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2015 DIGILAW 19 (JK)

National Insurance Co. Ltd. v. Devijender Vaid

2015-02-09

BANSI LAL BHAT

body2015
Judgment : 1. Aggrieved of the Award dated 20.02.2010 passed by Motor Accident Claims Tribunal, Jammu (For short, ‘Tribunal’) in Claim Petition No.337/Claim titled ‘Devijender Vaid Vs. Naresh Kumar & anr.’, by virtue whereof, an amount of Rs.8,29,700/- has been awarded as compensation in favour of respondent No.1 (hereinafter to be referred to as ‘claimant’) and the appellant/Insurer has been saddled with the liability to satisfy the award, the appellant/Insurer has filed the instant appeal assailing the impugned award on the grounds set out in the memo of appeal. 2. Heard the rival sides and perused the record. 3. The claimant approached the Tribunal for grant of compensation on account of injuries sustained by him in a road traffic accident on 02.08.2004 near Care-N-Cure Hospital, Trikuta Nagar, Jammu, allegedly caused by the rash and negligent driving of a Car bearing Registration No.JK02K-1360 by respondent No.2. According to the averments made in the petition, claimant was riding his Scooter bearing Registration No.JK02U-8302 when respondent No.2 driving the offending vehicle in a rash and negligent manner hit the claimant and caused injuries to him. It was further averred that the claimant had to be hospitalized at GMC Jammu and from GMC Jammu he was shifted to Madan Hospital Amritsar where he was operated upon for hip joint. He claimed that he had been regularly visiting Amritsar for follow up. An amount of Rs.11.15 lac was claimed as compensation by the claimant against the respondents as it was claimed that the claimant had sustained permanent disability to the extent of 25% and was not able to walk freely. 4. Respondents resisted the claim before the Tribunal. While respondent No.2 denied negligence on his part in driving the offending vehicle and raised the plea that the offending vehicle was insured with the appellant/Insurer, the appellant/Insurer resisted the claim petition on the ground that the offending vehicle was driven by a person who was not holding a valid and effective driving license at the relevant time and had violated the terms and conditions of the Insurance Policy. However, the appellant/ Insurer admitted the factum of offending vehicle being insured with it at the relevant time. However, the appellant/ Insurer admitted the factum of offending vehicle being insured with it at the relevant time. Parties joined the following issues:- (i) Whether an accident occurred on 02.08.2005 at Bye Pass road Trikuta Nagar, Jammu by rash and negligent driving of offending vehicle No.JK02K- 1360 in the hands of erring driver in which petitioner Devjnder Vaid sustained grievous injuries? OPP. (ii) If issue No.1 is proved in affirmative whether petitioner is entitled to the compensation; if so to what amount and from whom? OPP. (iii) Whether at the time of accident driver of offending vehicle was not holding a valid and effective driving licence and drove the vehicle in contravention of terms and conditions of insurance policy; if so how? OPR-2. (iv) Whether insurance company has no contractual privity with respondent No.1; if so what is its effect? OPR-2. (v) Whether claim petition deserves dismissal for misjoinder of necessary party; if so who are the necessary parties? OPR-2. (vi) Relief. OPParties. 5. On consideration of the evidence tendered during enquiry in the claim petition, the Tribunal returned findings on all issues in favour of the claimant. 6. The findings recorded by the Tribunal are being assailed on the following grounds:- a) that respondent No.2 was not holding valid and effective driving license at the time of accident; b) that the quantum of compensation awarded by the Tribunal is highly exorbitant and excessive. 7. In so far as the first ground raised to assail the impugned Award is concerned, be it noticed that the factum of accident involving the use of offending vehicle and attributed to rash and negligent driving of offending vehicle in the hands of respondent No.2 has not been disputed and rightly so. It is not disputed that FIR No.26/2005 alleging commission of offences under Sections 279/337 RPC had been lodged in regard to the alleged occurrence at Police Station, Bahu Fort, Jammu, investigation wherein culminated in filing of charge-sheet against respondent No.2 for the offences under Sections 279/338 RPC. It further appears that the driving license of respondent No.2 was also seized during the course of investigation of the case. From testimony of respondent No.2, it emerges that DL No.JK0219820038398 was issued in favour of respondent No.2 by RTO Jammu on 26.05.1982 and the same was valid till 12.09.2013. It further appears that the driving license of respondent No.2 was also seized during the course of investigation of the case. From testimony of respondent No.2, it emerges that DL No.JK0219820038398 was issued in favour of respondent No.2 by RTO Jammu on 26.05.1982 and the same was valid till 12.09.2013. It is significant to notice that the appellant/insurer has examined respondent No.2 as its witness and the testimony of respondent No.2 knocked the bottom