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2011 DIGILAW 482 (JK)

National Insurance Company Ltd. v. Hardeep Singh

2011-09-09

Hasnain Massodi

body2011
1. The Civil First Miscellaneous Appeal on hand, is directed against the award dated 17.2.2006 passed by Motor Accident Claims Tribunal, Jammu in claim petition titled "Hardeep Singh v. National Insurance Company and ors." (124/Claims) awarding Rs. 6,00,880/-as compensation to the claimants on account of permanent disability suffered by the claimant in a vehicular accident on 31.5.2002. The background facts are as under:- The claimant - respondent no. 1 herein, while working as a Conductor with Truck No. JK02G- 129, met with an accident at Mandi Govindgarh, when the truck turned turtle due to rash and negligent driving of its driver-respondent no. 3 in the appeal. The respondent no. 1 was admitted in Civil Hospital, Govindgarh Mandi on 31.5.2002 i.e. the date of accident, where he remained as an indoor patient till 4th June, 2002 and was thereafter referred to ASCOMS Hospital, Jammu. The respondent no.1 was operated upon at the Hospital, and his left leg above knee level amputated. The respondent no. 1 stating to have incurred an expenditure of Rs. 2.00 lacs, laid a claim for Rs. 15.00 lacs as compensation on different counts detailed in the claim petition. The claim petition was resisted by the Insurance Company with which the offending vehicle No. JK02G-129 was insured, on the grounds that the claimant was a gratuitous passenger and that the appellant was under no obligation to pay compensation to the respondent no. 1. The respondents 2 and 3 denied the averments made in the claim petition and insisted that even if found liable to pay compensation to the respondent no. 1, they were to be indemnified by the appellant. 2. The Tribunal on perusal of the pleadings settled following issues:- 1. Whether an accident took place on 31.5.2006 at Harbansputa within the jurisdiction of Police Station, Sarhand, Punjab due to rash and negligent driving of the offending truck No. JK02G-129 in the hands of erring driver in which petitioner Hardeep Singh sustained grievous injuries resulting into above knee amputation? OPP. 2. If issue No. 1 is proved in affirmative whether petitioner is entitled to the compensation, if so of what amount and whom? OPP. 3. Whether the driver of the offending truck at the time of accident was not holding valid and effective driving licence and vehicle was being driven in contravention of terms and conditions of policy, without fitness certificate etc? OPR-1. 4. OPP. 3. Whether the driver of the offending truck at the time of accident was not holding valid and effective driving licence and vehicle was being driven in contravention of terms and conditions of policy, without fitness certificate etc? OPR-1. 4. Whether petitioner was a gratuitous passenger in the offending truck; if so how and what is its effect? OPR-1. 5. Reliefs. OP Parties." 3. The respondent no. 1 stepped in the witness box and examined PWs Jai Parkash, Mohan Singh and Dr. Lovi Padha in support of his claim. The respondents choose not to adduce any evidence either to discharge, onus to prove issues 3 and 4 or to rebut evidence adduced by the appellant. However, the appellant's application under section 170 Motor Vehicles Act was allowed vide order dated 1st September, 2005 and the appellant permitted to set up all those defences as were available to the respondents 2 and 3. 4. The Tribunal on going through the pleadings and the evidence brought on the file decided all the issues in favour of the respondent no.1 and against the present appellant and respondents 2 and 3. The Tribunal held the appellant not to have proved that the driver of the offending vehicle was not holding valid and effective driving licence at the time of accident and that respondent no.1 at the time of accident was travelling as gratuitous passenger in the offending vehicle. The Tribunal computed the loss of income and loss of future income suffered by the respondent no.1 due to the vehicular accident, taking income of the respondent no.1 at the time of accident as Rs. 3500/- per month and applying the multiplier of 18 having regard to the age of the respondent no.1 at the time of accident. The Tribunal relying on the medical certificate EXPW/LP held the appellant to have suffered 72% permanent disability due to the accident in question and took into account only 72% of his income for computing the loss of income till the date of the award and loss of future income thereafter. The compensation was also awarded on account of medical expenses, special diet, pain and suffering and loss of amenities of life. 5. The compensation was also awarded on account of medical expenses, special diet, pain and suffering and loss of amenities of life. 5. The award dated 17.2.2006 is assailed in the present Civil First Miscellaneous Appeal inter alia on the grounds that the Tribunal erroneously held the respondent no.1 not to have been a gratuitous passenger but working as Conductor with the offending vehicle when there was no evidence at all available to the Tribunal to draw such conclusion. It is pleaded that as the respondent no.1 failed to place on record, let alone prove, cleaner chit in his favour and the owner of the offending vehicle, denied that the respondent no.1 was employed as Conductor, it was not proper for the Tribunal to hold the respondent no.1 to have been working as Conductor in the offending vehicle. It is next pleaded that the Tribunal, in view of the specific plea taken up by the appellant ought to have asked the respondent no.1 to take recourse to Workmens Compensation Act and desisted from proceeding with the claim petition and making the award. The award is said to be based on surmises and conjectures and compensation awarded to be far more than what the respondent no.1 would have been able to get under the Workmens Compensation Act. 6. I have gone through the memoranda of appeal as also the record received from the Tribunal and have heard learned counsel for the parties. 