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2010 DIGILAW 660 (JK)

United India Insurance Co. Ltd. v. Khuram Parveiz

2010-12-31

Mansoor Ahmad Mir

body2010
1. Challenge has been thrown to the judgment-Award dated 27th of November, 2007 passed by Motor Accidents Claims Tribunal, Budgam in a claim petition titled Khuram Parveiz v. United India Insurance Co. Ltd. and another, hereinafter for short as `impugned award', on the grounds taken in the memo of appeal. BRIEF FACTS Claimant-respondent was working as a Programme Coordinator with J&K Coalition of Civil Society, met with a vehicular accident on 20th of April, 2004 when he was traveling in Tata Sumo bearing registration No. JK01C 1388 in Kupwara District. The driver of the said vehicle has driven the vehicle rashly and negligently, had he taken enough care the driver as well as the claimant could not have become victims of mine blast. The driver died on spot, one Asiya Jeelani also succumbed to the injuries and petitioner sustained fatal injuries. He remained in Hospital from 20th of April, 2004 to 8th of May, 2004. Thereafter he went to Delhi for further medical treatment. Claimants have claimed Rs. 52, 67,552/- as per the breakup given in the claim petition. Respondent-appellant filed objections and following issues came to be framed: "1. Whether on 20th of April, 2004 the petitioner was monitoring for the election conducted in the valley and was traveling in Tata Sumo bearing Registration No. JK01C 1388 along with journalist Asiya jeelani and some others and the Tata Sumo was struck with an I.E.D. at Chandigam causing the death of the driver of the Sumo on spot and permanent disability to petitioner (injury which resulted in amputation of his right leg)? OPP 2. Whether there has been any violation of the Insurance Cover given by the respondent No. 2 to the vehicle of Tata Sumo bearing Registration No. 1388, and if so, what will be its effect on the present petition? OPP 3. Whether the petitioner is entitled to compensation from the respondent No. 1 and if so to what extent? OPP 4. Relief." 2. Petitioners have examined Mehraj-ud-din Wagay, Shariq Nazir, Mohd. Asif, and Dr. Shamsudin Bari as their witnesses and also appeared himself in the witness box. Insurer-appellant despite providing sufficient opportunities has not examined any witness in rebuttal. Thus the evidence led by the claimant-respondent has remained unrebutted. Petitioner has deposed that he was traveling in a Tata Sumo on 20.4.2004 and was monitoring the election in Sogam Lolab. Asif, and Dr. Shamsudin Bari as their witnesses and also appeared himself in the witness box. Insurer-appellant despite providing sufficient opportunities has not examined any witness in rebuttal. Thus the evidence led by the claimant-respondent has remained unrebutted. Petitioner has deposed that he was traveling in a Tata Sumo on 20.4.2004 and was monitoring the election in Sogam Lolab. Driver has driven the vehicle rashly and negligently, had he taken enough care, could have avoided the accident. One of the passengers Asiya Jeelani sustained injuries and succumbed to the injuries in Hospital while as driver died on spot. Petitioner was also taken to SMHS Hospital wherefrom he was taken to SKIMS, his left leg was finally amputated. He was discharged from SKIMS and taken to St. Stephen's Hospital-private hospital in Delhi where he remained under treatment for 1 and = month and was operated four times. He was earning Rs. 15,000/- per month. An artificial limb was planted at the cost of Rs. 3.50 lacs and also has spent Rs. 40,000/- as other charges. Though he has done Masters in Professional Journalism but due to permanent disability is not in a position to pursue the profession. The witnesses have deposed that the claimant/ respondent became victim of vehicular accident while traveling in a TATA Sumo which was hit by a mine blast on 20.4.2004. He was admitted in SMHS Hospital Srinagar and referred to Soura and his left leg was amputated. He was earning Rs. 15,000/- per month as a Coordinator with J&K Coalition of Civil Society. He is 21 years of age. The accident has affected his monthly income, shattered his physical frame and virtually his life has become hell. 3. Dr. Shamsudin Bari stated that claimant-respondent was under his treatment and his left leg was amputated and the procedure was done at SKIMS, Soura. He has issued the medical certificate exhibited as EXP-M. The petitioner of his own went to Delhi for treatment. He has over 50% permanent disability and has purchased artificial limb, which is planted, requires constant medical care throughout. 4. Appellant-insurer has not led any evidence in rebuttal. Thus the evidence of the claimant-respondent has remained unrebutted. Learned counsel for the appellant has not questioned the finding of the Tribunal on issue No.1 and 2, but has only questioned the adequacy of compensation and the interest awarded. ISSUE WISE FINDING Issue No. 1 4. 