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2017 DIGILAW 310 (JK)

National Insurance Company Ltd v. Romesh Chander

2017-07-12

DHIRAJ SINGH THAKUR

body2017
JUDGMENT : 1. This is an appeal filed by the Insurance Company against the award dated 30.4.2010 passed by the Motor Accident Claims Tribunal, Jammu. 2. Briefly stated the material facts are as under: 3. The claimant-respondent No. 1 on 13.11.2004 was going from Kalith to Rajwal on his motorcycle and when he reached at Rajwal at about 7 P.M, the offending vehicle, which was coming from the opposite direction, hit the claimant as a result of which he suffered multiple injuries all over his body as also on his head. 4. A claim petition came to be filed by the claimant in which response was filed by the Insurance Company. The Tribunal, on a perusal of the pleadings of the parties, framed the following issues: i. Whether an accident occurred on 13.11.2004 at Rajwall, Akhnoor by rash and negligent driving of offending vehicle No. JK02W 1269 in the hands of erring driver in which petitioner Romesh Chander sustained grievous nature of 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 driver of offending vehicle at the time of accident was not holding valid and effective driving licence and drove the vehicle in violation of terms and conditions of insurance policy? OPR-2 iv. Relief. O.P. Parties. 5. The statement of the petitioner was not recorded as he was reported to be unable to speak and recognize anybody. PW-Bishan Dass, who stated to be the cousin of the claimant, stated that after the accident, the claimant was taken to the Akhnoor Hospital wherefrom he was referred to Govt. Medical College, Jammu. 6. It was stated that the claimant was unable to eat anything or breathe properly for which he was put on a ventilator and remained there for 54 days and had been re-admitted in the hospital three to four times. The claimant remained admitted in the hospital for about one and half years. 7. It was also stated that the claimant could neither eat nor drink himself and required the assistance of others. 8. It was further stated that the claimant was working in a Forest Protection Force as Watcher and drawing Rs. 6,000/- per month as salary and after the accident he did not receive any salary. 9. PW-Dr. 7. It was also stated that the claimant could neither eat nor drink himself and required the assistance of others. 8. It was further stated that the claimant was working in a Forest Protection Force as Watcher and drawing Rs. 6,000/- per month as salary and after the accident he did not receive any salary. 9. PW-Dr. Rakesh Saraf supported the contention of the PW-Bishan Dass and stated that the claimant had remained admitted in Govt. Medical College, Jammu from 13.11.2004 to 17.2.2005 with diagnosis of head injury and remained on ventilatory support as the claimant suffered from weakness of all the four limbs with partial paralysis of vocal cord of three years duration. 10. It was stated that the disability with regard to ENT was 20 percent and 55% in regard to orthopaedics which was permanent. 11. It was further stated that difficulty in speech meant that whatever the petitioner spoke was not fully understandable and that this was due to partial paralysis of the vocal cord. 12. Only one witness was examined by the insurance company in regard to issue No. 3, on appreciation whereof, the Tribunal came to a conclusion that the driver of the offending vehicle was holding a valid and effective driving licence at the time of accident and the vehicle was fully insured at the relevant time. The said issue was accordingly decided against the insurance company and in favour of the petitioner. 13. After appreciating the entire evidence on record, the Tribunal determined the following compensation in favour of the claimant: (i) For loss of future income Rs. 8,64,000/- (ii) For medical expenses/ Hospitalization Rs. 70,000/- (iii) For pain and sufferings Rs. 4,00,000/- (iv) For loss of amenities of life Rs. 4,00,000 (v) Attendant charges interceding treatment and future. Rs. 5,00,000/- 14. Loss of future income was determined by taking the income of the claimant at Rs. 4,500/- per month and by applying the multiplier of 16 by treating the age of the petitioner as 30 years instead of 18 as provided in the schedule. The net amount payable after applying the aforementioned multiplier was determined at Rs. 8,64,000/- as loss of future income. 15. It is against this award dated 30.4.2010 that the present appeal has been preferred. 16. Learned counsel for the appellant-Insurance Company, Mr. The net amount payable after applying the aforementioned multiplier was determined at Rs. 8,64,000/- as loss of future income. 15. It is against this award dated 30.4.2010 that the present appeal has been preferred. 16. Learned counsel for the appellant-Insurance Company, Mr. Baldev Singh urged that the Tribunal below had committed an error in treating the income of the claimant at Rs. 4,500/- P.M even when the claimant had failed to produce any salary slips on record. 17. It was urged that even the medical expenses determined at Rs. 70,000/- was contrary to the records. It was further urged that the Tribunal ought not to have awarded the huge amount of rupees four lacs each under the heads, ‘pain and suffering’ and ‘loss of amenities of life’, which was without any rational hypothesis whatsoever. 18. It was stated that some of the witnesses, which were required to be examined in defence by the company, could not be so examined inasmuch as the Tribunal failed to exercise effectively, its powers, to force such witnesses to appear in the court notwithstanding the fact that on one or two occasions, bailable warrants against the owner of the offending vehicle, namely, Gurjeet Singh, were issued by the court, which, however, did not culminate in his ultimately presence before the court. 19. Heard learned counsel for the parties. 20. The argument that the loss of future income determined by the Tribunal was erroneous in law inasmuch as the salary slip was never produced, is an argument, which cannot be accepted inasmuch as the insurance company has failed to dislodge the testimony of the witnesses examined by the claimant to prove the issue of income during cross-examination. 