OIC Ltd vs Hukum Chand & Ors

Sushil Kukreja, J

The present appeal is maintained by the appellant/Insurance Company, against the award passed by learned Motor Accidents Claims Tribunal-I, Mandi, District Mandi, H.P. (hereinafter referred to as "the learned Tribunal below") in Claim Petition No. 47 of 2011, decided on 28.02.2013, whereby, the petition filed by the petitioner was allowed and he was held entitled for compensation of Rs. 96,065/- alongwith interest @ 7.5% per annum from the date of filing the petition till realization of the entire compensation amount to be paid by respondents No. 1 & 2 jointly and severally. However, respondent No. 3, being insurer, was directed to indemnify the award.

The brief facts of the case are that on 31.05.2004, at about 6:45 P.M., when petitioner Hukum Chand was going to attend a function at Gohar on his Scooter bearing registration No. HP-33-6718 and reached at Petrol Pump near Dadour, a vehicle bearing registration No. HP-58-1871, being driven by respondent No. 2 in a rash and negligent manner, hit the Scooter of the petitioner. Resultantly, the petitioner fell down and sustained injuries and damage was also caused to his Scooter. After the said accident, the petitioner was firstly taken to Zonal Hospital Mandi, where he remained admitted till 01.06.2004 and thereafter, he was referred to IGMC, Shimla, where he remained admitted as indoor patient till 04.06.2004. According to the petitioner, he spent more than Rs. 50,000/-on account of his treatment and travelling expenses. In addition to above, he also suffered loss of Rs. 7,000/-towards his Scooter. Hence, compensation to the tune of Rs. 10,00,000/- was claimed.

Respondents No. 1 and 2, by filing joint reply to the petition, have admitted the factum of the accident. However, according to them the accident had occurred on account of rash and negligent driving of the petitioner himself.

Respondent No. 3/Insurance Company by filing reply to the petition took preliminary objections that respondent No. 2 was not having a valid and effective driving licence and the vehicle in question was being plied in violation of the terms and conditions of the Insurance Policy. On merits, contents of the claim petition have been denied mainly for want of knowledge and dismissal of the same has been prayed.

On pleadings of the parties, the following issues were framed on 01.03.2012:-

"1. Whether the claimant sustained injuries on 31.05.2004 at about 6:45 pm at village Dadour, involving vehicle No. HP-58-1871 being driven by respondent No. 2 in a rash and negligent manner? OPP

If issue No. 1 is proved in affirmative, for what amount of compensation the claimant is entitled and from whom? OPP

Whether the driver of the vehicle was not having a valid and effective driving licence at the time of accident? OPR-3

Whether the vehicle in question was being plied in violation of the terms and conditions of the insurance policy, as well as provision of Motor Vehicles Act, if so, its effect? OPR-3

Relief."

After the parties led evidence and after hearing the learned counsel for the parties, the claim petition was allowed and the petitioner was held entitled to compensation of Rs. 96,065/- alongwith interest @ 7.5% per annum, from the date of filing of the petition till realization of amount of compensation, against respondents No. 1 & 2, jointly and severally. However, respondent No. 3, being insurer, was directed to indemnify the award.

Feeling dissatisfied, respondent No. 3-Insurance Company preferred the instant appeal under Section 173 of the Act for quashing and setting aside the impugned award.

I have heard the learned Senior Counsel for the appellant, learned Counsel for respondents No. 1 to 3 and carefully examined the entire record.

Learned Senior Counsel for the appellant contended that the learned Tribunal below has erred in holding the driver of the truck responsible for the accident and proceeded to award compensation against the Insurance Company, who happended to be the indemnifier of the owner of the truck. He further contended that learned Tribunal below has also not properly appreciated the issue regarding the entitlement of the petitioner to claim compensation, as no compensation could be awarded to a person, who himself is a tort feasor. Therefore, the petitioner cannot be permitted to take the benefit of his own wrong. With these averments, he prayed that the impugned award be set aside and the present appeal may be accepted.

On the other hand, learned counsel for the respondents have contended that the learned Tribunal below has rightly awarded the compensation and the present appeal deserves to be dismissed.

The first question that arises for consideration before this Court is as to whether the accident had taken place due to own negligence of the petitioner, as contended by learned counsel for the Insurance Company.

