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2020 DIGILAW 674 (ALL)

Ansar Ahmad v. Chandra Kesharwani

2020-03-03

KAUSHAL JAYENDRA THAKER

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JUDGMENT : Dr. Kaushal Jayendra Thaker, J. 1. Heard Counsels for the appellant and the Insurance Company. None appears for the owner. 2. By way of this appeal, the claimant has felt aggrieved by judgment of the Tribunal which dismissed the claim petition filed by the claimant for the accident which according to the claimant - appellant herein took place on 16/17.4.2003, when the claimant's son alongwith his other brother were sleeping in the open area near their home, at that time at about 3.50 a.m. in the early morning, a Marshal Jeep No. UP-73-3368 driven by Chandra Kesarwani dashed with the said couch and thereafter the vehicle dashed with a telephone pole. The driver and the vehicle were detained immediately. The claimant contended that his son namely Ansar Ahmad had fracture in his left leg and Javed Akhtar also had fracture in his lower limbs and the claimant took both his sons for treatment at Swarooprani Hospital and claimed a sum of Rs. 10,60,000/- with 9% interest. The defendant - owner as is culled out from the judgment and the written statement filed his reply accepting that the accident took place at 5.00 a.m. in the morning. It was he, who was the person, who was driving the vehicle. His vehicle was insured with United India Insurance Company and as the policy was in vogue, it would be the Insurance Company which would be liable. The Insurance Company filed its reply of denial. 3. The father had filed the claim petition as the injured was a minor namely Ansar Ahmad. The Insurance Company as usual filed its reply of negativity and even contended that the vehicle was not accepted to be insured with them despite the fact that documents were already produced namely the cover note, the driving licence and the policy, the F.I.R. was filed. P.W. 1 - Gulam Server, the claimant namely father of injured examined himself on oath. Saleem Javed 38 years of age was examined as P.W. 2. The Insurance Company did not examine anybody so as to prove its stand in the written statement. The claim petitions were unfortunately segregated and were listed before different Tribunals. The claimants also filed several documents which showed that the insured were hospitalized; that the injured had fracture and they were resultant out of the accident. The Tribunal framed about 5 issues and in issue Nos. The claim petitions were unfortunately segregated and were listed before different Tribunals. The claimants also filed several documents which showed that the insured were hospitalized; that the injured had fracture and they were resultant out of the accident. The Tribunal framed about 5 issues and in issue Nos. 1 and 2, it is held that Ansar Ahmad, who was a minor, was not examined, and so the Tribunal came to the conclusion that though the minor was taken to Swarooprani Hospital where he was hospitalized for about 14 - 15 days and Saleem Javed informed the police through Saleem Javed was examined as P.W. 2 has produced document 16-G/4. A charge sheet was also filed against said Sri Kesarwani. It is stated that the Tribunal came to the conclusion that the doctor, who treated the injured and the police authorities were not examined and that is why the Tribunal came to the conclusion and dismissed the claim petition and it is held that the insured was having injuries on both legs, whereas the medical certificate shows only injury on one of the lower limbs. The Tribunal decided issue No. 3 and held that the vehicle was insured with the Insurance company. As far as driving licence was concerned, the driving licence of Sri Chandra Kesarwani from 2000-18 was believed to be in vogue and decided issue Nos. 1, 2 and 5 against the appellant. 4. The Claims Tribunal has committed manifest illegality in rejecting the claim of the injured appellant on such frivolous ground as the non-attestation of the documents kept on record in evidence of the claim. The Claims Tribunal has wrongly and arbitrarily over looked the testimony of P.W. 1 and P.W. 2. 5. Recently, this High Court in F.A.F.O. No. 560 of 1995, Smt. Reshma Khatoon and another v. Noor Mohammad and others, of decisions where the Tribunal had dismissed claim petition on hyper technical grounds allowed the claim petitions. The Claims Tribunal has wrongly and arbitrarily over looked the testimony of P.W. 1 and P.W. 2. 5. Recently, this High Court in F.A.F.O. No. 560 of 1995, Smt. Reshma Khatoon and another v. Noor Mohammad and others, of decisions where the Tribunal had dismissed claim petition on hyper technical grounds allowed the claim petitions. While relying on the decisions of the Apex Court in Sunita and others v. Rajasthan State Road Transport Corporation and another; 2019 (135) ALR 279 (SC) : 2019 (199) AIC 155 Mangla Ram v. Oriental Insurance Company Limited and others 2018 (130) ALR 218 (SC) : 2018 (185) AIC 102 , and also a reliance is placed before this Court by the latest decision in the case of Vimla Devi and others v. National Insurance Company Limited and another, 2019 (133) ALR 768 (SC) : 2019 (196) AIC 155 which would be applicable in the facts of this case. Hence, the appeal requires to be allowed. Even on the fact that F.I.R. charge sheet was there, the rejection on the basis of the place where Vakalatnama of the Advocate is bad in eye of law. The testimony of Manoj Kumar Trivedi had to be taken in account. This High Court held that once the F.I.R. and the charge sheet go to show that accident had occurred, on a hyper technical stand that the minor children were not examined in the claim petition rejecting the claim, the answer is "NO". The inference drawn by the Tribunal is required to be interfered with. The testimony of respondent accepting that the vehicle was involved coupled with the fact that charge sheet was laid, the Tribunal could not have rejected the claim petition. 6. Having considered the facts and circumstances as long time has elapsed, this Court would decide the quantum also as held by the Apex Court as the record is before this Court and all that has to be done is to calculate the quantum on the principles of decisions of the Apex Court and this High Court relating to a minor, who had fracture of his one lower limb and the doctor has opined that he has 40% disability of the said limb. The injured was 12 years of old when the accident took place that is 17 years ago. His income can be considered to be Rs. 1,500/ per month. The injured was 12 years of old when the accident took place that is 17 years ago. His income can be considered to be Rs. 1,500/ per month. His functional disability can be considered to be 20% for the body as a whole. He was in hospital for one and a half month. In that view of the matter, the calculation can be made as below: The addition of 40% to his notional income will have to be done hence his income would be approximately Rs. 2,100/- hence his future loss of income would be 20% of Rs. 2,100/- which means Rs. 420/- x 12 x 18 is equal to Rs. 90,720/- to which Rs. 25,000/- + additional amount of Rs. 40,000/- under other heads hence the claimant would be entitled to Rs. 1,55,720/-. 7. In view of the above, the appeal is partly allowed. Judgment and decree passed by the Tribunal shall stand modified to the aforesaid extent. The amount be deposited with interest at the rate of 9% from the date of filing of the claim petition till the amount is deposited. The amount be deposited within a period of 12 weeks from today. 8. The record be sent back to the Tribunal.