National Insurance Company Ltd v. Ram Kumar alias Ran Kunwar & Ors.

BEFORE: HON'BLE MR. JUSTICE K.KANNAN Present: Mr. Inderjeet Sharma, Advocate, for the Insurance Company. Mr. Harish Nain, Advocate, for Ram Kumar @ Ram Kunwar.

2. 3. Whether Reporters of local papers may be allowed to see the judgment? Yes/No To be referred to the Reporters or not?Yes/No Whether the judgment should be reported in the Digest? Yes/No K.Kannan, J.(Oral)

1. The Insurance Company is in appeal challenging the liability on the ground that the insurer was given sufficient opportunity to prove that the driving licence produced by the driver was fake. The Insurer relied on a report from the Licencing Authority F.A.O.NO. 1361 OF 1995 and F.A.O.NO. 1544 OF 1995 2 to show that the driver was not duly licenced. The Tribunal did not find the details provided in the report as conclusive and rejected the report on the ground that no proof was adduced. The grievance of the Insurer is that they also had an investigation report from another surveyor that the driver did not have a valid driving licence and they had filed an application to summon the relevant records and examine the witness but the Tribunal proceeded to pass the award on

17.11.1994, without adverting to the insurer's plea seeking for permission to adduce evidence.

2. The Insurance Company had a basis for its defence through a report of the Licencing Authority as well as an Investigator. The validity of insurance company is relevant to consider whether the insurer could have a report of recovery or not. It is one of the permissible defences under Section 149(2) of the Motor Vehicles Act (hereinafter referred to as the 'Act') but therefore, I am of the view that the Insurance company ought to have granted an opportunity to produce an appropriate evidence and the Tribunal was not justified in allowing the Insurer to tender the evidence and rejecting the insurer's defence that the document or the report was not established. The award of the Tribunal regarding the validity of the licence is alone set aside and the matter remitted to the Tribunal. It shall allow the insurer to take appropriate steps for production of evidence from the Licencing Authority to establish its defence. Needless to state that the F.A.O.NO. 1361 OF 1995 and F.A.O.NO. 1544 OF 1995 3 driver and the owner shall participate in the adjudication and they are entitled to contest the plea of the insurer by the counter evidence. The matter will therefore stand remitted to an adjudication inter se between the owner/insured and the insurer regarding the validity of the licence.

3. This will have no bearing to the claimants to secure the award and recover the same against the insurer. The award passed by the Tribunal determining compensation of Rs. 50,000/- towards injuries is subject to challenge in an independent appeal filed by the claimant in FAO NO. 1544 of 1995. The grievance of the claimant appellant is that he was a vegetable vendor and by virtue of accident he had suffered injuries on his head, chest, abdomen and in both his legs bones had fractured. He was in the Government Medical College and Hospital, Rohtak for 12 days and underwent a surgery for reduction of the fractures. The evidence was that he was bed ridden for four months and he had lost all his income during that period. He contended he used to earn Rs. 8,000/- per month and after the accident he was not able to resume his work and make his living. Learned counsel would contend that the Tribunal had not considered several heads of claim separately but it merely provided for lump sum grant of Rs. 50,000/- as compensation.

4. The manner of disposal by merely making a lump sum of compensation is far from desirable. The Tribunal is bound to assess every head of claim of compensation appropriately and assess the F.A.O.NO. 1361 OF 1995 and F.A.O.NO. 1544 OF 1995 4 financial equivalent of what the several heads of claims represent. The claimant had obtained disability certificate to show that his disability was 25% and that there had been a shortening of limb by two inches. Evidence was that he used to cultivate vegetables in his own land and by cultivating the lands of others. He had stated that due to the fracture of both of his legs which resultant shortening of the limb by two inches had hampered his work. Doctor was not examined to elicit as to what the disability would mean in terms of what he could do. With no definite evidence available before me as to how it can impact his work I would adopt a simple formula that seems to have gained acceptances before the Court. During the relevant time of assessing compensation in terms of disability, amount for the year 1999 was Rs. 1,000/- for each per percent disability and therefore, I would accord to him a compensation of Rs. 25,000/- for 25% disability which would mean assessment of compensation for loss of amenities of life and for his loss of earning capacity. He had remained in hospital for 12 days and it was in evidence that he was bed ridden for four months he was having extensive injuries. He had two fractures in his leg. I would provide Rs. 7,500/- for each fracture and for all other injuries and his hospitalisation I would award another Rs. 10,000/- towards pain and suffering. Therefore, I would accord to him Rs. 25000/- for his four months' period of sufferings, I will provide for an additional amount of Rs. 7,500/- for special diet and additional amount of Rs. 7,50/- for F.A.O.NO. 1361 OF 1995 and F.A.O.NO. 1544 OF 1995 5 four months as attendant charges. He must have had a complete loss of income which I will assess at Rs. 2,500/- per month and provide to him Rs. 10,000/- for loss of earning. He has taken treatment as an in- patient for 12 days in Government Medical College and Hospital, Rohtak and he has produced medical bills to the tune of Rs. 2000/- I will provide for an additional amount of Rs. 2,000/- towards medical expenses. I would provide an amount of Rs. 5,000/- for transport expenses. In all, the total amount will be 1,03,250/- The Tribunal has awarded Rs. 50,000/-. The amount in excess shall bear interest 6% from the date of the petition till the date of the payment. The appeal filed by the claimant shall stand allowed to the above extent.

5. I have already directed the remand of the matter in the appeal filed by the Insurance Company. I clarify that the insurer is still liable to satisfy the claim and the adjudication between the insurer and the insured that is reserved by the remand shall not come in the way of the claimant to secure the enforcement of the amount through this award.

6. Parties are directed to appear before the Tribunal, Rohtak on 30.10.2010. 28th September, 2010 Shivani Kaushik [K.KANNAN] JUDGE