21. In regard to claim of medical expenses and hospitalization, it is seen that medical bills amounting to Rs. 59,284.97/- had been placed on record by the claimant in regard to purchase of medicines etc from the market as against which Rs. 70,000/- has been awarded by the Tribunal. In my opinion, any amount beyond Rs. 59,284.97/- could not have been awarded as there was no justification for the same, therefore, the amount on account of medical expenses and hospitalization requires to be reduced from Rs. 70,000/- to round figure of Rs. 60,000/-. 22. While determining the compensation for non-pecuniary loss, no set formula has been prescribed and the same may vary from case to case. 59,284.97/- could not have been awarded as there was no justification for the same, therefore, the amount on account of medical expenses and hospitalization requires to be reduced from Rs. 70,000/- to round figure of Rs. 60,000/-. 22. While determining the compensation for non-pecuniary loss, no set formula has been prescribed and the same may vary from case to case. Various circumstances need to be taken into consideration for awarding compensation under these heads such as, age of the claimant, nature of the injury suffered, nature of the deprivation of disability of the claimant and their effect in future on the life of such a claimant. 23. From the evidence on record, it can be seen that the nature of injuries suffered by the claimant are such, which had rendered his vocal cords in a shape where even when he speaks, same is incomprehensible. He also suffers from weakness of all four limbs and can neither eat nor drink himself and requires the assistance of others. The nature of disability suffered by the claimant as certified by the doctors is permanent in character and as such, which would forever affect the quality of his life in future and perpetuate the trauma of his disabilities. Not only this, the claimant also would have almost nil prospects of marriage in future, besides shortening his normal longevity. 24. In the backdrop of the aforementioned facts, the amount of Rs. 4 lacs each granted by the Tribunal on account of ‘pain and suffering’ and ‘loss of amenities of life’, keeping in view the ever decreasing value of rupee on account of inflation is not at all on the higher side. 25. The next issue that was raised by the counsel for the appellant was with regard to non-examination of a material witness through the process of the court. From the record, it appears that the Tribunal did issue non-bailable warrants for summoning the witness-Gurjeet Singh. However, the Tribunal failed to ensure his presence before it to enable the insurance company to discharge the onus of issue no. 3, which was placed upon it. The insurance company did have a right to show from the original records that the vehicle was being driven without there being any valid and effective permit at all with the owner for which the policy had been issued by the insurance company. 3, which was placed upon it. The insurance company did have a right to show from the original records that the vehicle was being driven without there being any valid and effective permit at all with the owner for which the policy had been issued by the insurance company. This was possible only if the said witness was produced for examination. This did not happen. The Tribunal appears to have only proceeded on the hypothesis that the driver of the offending vehicle was holding a valid and effective driving licence at the time of the accident and had been duly insured at the relevant time without touching upon the other aspect as had been highlighted in the objections to the claim petition. 26. In my opinion, the Tribunal, thus, committed an error in not taking the steps as warranted under law to ensure the presence of the company’s witness. Learned counsel for the appellant, however, agrees to the proposition of the court that while the decision on the issue of quantum may be treated as final and the amount as determined payable in favour of the claimant be paid to the claimant, the matter can be remanded to the tribunal on the issue of liability and in case it is established after leading evidence on the said issue, that the insurance company was not liable for want of an appropriate permit with the owner of the vehicle, then the amount which stands paid to the claimant by the insurance company would be recoverable from the owner. 27. This appeal is accordingly allowed partially. The amount as determined by the tribunal under the head ‘Medical Expenses’, as modified by this court shall be paid to the claimant- respondent No. 1 herein. The matter shall stand remanded to the tribunal for determination of issue no. 3 after ensuring the presence of the witness cited by the insurance company. In case the company succeeds on issue no. 3, the company shall be at liberty to recover the amount from the owner. 28. Disposed of accordingly. 29. The cross–appeal filed by the claimant is held to be not maintainable in view of the ratio of the full bench judgment of the High Court of Himachal Pradesh titled Lata vs. United India Insurance Co. Ltd & ors, 2005 ACJ 857. Paragraph 23 of the said judgment is relevant and reproduced hereunder: “23. 28. Disposed of accordingly. 29. The cross–appeal filed by the claimant is held to be not maintainable in view of the ratio of the full bench judgment of the High Court of Himachal Pradesh titled Lata vs. United India Insurance Co. Ltd & ors, 2005 ACJ 857. Paragraph 23 of the said judgment is relevant and reproduced hereunder: “23. Based on the aforesaid reasoning and the light of the aforesaid observations accordingly, in this reference we lay down, hold and declare that in no appeal filed under section 173 of the Act by any appellant, can cross-objections by permitted to be filed/ entertained since the cross-objections under the scheme of the Act read with the aforesaid 1999 Rules as these presently exist, are not maintainable.” 30. The cross-appeal is accordingly dismissed.