4. Appellant-insurer has not led any evidence in rebuttal. Thus the evidence of the claimant-respondent has remained unrebutted. Learned counsel for the appellant has not questioned the finding of the Tribunal on issue No.1 and 2, but has only questioned the adequacy of compensation and the interest awarded. ISSUE WISE FINDING Issue No. 1 4. There is ample evidence on the file that the claimant-respondent was traveling in a Tata Sumo which was hit by a mine blast in which driver lost his life on the spot, Asiya Jeelani sustained injuries who lateron died. Petitioner also became permanently disabled. The left leg of the petitioner was amputated. Even otherwise the appellant has not questioned the finding returned by the Tribunal. Issue No. 2 5. Learned counsel for the appellant has not questioned the impugned award on the count of liability, admitted that the vehicle was insured. Appellant has also not led any evidence to prove that the driver-owner has committed any breach. The evidence led by the claimant has remained unrebutted and there is no proof on the file that the driver or owner has committed any breach. 6. In the given circumstances, the insurer came to be rightly saddled with liability. The finding returned by the Tribunal is legal one and needs no interference. Issue No. 3 7. The Tribunal after examining the record has rightly awarded Rs. 9,000/- and 88325/- as medical expenses which claimant-respondent has incurred during his treatment at SMHS, Hospital Srinagar, SKIMS, Soura, Srinagar and St. Stephens Hospital, Delhi in terms of the Bill No. 64930 dated 7th of June, 2004. By guess work Rs. 10,000/- came to be awarded as conveyance charges. Keeping in view the fact, that the petitioner was under treatment at Delhi, Rs. 10,000/- is a meager amount, is to be maintained. 8. Petitioner became victim of a vehicular accident on 20th of April, 2004, was admitted in SMHS, Hospital, SKIMS, Soura Srinagar and in Delhi from 24th of April, 2004 upto 8th of May, 2004, had lost salary for the said period. There is ample evidence on the file that claimant-respondent was earning Rs. 15,000/- per month. Thus Rs. 30,000/- is the just compensation under the head loss of earning for the said period. 9. Tribunal has wrongly deducted 1/3rd of the amount as personal expenses. However, claimant-respondent has neither filed cross-appeal nor has resisted the same. There is ample evidence on the file that claimant-respondent was earning Rs. 15,000/- per month. Thus Rs. 30,000/- is the just compensation under the head loss of earning for the said period. 9. Tribunal has wrongly deducted 1/3rd of the amount as personal expenses. However, claimant-respondent has neither filed cross-appeal nor has resisted the same. Thus the finding returned by the Tribunal that permanent disability has affected the income of claimant-respondent to the tune of Rs. 40,000/- per anum is legal and correct one. 10. The victim is a young journalist, has gone through turmoil and has to undergo the pain and sufferings throughout his life, while keeping in view the fact that the accident has shattered his life and physical frame, became physically wreck and has to undergo such a frustration throughout his life, Rs. 50,000/-, 50,000/- and 100,000/- came to be rightly awarded under the heads pain and sufferings, loss of amenities and loss of expectation and enjoyment of life respectively. 11. Keeping in view the purpose of granting compensation in injury case(s) and the ratio of judgment of Apex Court delivered in the case titled R.D. Hattangadi v. M/s Pest Control (India) Pvt. Ltd. and others, reported in AIR 1995 S.C. 755 amount awarded is meager for the reason that the claimant was at budding age at the time of accident, has done Masters in Journalism, had to play a long role in journalism. That he has lost his life, its enjoyment and the tastes. However, as discussed hereinabove, he has not questioned the award on any count, thus the finding returned by the Tribunal is upheld. 12. Keeping in view the schedule attached with the Motor Vehicles Act and the age of the claimant-respondent and read with the Apex Court judgments, multiplier was to be reduced at least by 3 because multiplicand is at higher side. My this view is fortified by Apex Court judgment delivered in case titled United India Insurance Co. Ltd. v. Patricia Jean Mahajan, AIR 2002 SC 2607 . Thus Tribunal has fallen in error by applying multiplier 18, multiplier 15 is just and proper multiplier in the instant case. It appears that while calculating compensation under the head lost of future income, Tribunal has only awarded Rs. 7,20,000/-, such an assessment can be made only by applying multiplier 15. If multiplier 18 is applied, then it comes to Rs. 8,64,000/-. It appears that while calculating compensation under the head lost of future income, Tribunal has only awarded Rs. 7,20,000/-, such an assessment can be made only by applying multiplier 15. If multiplier 18 is applied, then it comes to Rs. 8,64,000/-. In the given circumstances, claimant-respondent is held entitled to Rs. 7, 20, 000 + 9000 + 88325 + 10000 + 30000+ 200000 = Rs. 10, 57325/-However claimant is held entitled to Rs. 3, 37, 325/- only with 6% interest from the date of institution of the claim petiton till its final realization and to Rs. 7,20,000/- with 6% interest from the date of impugned award till its final realization. The insurer is saddled with the liability. 13. The impugned award is, accordingly, modified and appeal is accordingly disposed of. 14. Send down the record along with the copy of the judgment.