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2015 DIGILAW 1150 (HP)

New India Assurance Co. v. Pawan Kumar

2015-08-21

MANSOOR AHMAD MIR

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Judgment Mansoor Ahmad Mir, J. FAO No. 51 of 2009 is directed against the judgment and award dated 1.10.2008, made by the Motor Accident Claims Tribunal, Hamirpur, HP in MAC Petition No. 11 of 2007, titled Pawan Kumar versus Ajay Kumar and another, whereby compensation to the tune of Rs.2,35,000/- with 7.5% interest per annum was awarded in favour of the claimant and FAO No. 52 of 2009 is directed against the judgment and award dated 7.8.2008, made by the Motor Accident Claims Tribunal Hamirpur, HP in MAC Petition No. 12 of 2007, titled Ashok Kumar versus Ajay Kumar and another, for short “the Tribunal, whereby compensation to the tune of Rs.2,56,865/- with 7.5% interest per annum was awarded in favour of the claimant, hereinafter referred to as “the impugned awards”, for short. 2. Both these appeals are outcome of one accident, which was allegedly caused by the driver, namely, Ajay Kumar while driving Maruti Car No. HP-55-5115, rashly and negligently at Chowki about 7.30 P.M. on 28.10.2008, in which both the claimants have suffered injuries. Thus, I deem it proper to determine both these appeals by this common judgment. 3. The claimants had invoked the jurisdiction of the Tribunal for the grant of compensation by the medium of separate claim petitions, as per the breakups given in the claim petitions, which were determined by the Tribunal by two separate awards, referred to supra. 4. The claimants, owner/insured and driver have not questioned the impugned awards on any ground, thus, have attained finality so far the same relate to them. 5. The insurer has questioned the impugned awards by the medium of these appeals, on the ground that the accident was outcome of contributory negligence. The learned counsel for the appellant also argued that in Ashok Kumar’s case, the amount awarded is excessive. Both the arguments are untenable for the following reasons. 6. It was for the insurer to prove that the accident was outcome of contributory negligence, has not led any evidence. The Tribunal has scanned the entire evidence on record, made discussion on issue No. 1 in both the claim petitions and rightly came to the conclusion that the accident was caused by Ajay Kumar, driver while driving the offending Maruti Car rashly and negligently. It is apt to record herein that the driver has not questioned the said findings on issue No. 1. It is apt to record herein that the driver has not questioned the said findings on issue No. 1. Thus, how can it lie in the mouth of the insurer that the driver has not driven the vehicle rashly and negligently on the date of the accident. Having said so, the findings returned on issue No. 1 in both the appeals are upheld. 7. It appears that a meager amount has been awarded in Pawan Kumar’s case. Unfortunately, Pawan Kumar has not questioned the impugned award. Reluctantly, the impugned award is upheld. 8. Now coming to FAO No. 52 of 2009. Admittedly, the injured was admitted in the hospital for four months and undergone pain and suffering throughout. The Tribunal has rightly made the discussion in paras 34 to 40 of the impugned award. Thus, the amount can neither be said to be excessive nor meager in any way. Accordingly, the same is upheld. 9. Viewed thus, both the impugned awards are upheld and the appeals are dismissed. 10. The Registry is directed to release the amount in favour of the claimants, strictly, in terms of the conditions contained in the impugned awards, through payee’s cheque account. 11. Send down the record, forthwith, after placing a copy of this judgment.