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2016 DIGILAW 640 (UTT)

National Insurance Company Ltd. v. Javed

2016-09-27

SERVESH KUMAR GUPTA

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JUDGMENT : Servesh Kumar Gupta, J. 1. All the three appeals, having arisen out of the same accident, are being taken up together for adjudication. 2. Before proceeding further, it would be pertinent to mention the facts which are the basis of emerging out of these appeals. 3. The truck no. “HR 38E-8167” and Maruti Van No. “UP 07E-4705” dashed from the front while being plied from the opposite sides on the national highway near Roorkee. This accident occurred on 26.4.2006 at 7.30 PM. As a result of this mishap, Mr. Dilshad, who was driving the Maruti Van and Mr. Javed, who was also sitting in that Van, became seriously injured. The former succumbed to his injuries on the next day, while Mr. Javed remained hospitalised for some quite good time and could recover later from the injuries suffered by him. Dilshad was running in his 22nd year and Javed was running in his 21st year at the time of accident. Both were bachelors. 4. MACT 99/2006 was presented by the parents of Dilshad on 11.7.2006 along with all the papers of the truck including its registration certification, insurance cover note and the driving license of the driver. Such truck was insured with the appellant National Insurance Company. Claimants also presented photocopy of the registration certification of the Maruti Van, but did not produce any insurance paper of that vehicle. It gives an impression that Maruti Van was not having any insurance cover. 5. Another petition no. 120/2006 was presented by the injured Mr. Javed claiming compensation for his injuries and the entire treatment, which he underwent in the hospital. Presiding Officer decreed the petition instituted by the parents of deceased Dilshad on 14.7.2008 granting compensation to the tune of Rs. 2,66,000/- and fastened the liability on the National Insurance Company. The same Presiding Officer decreed another petition and granted compensation of Rs. 1,02,670/- with the break up (Rs. 87670 for medicines + Rs. 5,000 towards food expenses + Rs. 13,000 for pain and suffering), but 70 per cent liability was fastened on the insurance company of the truck and its owner jointly and severally, while 30 per liability was fastened on the owner of the Maruti Van because the learned Judge was of the opinion that the accident occurred as a result of contributory negligence in the aforestated proportion. 13,000 for pain and suffering), but 70 per cent liability was fastened on the insurance company of the truck and its owner jointly and severally, while 30 per liability was fastened on the owner of the Maruti Van because the learned Judge was of the opinion that the accident occurred as a result of contributory negligence in the aforestated proportion. It is pertinent to mention that no such finding of contributory negligence has been opined while passing the award in MACT 99/2006. 6. This Court has rendered hearing to the learned Counsel of the claimants in both appeals as well as learned Counsel for the insurance company. None has put appearance on behalf of the owners of the truck and the Maruti Van before this Court as well as during the proceedings before the Tribunal concerned, nonetheless they were impleaded as opponents in the array of parties. 7. On behalf of insurance company, attention has been drawn towards the order of learned Tribunal passed on 8.9.2008 in the claim petition no. 120/2006, whereby the application of the insurance company to summon the ARTO concerned of Assam was rejected. Learned Counsel strived to show that the driving license of Mr. Dayashankar (driver of the truck), which was got issued from Guwahati (Assam), was found to be false and fake. Since no revision was filed against the said order dated 8.9.2008, passed by the learned Judge of the Tribunal, hence it shall be deemed that such order attained finality. However, at the same time, looking to the driving license of Mr. Dayashankar, it is evidently clear that such photocopy is altogether illegible. Further, it is quite strange that how the claimants could be capable to procure the photocopies of all the papers of the truck including its insurance cover, but at the same time, they could get only the photocopy of the registration certificate of the Maruti Van, and could not get its insurance papers. It leads to the inference that the Maruti Van was not insured even for the third party and it was being plied wholly illegally on the highway by Mr. Dilshad, the deceased himself, along with his companion Mr. Javed. 8. It leads to the inference that the Maruti Van was not insured even for the third party and it was being plied wholly illegally on the highway by Mr. Dilshad, the deceased himself, along with his companion Mr. Javed. 8. Looking to the map prepared by the Investigation Officer of the concerned police station while investigating the Crime No. 137/2006, under Section 279, 337, 338, 304(A), 427 IPC, it transpires that the finding of contributory negligence, as reached by the learned Judge of the Tribunal, is not without any reason. This Court too agrees with such finding. Rather, in my opinion, the share of the contributory negligence should be in the ratio of 60:40, i.e. 60 per cent towards the truck owner and 40 per cent towards the owner of Maruti Van. 9. Unfortunately, owners of both these vehicles, though served sufficiently by the Tribunal but they did not put in their appearance in order to enable the insurance company to cross-examine them on all relevant questions regarding the insurance cover of such vehicles. So, it is amply clear that the owners of both the vehicles avoided their appearance before the Court in order to evade any possible liability on them. 10. As regards the quantum of compensation, in case of Dilshad, I do not find any infirmity with the same. However, in case of injured Javed, I think that amount of Rs. 10,000/- towards pain and suffering should be enhanced to Rs. 20,000/-. I order accordingly and enhance the award to Rs. 1,12,670/- in case of Javed. 11. In view of what has been set forth above, the liability from the National Insurance Company (insurer of the truck) is shifted to the owners of both the vehicles (truck and the Maruti Van) in the ratio of 60:40, as aforestated. Thus, the appeals (AO No. 17/2009 & AO No. 402/2008) filed by the insurance company are hereby allowed in the above terms. Appeal (AO No. 52/2009) filed by Mr. Javed for enhancement of compensation also stands allowed, but the liability is fastened upon the owners of the vehicles in the ratio, as aforementioned. 12. If any amount, out of the money deposited by the insurance company, has been released, the same shall be recovered from the claimant concerned along with 7 per cent simple annual interest. Javed for enhancement of compensation also stands allowed, but the liability is fastened upon the owners of the vehicles in the ratio, as aforementioned. 12. If any amount, out of the money deposited by the insurance company, has been released, the same shall be recovered from the claimant concerned along with 7 per cent simple annual interest. Remaining amount deposited by the insurance company shall be returned to it along with the interest which it has earned. Registry shall remit the amount of compulsory statutory deposit, made by the insurance company in its both appeals, to the Tribunal concerned so that the same may be returned back. 13. Let the lower court record be sent back.