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2014 DIGILAW 361 (JK)

Kanta Devi v. Mohinder Paul

2014-08-29

TASHI RABSTAN

body2014
1. This appeal filed by the appellant for enhancement of compensation is directed against the award dated 14.07.2005 passed by the Motor Accidents Claims Tribunal, Jammu, in File No. 592/Claim, titled as Kanta alias Kanta Devi v. Oriental Insurance Co. & others, whereby an award of Rs.80,000/- along with interest @ 6% came to be awarded in favour of appellant- claimant and against the insurer, respondent no. 3 herein (for short, impugned award), on the grounds taken in the memo of appeal. 2. The facts as gathered from the claim petition are that on 05.03.2000 claimant-Kanta Devi was travelling in the offending vehicle, i.e., Bus No. JK02M-7835 which was heading towards Kathua from Jammu. When it reached Village Jakh at Jammu-Kathua National Highway, it turned turtle due to the rash and negligent driving of its driver, as a result of which claimant-Kanta Devi received injuries in her back and was taken to the Hospital. As per the Discharge & Follow-up Card, she remained admitted in the hospital with effect from 05.03.2000 to 09.03.2000. Two other unfortunate boys, who were walking on the roadside, were also hit by the offending vehicle, as a result of which one boy, namely, Pawan Kumar died on the spot, whereas another one, namely, Raj Kumar succumbed to injuries after 15 days in the hospital. FIR also came to be registered at Police Station Vijaypur. 3. Claimant-Kanta Devi filed a claim petition before the learned Tribunal seeking compensation to the tune of rupees five lacs. 4. Two more claim petitions came to be filed by the legal heirs of both the deceased boys. Learned Tribunal clubbed all the three claim petitions, as the same had arisen out of the same accident. 5. Insurer, respondent no.3 herein, filed objections before the learned Tribunal and contested the claim petitions. Learned Tribunal after framing the issues directed the parties in all the three claim petitions to lead evidence. 6. Besides claimant-Kanta Devi, the witnesses examined were PWs Bansi Lal, Omkar Khajuria, Girdhari Lal, Ram Dayal and Dr. Sudesh Sharma. 7. The witnesses, appeared in the witness box, deposed that the accident was the rash and negligent driving of the driver of' offending vehicle. 8. The doctor, who attended the claimant-Kanta Devi, deposed that the claimant was found to be suffering from acute chronic back ache due to compression fracture of lumbar Ist vertebra. Sudesh Sharma. 7. The witnesses, appeared in the witness box, deposed that the accident was the rash and negligent driving of the driver of' offending vehicle. 8. The doctor, who attended the claimant-Kanta Devi, deposed that the claimant was found to be suffering from acute chronic back ache due to compression fracture of lumbar Ist vertebra. Her movements of spine were restricted and had got deformity over L1 region. According to the Doctor, the claimant has suffered 25% permanent physical disability. 9. Insurer-respondent No.3 herein did not lead any evidence in rebuttal, thus the evidence led by claimant-Kanta Devi has remained un-rebutted. 10. Learned Tribunal, while allowing all the three claim petitions by a common judgment, awarded a sum of Rs.80,000/- in favour of claimant-Kanta Devi along with 6% interest pendent lite till realization under different heads, holding the insurer, respondent No.3 herein, liable to pay the compensation. 11. Claimant-Kanta Devi being not satisfied with the award has filed the instant appeal seeking enhancement of compensation. 12. Admittedly, neither the driver/owner nor the insurer has questioned the award on any count. Therefore, the only question to be determined in this appeal is: whether the compensation awarded in favour of claimant-Kanta Devi is just and adequate. 13. Learned Tribunal after examining the entire record held that although claimant-Kanta Devi did not place on record any prescriptions or vouchers in respect of the medicines purchased by her for the treatment, yet in view of OPD prescription referring three types of medicines, it was expected that she might have incurred approximately an amount of Rs. 3000/- for medicines as she remained admitted in the hospital with effect from 05.03.2000 to 09.03.2000. Learned Tribunal also awarded Rs. 2000/- under the head special diet and Rs. 25,000/- under the head pain and suffering. Learned Tribunal while holding that the appellant has suffered 25% permanent disability has awarded Rs. 50,000/- under the head loss of amenities and pleasure of life. Thus, the learned Tribunal vide award dated 14.07.2005 read with order dated 30.08.2005 has awarded a total compensation of Rs. 80,000/- in favour of claimant-Kanta Devi along with 6% interest pendent lite till liquidation. 