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2020 DIGILAW 303 (JK)

National Insurance Company Limited v. Bholi Begum

2020-07-10

SANJEEV KUMAR

body2020
JUDGMENT The National Insurance Company Limited (hereinafter referred to as „the appellant ) is in appeal against the judgment and award dated 30th January, 2017 passed by the Motor Accident Claims Tribunal, Jammu ( for brevity “the Tribunal”) in file No.301/C, whereby the claim petition filed by respondent No.1 (hereinafter referred to as „the claimant ) has been allowed and the appellant has been directed to pay an amount of Rs. 6,58,801/- along with interest @ 7.5%per annum to the claimant. 2. Before adverting to the grounds of challenge urged in the memo of appeal, it would be necessary to take note of few facts, which are relevant for the disposal of this appeal. On 21.04.2012 at about 6.15 a.m., a motor vehicular accident involving vehicle No. PB-35H-3559 (Tata Indico Car), driven rashly and negligently by respondent No.3, took place at Smailpur Chowk, Bari Brahmana within the jurisdiction of Police Station, Bari Brahmana in which respondent No.1, who was standing on the roadside, was hit and grievously injured. A claim petition was filed by respondent No.1 against the appellant and respondent Nos. 2 and 3 claiming a compensation of Rs. 35,00,000/-. On being put on notice, the appellant filed its objections and contested the claim petition through its counsel Mr. Rajesh Kumar, Advocate, whereas Mr.P.S. Chandel, Advocate entered appearance on behalf of the owner and driver. On the basis of the pleadings of the parties, the Tribunal framed the following issues:- “1. Whether the petitioner had sustained grievous injuries on 21.04.2012 in the accident took place at Smailpur Chowk due to negligence driving of vehicle No.PB- 35H-3559 at the hands of erring driver respondent No.2? OPP 2. In Case issue No.1 is proved in affirmative whether petitioner is entitled to compensation; if so, to what amount and from whom? OPP 3. Whether the present petition is not maintainable for want of registration of criminal case against driver of offending vehicle? If so, what is its impact? OPR-3 4. Relief. O.P. Parties.’ As is apparent from the framed issues, the onus to prove the issues was put on the claimant insofar as issue Nos.1 and 2 are concerned, whereas onus of proof of issue No.3 was placed on the appellant. With a view to discharge the burden of proof, the claimant besides, herself entering the witness box also examined eye witnesses, namely, Mohd. Mehboob-ul-Ann (PW-2), Mohd. With a view to discharge the burden of proof, the claimant besides, herself entering the witness box also examined eye witnesses, namely, Mohd. Mehboob-ul-Ann (PW-2), Mohd. Rafiq (PW-3) and also examined Dr. Rajesh Gupta (PW-4), an Orthopedic Surgeon. Bahadur Singh (PW-5), Sr. Pharmacist in the office of CMO, Jammu was also produced by claimant to prove the disability certificate. The appellant or respondent Nos. 2 and 3 chose not to lead any evidence in rebuttal. 3. On the basis of the evidence led by the claimant, the Tribunal held issue Nos. 1 and 2 proved in favour of the claimant and against the appellant. Issue No.3 was decided against the appellant. The Tribunal after analyzing the evidence led by the claimant in the light of various precedents of this Court and other High Courts came to the conclusion that in the given facts and circumstances, the non-registration of the FIR with respect to the motor vehicular accident was in no way fatal and the factum of accident could well be proved by leading oral evidence. The Tribunal also took note of the explanation tendered by the claimant for not getting the FIR of the accident registered. 4. The Tribunal after returning the issue-wise findings allowed the claim petition and awarded the above noted sum by way of compensation to the claimant. The appellant is aggrieved and assails the award primarily on the following grounds:- i) The claim petition was not maintainable as, admittedly, there was no FIR registered with the concerned police station with regard to the incident/accident. ii) The claimant having failed to prove that the injuries were caused due to the use of offending vehicle insured with the appellant, the Tribunal could not have held the appellant liable to indemnify the owner/insured. iii) The amount of compensation awarded is exorbitant and is not in consonance with the legal parameters laid down by the Supreme Court in various judgments rendered from time to time. 5. In consonance with the legal parameters laid down by the Supreme Court in various judgments rendered from time to time. Mr. C.S.Gupta, learned counsel appearing for the appellant, vehemently argues that on the grounds urged in the memo of appeal and reiterated during the course of oral hearing, the appellant is not liable to indemnify the insured and pay compensation to the claimant. Mr. C.S.Gupta, learned counsel appearing for the appellant, vehemently argues that on the grounds urged in the memo of appeal and reiterated during the course of oral hearing, the appellant is not liable to indemnify the insured and pay compensation to the claimant. He laid more stress on his ground relating to the quantum of compensation awarded by the Tribunal. 6. On the other hand, Mr. Amrit Sarin, learned counsel representing the claimant, while supporting the impugned award submits that the compensation awarded is fair and just and, therefore, does not call for any interference by this Court in appeal. 7. Having heard learned counsel for the parties and perused the record, I am of the view that the plea of the appellant that in the absence of FIR having been lodged with regard to the motor vehicular accident, the appellant cannot be held liable to indemnify the inured and make payment of compensation to the claimant, is, in the facts and circumstances of the case, not tenable. 