in any loss of income as the respondent/claimant had not adduced any evidence to substantiate that there was any loss of income because of the accident. The compensation on account of trauma, pain and agony, is said to be on the higher side and the compensation awarded on account of medical expenses to be based on no evidence. The award is said to have been made on the basis of assumption, presumption and guess work. The appellant/insurance company claims to have submitted an application under section 170 Motor Vehicles Act before the Learned Tribunal for permission to contest the claim petition on the grounds available to the owner and the driver. 5. The cross objections to the Appeal are edificed on the grounds that the Learned Tribunal has not accorded due consideration to the extent of disability, suffered by the respondent/claimant and the loss of income that was a direct result of the vehicular accident in question. 5. The cross objections to the Appeal are edificed on the grounds that the Learned Tribunal has not accorded due consideration to the extent of disability, suffered by the respondent/claimant and the loss of income that was a direct result of the vehicular accident in question. The compensation awarded, according to the respondent/claimant, is far less than what ought to have been awarded, having regard to disastrous effect the accident had on the life of the respondent/claimant and also her family. 6. Heard and considered. The first grievance of the appellant is that the respondent/ claimant did not in her claim petition plead that the respondent/claimant had suffered any disablement because of the accident and that the case of disablement was introduced at a later stage when the respondent/claimant submitted a certificate issued by the Department of Social Welfare, wherein the respondent/claimant was certified to have suffered 20% disablement. It is urged that had the petitioner suffered any disablement, the petitioner would have obtained and produced a certificate from Sher-e-Kashmir Institute of Medical Sciences, Soura or Bone & Joint Hospital as the respondent/claimant in the claim petition claimed to have been administered medical treatment in the said hospitals. Perusal of the record reveals that the respondent/claimant to lend support to the claim petition, submitted a disability certificate, issued by the Department of Social Welfare, Government of Jammu and Kashmir. The certificate was issued by the Medical Board, comprising of Chairman Medical Board, Physician Specialist District Hospital Budgam, and Orthopedics Surgeon District Hospital Budgam, who have affixed their seals and signatures on the certificate. The disablement certificate thus is not issued by an officer not competent to the extent of disablement but by a Medical Board of District Hospital Budgam, that amongst other Medical experts had a Specialist in Orthopedics, as its Members. There is no reason to question creditworthiness of the certificate only because the respondent/claimant ought to have obtained such a certificate from SKIMS or Bone & Joint Hospital, where the respondent/ claimant was admitted and operated upon. This by itself is not enough to dilute the reliability of the disability certificate, produced before the Tribunal. Furthermore, in absence of any evidence in rebuttal from the appellant, there was every reason for the Tribunal to place reliance on the disability certificate in question. This by itself is not enough to dilute the reliability of the disability certificate, produced before the Tribunal. Furthermore, in absence of any evidence in rebuttal from the appellant, there was every reason for the Tribunal to place reliance on the disability certificate in question. The appellant after ignoring to adduce any evidence in rebuttal and controvert the evidence adduced by the respondent/claimant, cannot be heard saying that the uncontroverted evidence ought not to have been relied upon by Tribunal. The ground urged in the Appeal to question findings, returned by the Learned Tribunal on the issued settled in the claim petition, is meritless. The argument that even if, Learned Tribunal was of the opinion that the respondent/claimant had suffered 20% disablement due to the vehicular accident yet there was no evidence before the Tribunal to hold that such disablement had resulted in loss of income to the respondent/claimant, is equally specious. Only because the respondent/claimant was a house wife and not a Government or Private Employee, is not by itself sufficient to dissuade the Tribunal to conclude that the disablement did not result in loss of income. The argument advanced reflects the mindset that has been responsible for gender inequality and disempowerment of women for ages together. For centuries, a belief has been nursed that the men are source of bread and butter to the family and there is no contribution at all from the women, in