National Insurance Company Ltd vs Haroon Khan And Others

Impugned in this Appeal is Award dated 11.04.2016, passed by Motor Accident Claims Tribunal, Pulwama (for short "Tribunal") on a Claim petition bearing File no. 46/2003 titled Haroon Khan v. Mohd Maqbool Handroo and others, directing appellant Insurance Company to pay compensation in the amount of Rs. 2,83,600/- along with 6% interest per annum from the date of institution of claim till realization, on the grounds made mention of therein.

A claim petition, as is discernible from perusal of the file, was filed by respondents 1 to 3 before the Tribunal on 12.03.2005 averring therein that injured Haroon Khan S/o Mohd Ayoub Khan R/O Dadu, Marhama, aged 28 years, injured in an accident, which took place on Kaigam crossing situated on Jammu- Srinagar National Highway at 28.12.2004, due to rash and negligent driving of driver of offending vehicle, bearing Registration no. JK01E- 6526 (Tata Sumo) which was insured with appellant Insurance Company, Claimants/ Respondents 1 to 3 sought compensation to the tune of Rs.25.76 Lakhs.

Appellant Insurance Company resisted the claim before the Tribunal on the ground that driver of offending vehicle was not having proper and valid driving licence at the time of the accident.

The Tribunal, in view of pleadings of parties, framed Issues for determination, which are:

1) Whether on 28.12.2004 petitioner while waiting for a bus on foot path near kaigam crossing on National Highway was hit by the offending vehicle bearing registration No. JK01E- 6526 coming from Srinagar towards Khanabal and driven by respondent no. 1 rashly and negligently, as a result of which petitioner sustained multiple injuries and compound fracture to both bones of left leg and also to his right leg causing him permanent disablement. ? OPP

2) Whether the petitioner is entitled to compensation, if so, to what extent and from whom. ?...OPP

3) Whether the respondent No. 1 was not holding a valid and effective driving license at the time of accident, as such, the insurer respondent No. 3 is not liable to pay compensation. ? OPR-3

4) Relief. OP Parties.

Claimants produced and examined three witnesses before the Tribunal; besides claimants/respondent no.1. Appellant Insurance Company also produced one witness in support of its stand.

By impugned Award, the Tribunal found claimants/respondents entitled to receive compensation of Rs. 2,83,600/- along with 6% interest per annum.

Heard and considered.

Learned counsel for appellant Insurance Company has stated that the Tribunal erred in passing impugned Award for the reasons that the learned Tribunal has not returned finding on Issues Nos.1 and 2 in accordance with law. While dealing with the loss of income suffered by the respondent No. 1 the learned Tribunal has committed an error. Respondent No.1 in the claim petition disclosed his income per day as Rs.150/- and accordingly stated before the learned Tribunal. The witnesses examined by the respondent No.1 in support of his case also deposed that the respondent No.1 was earning Rs. 150/- per day. Contrary to this without any supporting material or evidence on record the learned Tribunal has taken the daily income of the respondent No.1 as Rs. 300/- and held him entitled to Rs.9000/- per month. Keeping in view the disablement of 10% suffered by respondent No.1, the monthly loss of income has been worked out to Rs.900/- which comes to Rs. 10,800/- per annum and in view of the age of claimant/respondent as 28 years, the multiplier of 17 has been applied thus determining the loss of income at Rs.1,83,600/-Besides this respondent No.1 has been awarded Rs.25,000/- on medical expenses, Rs.25,000/- for pain and suffering, Rs.15,000/- for future medical expenses, Rs. 15000/- for transportation charges and Rs.20,000/- for nutritious diet. Thus, making the total amount of award at Rs.2,83,600/- in favour of the respondent No.1.

Learned counsel for appellant Insurance Company has also submitted that the loss of income determined at Rs.1,83,600/- is erroneous and against the facts and evidence led by respondent No.1 inasmuch as he proved his income as Rs.150/- per day and there was no occasion for the Tribunal to hold daily income of respondent No.1 as Rs. 300/- The loss of income has been determined without any basis and against the own statement of the respondent No. 1. The finding on the loss of income is thus liable to be set aside.

Learned counsel for appellant has also contended that the case of respondent No.1 was purely a case of grievous injury and not the case of permanent disablement. He thus submits that Issue Nos.1 and 2 have not been decided in proper perspective. Therefore, finding on these Issues is liable to be set aside. The quantum of compensation, according to learned counsel, has been determined on wrong assumption and the award as such deserves to be set aside. It is also contended that the award impugned so far as the Issue Nos.1 and 2 are concerned, has been passed in a mechanical manner and without appreciating the evidence and law in proper perspective.

There is force in submission of learned counsel for appellant Insurance Company as perusal of record would unequivocally show that claimant/ respondent no.1 had projected and pleaded at paragraph 05 of claim petition before the Tribunal that he had monthly income of Rs.4500/-(i.e., Rs.150/- per day) at the time of accident. In such circumstances, the Tribunal has travelled beyond the pleadings before it and as a consequence thereof impugned Award to this extent is liable to be set-aside.

Monthly income of claimant/respondent no.1 is Rs.4500/- and the disability is 10%; thus the loss of earning capacity comes to Rs.450/- per month and as a result of which, the annual loss of income comes to Rs.5400/-, which shall be multiplied with multiplier of 17.

The total loss of income comes out to Rs.91,800/-.

Insofar as compensation on account of other heads, viz. Medical Expenses; Pain and Agony; Future Medical Expenses; Transportation Charges; Nutritious Diet, are concerned, the impugned Award need not be interfered with.

For the reasons discussed above, the Appeal on hand is partly allowed and impugned Award is modified as under:

Loss of income

: Rs.91,800.00

Medical Expenses

: Rs.25,000.00

Pain and Agony

: Rs.25,000.00

Future Medical Expenses

: Rs.15,000.00

Transportation Charges

: Rs.15,000.00

Nutritious Diet

: Rs.20,000.00

Total

:Rs.2,01,800.00

Claimant/respondent no.1 is held entitled to receive the compensation of Rs.2,01,800/- along with interest @ 6% per annum from the date of filing of claim petition till final realization.

Appellant Insurance Company is directed to pay to the claimants/ respondents 1 to 3 the compensation of Rs.2,01,800/- along with interest @ 6% per annum from the date of filing of claim petition till final realization. The amount, if any, received by claimant/respondent no.1 shall be deducted from the amount as awarded finally.

Disposed of in terms of above.

Record of the Tribunal, if summoned/received, be sent down along with copy of this judgement.