The perusal of the record reveals that with respect to the accident in question, FIR Ext. PW-2/A was registered on the statement of petitioner-Hukum Chand, wherein, he had levelled the allegations of rash and negligent driving against the driver of vehicle No. HP-58-1871. However, Investigating Officer of the case had found the petitioner himself as rash and negligent and presented the charge sheet against him in the Court of learned CJM Mandi. Thereafter, the petitioner had faced trial and ultimately he was acquitted vide judgment dated 29.12.2006, passed by learned CJM Mandi.

The petitioner himself appeared in the witness box as PW-4 before the learned Tribunal and tendered in evidence his affidavit, Ext. PW-4/A, wherein, he categorically deposed that when he was going to attend function at Gohar on his Scooter No. HP-33-6718 and reached at Petrol Pump at Village Dadour, respondent No. 2 while driving his vehicle No. HP-58-1871 ahead of his Scooter, suddenly turned his vehicle towards Petrol Pump without giving any signal. He further deposed that he could not anticipate/apprehend that respondent No. 2 would turn his truck towards right side and despite best efforts, he could not avoid to strike his Scooter with vehicle of respondent No. 2 as a result of which, he fell down on the road and sustained multiple grievous injuries on his body. According to the petitioner, FIR of the said accident was lodged at Police Station Balh on the same day, i.e. FIR No. 150/2004 dt. 31.05.2004 under Sections 279 & 337 of the Indian Penal Code. He was cross-examined at length by by the learned counsel for the respondents, however, nothing favourable could be elicited from his lengthy cross-examination.

In support of the case of the petitioner, PW-2 HC Devinder Kumar No. 10, had produced on record FIR No. 150/2004, dated 31.05.2004 Ext. PW-2/A. He deposed that as per records, the petitioner was acquitted in this case vide order dated 29.12.2006 from the Court of learned CJM Mandi.

On the other hand, driver of the offending vehicle appeared in the witness box as RW-1 and tendered in evidence his affidavit RW-1/A, wherein, he deposed that the petitioner came on his Scooter at a very high speed and negligently struck with his standing vehicle, resultantly the petitioner fell down on the road. According to RW-1, the petitioner was rash and negligent in driving the Scooter, which resulted in this accident and FIR No. 150/2004, dated 31.05.2004 was registered against the petitioner under Sections 279 & 337 of IPC at Police Station Balh.

It is not the case of the appellant/Insurance Company that contents of the FIR were wrongly recorded by the Police. As per the contents of the FIR, the vehicle being driven by respondent No. 2 was moving ahead and he turned the same on the wrong direction, due to which, the Scooter driven by the petitioner struck with the vehicle. It was incumbent upon respondent No. 2 to drive the vehicle after adhering to the traffic rules. Except the driver of the vehicle, the respondents have failed to examine any other witness. Thus, uncorroborated statement of respondent No. 2 is not sufficient to hold that the petitioner himself was negligent with respect to the accident in question. Hence, the stand taken by the petitioner that respondents No. 1 & 2 have taken undue advantage of the admission of the petitioner in hospital cannot be ruled out completely. Moreover, the Investigating Officer of the case has also not been examined. No evidence has been led by the Insurance Company that the accident had taken place due to rash and negligent of the petitioner himself. The statement of the petitioner is duly corroborated by the contents of FIR coupled with the fact that the petitioner was acquitted by the Court of learned CJM Mandi. Therefore, learned Tribunal below had rightly held that the accident in question had taken place due to rash and negligent driving of respondent No. 2 and it cannot be said that the accident was caused due to negligent driving of the petitioner himself.

Learned Senior Counsel for the appellant next contended that the learned Tribunal below had erred in granting compensation to the petitioner, which is on a higher side.

In Raj Kumar Vs. Ajay Kumar and Another, (2011) 1 SCC 343, the Hon'ble Apex Court has laid down the heads, under which the compensation can be granted in case of personal injury. The relevant portion of the aforesaid judgment reads as under:-

"6. The heads under which compensation is awarded in personal injury cases are the following :

Pecuniary damages (Special Damages)

(i) Expenses relating to treatment, hospitalization, medicines, transportation, nourishing food, and miscellaneous expenditure.