7. The respondents 2 and 3 in their objections to the claim petition made a bald denial of the averments made by the respondent no. 1 as regards his having been engaged as Conductor in the offending vehicle. The respondents 2 and 3 denied the averments due to "want of knowledge". There thus has been no firm and unambiguous denial by the respondents 2 and 3 i.e owner and driver of the offending vehicle of the fact that the respondent no. 1 was employed as Conductor with the offending vehicle. The appellant thus cannot draw any support from the stand taken by the respondents 2 and 3 in their objections to the claim petition. The appellant has merely reiterated the stand of respondents 2 and 3 in its objections to the claim petition. The Tribunal placed the onus to prove that the respondent no. 1 was the gratuitous passenger on the appellant and respondents 2 and 3. The appellant has merely reiterated the stand of respondents 2 and 3 in its objections to the claim petition. The Tribunal placed the onus to prove that the respondent no. 1 was the gratuitous passenger on the appellant and respondents 2 and 3. However, no evidence was adduced to discharge the burden. The respondent no. 1 on the other hand in his testimony insisted that he was working as a Conductor with the offending vehicle at the time it met with the accident at Mandi Govindgarh, Punjab. The respondent no.1 finds support from testimony rendered by PWs Jai Parkash and Mohan Singh. Both the witnesses as also the respondent no. 1 have been cross examined by counsel for the appellant and the cross examination has not made any dents in the statements of the witnesses. This apart, the investigation into case FIR No. 133/2002 under Sections 279/337/338/427/304 A IPC Police Station Sarhand, extends support to the case set up by the respondent on. 1,that he was working as Conductor with the offending vehicle. 8. So viewed, there is no substance in the ground urged by the appellant as regards status of the respondent no. 1. 9. The plea that the Tribunal ought to have directed the respondent no. 1 to the Authority under Workmens Compensation Act is without any force and liable to be rejected. It is for the victim of a vehicular accident to press into service and fall back upon either of the remedies available under Workmens Compensation Act and Motor Vehicles Act. The respondent no. 1 in the present case has exercised his option and decided to lay claim under section 166 Motor Vehicles Act. The Tribunal would have acted without jurisdiction, had it forced the respondent no. 1 to lay a claim before Authority under Workmens Compensation Act and dismissed the claim under Section 166 Motor Vehicles Act. 10. The ground set up in the appeal as regards quantum of compensation is equally specious and bereft of any merit. It is not correct to say that the Tribunal had no evidence before it to assess the permanent disability suffered by the respondent no.1 due to vehicular accident in question at 72% and compute the loss suffered by the respondent no.1 on account of loss of income and loss of future income. It is not correct to say that the Tribunal had no evidence before it to assess the permanent disability suffered by the respondent no.1 due to vehicular accident in question at 72% and compute the loss suffered by the respondent no.1 on account of loss of income and loss of future income. The Tribunal in addition to the testimony of the respondent no.1 and his witnesses had before it the medical record wherein the permanent disability of the respondent no.1 was assessed at 80%. The Tribunal notwithstanding the medical opinion took into account 72% as a permanent disability suffered by respondent no.1 and computed the loss suffered accordingly. The income of the respondent no.1 taking into account by the Tribunal is reasonable by any standard and cannot be said to be excessive or on the higher side. Similarly, the compensation awarded by the Tribunal on account of Medical expenses, special diet, pain and suffering and loss of amenities of life is reasonable and not excessive or imaginary. 11. The Tribunal as a matter of fact has assessed loss on each count on the lower side and acted in an extremely conservative manner. The respondent no.1 after having his left leg amputated from above the knee position cannot be said to be in a position to enjoy life the same way, he enjoyed before he fell prey to the tragic accident or he would had enjoyed had he not fell victim to accident. The respondent no.1 having been hospitalised at Govindgarh Mandi and thereafter at Jammu, having developed Gas Gangrene that ultimately resulted in his permanent disability for the rest of life, deserved to be awarded higher amount on all counts. 12. Be that at it may, the appeal for the reasons discussed, is without any merit and no case is made out to overset the award impugned in the appeal. The appeal is accordingly dismissed.