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2020 DIGILAW 429 (JK)

Oriental Insurance Company Ltd. v. Pardeep Kumar

2020-08-24

SANJEEV KUMAR

body2020
JUDGMENT : SANJEEV KUMAR, J. 1. Oriental Insurance Company Ltd. (hereinafter referred to as the ‘insurer’) is in appeal against the award dated 07.11.2015 passed by the Motor Accident Claims Tribunal, Jammu (hereinafter referred to as the ‘Tribunal’) in file No. 549/2011 titled Surinder Kumar and Another vs. Jasbir Kour and Others whereby and where-under respondent Nos. 1 and 2 (hereinafter referred to as the ‘claimants’) have been held entitled to a compensation of Rs. 18,98,113/- along with pendente lite and future interest at the rate of 7.5% per annum. 2. Briefly stated the facts leading to the filing of this appeal are that on 07.08.2010, one Bimla Devi alias Bimla (hereinafter referred to as the ‘deceased’) along with her husband Surinder Kumar was travelling in a Bus bearing Registration No. JK-02N-3743 (hereinafter referred to as the ‘offending vehicle’) driven by respondent No. 4 herein and owned by respondent No. 3 herein. The offending vehicle met with an accident, as a result whereof, the deceased received multiple injuries to which she later succumbed. The husband of the deceased along with his minor son filed a claim petition seeking a compensation of Rs. 25.00 lac from the owner, the driver and the insurer. The claim petition was contested by the owner and the insurer only, whereas the driver was proceeded ex-parte. 3. On the basis of the pleadings of the contesting parties, the Tribunal framed the following issues: (i) Whether an accident occurred on 07.08.2010 near Peer Baba Morh on way to Ram Nagar Nagrota by rash and negligent driving of offending Vehicle No. JK-02N-3743 by its driver, respondent No. 2 as a result of which deceased Bimla Devi received fatal injuries and petitioner Surinder Kumar received grievous injuries? OPP (ii) If issue No. 1 is proved in affirmative whether petitioners are entitled to compensation, if so to what amount and from whom? OPP (iii) Whether driver of offending vehicle at the time of accident was not holding valid and effective driving licence and whether there was violation of terms and conditions of policy of insurance? If so to what effect? OPR-3 (iv) Relief? 4. On the basis of evidence on record, the Tribunal held issue No. 1 proved in favour of the claimants. If so to what effect? OPR-3 (iv) Relief? 4. On the basis of evidence on record, the Tribunal held issue No. 1 proved in favour of the claimants. It was held that the accident, in which the deceased received fatal injuries was as a result of rash and negligent driving of the offending vehicle by its driver. 5. With regard to issue No. 3, the onus whereof was on the insurer, the Tribunal concluded that the insurer had failed to prove that the driver of the offending vehicle was not holding a valid and effective driving licence to drive it or that the offending vehicle was not having any route permit at the time of accident. Accordingly, the Tribunal, applying the well known principles laid down by the Hon’ble Supreme Court, determined the compensation payable to the claimants on account of death of the deceased in the motor vehicle accident in question. 6. The insurer is dissatisfied and has challenged the impugned award, inter alia, on the following grounds: (i) That the driving licence of the driver of the offending vehicle was not carrying PSV endorsement as required under Rule 4(1)(a) of the J&K Motor Vehicles Rules and, therefore, the driver was not authorized to drive the passenger vehicle. (ii) That the Tribunal has not appreciated that the offending vehicle, at the time of accident, had no route permit to ply on the road where the accident occurred and, therefore, the insurer was absolved of its liability to indemnify the insured and pay compensation to the claimants. (iii) That the insurer was not given adequate opportunities to lead its evidence to discharge the burden of proof of issue No. 3. (iv) That the Tribunal, while awarding compensation on account of medical expenditure, had failed to take into account the duplicity of the bill amount, in that, the amount received by the Hospital concerned as an advance amount was taken into consideration twice. 7. Per contra, Mr. S.P. Bakshi, learned counsel, appearing for the claimants, would submit that the Tribunal, on the basis of evidence on record, has rightly concluded that the insurer had failed to prove that the driver of the offending vehicle, at the time of accident, was not holding a valid and effective driving licence or that there was no route permit of the offending vehicle. He invites reference to the discussion made by the Tribunal in paragraph No. 31 of the impugned award. He further urges that there is no duplicity in the bill amount and it is the final bill amount that has been taken into consideration by the Tribunal. 