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2017 DIGILAW 2142 (RAJ)

New India Insurance Company Limited v. Kaluram

2017-10-05

ARUN BHANSALI

body2017
JUDGMENT : Arun Bhansali, J. These appeals by the appellant Insurance Company are directed against the judgment and awards dated 8/6/2017 passed by the Motor Accident Claims Tribunal, Bikaner ('the Tribunal'), whereby, the Tribunal has awarded a sum of Rs. 6,17,048/- to claimant Kalu Ram and Rs. 31,500/- to claimant Sawarmal along with interest @ 7% p.a. from the date of application i.e. 29/2/2016. 2. The applications for compensation were filed by claimants Kalu Ram and Sawarmal with the averments that on 25/11/2015 Kalu Ram along with his friend Sawarmal were riding on a Motorcycle when at around 9.00 p.m. the offending tractor being driven by its driver Ramchandra rashly and negligently came on the wrong side and gave a cut on account of which the agricultural implement attached with the tractor struck on the right leg of Kalu Ram resulting in amputation of his leg from above the knee and injuries on the fingers and wrist of Sawarmal. 3. The application was contested by the owner and driver denying the fact of rash and negligent driving by the driver of the Tractor and submitted that the vehicle was insured with the Insurance Company and, therefore, the liability, if any, was of the Insurance Company. 4. The Insurance Company filed its reply and submitted that the driver was not in possession of a valid Driving Licence, the FIR was delayed, the owner, driver and claimants have colluded for seeking compensation from the Insurance Company and, therefore, the Insurance Company was not liable. 5. The Tribunal framed five issues. On behalf of claimants three witnesses including Dr. Punil Noval were examined. On behalf of the non-claimants including the Insurance Company, no evidence was led. After hearing the parties, the Tribunal came to the conclusion that the accident occurred on account of rash and negligent driving by driver of the tractor resulting in grievous injuries to Kalu Ram and Sawarmal. 6. While assessing the quantum of compensation, the Tribunal came to the conclusion that Kalu Ram was aged 21 years and was involved in agricultural operations and on account of amputation of leg from above the knee he suffered 80% disablement. The Tribunal assessed his income at Rs. 61,464 p.a. and assessed the loss of future earning capacity at 48%, though the disability qua the limb was found at 80% and assessed the compensation for loss of future income at Rs. The Tribunal assessed his income at Rs. 61,464 p.a. and assessed the loss of future earning capacity at 48%, though the disability qua the limb was found at 80% and assessed the compensation for loss of future income at Rs. 5,31,048/-, for hospitalization for 32 days and special diet a sum of Rs. 20,000/- was awarded, Rs. 16,000/- was awarded towards attendant and misc. expenses, for the mental and physical pain on account of amputation and loss of prospects in getting married on account of loss of limb a sum of Rs. 50,000/- was awarded and in all a sum of Rs. 6,17,048/- was awarded. 7. In case of Sawarmal, it was found by the Tribunal that he remained hospitalized for 08 days and for special diet and attendant expenses a sum of Rs. 9,000/- was awarded. As certificate pertaining to permanent disability was not produced and looking to five simple injuries suffered by him, for loss of income Rs. 10,000/- was awarded, Rs. 1,500/- was awarded for simple injuries suffered by him, for pain and suffering Rs. 5,000/- was awarded and in all a sum of Rs. 31,500/- was awarded. It is submitted by learned counsel for the appellant that the Tribunal committed an error in coming to the conclusion that the accident occurred from the insured vehicle. It was submitted that the FIR was delayed, the tractor number was not indicated in the FIR and, therefore, the Tribunal was not justified in relying on the statement of witnesses, who were interested witnesses and coming to the conclusion that accident occurred from the insured vehicle and, therefore, the findings deserve to be quashed and set aside. 8. It was further submitted that the compensation awarded is on the higher side inasmuch as the Doctor, who was examined, clearly indicated that the disablement at 80% only pertaining to leg and there was no reason for the Tribunal to assess the loss of income at 48%. Submissions were made that towards pain and suffering excessive amount has been awarded by the Tribunal, which deserves to be set aside. 9. I have considered the submissions made by learned counsel for the appellant and have perused the material available on record and made available by the counsel for the appellant for perusal. 10. Submissions were made that towards pain and suffering excessive amount has been awarded by the Tribunal, which deserves to be set aside. 9. I have considered the submissions made by learned counsel for the appellant and have perused the material available on record and made available by the counsel for the appellant for perusal. 10. The Tribunal while determining the aspect pertaining to involvement of vehicle and negligence of the driver thoroughly examined the oral and documentary evidence available on record and after analyzing the same came to the conclusion that the accident occurred on account of rash and negligent driving by the driver of the tractor and the tractor was involved in the accident. Merely because the FIR was delayed, that by itself cannot be a reason to doubt the involvement of vehicle in question inasmuch as admittedly the leg of the claimant Kalu Ram got amputated on the spot on account of the same coming in contact with agricultural implement attached with the tractor and, therefore, relatives etc. of Kalu Ram were bound to first take care of the patient. Lodging of the FIR with delay ipso facto cannot lead to a conclusion that the vehicle was not involved in the accident as alleged. Learned counsel for the appellant failed to point out any perversity in the findings recorded by the Tribunal in this regard so as to require interference, though reference was made to documents and certain statements, however, the alleged contradictions are wholly insignificant so as to come to a conclusion that vehicle was not involved at all. 11. So far as the quantum of compensation is concerned, the Doctor was produced as A.W.1 in support of the plea of permanent disablement and when the Doctor indicated that 80% disablement regarding which certificate was issued pertaining to a particular limb, the Tribunal assessed the over all loss of income at 48%. The assessment by the Tribunal cannot be said to be wholly without basis so as to require interference in the present appeal in a case where a young man of 20 years has suffered amputation of his right leg from above the knee. The award of amount towards pain and suffering and loss of amenities at Rs. The assessment by the Tribunal cannot be said to be wholly without basis so as to require interference in the present appeal in a case where a young man of 20 years has suffered amputation of his right leg from above the knee. The award of amount towards pain and suffering and loss of amenities at Rs. 50,000/- cannot be said to be excessive inasmuch as the claimant is an unmarried person and the amputation of one leg would lead to disadvantage insofar as his getting married and carry on with his life are concerned and, as the disablement would haunt him for life. 12. The award of compensation to Sawarmal is too meagre to require any further dilation and the amount awarded cannot be said to be excessive from any angle. 13. Consequently, there is no substance in the appeals and the same are, therefore, dismissed.