National Insurance Company Ltd vs Prem Pal & Anr

Sindhu Sharma, J

These appeals arise out of the common judgment and award dated 09.03.2009 passed by the learned Motor Accidents Claims Tribunal, Jammu in File No.278/Claim and File No.57/Claim on account of the injuries suffered to the claimants, Prem Pal & Manmeet Singh respectively.

Appellants have challenged the award on the ground, that the award has been passed without considering the facts of the case and it is against the principles of law, besides being excessive, the Tribunal while deciding Issue No.3 in favour of the appellant has fastened the liability on the appellant/Insurance Company to satisfy the award instead of directing respondent No.2/owner of the offending vehicle to do the same.

Claimant-Prem Pal was travelling on a motor cycle when he reached Sunjwan Morh, a Matador No.JK02E-3997 being driven in a rash and negligent manner hit his motor cycle, as a result of which, he fell down and became unconscious and thereafter he was taken to the hospital by some people. At the time of accident, the petitioner was working as Officiating Manager in the Bank and was treated in the hospital without any payment.

On the pleadings of the parties in both the claim petitions, the Tribunal had framed the following issues : -

(i) Whether an accident took place on 16.2.02 at Sunjwan More NHW Jammu due to rash and negligent driving of offending vehicle No. JK02E-3997 in the hands of erring driver in which petitioners Manmeet Singh and Prem Pal sustained grievous nature of injuries ? OPP

(ii) If issue No. 1 is proved in affirmative whether petitioners in each claim petition are entitled to the compensation; if so to what amount and from whom ? OPP

(iii) Whether driver of offending vehicle at the time of accident was not holding a valid and effective driving license ? OPR-2

(iv) Whether claim petition suffers from misjoinder and nonjoinder of necessary parties; if so which are necessary parties ? OPR-2

(v) Relief. O. P. Parties.

The Tribunal while considering Issue No.1 held that the accident occurred due to rash & negligent driving of the offending vehicle, as a result of which, the claimant-Prem Pal was injured. Thus, this issue was decided in favour of the appellant.

With regard to Issue Nos.2 & 5, it is stated that though some medicines were purchased, for which, he received Rs.10,000/-. He has produced Dr. Shiv Kumar as his witness, who was examined and stated that it is an old case of fracture both bones left forearm with fracture neck of left humerus with fracture lateral condyle of it. Tibia (already treated) with alleged history of RTA. The claimant is suffering from pain and stiffness of left shoulder with pain left forearm with pain and stiffness of left knee. Disability is to the extent of 25% only of the left upper and left lower limb and not to the whole of the body.

Accordingly, the claimant claimed Rs.1.00 lac for 'pain and sufferings' as he suffered 25% permanent disability. He also claimed Rs.1.00 lac for 'loss of amenities of life'. Keeping in view this fact that the Tribunal awarded a sum of Rs.50,000/- under the head 'pain & sufferings' and another Rs.50,000/- was awarded for 'loss of amenities in life'. Claimant also claimed Rs.20,000/- as 'travelling expenses' and Rs.15,000/- as 'special diet'. The Tribunal after considering the fact that the claimant was an Officer in the Bank and during period of hospitalization, he received full salary and also got reimbursement of medical bills for Rs.10,000/- from the Bank. The Tribunal while considering the statement of Pw-Dr. Shiv Kumar that this disability will not affect him in discharge of his duties and awarded a sum of Rs.20,000/- for 'transportation charges', Rs.20,000/- for 'special diet expenses', Rs.10,000/- for 'boarding and lodging' and Rs.20,000/- for 'attendant charges'. Thus, total compensation of Rs.1,70,000/- was awarded to the claimant-Prem Pal.

The Tribunal decided Issue No. 3 in favour of the appellant/Insurance Company since at the time of accident, the driver of the offending vehicle did not have a valid driving license which was renewed on 21.02.2002. The appellant is aggrieved of the fact that while deciding this issue, the liability could not be fastened on him and in fact, this liability should have been imposed on the owner of the vehicle in view of the fact that the driver of the offending vehicle was not holding a valid and effective driving license on the date of accident, as such, there was a breach of policy condition.

