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2020 DIGILAW 259 (JK)

National Insurance Co. Ltd. v. Abhijeet Khajuria

2020-06-23

SANJEEV KUMAR

body2020
JUDGMENT National Insurance Company Limited ( hereinafter for short „the Insurer ) is in appeal against the award dated 31.05.2010 passed by the Motor Accidents Claims Tribunal, Jammu (hereinafter “the Tribunal” for short) passed in Claim Petition No. 543/claim titled Abhijeet Khajuria vs. Onkar Sharma and others, whereby the Tribunal has held Abhijeet Khajuria ( for short „the claimant hereafter), entitled to a sum of ¹ 4,15,600/- by way of compensation along with interest at the rate of 7.5% per annum as compensation to be paid by the Insurer. 2. Before proceeding to consider the grounds of challenge urged in this appeal, it would be worthwhile to give few background facts. 3. On 16.09.2006 at about 7 a.m, the claimant while driving his Motor Cycle bearing registration No. JK02T-4791, was hit by Matador bearing No. JK02S-9331 ( hereinafter „the offending vehicle for short) which was being driven by respondent No.2 in a rash and negligent manner. The claimant sustained multiple injuries all over his body and was immediately shifted to Government Medical College Hospital, Jammu. He remained under treatment in GMC Hospital for some time and thereafter was shifted to Hardas Hospital, Amritsar where he remained under treatment for 20/25 days and his leg was operated upon. Having been injured in the accident on account of rash and negligent driving of respondent No.2 and having suffered mental as well as monitory loss, the claimant filed the claim petition under Section 166 of the Motor Vehicle3s Act, 1988 before the Tribunal, claiming compensation for the loss sustained due to the accident. The claim petition was contested only by the Insurer whereas the driver and the owner of the offending vehicle were proceeded ex-parte. 4. On the basis of the pleadings of the contesting parties, the Tribunal framed the following issues:- 1. Whether an accident occurred on 16.09.2006 at Ambphalla due to rash and negligent driving of the offending vehicle No. JK02S 9331 in the hands of its driver in which petitioner Abhijeet Khajuria sustained grievous injuries.? OPP 2. If issue No.1 is proved in affirmative whether petitioner is entitled to the compensation, if so, to what extent and from whom? OPP 3. Whether at the time of accident driver of offending vehicle was not holding valid and effective driving license and drove the vehicle in violation of terms and conditions of insurance policy, and route permit etc.? OPR-3 4. Relief. 5. OPP 3. Whether at the time of accident driver of offending vehicle was not holding valid and effective driving license and drove the vehicle in violation of terms and conditions of insurance policy, and route permit etc.? OPR-3 4. Relief. 5. With a view to discharge the burden of proof of issue Nos. 1, 2 and 4, the claimant, besides entering into the witness box himself, also examined two witnesses, namely, Prem Kuar and Vinay Dhar. The Insurer chose not to lead any evidence in rebuttal nor it produced any evidence to discharge the onus of proving issue No.3. 6. On the conspectus of evidence on record, the Tribunal found all the issues i.e. issue Nos. 1,2 and 4 proved in favour of the claimant and issue No. 3 proved against the Insurer. Taking note of the permanent disablement suffered by the claimant and the medical expenses incurred, the Tribunal awarded sum of Rs. 4,15,600/- in favour of the claimant with the following break-up: 1. For loss of future income Rs. 75,600/- 2. For pain and sufferings Rs. 75,000/- 3. For loss of amenities of life Rs. 75,000/- 4. For medical expenses Rs. 1,90,000/- 7. The amount of compensation was directed to be paid along with interest at the rate of 7.5% per annum from the date of filing of the claim petition till its liquidation, except on future loss of income. Since the offending vehicle was insured with the Insurer, as such, the Insurer was directed to indemnify the owner by satisfying the award. 8. The impugned award is assailed by the Insurer, inter alia, on the following grounds:- a. That the Tribunal has failed to appreciate that the claimant was driving the Motor Cycle with two pillion riders and was himself negligent and contributed to a large extent to the accident. b. That the Tribunal did not afford adequate opportunity to the Insurer-appellant to lead its evidence and prove that the driver of the offending vehicle was not holding a valid and effective driving license. c. That the amount of compensation granted by the Tribunal on account of medical expenses is excessive and on higher side, more so, when the claimant had failed to prove the bills by leading any evidence. 9. Having considered the submissions of Mr. c. That the amount of compensation granted by the Tribunal on account of medical expenses is excessive and on higher side, more so, when the claimant had failed to prove the bills by leading any evidence. 9. Having considered the submissions of Mr. Baldev Singh, learned counsel for the appellant- Insurer and perused the record, I am of the view that the impugned award represents a fair and just compensation and, therefore, does not call for any variation or modification by this Court. As rightly observed by the Tribunal, the Insurer did not lead any evidence to discharge the onus of proof to prove issue No.3. In the absence of any evidence led by the Insurer, the Tribunal has correctly decided issue No.3 ad has held that the driver of the offending vehicle was possessed of a valid and effective driving license, authorizing him to drive the offending vehicle. 10. The plea of the Insurer, that since the claimant was carrying two pillion riders on his Motor Cycle, as such, was acting in violation of the provisions of the Motor Vehicles Act, 1988 and the rules framed thereunder, therefore, the Tribunal should have presumed contributory negligence on the part of the claimant, is devoid of any merit. Simply, because a person is driving his vehicle in violation of the Motor Vehicles Act, 1988 and the rules framed thereunder does not give license to other vehicle on road to kill or injure the driver or a pillion rider of such vehicle. The Insurer has not, by any evidence, demonstrated that the claimant was in any manner contributory to the accident that was caused due to rash and negligent driving of the offending vehicle. 11. So far as the quantum of compensation is concerned, the learned counsel for the Insurer fairly conceded that the compensation on the first three heads has been granted by the Tribunal fairly but joins issue insofar as compensation of Rs. 1,90,000/- on account of medical expenses is concerned. The plea of the Insurer is that in the absence of any evidence to prove the medical bills, the Tribunal should not have accepted the bill amount as a gospel truth and awarded the sum. 12. I am not impressed by the argument either. 1,90,000/- on account of medical expenses is concerned. The plea of the Insurer is that in the absence of any evidence to prove the medical bills, the Tribunal should not have accepted the bill amount as a gospel truth and awarded the sum. 12. I am not impressed by the argument either. The Insurer in its objections has not denied the bills nor does it deny that the claimant had suffered multiple injuries all over his body in the accident and had remained admitted both in GMC Hospital Jammu and Hardas Hospital, Amritsar for almost a month. Given the nature of injuries and the disablement suffered and in the light of evidence on record, it is most reasonable to award a sum of Rs. 1,90,000/- on account of medical expenses. I find no illegality or infirmity in the awarding of the aforesaid sum in favour of the claimant. 13. For the foregoing reasons, I find no reason to interfere with the award of the Tribunal. The appeal fails and the same is, accordingly, dismissed. Registry to release the award amount in favour of the claimant, if deposited, after proper identification of the claimant.