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2019 DIGILAW 49 (JK)

New India Assurance Co. Ltd. v. Neelam Devi

2019-02-01

RAJESH BINDAL

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JUDGMENT : Rajesh Bindal, J. 1. Award of the Motor Accident Claims Tribunal, Kathua (hereinafter referred to as the Tribunal) dated 30th September, 2010 has been impugned in the present appeal filed by the Insurance Company. 2. Briefly the facts, as are available in the award of the Tribunal are that the respondent No. 1 suffered injuries in a vehicular accident, which had taken place on 04th November, 2006 while she was going to market to purchase milk. The Motorcycle bearing Registration No. PB35F-2876 being driven negligently by the respondent No. 2 caused the accident. The factum of accident was proved and even the disability suffered by the respondent No.1/claimant. In the evidence led by the claimant before the Tribunal, disability certificate showing that the respondent No. 1 was a case of RTA with fracture clavicle left side with nasal injury. She got stiffness of shoulder and pain on its movements. Keeping that disability and the fact that the claimant was working as Anganwari Worker in the Social Welfare Department and also doing the work of tailoring, the Tribunal assessed the compensation while assessing loss of income @ 18%. Multiplier of 12 was applied. Besides this, compensation was awarded on account of medical expenses, pain and sufferings and loss of amenities. Total sum of Rs. 2,41,000/- alongwith interest @ 7.5 per annum was awarded. 3. Award is sought to be impugned by the Insurance Company on two grounds, namely, that the direction issued by the Tribunal to firstly pay the amount to the claimant and then recover from the Insured was not called for, as the driver of the vehicle was not carrying a valid driving licence and further assessment of loss of earning capacity cannot be based on the percentage of disability. 4. On the other hand, learned counsel for the claimant submitted that settled position of law is that in case a vehicle is insured, the award has to be satisfied by the Insurance Company first with right to recover from the insured. The order passed by the Tribunal is strictly in terms thereof. It is further submitted that the claimant got injuries, as a result of which her shoulder movement was restricted. The order passed by the Tribunal is strictly in terms thereof. It is further submitted that the claimant got injuries, as a result of which her shoulder movement was restricted. Even if the disability was assessed at 18%, her functional disability may be even more, as in day to day life without proper movement of shoulder, she may not be able to perform her duties even as Anganwari Worker, what to talk of the tailoring work she was doing. Assessment of compensation does not call for any interference by this Court. 5. After hearing learned counsel for the parties, I do not find any merit in the present appeal. As held by Hon'ble the Supreme Court in Pappu & Ors. v. Vinod Kumar Lamba & Anr., AIR 2018 SC 592 , the direction issued by the Tribunal to the Insurance Company to firstly pay the amount to the claimant and then recover the same from the insured, cannot be faulted with. 6. As far as assessment of compensation is concerned, in the medical evidence produced on record by the claimant, her disability to the extent of 18% has been proved. The injury suffered by the claimant was proved by the doctor, who appeared as witness. She stated that it was a case of RTA with fracture clavicle left side with nasal injury. Restriction in a shoulder movement for any person, who may be working as Anganwari Worker and as a Tailor will certainly reduce functional ability as well. Hence, assessment of loss of income to the extent of 18% cannot be said to be a higher side. Her monthly income was merely taken at Rs. 4,000/- in the year 2006. 7. The award of the Tribunal does not call for any interference by this Court. Hence, the appeal is dismissed. 8. Let the amount of compensation, which has been kept in a fixed deposit in terms of order passed by this Court on 21.02.2011 be now paid to the respondent No. 1 by way of a demand draft, including the interest earned thereon.