14. I have gone through the evidence recorded by the learned Tribunal and the documents on the file. 15. Thus, the learned Tribunal vide award dated 14.07.2005 read with order dated 30.08.2005 has awarded a total compensation of Rs. 80,000/- in favour of claimant-Kanta Devi along with 6% interest pendent lite till liquidation. 14. I have gone through the evidence recorded by the learned Tribunal and the documents on the file. 15. Keeping in view the facts and circumstances of the case as well as submissions of learned counsel for the parties coupled with the documentary evidence placed on record, I do not find any logic or reason to enhance the amount of compensation. By no stretch of imagination it can be said that the amount of compensation awarded is not just and appropriate. However, so far as the interest part is concerned, the Apex Court in case Josphine James v. United India Insurance Co. Ltd., reported as 2013 (5) Law Herald (SC) 4015, has held that awarding of 6% interest by the Tribunal is bad in law in view of the decision of Apex Court in Uphaar Tragedy case. For facility of reference, relevant paragraph No. 19 is reproduced hereunder:- "19. Further, the award of interest at the rate of 6% per annum on the compensation as has been awarded both by the Tribunal and the High Court is also bad in law for the reason that in the case of Association of Victims of Uphaar Tragedy (supra), this Court has awarded interest at the rate of 9% per annum on the compensation awarded in favour of the appellant. There is no justification for them in not applying the ratio of the abovementioned case to the fact situation of the present case. We therefore, grant interest at the rate of 9% per annum on the compensation amount awarded by the Tribunal as the Insurance Company has been contesting the case without any justifiable reason. Further, the Insurance Company has deprived the appellant of the benefit of her legitimate claim of getting the compensation and she was made to approach the court for determination of the claim even after passing of the award by the Tribunal since the same was contested by the Insurance Company by filing appeal by urging wholly untenable grounds which are not maintainable in law. Accordingly, we allow the appeal by setting aside the impugned judgment and award of the High Court and restore the compensation awarded by the Tribunal of Rs. Accordingly, we allow the appeal by setting aside the impugned judgment and award of the High Court and restore the compensation awarded by the Tribunal of Rs. 13,07,000/- both under the heads of pecuniary and non-pecuniary damages and the said amount carries 9% interest per annum from the date of filing of the application till the date of payment of the amount. We direct the Insurance Company to deposit 50% of the awarded amount with proportionate interest in any of the nationalized Banks of the choice of the appellant for a period of 3 years. During the said period, if she wants to withdraw a portion or entire deposited amount for her personal or any other expenses, then she is at liberty to file application before the Tribunal which may be considered by it and pass appropriate order in this regard. If the amount of compensation has not yet been paid by the Insurance Company to the appellant, the same shall be paid within six weeks by obtaining demand draft in favour of the appellant. 16. Therefore, in view of the law laid down by the Apex Court, awarding of interest @ 6% by the learned Tribunal on the amount of compensation is on lesser side. Thus, the appellant-claimant is also entitled to get the amount of compensation along with interest @ 9% per annum from the date of filing of the claim petition till its realization, leaving rest of the award as it is. 17. Viewed thus, I partly allow the appeal by modifying the award so far as it relates to the interest part. It is held that the appellant-claimant is entitled to nine percent (9%) interest on the amount of compensation awarded by the learned Tribunal from the date of filing of the claim petition till its final realisation. Insurance Company, respondent No. 3 herein, is directed to deposit the enhanced amount in the Registry of this Court within a period of four weeks from today. Thereafter, the award amount along with interest be released in favour of appellant-claimant in terms of the conditions as contained in the impugned award after proper verification and identification. 18. Registry to forthwith send down the record of learned Tribunal along with a copy of this judgment.