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2013 DIGILAW 507 (JK)

Balbinder Singh v. New India Insurance Co.

2013-09-04

Mansoor Ahmad Mir

body2013
1. This Civil 1st Miscellaneous Appeal is directed against the judgment and award dated 31.08.2005 passed by the Motor Accidents Claims Tribunal, Jammu, in File No. 429, titled as, Balvinder Singh v. The New India Insurance Company Limited & others, whereby an amount of Rs. 2,28,730/- along with interest @ 6% from the date of filing of the claim petition till its realization came to be awarded in favour of appellant-claimant and the Insurance Company, respondent no. 1 herein, has been saddled with the liability to satisfy the award (for short, impugned award), on the grounds taken in the memo of appeal. 2. The dispute in this appeal relates to adequacy of compensation only. 3. Neither the Insurance Company nor the owner or the driver of offending vehicle have questioned the impugned award on any count, therefore, the same has attained finality in so far as it relates to them. 4. The facts in brief are that on the fateful day of 03.02.2002 at about 8:30 AM the appellant-claimant was travelling in the offending vehicle, i.e., Matador bearing registration No. JK02H-1755 and was coming to Jammu City from Narwal Bala. When the offending vehicle, which was being driven by respondent no. 3 herein, reached near Sabzi Mandi Gate, Narwal, its driver lost control over the vehicle due to excessive speed while overtaking another Matador, as a result of which it turned turtle. Appellant-claimant sustained fracture in his right leg below the knee at two places, besides injuries on other parts of the body and he was taken to Government Medical College, Jammu for treatment. An FIR to the same effect also came to be registered at Police Station Bahu Fort, Jammu. 5. Appellant-claimant being the victim of vehicular accident filed a claim petition before the Motor Accidents Claims Tribunal, Jammu, claiming compensation to the tune of rupees six lacs, as per the break-up given in the claim petition. As per the averments made in the claim petition, the appellant-claimant was employed in Station Headquarters, Sunjwan and claimed to be earning Rs. 4000/-per month. He was stated to be 20 years of age at the time of accident. 6. Respondents were put to notice. Despite service of notice, owner as well as driver of the offending vehicle did not appear and they were set exparte. However, Insurance Company, respondent no. 1, herein, appeared and filed objections resisting the claim petition. 7. 4000/-per month. He was stated to be 20 years of age at the time of accident. 6. Respondents were put to notice. Despite service of notice, owner as well as driver of the offending vehicle did not appear and they were set exparte. However, Insurance Company, respondent no. 1, herein, appeared and filed objections resisting the claim petition. 7. Out of the pleadings of the parties, the following issues came to be framed. 1. Whether an accident took place on 03.02.2002 at Sabzi Mandi, Narwal, Jammu due to rash and negligent driving of the offending vehicle No. JK02H-1755 by its driver/respondent no.3 in which petitioners, namely, Balbinder Singh and Vicky sustained injuries, if so of what nature? OPP 2. If issue no. 1 is proved in affirmative, whether petitioners are entitled to the compensation; if so of what amount and from whom? OPP 3. Whether the driver of the offending vehicle at the time of accident was not holding a valid driving license? OPR-1 5. Relief. OP Parties 8. In order to prove his case, appellant-claimant examined PWs Kamal Singh (father of claimant), Mst. Banti Devi and Dr. Shiv Kumar, besides appellant-claimant also appeared in the witness box. Issue No. 1 9. PW Banti Devi deposed that she was also travelling in the offending vehicle at the time of accident which was being driven by its driver rashly. She further deposed that the passengers travelling in the vehicle requested the driver to drive the vehicle carefully, but he did not pay any heed to their request, rather he started racing with another Matador in an excessive speed in order to overtake that vehicle and in the melee he lost control over the offending vehicle, as a result of which the offending vehicle turned turtle. In the accident number of passengers including the appellant-claimant received serious injuries. 10. PW Kamal Singh, who is father of appellant-claimant, deposed that the leg of his son was broken in the accident. He further deposed that they went three times to Karam Singh Hospital at Amritsar for the treatment of his son, where three operations were performed. 11. Appellant-claimant while appearing in the witness box deposed that he remained admitted in the Government Medical College, Jammu for about two and a half months, where two operations were performed upon him. 12. PW Dr. 11. Appellant-claimant while appearing in the witness box deposed that he remained admitted in the Government Medical College, Jammu for about two and a half months, where two operations were performed upon him. 12. PW Dr. Shiv Kumar deposed that he examined the appellant-claimant on 19.11.2003 and found him an old operated case of crush injury right leg and right foot with compound fracture right tibia. He further deposed that he noticed stiffness of ankle and shortening of leg by about 11/2 inch. According to him, the appellant-claimant suffered 40% permanent disability of right lower limb. He has also proved the disability certificate dated 22.11.2003. 