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2011 DIGILAW 2508 (RAJ)

National Insurance Co. Ltd. v. Habib Khan

2011-11-18

MOHAMMAD RAFIQ

body2011
RAFIQ, J.—These two appeals have been preferred by the appellant-insurance company. In appeal No.5322/2011, the claimant Habib Khan sustained permanent disability of 75% in a road accident and has been awarded compensation of Rs.4,58,500/-. In appeal No.5457/2011, the appellant Ganesh Narayan has been awarded compensation of Rs.1,69,900. 2. In the claim petition of Habib Khan, the contention of learned counsel for the appellant is that the accident took place due to negligence of the claimant himself who was a driver in the bus of Rajasthan Roadways. Learned counsel in support of his arguments produced for perusal of the Court, the site plan and argued that the truck which was insured with the appellant insurance company was on its right side i.e. on the left side of the road and for roadways bus, it was claimed that after it was hit by the truck, after crossing the road on the right side, it turned turtled. Learned counsel argued that this indicates that it was the bus driver who was negligent, not the truck driver and that except this, there is no other evidence to prove negligence of the truck driver, therefore, it should have been held to be a case of composite negligence. Learned counsel argued that the truck driver was in the employment of RSRTC and that he would continue to serve them till the age of superannuation i.e. 60 years and there was no actual loss of income, therefore, no compensation should have been awarded. In support of his contention, learned counsel relied on the judgment of Supreme Court in Raj Kumar vs. Ajay Kumar & Anr.-MACD 2011 (SC) 33 = 2011(1) CCR 71 (SC) and referred to in specific, para 10 thereof. It was argued that when already Rs.2,06,730/- was awarded under the head of loss of earning capacity, there was no justification for awarding Rs.1,00,000 under the head of pain and suffering. The compensation is therefore excessive and on higher side. 3. In appeal arising out of claim case filed by Ganesh Narayan Agarwal, learned counsel for the appellant has argued that this witness failed to prove any injury report/x-ray report and therefore on the basis of mere production of the hospital record, it cannot be accepted that he had to be subjected to surgery and treatment continuously for as many as four occasions and that he remained out of his job for last two years. The claimant failed to produce any evidence that he sustained any permanent disability and therefore also nothing should have been awarded under the head of loss of earning capacity. If it is held to be a case of composite negligence, the appellant insurance company could be held liable for indemnifying the owner for only part of the compensation. The appeal should therefore be entertained and award of the Tribunal be modified or reversed. 4. On hearing learned counsel for the appellant and perusing the impugned award, I find that as far as case of Habib Khan is concerned, no doubt he was a driver in the bus owned by RSRTC but on examination of mere site plan, it cannot be deduced therefrom that accident took place due to negligence of the bus driver. It is also not the case of the appellant that truck did not hit the bus, which is evident from the dent received by the truck on right side of its front, which is also proved from the site plan. This indicates that the bus also received severe dents on its driver's side i.e. the right side. It is because of the speed that the bus has gone to the other side of the road and turned turtle and this is the view taken by the learned Tribunal on the basis of evidence adduced. The evidence of the claimant Habib Khan in this case shows that he has been rendered permanently physically disabled inasmuch as he will have to move throughout his life time on wheel chair. He has been given alternative job as a Messenger. His permanent physical disability has been proved to the extent of 75% by Ex.138, the certificate of disability, but the Tribunal has not awarded any compensation for the loss of capacity of earning for a period he would serve the respondent-RSRTC. Age of claimant Habib Khan at the time of accident was 39/40 years, but the Tribunal has not awarded any compensation to him for the duration of 20 years for which he was still to serve the respondent-RSRTC. The Tribunal has taken the burden of adopting only multiplier of 5 from the age of attaining 60 years, till he becomes 65 years and he has been awarded compensation taking the income of the present time as the basis. The Tribunal has taken the burden of adopting only multiplier of 5 from the age of attaining 60 years, till he becomes 65 years and he has been awarded compensation taking the income of the present time as the basis. It cannot be said that a person who retires at the age of 60 is completely rendered unfit to take up any private alternative employment and has to sit idle at home and survives on the pension/retiral benefits. This much amount which has been awarded by the Tribunal, cannot be said to be excessive or unreasonable and judgment of supreme Court in Raj Kumar, supra, therefore cannot be applied to the facts of this case. 5. Coming now to the claim petition of Ganesh Narayan Agarwal, I find that though the claimant may not have proved the injury report or the X-ray examination, but then there are on record the voluminous hospital documents in regard thereto. He had to be hospitalised for as many as four times in Khandaka Hospital at Jaipur for his treatment, which is proved by discharge tickets Ex.143, 145, 146 and 214 respectively which indicates that on different occasions, he had to be subjected to treatment as an indoor patient. He was also hospitalised in Jaipur Hospital, which was evident from discharge ticket Ex.144. The Tribunal has taken duration of this period of treatment into consideration and on that basis concluded that this claimant did not become normal for as long as two years. His humerus bone was fractured and he was subjected to repeated treatment to treat him properly. It is on that basis that sum of Rs.72,000 for loss of income of this duration of two years has been awarded. The other amount of Rs.12,000 for special/nutritious diet and another Rs.12,000 for attendant expenses both at the rate of Rs.500 per month, cannot be said to be excessive. The transport charges of Rs.10,000 is also just and reasonable. 6. In the facts of this case, the Tribunal has awarded only a sum of Rs.5,000 under the head of pain and suffering which in the given facts when claimant was subjected to treatment during whole of the period, could have been much more. The actual medical expenses of Rs.58,518 has been awarded on the basis of production of actual proof which also proved the factum of continuous treatment of the injured. The actual medical expenses of Rs.58,518 has been awarded on the basis of production of actual proof which also proved the factum of continuous treatment of the injured. The insurance companies are although entitled to assail the award of the Tribunal, but in cases like this, when they can on their own, scrutinise the record to find out the justness and reasonableness of the award at least on the quantum of compensation, ought not to unnecessary indulge in filing unnecessary appeals. 7. Even otherwise, I do not find any merit in either of the appeals, which are dismissed accordingly.