of plea raised by the appellant/insurer. The testimony of respondent No.2 clearly established that he was holding valid and effective driving license on the date of alleged occurrence. The Tribunal appears to have not only misread the evidence on this issue but also reproduced the testimony of Rw-Jagdish Raj incorrectly. The name of respondent No.2 as owner of offending vehicle has wrongly been recorded as Naresh Gupta. The issue has been handled with utmost disregard for the evidence brought on record. However, one thing was clear that respondent No.2 was established to be holding a valid and effective driving license on the date of alleged occurrence and notwithstanding his denial of not driving the vehicle at the relevant time, there is overwhelming evidence to establish that the accident was caused due to rash and negligent driving of the offending vehicle in the hands of respondent No.2, resulting in the offending vehicle hitting the scooter which the claimant was riding. The appellant/ insurer cannot escape from the effect of evidence tendered by respondent No.2 who was examined at the behest of the appellant/insurer. The appellant/ insurer has also not been able to adduce evidence that respondent No.2 was either ineligible or disqualified to hold the driving license at the relevant time. The ground raised by the appellant/insurer fails to take off and the plea raised is rejected. 8. Now coming to the quantum of compensation, be it seen that it is the beaten law of the land that in road traffic accident cases involving injuries resulting in permanent disability, the amount of compensation must be commensurate with the level of sufferings of the injured. That being the position of law, be it seen that in the instant case, permanent disability of claimant has been assessed at 25% of the left lower limb. This is established by the testimony of Dr. That being the position of law, be it seen that in the instant case, permanent disability of claimant has been assessed at 25% of the left lower limb. This is established by the testimony of Dr. Ajay Krishen, who deposed that the claimant needs hip replacement of the left side which will cost him Rs.2 lacs approximately. His testimony further establishes that the disability incurred by the claimant is permanent in nature and the claimant will feel difficulty in performing his business job. The appellant/insurer has not rebutted the evidence adduced by the claimant in regard to nature and extent of disability incurred by him. The Tribunal was, therefore, justified in basing its finding on the testimony of Dr. Ajay Krishen in arriving at the conclusion that the claimant had suffered permanent disability to the extent of 25% of left lower limb, rendering it difficult for him to perform his business job. 9. The Tribunal has assessed loss of future income at Rs.2,64,000/-. This figure has been arrived at by fixing monthly income of the claimant at Rs.8,000/- by taking into consideration the evidence tendered by the claimant that he was running Diamond Supports Industry in Industrial Area Gangyal, Jammu and earning Rs.20,000/- per month from such business but the claimant could not substantiate the same by producing any documentary evidence. Admittedly the claimant was 48 years old at the time of accident. 10. On going through the evidence brought on record by the claimant, assessment of monthly income of claimant at Rs.8,000/- does not appear to be excessive. The appropriate multiplier is 13 which has been slashed down to 11 in view of the uncertainties of life and the same can also not be termed as unreasonable. The amount of compensation assessed at Rs.2,64,000/- for loss of future income on account of permanent disability is, therefore, upheld. The Tribunal has assessed compensation for pain and sufferings at Rs.50,000/- and for loss of amenities of life at Rs.50,000/-. The same is also just and fair. Attendant charges assessed at Rs.20,000/- and Special Diet assessed at Rs.15,000/- can also not be termed as exorbitant. 11. In so far as the award of compensation to the tune of Rs.4,30,685/- for medical expenses/ hospitalization is concerned, the same is supported by the Bills and Vouchers placed on record of the Tribunal by the claimant. 12. Attendant charges assessed at Rs.20,000/- and Special Diet assessed at Rs.15,000/- can also not be termed as exorbitant. 11. In so far as the award of compensation to the tune of Rs.4,30,685/- for medical expenses/ hospitalization is concerned, the same is supported by the Bills and Vouchers placed on record of the Tribunal by the claimant. 12. Thus viewed, the amount of Rs.8,29,700/- (Rupees Eight Lacs Twenty nine thousands and Seven hundred only) awarded as compensation is just and fair and cannot be termed as excessive. The corpus of compensation barring component awarded on account of permanent disability is expected to yield interest sufficient to provide sustenance and mitigate the hardship suffered by the claimant on account of permanent disability which has not only resulted in reduction of his earning capacity but also rendered him partially disabled and dependent for support. 13. There being no merit in the instant appeal, the same is dismissed alongwith connected CMA.