8. Heard learned counsel for the parties and perused the record. 9. There is no challenge to the findings of the Tribunal on issue No. 1. The insurer, however, assails the findings of the Tribunal on issue No. 3 primarily on the ground that it was not afforded an ample opportunity to lead its evidence and to discharge the onus of the said issue. 10. The contention of learned counsel for the insurer that it was not afforded an adequate opportunity to discharge the burden of issue No. 3 is not supported by the record. The insurer has produced RW-1 Joginder Lal, an official of ARTO office Udhampur, RW-2 Hussain Ahmed Bhat, an official of the State Transport Jammu and RW-3 Jasbir Kour, the owner of the offending vehicle as its witnesses to discharge the burden of issue No. 3. It is, however, a different matter that the aforesaid witnesses could not prove that the driver of the offending vehicle was not holding a valid and effective driving licence or that the offending vehicle was not having a valid route permit. 11. As is noticed by the Tribunal in paragraph No. 31 of the impugned award, a copy of the judgment dated 17.12.2012 passed by this Court which has been placed on record shows that the order dated 18.05.2005 of the Transport Commissioner, J&K whereby the Stage Carriage Route Permit of the offending vehicle was suspended, was set aside. It, thus, clearly shows that it is not the case that the offending vehicle did not have the permit to be used as a transport vehicle. Whether or not, the permit granted to the offending vehicle was in force or pending renewal would not make any substantial difference, once it is shown that the offending vehicle had been issued the requisite permit by the competent authority. Otherwise also, the witnesses produced by the insurer have not been able to show convincingly that, on the date of accident, the route permit of the offending vehicle had expired. Otherwise also, the witnesses produced by the insurer have not been able to show convincingly that, on the date of accident, the route permit of the offending vehicle had expired. To the similar effect is the evidence of the insurer with regard to the driving licence of the driver of the offending vehicle. The findings of fact returned by the Tribunal on issue No. 3 are based on the evidence on record and, therefore, do not call for any interference by this Court. 12. I am in agreement with the Tribunal that the evidence led by the insurer was not sufficient to discharge the burden of proof of issue No. 3. 13. Regarding the grievance of the insurer with regard to the quantum of compensation, particularly the amount paid on account of medical expenditure, I find duplicity in the medical bills. 14. From the scrutiny of medical bills placed on record before the Tribunal, it is found that the Tribunal, while awarding the medical expenses, has committed an error in calculating certain amounts twice. The Tribunal while calculating the medical expenses, also took into consideration the advance payments without adjusting them in the final medical bill. As far as the bills regarding the purchase of medicines is concerned, I find that the amount incurred on them has been paid separately. On that count, the Tribunal has rightly included the amount incurred on the medicines in the medical expenses. In that view of the matter, the Tribunal has incorrectly awarded a sum of Rs. 10,24,110/- under the head of medical expenses, whereas the actual amount incurred was Rs. 634,246/- (Rs. 10,24,110 - Rs. 3,89,864 = 6,34,246). 15. I am also in agreement with the learned counsel for the insurer that the sums awarded by the Tribunal under the conventional heads are not in consonance with the law and, therefore, are also required to be modified. Accordingly, the award is modified to the following extent: Loss of dependency Rs. 7,44,003/- (maintained) Funeral expenses Rs. 15,000/- (instead of Rs. 25,000/- awarded by the Tribunal) Loss of estate Rs. 15,000/- (instead of Rs. 5,000/- awarded by the Tribunal) Loss of consortium to the claimants @ 40,000/- each Rs. 80,000/- Medical expenditure Rs. 6,34,246/- Total Rs. 14,88,249/- 16. Other terms and conditions of the impugned award including the grant of interest shall, however, remain unchanged. This appeal is, accordingly, disposed of to the aforesaid extent. 15,000/- (instead of Rs. 5,000/- awarded by the Tribunal) Loss of consortium to the claimants @ 40,000/- each Rs. 80,000/- Medical expenditure Rs. 6,34,246/- Total Rs. 14,88,249/- 16. Other terms and conditions of the impugned award including the grant of interest shall, however, remain unchanged. This appeal is, accordingly, disposed of to the aforesaid extent. 17. Registry shall release the amount in favour of the claimants in terms of the modified award after proper identification and excess amount be refunded back to the insurer.