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2017 DIGILAW 183 (JK)

Rajeshwar Barna v. Anil Kumar

2017-04-10

RAMALINGAM SUDHAKAR

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1. It is a case of Injury. Appeals are of the year 2010. 2. The owner has filed these two appeals challenging the award dated 23.06.2009 passed by the Motor Accident Claims Tribunal, Jammu in favour of two claimants whereunder the owner has been held liable to satisfy the award. 3. The case of the claimants arises out of accident that happened on 28.07.2005. The offending vehicle, i.e., Matador bearing registration No. JK02W 1951, coming from Narwal towards Sidhra hit the Scooty bearing registration No. JK02W-2441 driven by claimant-R.C.Sharma, in which the other claimant-Anil Kumar was traveling as a pillion rider. The offending vehicle was owned by the present appellant and insured with respondent No. 3. In that accident, both the claimants suffered certain injuries and were shifted to Government Medical College, Jammu for treatment. 4. Claimant-Anil Kumar remained admitted in the Hospital with effect from 29.07.2005 to 30.07.2005 and was on regular follow up thereafter. He was treated with POP casts. His fracture left humerous was malunited with some angulations. He was having stiffness of left shoulder and elbow with wasting of left upper limb. His disability was assessed at 20%. 5. Claimant-R.C.Sharma remained admitted in the Hospital with effect from 28.07.2005 to 2.8.2005 and was on regular follow up thereafter. He underwent surgery in the form of double plating for fracture of left tibia and interlocating nail for fracture of left femur. His disability was assessed at 50% by the doctor. The injured claimants claimed just compensation before the Tribunal. 6. The Tribunal, based on the evidence, granted the following compensation in respect of each two cases along with interest @ 7.5% per annum from the date of filing of claim petition till liquidation:- Claim petition titled Anil Kumar v. United India Insurance Co. & ors. 1. For the loss of future income Rs. 2,16,000/- 2. For pain and sufferings Rs. 40,000/- 3. For loss of amenities in life Rs. 40,000/- Total Rs. 2,96,000/- Claim petition No. 140 titled R.C.Sharma Vs. United India Insurance Co. & ors. 1. For the loss of future income Rs. 5,40,000/- 2. For pain and sufferings Rs. 1, 00,000/- 3. For loss of amenities in life Rs. 1,00,000/- Total Rs. 7,40,000/- 7. 40,000/- 3. For loss of amenities in life Rs. 40,000/- Total Rs. 2,96,000/- Claim petition No. 140 titled R.C.Sharma Vs. United India Insurance Co. & ors. 1. For the loss of future income Rs. 5,40,000/- 2. For pain and sufferings Rs. 1, 00,000/- 3. For loss of amenities in life Rs. 1,00,000/- Total Rs. 7,40,000/- 7. On the issue of no liability, a specific stand has been taken by the Insurance Company before the Tribunal that the driver of the Matador did not hold a valid driving licence and, therefore, the owner breached the contract condition contained in the policy and therefore owner alone is liable. That plea was made before the Tribunal, however, without securing the witness, namely the driver of the offending vehicle or verifying the driving licence of the driver. The Tribunal proceeded to pass the award and held that the Insurance Company cannot be mulcted with the liability and the owner alone is liable to pay the compensation. To this extent, the owner’s plea is justified. If there is only a question of invalid licence then the owner can plead pay and recover. 8. Owner of the vehicle has filed an application in CIMA No. 184/2010 for placing on record the salary certificate of claimant-Anil Kumar issued by Kendriya Vidyalaya CRPF (GC), Bantalab, Jammu, to plead that loss of future income granted by the Tribunal cannot be justified. 9. The matter was taken up before break but the counsel for the respondents was not present and the matter was passed over. Intimation was given by Mr. Baldev Singh and Mr. Vishnu Gupta, Advocates but the counsel for respondent No. 1 has chosen not to appear though his name is on record. 10. It is further submitted by the counsel that even in the claim, a statement is made that Anil Kumar-claimant was employee of Kendriya Vidhyalaya, Bantalab and claimant-R.C.Sharma was employee of Kendriya Vidhyala, Nagrota. The documents, i.e., salary certificates, have now been filed by the owner of the vehicle appellant herein to contend that loss of future income granted by the Tribunal cannot be justified as they are employees in a School, as there is proof of employment post the injury suffered in the accident. Therefore, the Tribunal erred in granting compensation for loss of future income. This contention is justified subject to verification of the documents. 11. Therefore, the Tribunal erred in granting compensation for loss of future income. This contention is justified subject to verification of the documents. 11. The claimants, however, will be entitled to other compensation on various heads like pain and sufferings, extra nutrition, attendant charges, medical expenses, physiotherapy etc. based on proper evaluation of the claim. However, taking note of the above said plea of the owner and since some amount has been withdrawn by the claimants out of the award which is now disputed before this Court, this Court is inclined to allow this appeal by way of remand so as to enable the owner to prove the plea that the claimants are not entitled to compensation on account of loss of income in future. The claimants, however, are at liberty to lead evidence that they are without employment consequent to the injury suffered in the accident and justify that head also. The Tribunal shall revisit the award and grant just compensation on all relevant heads. 12. In this view of the matter, while allowing the claimants to retain the amount that they have already withdrawn, the appeal is allowed by way of remand with a direction to the Tribunal to re-hear the claim by allowing the parties to lead evidence in relation to the issue of employment of the claimants. 13. The award is set aside and the excess amount in deposit made by the appellant-owner can be withdrawn by him. The owners/Insurance Company’s liability in excess of the amount already withdrawn by the claimants to be decided by the Tribunal on hearing the parties concerned. 14. Both the appeals are allowed by way of remand along with connected MP(s).