running the household. The contribution made by the women, who stay back in the house, work from dawn to dusk, to run household while men go out to earn livelihood, goes unnoticed. It is to be realized that woman look after children, keep the house spick-and-span, wash clothes for the family members, cook food for the family, serve the food, and stay awake when everybody in the family goes to bed, wash the utensils and clear the leftovers. The women thus has multifarious roles to play during a day. She is at the same time the housemaid, washerwoman, governess, nurse, and a cook. In rural areas, she has other roles to play as well. She goes to the fields, to lend a helping hand to her husband, looks after the domestic animals and birds, like cow, sheep and poultry, as a milkman milks the cow and even carries food for husband and other family members to the fields. In rural areas, she has other roles to play as well. She goes to the fields, to lend a helping hand to her husband, looks after the domestic animals and birds, like cow, sheep and poultry, as a milkman milks the cow and even carries food for husband and other family members to the fields. To say that a housewife, who is disabled by a vehicular accident, does not suffer any loss of income is nothing but to insult her and downplay her role in running the household. This ground urged in the Appeal is thus also destined to fail. 7. Learned Tribunal, it needs no emphasis, while assessing compensation in motor accident claims, is required under section 168 Motor Vehicles Act to determine just compensation. What is just, may differ from case to case. The Tribunal, in each case, is required to take into consideration the surrounding circumstances, like age of the claimant, income of the claimant/injured, nature of injury/disablement, loss in income due to accident/disablement, loss of future career prospects, medical expenses, etc. etc. In the present case Learned Tribunal has held the respondent/claimant entitled to an amount of Rs.2.00 Lacs on account of loss of income due to 20% disablement, without making any discussion of the facts that weighed with the Tribunal to arrive at the said conclusion. The Learned Tribunal was expected to notice the income of the respondent/claimant as indicated in the claim petition, asses veracity of the claim, made by the respondent/claimant in this regard and arrive at his individual conclusion that the income of the respondent/claimant as also the down slide such income was likely to be witness, because of the disability. It is apt to mention that the respondent/ claimant in the claim petition insisted to have income of Rs.4500/- per month from all the sources/pursuits. The respondent/ claimant has indicated her age as 45 years on the date of accident. The appellant has in its written statement made a bald denial of paras 2 and 5 of the claim petition, wherein age and income of the respondent/claimant is indicated. In the circumstances, the averments made by the respondent/claimant are to be taken to have been admitted. Having regard to the income of the respondent/claimant, her age and the extent and nature of disablement, the amount of Rs.2.00 Lacs is undoubtedly on the higher side. In the circumstances, the averments made by the respondent/claimant are to be taken to have been admitted. Having regard to the income of the respondent/claimant, her age and the extent and nature of disablement, the amount of Rs.2.00 Lacs is undoubtedly on the higher side. It needs no emphasis that the compensation is not to be determined by the Tribunal by flip of coin. The Tribunal is under legal obligation to discuss all the factors mentioned herein while determining just compensation in the present case. As already indicated Learned Tribunal has not gone for such an exercise. Similarly, the compensation adjudged on account of trauma, pain, mental agony etc. is also excessive. Learned Tribunal has while determining the medical expenses admitted that the amount of Rs.10,000/- has been worked out on the basis of "guess work". The respondent/claimant, admittedly, did not adduce any evidence in the shape of medical prescription/receipts to warrant award of Rs.10,000/- on account of medical expenses. 8. For the reasons discussed above, while grant of compensation in favour of the respondent/claimant is maintained, the Award as regards quantum of compensation is modified as under: The appellant shall pay an amount of Rs. 1,50,000/- on account of 20% disablement due to vehicular accident in question to the respondent/claimant. In addition, an amount of Rs.25,000/- on account of pain, trauma, mental agony etc. and further amount of Rs.5,000/- on account of medical expenses. The appellant shall in all pay an amount of Rs. 1,80,000/- with interest @ 6% from the date of filing of the claim petition till realization of decretal award amount. The Appeal is disposed of, accordingly.