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2018 DIGILAW 436 (UTT)

ORIENTAL INSURANCE COMPANY LTD. v. AMARJEET SINGH

2018-08-29

LOK PAL SINGH

body2018
JUDGMENT Hon'ble Lok Pal Singh, J. This appeal, under Section 173 of the Motor Vehicles Act, 1988, has been preferred by the appellant against the judgment and award dated 15.12.2015 passed by Motor Accident Claims Tribunal/VII Additional District Judge, Dehradun, whereby the Tribunal has partly allowed the claim petition against the appellant The Oriental Insurance Company Ltd. and has awarded a sum of Rs. 4,65,330/- to the claimants along with 8% interest per annum from the date of filing the claim petition till the date actual payment is made. 2. Briefly stated, facts of the case are that the claimant/respondent no.1 was driving the truck no.HR37A-8335 and was going from Gauhati towards Shilchar. When he reached at Lumroman Uncing RoadNH-40, another truck bearing registration no.ML05D-4827 which was coming from the opposite direction and being driven by its driver rashly and negligently, hit the vehicle of the claimant on wrong side, due to which he got multiple fracture on his right leg besides other grievous injuries. Claimant was admitted to Nazareth Hospital Shillong on 12.5.2010. On 13.05.2010 he was flown from Gauhati to Dehli for getting treatment at Dehradun. On 14.5.2010, he reached Dehradun and admitted to Kohli Nursing Home. Claimant alleged that he has suffered permanent disability to the extent of 42% due to the said accident. He further alleged that he is a truck driver by profession and due to permanent disability, he has lost his job and in future also he would not be able to drive any vehicle. He has incurred Rs. 2,00,000/- on his treatment and would further need about Rs.1,50,000/- for future treatment. The applicant was getting Rs. 15,000/- per month and Rs. 200/- per day as allowance since he was driver of heavy goods vehicle. With these averments, the claimant/injured filed the claim petition before the Motor Accident Claim Tribunal, Dehradun and claimed a sum of Rs. 7,00,000/- as compensation from the opposite parties. 3. The appellant – The Oriental Insurance Company Ltd. contested the claim petition and filed the written statement. In the written statement, the appellant Insurance Company denied most of the averments of the claim petition due to lack of knowledge. 4. Despite service, neither the opposite party nos.1 and 2 i.e. the owner and driver of the offending truck appeared before the tribunal nor they filed any written statement. In the written statement, the appellant Insurance Company denied most of the averments of the claim petition due to lack of knowledge. 4. Despite service, neither the opposite party nos.1 and 2 i.e. the owner and driver of the offending truck appeared before the tribunal nor they filed any written statement. Therefore, by order dated 13.3.2013, the claim petition was directed to be proceeded ex-parte against them. 5. On the basis of pleadings of parties, the Tribunal framed the following issues: i) Whether on 12.5.2010 at about 04:00 am at G.S. Road NH-40 when the claimant was going from Gauhati towards Silchar then a truck no.ML05D-4827 which was coming from opposite side and was driven by its driver rashly and negligently, collided with the truck, due to which the claimant got injured and his right leg got fractured? ii) Whether the said accident had occurred due to mistake and negligence of truck driver no.ML05D-4827. iii) Whether the claimant is entitled to receive any compensation? If yes, to what extent and from whom? 6. Thereafter, the parties led evidence. In oral evidence, the claimant got himself examined as PW1 and also got examined Balwant Singh as PW2, Harish Kohli as PW3 and Dr. Y.S. Thapliyal as PW4. In documentary evidence, the claimant filed copy of F.I.R., driving licence, medical bills, air ticket, disability certificate, etc. Opposite party did not adduce any oral evidence however in documentary evidence, the company filed certain documents obtained under Right to Information Act. 7. After hearing the parties and upon careful perusal of the material available on record, learned Tribunal passed the impugned judgment and award as above. As the issue nos.1 and 2 were inter-related, the tribunal decided both the issues together and held that the alleged accident occurred due to rash and negligent driving by the driver of vehicle number ML5D-4827 and in which there was also contributory negligence of the claimant to the extent of 20% due to which the claimant suffered