8. The Tribunal has rightly taken into consideration the circumstances, which led to the delay in approaching the police for registration of FIR and the refusal of the police to register the FIR on account of delay. It has come on record that since the claimant had been seriously injured in the accident, as such, the first immediate step that was required to be taken was to shift her to the hospital and it was done so. In view of the seriousness of the injuries suffered, the claimant was shifted to Amritsar for specialized treatment, where she was operated and discharged on 06th May, 2012. Thereafter, she went to the police to lodge the FIR but the same was refused by the police on the plea that there was considerable delay in lodging the FIR. In my humble opinion, the claimant has tendered a reasonable explanation as to why the FIR with respect to the accident was not registered. 9. That apart, from the statement of eye witnesses like PW-2 and PW-3 it has been amply established that the claimant suffered injuries in the accident involving the offending vehicle driven at the relevant point of time by respondent No.3 and owned by respondent No.2. The vehicle was also found insured with the appellant and, therefore, liability to indemnify the insured and pay compensation to the claimant was rightly fastened on the appellant. The vehicle was also found insured with the appellant and, therefore, liability to indemnify the insured and pay compensation to the claimant was rightly fastened on the appellant. The findings of fact returned and the view taken by the Tribunal is unexceptionable and, therefore, does not call for any interference. 10. Regarding quantum, it may be noted that the Tribunal on the basis of oral testimony of PW1 and PW3 has taken the notional income of the claimant as Rs. 10,000/- per month. Other than the oral testimony of the witnesses, claiming that the claimant was a housewife and also working as tailor there is nothing brought on record to substantiate the income being earned by the claimant. It has not come in the evidence as to whether she was working only as a part time tailor and simultaneously looking after the house hold chores or that she was a full time tailor. Nothing of the sort has come on record. In such a situation, I am of the view that the income of the claimant as Rs. 10,000/- per month, as has been taken by the Tribunal, is excessive and without any evidence. The Tribunal has been exceedingly generous in taking the monthly income of the claimant. 11. Given the oral evidence on record unsupported by any documentary evidence, it would be safe to take the income of the claimant as Rs. 5,000/- per month. As per the statement of Dr. Rajesh Gupta, the claimant has suffered permanent physical disability of 23% of both lower limbs due to central dislocation (Lt), hip compound fracture to tibia bone (Lt), compound fracture to both tibia bones. The doctor has, however, opined that the claimant because of the injuries and the disablement, would have difficulty in sitting, squatting, running and for performing the working of sewing etc. The Tribunal seeking guidance from Schedule-1 of the Employees Compensation Act, 1923 has taken the loss of earning capacity as 20.7%. 12. In the given facts and circumstances of the case and having regard to the evidence particularly, the testimony of the doctor, I do not find any infirmity or error in taking the loss of earning capacity of the claimant at 20.7%, rounded off to 20%. Reference in this regard is invited to the judgment of the Supreme Court in the case of Raj Kumar v. Ajay Kumar and others, 2011 ACJ 1 . Reference in this regard is invited to the judgment of the Supreme Court in the case of Raj Kumar v. Ajay Kumar and others, 2011 ACJ 1 . 13. The claimant, at the time of accident, was 42 years of age and, therefore, as per the judgment of Supreme Court rendered in the case of Sarla Verma and othes v. Delhi Transport Corp. and another, (2009) 6 SCC 121 , the multiplier of 14 is applicable and the same is correctly applied by the Tribunal. The Tribunal has erroneously added 30% to the established income of the claimant towards loss of future prospects, whereas as per the judgment of the Supreme Court rendered in the case of National Insurance Company Limited v. Pranay Sethi and others, (2017) 16 SCC 680 , where the injured/deceased, who is self employed and falls in the age group of 40 to 50 years, addition of 25% is prescribed. With regard to rest of the award, I find no reason to differ with the view taken by the Tribunal. Accordingly, taking the income of the claimant as Rs.5000/- per month, adding 25% towards loss of future prospects, total monthly income comes to Rs. 6250/-. Taking the functional disability of the claimant as 20%, the total monthly loss of income comes to ¹ 1250/-. Accordingly, the total annual loss of income would come to Rs. 15,000/-. Adopting the multiplier of 14, the total loss of income comes to Rs. 2,10,000/- 14. For the foregoing reasons and the discussion made above, the claimant is held entitled to following sums as compensation:- Loss of future income Rs. 2,10,000.00 Fare of vehicle Rs. 20,000.00 Expenditure of attendants Rs. 16,000.00 Pain and sufferings Rs. 50,000.00 Loss of amenities and pleasure Rs. 50,000.00 Expenses on medicines Rs. 1,20,713.00 Special diet Rs. 5,000.00 Total Rs. 4,71,713.00 There shall, however, be no change insofar as interest awarded by the Tribunal and other terms and conditions imposed by the Tribunal are concerned. 16. The appeal is partly allowed and the award of the Tribunal is modified to the aforesaid extent. The amount, if deposited, shall be released in favour of the claimant in terms of the modified award after proper identification and verification. Excess amount, if any, shall be refunded to the appellant.