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2020 DIGILAW 418 (JK)

National Insurance Co. Ltd v. Bodh Raj Sharma

2020-08-21

SANJEEV KUMAR

body2020
JUDGMENT MA No.50/2014 National Insurance Company Ltd., (hereinafter referred to as the ‘insurer’) is in appeal against the award dated 25.10.2013 passed by the Motor Accident Claims Tribunal, Jammu (hereinafter referred to as the ‘Tribunal’) in file No. 48/2005 titled ‘Bodh Raj Sharma vs. Dharminder Kumar and others, whereby respondent No.1 (hereinafter referred to as the ‘claimant’) has been held entitled to a compensation of Rs.50,000/- for the injuries and disablement suffered by the claimant in the motor vehicle accident involving the vehicle i.e Indica Car No. HR37-AT-8882 (hereinafter referred to as the ‘offending vehicle’) driven by respondent No.2 rashly and negligently. 2. The impugned award has been assailed by the insurer primarily on the two grounds: (i) That the driver of the offending vehicle was not holding a valid and effective driving licence authorizing him to drive the passenger carrying commercial vehicle/tourist taxi car, though he was holding a licence for driving motor cycle and light motor vehicle, and; (ii) That the offending vehicle was being driven without requisite permit. 3. With a view to appreciate the grounds of challenge urged in the memo of appeal, it is necessary to set out issue No.3 framed by the Tribunal which alone is at the core controversy raised in this appeal. Issue No.3: Whether driver of offending vehicle was not holding valid and effective driving licence at the time of accident whether there violation of terms and conditions of policy of insurance ? If so, to what effect ? OPR-3 4. The Tribunal found the issue No.3 aforesaid not proved by the insurer. It is noted that, with a view to discharge the burden of proof of issue No.3, the insurer examined PW Dharminder Kumar, the driver of the offending vehicle, but could not substantiate the plea that he was not holding a valid driving licence or that the offending vehicle was not having valid route permit. As a matter of fact, as is apparent from the reading of objections filed by the insurer before the Tribunal, the insurer had not taken a specific objection in this regard and had generally contended that the vehicle was being driven by the driver who was not holding a valid driving licence and that the same was not having a valid route permit and fitness certificate etc. Issue No.3 has not been convincingly proved by the insurer. 5. Issue No.3 has not been convincingly proved by the insurer. 5. In view of lack of evidence on issue No.3, I am not inclined to take a view contrary to the one already taken by the Tribunal on issue No.3. There is no merit and substance in the appeal and the same, therefore, deserves to be dismissed. Ordered accordingly. 6. So far as the appeal (MA 507/2013) filed by the claimant for enhancement of compensation is concerned, it is seen that the claimant was a class-IV employee serving in the Jammu Rural Bank and had suffered 15% permanent disablement of right elbow and shoulder and, because of this disablement, there was apparently no loss of earning capacity. This aspect has been correctly appreciated by the Tribunal. It is further noticed that the claimant had remained hospitalized for fifteen days because of the injuries suffered by him in the accident and had suffered acute pain and agony because of the injuries. The Tribunal has awarded only Rs.10,000/- on account of pain and suffering which, by no means, is commensurate to the injuries suffered by the claimant in the accident. 7. Keeping in view the facts and circumstances of the case and the evidence on record, particularly the nature of injuries suffered by the claimant and the period of his hospitalization, I am of the view that the following amount, if awarded, would meet the ends of justice. Disability damages Rs.30,000/-(maintained) Loss of amenities Rs.20,000/-(instead of Rs.10,000/- awarded by the Tribunal Pain and suffering Rs.30,000/-(instead of Rs.10,000/- awarded by the Tribunal Total Rs.80,000/- 8. The award passed by the Tribunal stands modified to the aforesaid extent and the appeal disposed of accordingly. There shall, however, be no change with regard to the interest awarded by the Tribunal. The insurer to deposit the balance amount in the Registry of this Court. The amount on its receipt shall be released by the Registry in favour of the claimant. Other terms and conditions of the impugned award shall remain, however, unaltered. 9. Disposed of accordingly.