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2016 DIGILAW 358 (JK)

National Insurance Co. Ltd. v. Satya Devi & ors.

2016-07-15

RAMALINGAM SUDHAKAR

body2016
JUDGMENT 1. These appeals are of the year 2013. 2. Two appeals, one CIMA No. 261/2013 filed by Insurance Company and other CIMA No. 438/2013 filed by the claimants are taken up for disposal under common order. 3. Insurance Company has filed the appeal against the Award of the Tribunal primarily contending that there is no link between the accident and death of the deceased and, therefore, Award should not have been passed. 4. Factual matrix of the case is that the accident took place on 13.08.2001. When the deceased was walking towards his home from Main Stop Chatha, he was hit by a Matador bearing No. JK02E-6487 insured with the present appellant. 5. The cause of accident, date of accident and the injury caused to the present deceased Sarwan Kumar are not in dispute and that is borne out by records. He was admitted in GMC Hospital from 13.08.2001 to 12.10.2001 and has been continuously taking follow-up treatment up to 31.12.2001. The deceased died five months thereafter. 6. Immediately after being discharged from hospital, the injured victim filed claim petition and after his death, the legal representatives amended the claim and filed a fresh claim petition. A sum of Rs. 7.00 Lacs was claimed and in support of the claim, four witnesses were produced. Age of deceased is determined at 45 years by the Tribunal, which is not in dispute. The fact that he was working as Class IV employee on daily wages is also not disputed. Income determined by the Tribunal was at Rs. 6316/-. After deducting the amount towards personal expenses of the deceased, loss of pecuniary benefits to the dependents was fixed at Rs. 56,870/- and in all a sum of Rs.7,07,000/- was awarded as compensation. 7. On this score, there is no serious objection by the Insurance Company. However, their main plea appears to be that there is no nexus between the accident and the death of the deceased and, therefore, the claim ought to have been rejected. 8. On a perusal of the award of Tribunal, it is clear that Sarwan Kumar (deceased) was admitted in Hospital after he met with a road accident on 13.08.2001. He sustained injuries to the right thigh, left arm and ribs. He was operated on general anesthesia; fractures were reduced; fragments were put in place and bones were fixed with nails. Medical records are also placed on file. He sustained injuries to the right thigh, left arm and ribs. He was operated on general anesthesia; fractures were reduced; fragments were put in place and bones were fixed with nails. Medical records are also placed on file. He was given ten bottles of blood transfusion and administered various drugs during the course of treatment. He underwent another procedure for removal of the implants and he was able to walk with assistance as is evident from the endorsement. It is pertinent to note that he was earlier discharged on 12.10.2001. All was not well with the deceased as is evident from the medical certificate issued by the Registrar Ortho-I, which shows the nature of treatment given during the course of deceased’s admission in the Hospital. However he died on 30.05.2002 after few months while he was at home. 9. From medical evidence and record, it is clear that nature of injury is such that there could be no other cause for a 45 years old man to die except as a consequence of accident and also may be because of medical complication that developed post accident and that appears to be a ground for the Tribunal coming to the conclusion that the death was caused due to the accident. 10. I find no reason to differ from the view taken by the Tribunal. On that count, I reject the plea of Insurance Company that the death did not occur due to accident. 11. Insofar as other plea relating to the calculation of income of the deceased is concerned, the accident took place in the year 2001. Age of deceased was fixed at 45 years. He was supporting a family of wife and four children, and, therefore the income determined by the Tribunal is justified. However regarding the period of interest awarded by the Tribunal, it is contended by the Insurance Company that the Tribunal had erred in granting interest for the period from August 2002 to April 2011, during which period the claim petition was dismissed for default. Therefore, according to the insurance company, no interest should have been ordered for this period. This plea of the insurance company is not supported by any material. However, the Tribunal held that the claimants are not entitled to any interest for five years because the claim petition remained dismissed for non-prosecution. Therefore, according to the insurance company, no interest should have been ordered for this period. This plea of the insurance company is not supported by any material. However, the Tribunal held that the claimants are not entitled to any interest for five years because the claim petition remained dismissed for non-prosecution. In view of non-rebuttal of this finding by production of records, I find no reason to interfere with the finding arrived at by the Tribunal on this count. 12. In view of the above, Appeal No. 261/2013 is dismissed. 13. Similarly, the appeal filed by the claimants seeking enhancement of the compensation pleading that compensation should be on higher rate cannot be countenanced, as it borne out by records that on the date of death, the deceased was a daily wager. Unless his services are confirmed, he does not have any right for being treated as a permanent employee. The income determined is commensurate with the employment and living. No income can be fixed on hypothetical basis. The plea is rejected. 14. Insofar as plea for grant of interest which is declined by the Tribunal for five years is concerned, claimants are unable to prove that the Tribunal erred in holding that no interest is payable for 5 years. The records were verified by the counsel and he accepted it. 15. Hence, Appeal No. 438/2013 filed by the claimants is dismissed.