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2013 DIGILAW 1042 (HP)

NEW INDIA ASSURANCE COMPANY LIMITED v. KAMAL KANT ASHU

2013-12-20

MANSOOR AHMAD MIR

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JUDGMENT : MANSOOR AHMAD MIR, J. 1. Challenge in these appeals is to the award, dated 25.7.2006, passed by the Motor Accident Claims Tribunal-II, Solan, H.P. in M.A.C. Petition No. 11-S/2 of 1997, titled as Kamal Kant Ashu versus Ashok Mehta and others, (for short, the impugned award), whereby compensation to the tune of Rs. 1,48,000/- with interest at the rate of 9% per annum from the date of claim petition till the date of deposit with the Tribunal, was awarded in favour of the claimant and against respondents No. 2 and 3, on the grounds taken in the memo of appeal. Facts of the case, in brief, are that claimant Kamal Kant Ashu filed a claim petition before the Motor Accident Claims Tribunal-II, Solan, (for short, the Tribunal), on the ground that he, being the victim of vehicular accident, is entitled to compensation as per the break-ups given in the claim petition. Appellant-insurer, owner-insured and the driver contested the claim petition. 2. On the pleadings of the parties, the following issues were settled by the Tribunal: 1. Whether the accident and consequent simple and grievous injuries sustained by petitioner on 14.2.1997 were attributed to rash and negligent driving of offending vehicle bearing No. PB-10-T-2056 by respondent No. 1 Ashok Mehta, as alleged, if so its effect? OPP 2. If issue No. 1 proved in affirmative, whether the petitioner is entitled to compensation, if so to what extent and from whom? OPP 3. Whether the respondent No. 1 was not possessing valid and effective driving license to drive the offending vehicle on the date of accident i.e. 14.2.1997, if so its effect? OPR-2. 4. Relief. 3. Parties led their evidence. The Tribunal, after scanning the entire evidence, oral as well as documentary, came to the conclusion that the claimant has proved, by way of leading evidence, that the accident was the outcome of rash and negligent driving of respondent No. 1 Ashok Mehta and that the injured/claimant sustained injuries in the said accident. Accordingly, the Tribunal decided Issue No. 1 in favour of the claimant and against the insured/owner and the insurer. The parties have not questioned the said findings and the same have attained finality. 4. Before dealing with Issue No. 2, I deem it appropriate to deal with issue No. 3. Accordingly, the Tribunal decided Issue No. 1 in favour of the claimant and against the insured/owner and the insurer. The parties have not questioned the said findings and the same have attained finality. 4. Before dealing with Issue No. 2, I deem it appropriate to deal with issue No. 3. Onus to prove Issue No. 3 was on the Insurance Company (respondent No. 2 in the claim petition), which the Insurance Company has failed to discharge. Therefore, the Tribunal has rightly held that at the time of accident, the driver was possessing a valid and effective driving license. Even the Insurer-appellant has not questioned the said findings in the memo of appeal. Accordingly, the findings recorded by the Tribunal under Issue No. 3 are upheld. 5. Coming to Issue No. 2, the Tribunal, after examining the damages under the heads pecuniary and non-pecuniary, came to the conclusion that an amount of Rs. 1,48,000/- is just and appropriate compensation to be granted in favour of the claimant. The owner and the driver have not questioned the same, but the appellant-insurer has questioned the grant of compensation on the ground that it is excessive. 6. The claimant has filed cross appeal (FAO No. 25 of 2008) and sought enhancement of the compensation. 7. I have gone through the evidence and perused the record. The compensation granted under the head pecuniary damages is on the basis of the documents available on the record, is adequate and just, cannot be enhanced. The compensation granted under the head non-pecuniary damages i.e. for pain and sufferings, loss of amenities and loss of past and future earning, also appears to be just and proper, and accordingly, merits to be upheld. In view of the above discussion, the impugned award is upheld and the appeals are dismissed.