13. It may be relevant to notice here that respondent-Insurance Company did not lead any evidence in rebuttal, therefore, the evidence led by the appellant-claimant remained unrebutted. 14. Otherwise too, there is sufficient oral as well as documentary evidence on the file to the effect that the accident was the result of rash and negligent driving of the driver of offending vehicle. The offending vehicle was insured with respondent no. 1 herein. Accordingly, issue no. 1 rightly came to be decided in favour of appellant-claimant and against the respondents. Issue No. 3 15. The onus of issue no.3 was on respondent-Insurance Company. Since it failed to discharge the onus, the learned Tribunal has rightly decided this issue in favour of appellant-claimant and against the Insurance Company. Issue No. 2 16. Appellant-claimant by leading evidence has succeeded in proving that his right leg has been shortened by 11/2 inch and he suffered 40% permanent disability. He has also lost chances of getting a suitable match. 17. The learned Tribunal has fallen in error while assessing the compensation; also it did not award any compensation under the head loss of future income. 18. Admittedly, the right leg of appellant-claimant has been shortened by 11/2 inch, as a result of which he suffered 40% permanent disability of right lower limb. Thus, he cannot walk comfortably and he would have been facing lot of difficulties while performing day-to-day normal activities of life. The doctor has also proved the disability certificate; meaning thereby the disability certainly would have affected the earning capacity of appellant-claimant. The Tribunal has also lost sight of the fact that the appellant-claimant was only 20 years of age at the time of accident when he became permanently disabled. Admittedly, the appellant-claimant was earning Rs. The doctor has also proved the disability certificate; meaning thereby the disability certainly would have affected the earning capacity of appellant-claimant. The Tribunal has also lost sight of the fact that the appellant-claimant was only 20 years of age at the time of accident when he became permanently disabled. Admittedly, the appellant-claimant was earning Rs. 4000/- per month at the time of accident. Therefore, taking into account all these things, I, by making guess work, hold that the permanent disability has affected the earning capacity of appellant-claimant to the extent of not less than 15%, meaning thereby his future loss of income would be Rs. 600/- per month (Rs. 7200/- per annum). Keeping in view the age of appellant-claimant, in my view multiplier 15 would be just and appropriate. Accordingly, an amount of Rs. 1,08,000/- (7200 x 15) is awarded in favour of appellant-claimant under the head loss of future income. 19. Learned Tribunal has awarded Rs. 25,000/- in favour of appellant-claimant under the head pain and suffering and Rs. 50,000/- under the head loss of amenities and prospects of marriage, which in my view is too meager. 20. Learned Tribunal has lost sight of the fact that two operations were performed upon the appellant-claimant in Government Medical College, Jammu, where he remained admitted for about two and a half months. Thereafter three operations were also performed at Karam Singh Hospital at Amritsar and during all this period the appellant-claimant had to go through lot of pain and suffering. He has suffered permanent disability and cannot walk comfortably. Further, he has also lost chances of getting a suitable match. Thus, the Tribunal has fallen in error while awarding compensation of Rs. 25000/- under the head pain and suffering and Rs. 50,000/- under the head loss of amenities and prospects of marriage. Therefore, I deem it proper to hold that Rs. 1,00,000/- each would be just and appropriate compensation under both the heads. It is so ordered. 21. However, the learned Tribunal has rightly awarded Rs. 1,13,230/- under the head cost of treatment/medicines, Rs. 12,000/- under the head salary for three months, Rs. 5500/-under the head cost of special diet, Rs. 18,000/- under the head travel expenses and Rs. 5000/- under the head boarding and lodging. 22. It is so ordered. 21. However, the learned Tribunal has rightly awarded Rs. 1,13,230/- under the head cost of treatment/medicines, Rs. 12,000/- under the head salary for three months, Rs. 5500/-under the head cost of special diet, Rs. 18,000/- under the head travel expenses and Rs. 5000/- under the head boarding and lodging. 22. Therefore, taking into consideration the facts and circumstances of the case coupled with the evidence placed on record, the claimants are held entitled to the following compensation under different heads: i Loss of future earning 108000.00 ii Cost of treatment/medicines 113230.00 iii Salary for three months 12000.00 iv Cost of special diet 5500.00 v Travel expenses 18000.00 vi Boarding and lodging 5000.00 vii Pain and suffering 100000.00 viii Loss of amenities & prospects of marriage 100000.00 ix Total 4,61,730.00 23. Viewed th us, the appeal is allowed. Claimants are held entitled to a compensation of Rs. 4,61,730/- with 6% interest from the date of filing of the claim petition till its realization. Accordingly, the insurer, respondent no.1 herein, to deposit the amount in the Registry within a period of six weeks from today, thereafter the same shall be released in favour of appellant-claimant strictly in terms of the conditions as contained in the impugned award after proper verification and identification. 24. Impugned award is, accordingly, modified and appeal stands disposed of along with all connected CMAs, if any. 25. Send down the record forthwith.