Oriental Insurance Co. Ltd vs Vipul Jandyal And Others

This Miscellaneous Appeal has been preferred by the appellant/Company under Section 173 of the Motor Vehicle Act, 1988 against the award dated August 27, 2016 passed by the learned Motor Accident Claims Tribunal, Jammu (for short hereinafter referred to as the „Tribunal‟) in File No.22/C titled Vipul Jandyal vs. Rakesh Kumar & ors.

Through the instant appeal, learned counsel for the appellant/Company seeks determination on the following questions;

"i)Whether the learned Tribunal was justified in fastening the appellant with liability to indemnify the insured ?

ii)Whether driver holding a license to drive „Light Motor Vehicle‟ & Heavy Goods Vehicle‟ can drive a „Transport Vehicle ?

iii) Whether the learned Tribunal was justified in closing the evidence of the appellant/ Company without summoning the witnesses, whose diet expenses stood deposited, in terms of the requisite procedure and returning a finding to the contrary?

iv) Whether the learned Tribunal was justified in calculating the compensation under the Head : „Loss of Dependency‟ and determination of the multiplicand, the Act provides for any criterion as regards the determination of future prospects?

v) Whether the learned Tribunal was also justified in making 50% additional increase towards future prospects by ignoring the law laid down in (2013) 9 SCC 65.

vi) Whether the learned Tribunal, was justified in calculating the compensation of the claimant, while taking loss of earning capacity as 13.50% and whether the compensation awarded is just, reasonable and based on reliable evidence."

Facts of the case, in brief, in this appeal are that claimant-Vipul Jindyal on 27-08-2010, while travelling in his Motor Cycle, was hit from the back side by passenger Bus bearing registeration No.JK02AK-4900 near Paloura on Jammu-Akhnoor Road due to which he suffered multiple injuries.

Both the driver and owner of the offending vehicle had appeared before the learned Tribunal and filed their objections to the maintainability of the petition.

Appellant/Company had also filed objections, inter alia, pleading therein that the driver of the offending vehicle was not holding a valid licence at the time of accident. Both the owner and the driver of the offending vehicle have also denied the allegations levelled against them.

On assessment of the evidence, the learned Tribunal has held that negligence driving of the driver has caused the accident. Since all the evidence are in favour of the claimant, the learned Tribunal, while assessing the income in favour of the claimaint, awarded compensation of an amount of Rs. 5,72,100/- with 7.5 % annual interest. The first two questions raised by the appellant/Company are that the driver of the offending vehicle was not having the valid driving licence because he possessed to drive light motor vehicle and heavy goods vehicle and, therefore, could not have driven the passenger vehicle, that is, offending vehicle. This issue was raised before the learned Tribunal also but because no evidence produced by the appellant/Company, therefore, the learned Tribunal decided this issue against the appellant/Company. Otherwise, also this issue was without any objection in view of the law laiddown by Hon‟ble the Apex Court in Mukund Dewangan vs. Oriental Insurance Co. Ltd. and others, 2016 ACJ 1008.

The onus to prove the issue No.(iv) was also on the appellant/Company, who did not prove any evidence in support of this, therefore, the learned Tribunal was justifed in deciding this issue also in favour of the claimant and against the appellant/Company. Otherwise, also and in view of this, it was not necessary to reproduce the operative portion of the law as laid down in Mukund Dewangan (supra) as both these questions stood answered by the learned Tribunal.

There is nothing on record to show that the appellant/Company was not provided sufficient opporuthity to prove the evidence, but as a matter of fact, it was necessary for the appellant/Company to deposit the diet expenses of the witnesses to whom it wanted to examine, but that being not the plea, the old statement of the appellant/Company that the evidence was wrongly closed is without any substance.

The assessment of income has been made by the learned Tribunal on the basis of statment of the injured and the some amount of guess work is also necessary to award just compensation and is committed by them.

The learned Tribunal after assessing yearly income of the claimant as „future income‟ could not have increased the income by 50%, though an increase of 40% would be just under law in view of the judgment of Hon‟ble Supreme Court rendered in National Insurance Company Limited Vs. Pranay Sethi and ors., 2017(16) SCC 680. So by reducing 40% from 50% compensation under the head „loss of future income‟, claimaint would be entitled to sum of Rs.3,85,560/-.

Even otherwise, the claimant being a Shopkeeper, who does not require much mobility as „loss of future income‟ could be lower to that of already awarded.

The multiplier of age of the claimant at the time of accident was 25 years, therefore, the multiplier has been rightly applied. Thus, increase in „future loss of income‟ is reduced from 50% to 40%. The compensation has been rightly assessed and does not require any modification as the compensation is just and reasonable. Thus, amount awarded by the learned Tribunal in different heads is reduced/modified as mentioned against each as under;

"a.

Loss of „future income‟ is reduced from 50% to 40%

=

3,85,560/-

b.

Expenditure on attendants is maintained

=

20,000/-

c.

Expenses on „Vehicle fare‟ is maintained

=

10,000/

d.

On account of loss of amenities

=

10,000/-

e.

On account of „damages on pain and suffering‟ also reduced to

=

10,000/-

f.

Medical expenses is maintained

=

76,000

g.

Special diet is maintained

=

8,000/-

Total = 5,29,560 "

For the foregoing reaons, this appeal is, accordingly, allowed to the extent as modified above. Respondent/claimant is entitled to Rs.5,29,560/- alongwith interest @ 6% from the date of filing of the claim petition. Let the modified award amount deposited be released in favour of the claimant within one month from the date of this order.

Disposed of, accordingly.