Per contra, Mr. Sandeep Singh, learned counsel for the claimant, submits that even if this is accepted that the appellant is exonerated of its liability to indemnify the owner, but it cannot be at the cost of inconvenience to the claimants and the claimants cannot be denied the compensation in any case. He further submits that the appellant/Company may be directed to pay compensation to him and recover the same from the owner of the vehicle.

In support of his contention, he relies upon '2012 (3) JKJ 557', 'National Insurance Company Ltd. vs. Mst. Azi & ors.', '2016 ILR (HP) 1828', 'United India Insurance Co. Ltd. vs Romesh Chander & ors.', and '2016 (4) JKJ 42', 'Oriental Insurance Company Ltd. Vs. Hem Raj & ors.'

Issue No.4 was not pressed by the appellant/Insurance Company.

Manmeet Singh-claimant also filed claim petition. The Tribunal awarded a sum of Rs.5,49,842/- as compensation, who was travelling in Minibus No. JK02E-3997 from Sainik Colony which was driven in rash and negligent manner hit a motorcycle coming from opposite side resulting in an accident. He received injuries on his left leg which has resulted in him becoming permanently disabled, he was rushed to the hospital for treatment. Respondent/claimant namely received injuries on arm and shoulder which resulted in fracture and he was shifted to Govt. Medical College, Jammu for treatment. He remained admitted there for four days and thereafter was referred to Amritsar where he was admitted to Dr. Ravi Paul's clinic on 19.02.2002 and was discharged on 06.03.2002.

Claimant-Manmeet Singh has stated that he was travelling by Matador towards Sunjwan which hit against a Motor Cycle coming from opposite direction causing accident, as a result of which claimant became unconscious and received injuries on his nose, head and leg. His left leg was fractured and operated on which he spent Rs.2.00 lac on treatment. Dr. V. K. Sharma, who has been produced, has stated that there was a compound communicated fracture in both bones of left leg with bone loss with extensive soft tissue and skin loss. He was operated a number of times in form of multiple debridement, external fixators follow by skin grafting and illizrous fixator with proximal and distal colostomy with bone transportation and bone grafting with nailing and full thickness skin graft. Patient was found to have permanent shortening of left lower limb, deformity of left ankle and left knee. His permanent disability was 60%, thus, he would be unable to run, walk swiftly or squat. Further in cross-examination, he has stated that the disability certificate has been issued as per guidelines regarding disability available with the department of Ortho GMC. After considering the evidence of PW-Prem Pal & Manmeet Singh and copy of the police challan, the Tribunal concluded that the accident had occurred due to rash and negligent driving of the offending vehicle which resulted in the injuries to the claimants and while considering injuries, it was established that the injuries were grievous in nature.

Considering the fact that at the time of accident, claimant was a Conductor, who was 27 years old and earning Rs.4,000/- per month and taking into consideration that he had suffered 60% disability, Tribunal had taken the income of the said claimant as Rs.3,500/- per month and considering his disability as well as age, Tribunal had awarded a sum of Rs.4,03,200/- for 'loss of future income', Rs.76642/- for 'Medical expenses', Rs.20,000/- for 'special diet expenses', and Rs.50,000/- for 'loss of amenities of life', therefore, the total compensation came at Rs.5,49,842/-.

Appellant has challenged the award on the ground that the Tribunal while deciding Issue No. 3 in favour of the appellant has directed it to satisfy the award instead of imposing liability on the owner of the vehicle, awarded the same.

Since the Tribunal has held that Issue No.3 in favour of respondents that the driver was not holding a valid and effective driving license on the date of accident, and as such, it was a breach of Policy condition. Thus, the insurer in this case is exonerated of its liability to indemnify the owner of the offending vehicle insured by the appellant to satisfy the award.

In view of the fact that the driver of the offending vehicle was not holding a valid and effective driving license and there was willful breach of policy condition, therefore, the appeal to this extent is partly allowed but the Insurer cannot be exonerated of his liability to satisfy the award at the first instance since the claimants are third party and it is also in the public interest. However, the Insurer can recover the same amount from the owner of the offending vehicle after satisfying the award of the Tribunal. The amount deposited in this Court may be released in favour of the claimants.