injuries and multiple fractures in his right leg. On issue no.3, the Tribunal recorded a finding that though the claimant has stated that he was earning Rs. 21000/- per month but no certificate has been produced on record to substantiate such claim. On issue no.3, the Tribunal recorded a finding that though the claimant has stated that he was earning Rs. 21000/- per month but no certificate has been produced on record to substantiate such claim. Thus, the tribunal considering the judgment of this Court in the case of Basanti Devi and another vs. Lakhwinder Singh and another, 2014 (2) U.A.D. 472 has taken the notional income of the claimant as Rs. 45000/- per month. For determination of age of the claimant, the tribunal relied upon the driving license of the claimant and recorded a finding that the claimant was aged 59 years on the date of accident and adopted multiplier of ‘9' in view of Sarla Varma vs. Delhi Transport Corporation and anther 2009 (2) TAC 677. On the basis of medical evidence, the Tribunal recorded a finding that the claimant has suffered permanent disability to the extent of 45%. Finding was also recorded by the tribunal that there was contributory negligence of the claimant in the accident to the extent of 20%, hence, considering the entire conspectus of things, the Tribunal assessed annual loss of income as Rs. 213840/-. Besides this, the Tribunal granted Rs. 61,000/- towards the expenses incurred on medical treatment, Rs. 5000/- for transportation charges, Rs. 2,000/- for special diet, Rs.1,00,000/- towards mental pain and suffering and Rs. 30,000/- towards loss of comfort. In this way, the Tribunal granted a sum of Rs. 4,65,300/- to the claimant against the appellant Insurance Company along with 8% interest per annum from the date of filing of the claim petition till the date of its realization. 8. I have considered the grounds taken up in the appeal and have perused the entire record. 9. In the absence of any document or income certificate, the Tribunal has rightly taken the notional income of the claimant @ Rs. 4500/- per month and has rightly adopted multiplier of ‘9' in view of Sarla Varma (supra). As regards the findings recorded by the Tribunal qua the contributory negligence of the claimant in the accident, no appeal has been filed by the claimant against such finding. Hence, finding on contributory negligence is hereby affirmed. Insofar as the compensation awarded to the claimant is concerned, this Court finds that the tribunal has committed mistake in calculating the amounts. As rightly held by the Tribunal, the notional income of the deceased is assessed as Rs. Hence, finding on contributory negligence is hereby affirmed. Insofar as the compensation awarded to the claimant is concerned, this Court finds that the tribunal has committed mistake in calculating the amounts. As rightly held by the Tribunal, the notional income of the deceased is assessed as Rs. 4500/- per month, meaning thereby, Rs. 54,000/- per annum. Applying the multiplier of ‘9' on the said amount, amount comes to Rs. 4,86,000/-. The claimant has suffered permanent disability to the extent of 45%, where after the amount comes to Rs. 2,18,700/-. Further, as the claimant is guilty of contributory negligence to the extent of 20%, hence, after deducting 20%, the annual loss of dependency would be assessed as Rs.1,74,960/-. In this way, the compensation and damages are re-assessed as under: S.No. Head Calculation (Amount in Rs.) 1. Loss of dependency 174960 2. Medical expenses 61000 3. Mental pain and suffering 100000 4. Transportation Charges 5000 5. Special diet 2000 6. Loss of comfort 30000 Total 372960 10. Compensation has been awarded by the tribunal alongwith 8% interest from the date of filing of the claim petition till the date of its realization. Findings recorded by the tribunal in grant of interest are not being upset. Therefore, the aforesaid compensation and damages as reassessed by this Court shall carry the interest @ 8% per annum as awarded by the trial court. 11. In view of the aforesaid discussion, the appeal is partly allowed. The claimant shall be entitled to get compensation @ Rs. 3,72,960/- from the appellant The Oriental Insurance Company Ltd. alongwith 8% interest per annum from the date of filing the claim petition till the date actual payment is made. 12. In the facts and circumstances of the case, parties shall bear their own costs. 13. Let the statutory amount along with the interest accrued on it, if any, be remitted to the Tribunal concerned. Lower court record be also sent back.