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2020 DIGILAW 559 (JK)

Mohammad Yousuf Khan v. Bilal Ahmad Khan

2020-10-27

VINOD CHATTERJI KOUL

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Judgment Vinod Chatterji Koul, J.—A claim petition under the provisions of Motor Vehicles Act, 1988, was filed by appellant on 7th June 2010, before Motor Accident Claims Tribunal, Anantnag (for short “Tribunal”) seeking grant of compensation of Rs.10.00 Lacs, on account of injuries that he sustained due to accident that took place on 5th April 2019 near Achabal Adda, Anantnag. Written statement was filed by respondents resisting appellant’s claim petition. 2. To decide claim petition of appellant, the Tribunal, vide order dated 3rd February 2014, framed following issues: 1. Whether on 05.04.2009, the petitioner was sitting on the right side of the road on Kacha portion when the offending vehicle bearing registration No.JK01B-4082 which was coming from Anantnag towards Achabal and on reaching Achabal Adda, Anantnag hit the petitioner who received multiple injuries and was shifted to District Hospital wherefrom he was referred to Bone and Joint Hospital, Srinagar where he remained admitted from 05.042009 to 22.04.2009 and was operated upon and incurred huge amount on his treatment and has been rendered disable due to the said accident? OPP 2. Whether the accident was caused due to the rash and negligent driving of the respondent No.1? OPP 3. Whether the petitioner is entitled to compensation, if so, from whom and to what extent? OPP 4. Whether the respondent No.1 was not having a valid and effective driving licence at the time of the accident? OPR-3 5. Relief? 3. Evidence was adduced by parties. Appellant produced three witnesses, besides himself. Respondent no.3 – insurance company, produced and examined two witnesses in support of its case. The Tribunal passed the Award on 31st October 2014; of which appellant is aggrieved and seeks setting-aside thereof on the grounds mentioned in appeal on hand. 4. Cross Appeal/Objections have also been filed by respondents 1&2. They aver, apart from factual submissions, that it nowhere appears that appellant has received any permanent injury or disablement inasmuch as injury being simple that also with no conclusive proof and with no requisite income certificate, driving licence, insurance cover of his vehicle and even the doctor, in his statement, refers appellant’s injury as partial one only. Respondent no.1 (driver of ill offending vehicle) is stated to have effective driving licence (Heady One) and was therefore competent to drive the medium vehicle. Respondent no.1 (driver of ill offending vehicle) is stated to have effective driving licence (Heady One) and was therefore competent to drive the medium vehicle. The record of concerned ARTO was not upto mark at the time of court inspection as the greater part of record has gutted and this Court in OWP no.612/2006, has passed an order, directing Commissioner, Transport, to renew the licences of writ petitioners including that of respondent no.1. 5. I have heard learned counsel for parties. I have gone through the Tribunal record. 6. Learned counsel for appellant has stated that appellant was a skilled labour and his monthly income was to be taken as Rs.10,000/- per month as he was a driver by profession, but the Tribunal has treated him as labour and taken his income as Rs.4500/-. According to learned counsel, the Tribunal applied multiplier of 11 when multiplier of 13 applies to petitioner inasmuch as appellant proved 45 years of age. He also avers that 20% disability of petitioner has caused due to accident, disabling him to drive any vehicle and, consequently, affecting his future income, but this aspect the Tribunal has not considered while passing impugned Award. Besides, the Tribunal has not granted proper compensation for pain and shock, immunities of life and medical expenses in accordance with the proved facts of the case. 7. On the other hand, learned counsel for respondent insurance company insists that impugned Award has been rightly passed by the Tribunal and there is no illegality in impugned order. 8. While going through the record of the Tribunal, it comes to fore that appellant proved his case on the basis of oral as well as documentary evidence to show that appellant got injured near Achabal Adda on 5th April 2009 due to rash and negligent driving of driver of offending vehicle and, therefore, Issue no.1 was decided in favour of appellant and against respondent. 9. The record would also divulge that it was due to rash and negligent driving of driver of offending vehicle that accident took place. Taking into account evidence and documentary proof on record, Issue no.2 was also decided in favour of appellant and against respondents. 10. Insofar as Issue no.3 is concerned, the Tribunal went through all facets of the matters. It discussed in depth and examined meticulously documentary proof and witnesses adduced by parties. Taking into account evidence and documentary proof on record, Issue no.2 was also decided in favour of appellant and against respondents. 10. Insofar as Issue no.3 is concerned, the Tribunal went through all facets of the matters. It discussed in depth and examined meticulously documentary proof and witnesses adduced by parties. The Doctor produced by petitioner, stated that petitioner suffered 20% disability, which was not permanent; even disability certificate issued by Medical Board was proved by the Doctor. It is also evident from the record, as is also coming forth from impugned Award, that appellant was examined by Medical Board on 5th June 2013 and Disability Certificate was issued, in which age of petitioner has been shown as 45 years. However, here, the Tribunal has, even after quoting pertinent passage of the judgement rendered by the Supreme Court in Sarla Verma and others v. Delhi Transport Corporation and another, (2009) 6 SCC 121 , vis-à-vis application of multiplier, has applied multiplier of 11 instead of 14 as is to be applied in terms of the said judgement. In that view of matter, there is substance in submission of appellant that multiplier of 11 has been wrongly applied by the Tribunal instead of applying the multiplier of 14, and to this extent instant Appeal is to be allowed. 11. Qua income of appellant, he did not produce any income certificate or any documentary proof to cement his case vis-à-vis income projected and claimed by him in his Claim Petition. The income of appellant taken as Rs.10,800/- by the Tribunal is correct and need not be interfered with. 12. Now there remains the Issue no.4. It relates to validity and effectiveness of driving licence at the time of accident. Driver of offending vehicle (respondent no.1), though having valid licence, was not having endorsement of PSV on the licence. Since offending vehicle was passenger vehicle, PSV endorsement was, therefore, necessary to be on the licence so as to authorize driver to drive offending vehicle. In such circumstances, Tribunal was right to hold that driver of offending vehicle was not having effective licence at the time of accident and resultantly Issue no.4 was decided in favour of respondent-insurer. As a consequence whereof, Cross Objections/Appeal fails and is, accordingly, dismissed. 13. In such circumstances, Tribunal was right to hold that driver of offending vehicle was not having effective licence at the time of accident and resultantly Issue no.4 was decided in favour of respondent-insurer. As a consequence whereof, Cross Objections/Appeal fails and is, accordingly, dismissed. 13. Insofar as relief granted by the Tribunal is concerned, taking into consideration above discussion, Appeal on hand (CMAM no.05/2014) is disposed of and impugned Award dated 30th October 2014 is set-aside to the extent of applying the multiplier of 11 instead of the multiplier of 14. Resultantly, the Award is modified and compensation on account of loss of income is assessed as under: Loss of income (10800x14) Rs.1,51,200.00 Pain and sufferings Rs. 40,000.00 Loss of amenities of life Rs. 40,000.00 Medical expenses and transportation Rs. 30,000.00 Total Rs. 2,61,200.00 14. Appellant – Mohammad Yousuf Khan, is entitled to compensation of Rs.2,61,200.00. National Insurance Company – respondent no.3 is directed to pay aforesaid amount of compensation to appellant within thirty days along with interest @ 6% per annum from the date of filing of claim petition till final realization of award amount, minus the interim relief and/or any payment/deposit, if any, made by respondent no.3. Right to recover is, however, available to respondent no.3. 15. The Tribunal record along with copy of this judgment be sent down.