(ii) Loss of earnings (and other gains) which the injured would have made had he not been injured, comprising :

(a) Loss of earning during the period of treatment;

(b) Loss of future earnings on account of permanent disability.

(iii) Future medical expenses.

Non-pecuniary damages (General Damages)

(iv) Damages for pain, suffering and trauma as a consequence of the injuries.

(v) Loss of amenities (and/or loss of prospects of marriage).

(vi) Loss of expectation of life (shortening of normal longevity).

In routine personal injury cases, compensation will be awarded only under heads (i), (ii)(a) and (iv). It is only in serious cases of injury, where there is specific medical evidence corroborating the evidence of the claimant, that compensation will be granted under any of the heads (ii) (b), (iii), (v) and (vi) relating to loss of future earnings on account of permanent disability, future medical expenses, loss of amenities (and/or loss of prospects of marriage) and loss of expectation of life.

Assessment of pecuniary damages under item (i) and under item (ii)(a) do not pose much difficulty as they involve reimbursement of actuals and are easily ascertainable from the evidence. Award under the head of future medical expenses -item (iii) -- depends upon specific medical evidence regarding need for further treatment and cost thereof. Assessment of non-pecuniary damages - items (iv), (v) and (vi) -- involves determination of lump sum amounts with reference to circumstances such as age, nature of injury/deprivation/disability suffered by the claimant and the effect thereof on the future life of the claimant. Decision of this Court and High Courts contain necessary guidelines for award under these heads, if necessary... "

While determining pecuniary and non pecuniary heads, some guesswork is permissible. In this regard reference may be made to Laxman alias Laxman Mourya vs. Divisional Manager, Oriental Insurance Company Limited, (2011) 10 SCC 756, the relevant portion of which judgment reads as under:-

"22. .............However, as held in R.D. Hattangadi V. Pest Control (India) Pvt. Ltd., the Tribunal and the Court can fix the amount of compensation by making some guess work."

In the case on hand, the perusal of the award shows that the learned Tribunal below had awarded a sum of Rs. 14,000/- to the petitioner on account of pain and sufferings. Record reveals that after the accident, the petitioner was firstly taken to CHC Ratti, from where he was referred to Zonal Hospital Mandi, where he remained admitted till 01.06.2004. Thereafter, he was referred to IGMC, Shimla, where he remained admitted till 04.06.2004. Therefore, it cannot be said that learned Tribunal below had awarded a sum Rs. 14,000/- to the petitioner on account of pain and suffering which is on a higher side.

Learned Tribunal below had awarded a sum of Rs. 20,000/- to the petitioner on account of loss of enjoyment of life. It has been held by learned Tribunal below that the petitioner remained on medical leave w.e.f. 02.06.2004 to 21.07.2004 and w.e.f. 22.07.2004 to 30.09.2004 on earned leave,meaning thereby that upto 30.09.2004, the petitioner remained confined on bed for recovery and the period of recovery, i.e. about two months and twenty three days might have been painful, as he could not have enjoyed the normal life. Thus, a sum of Rs. 20,000/- awarded to the petitioner on account of loss of enjoyment of life also cannot be said be on a higher side.

Learned Tribunal below had also awarded a sum of Rs. 43,645/- to the petitioner on account of loss of earning and earning capacity, as the petitioner remained on earned leave for a period of 71 days. Since salary of the petitioner was Rs. 18,705/-, learned Tribunal below had rightly awarded a sum of Rs. 18,705/- + 18,705/- + 6235/-=43,645/-, on account of loss of earned leave and the same cannot be said to be on a higher side.

Learned Tribunal below had also awarded a sum of Rs. 2,000/- to the petitioner on account of transportation charges, a sum of Rs. 9,000/- on account of special diet and attendant charges and a sum of Rs. 7420/- on account of repair of Scooter, which also cannot be said to be on a higher side.

Hence, in view of my aforesaid discussion, this Court does not find any infirmity and illegality in the award passed by the learned Tribunal below. The appeal filed by the appellant being devoid of any merit is dismissed and the impugned award dated 28.02.2013 is upheld.

No other point was urged before me.

Accordingly, the appeal is disposed of, so also pending application(s), if any.