The New India Assurance Company Limited v. Chajju Singh & Anr.

Present: Mr. A.S. Virk, Advocate for the appellant. Mr. Gopal Mittal, Advocate for Mr. N.K. Khosla, Advocate for respondent No.2. CORAM:HON'BLE MR. JUSTICE K. KANNAN

1. Whether Reporters of local papers may be allowed to see the judgment ?

2. To be referred to the Reporters or not ? 3. Whether the judgment should be reported in the Digest? K. KANNAN J.(ORAL) -.-

1. The above appeals are connected and arise out of the same accident. The insurer is on appeal denying the liability on the FAO No.2953 of 2003 -2- ground that the insured's vehicle MVF-9252 had not been involved in the accident. The claimant is also in an independent appeal claiming enhancement of compensation.

2. The claimant had filed the claim petition contending that the 1st respondent's vehicle bearing registration MVF-9252 had been involved in the accident. The 1st respondent had admitted to such a contention. The insurance company, however, filed a reply denying the involvement of the vehicle and pointed out to the fact that in the FIR, the person who had given the complaint had stated that vehicle having registration No.PB-11H-9273 was the vehicle, which was involved in the accident. The FIR itself had been lodged by the claimant. If there was a variation in the reference in the FIR to what is contained in the claim petition, a mere admission of the owner that it was the vehicle bearing No. MVF-9252, which was involved in the accident shall not be taken as sufficient especially when the insurer is on record stating that vehicle PB-11H-9273 had not been insured with them. The claimant was, therefore, bound to explain the dissimilarity of the two vehicle numbers. There are not even phonetic similarity or possibility of optical illusion for a person to make a mistake. A claimant, who gives the number of the vehicle immediately after the accident referring to the vehicle as PB-11H- 9273 and later in the claim petition gives yet another number, if he cannot give the reason for the discrepancy, the change in reference to the vehicle number can be seen for an obvious objective of making an insurer liable for an accident which may not have been possible of vehicle PB-11H-9273 itself which had been referred to as FAO No.2953 of 2003 -3- having been involved in the accident.

3. The claimant had no better explanation to give and he was rest contended with the fact that the police in its report under Section 173 referred only to the vehicle MVF-9252 as having been involved in the accident. The scooterist with whom the injured claimant was travelling was also examined as PW-5. He was said to have been injured in the accident and he gave evidence to the effect that the car which was involved in the accident had a registration No.MVF-9252. In the cross-examination, it was elicited that he had made reference to this vehicle number five days after police had initiated action. When he was also asked about the colour of the car, he had admitted that he did not know. This answer, in my view, is crucial, for a person who remembers the vehicle number at the time of accident could not remember the colour of the car for it would have been easier for any person to remember the colour than even the number. The witness was no math wiz to read numbers. He gave evidence to the effect that he had studied upto 7th standard. When a claimant had himself no reason to give as to how in the First Information Report, he had given the No.PB-11H-9273, he cannot bolster his case by a frail evidence of PW-5, deficiency of which I have pointed out above.

4. Learned counsel appearing for the respondent forcefully contends that the burden of proof was on the insurance company to show that the vehicle had not been involved in the accident. This argument, in my view, betrays the incorrectness of the law enumerated through Sections 102 and 104 of the Evidence Act. A FAO No.2953 of 2003 -4- person, who makes its insurer liable for an accident shall take upon himself the burden of establishing that, that particular vehicle was involved in the accident. The involvement cannot merely rest on what is convenient for an owner. He had an insurmountable obstacle to cross namely the explanation that he owed to the Court as to how he had given a different number in the FIR. If that was not done, it could only be taken that burden had not been discharged and there is no question of shifting of burden. Indeed in law, the burden never shifts. It is only the onus, which will shift depending on how the initial evidence had been adduced before the Tribunal. I reverse the finding of the Tribunal that the vehicle MVF-9252 had been involved in the accident and the liability directed to be shouldered against the insurance company, in my view, is wrongly cast and the award against the insurer is set aside.

5. There is a connected appeal by the injured for enhancement of compensation. The accident had resulted in amputation of lower 1/3rd above knee. It is a pitiable situation of the injured having already lost a limb of his right arm related to a different accident in the year 1983. It was in evidence that he had been a carpenter and after amputation of his right hand, he had not been able to work as a carpenter and therefore, he was doing some business in a karyana shop. By the subsequent accident, he had become 100% disabled. The apportionment of disability and the loss of earning power must be seen only in the context of what the accidental injury had caused. If he had already a disability by the loss of limb, which was unrelated to the accident, yet another loss FAO No.2953 of 2003 -5- that has resulted in 100% disability cannot be taken for factoring the quantum of compensation. The loss of one leg above knee shall constitute 70% loss of earning power. I will take that alone as the loss resulting out of the accident and if it was to be taken that his income was Rs.3,000/-, the annual income would have been Rs.36,000/-, adopting the scale of compensation as provided under Schedule II for injury for non-fatal cases for a person, who was aged 40 years at the time of accident, the appropriate multiplier shall be 15 and the compensation payable would be Rs.3,78,000/-. On this must be added, compensation payable for pain and suffering, medical expenses and for loss of amenities of life. The Tribunal has provided Rs.10,000/- for pain and suffering, Rs.30,000/- for cost for medical expenses and Rs.10,000/- for loss of amenities. Each one of the heads of award is more than what the Schedule II provides for. I will, therefore, retain the very same of what has been awarded by the Tribunal. This will mean an additional amount of Rs.50,000/- to Rs.3,78,000/- which I have assessed for loss of earning capacity. On the whole, the amount that will become payable would be Rs.4,28,000/-. The amount in excess of what has been awarded by the Tribunal shall be borne only by Paramjit Singh, who is arrayed as 1st respondent in this case and 2nd respondent in Insurance Company's appeal.

6. The appeal filed by the Insurance Company in FAO No.2953 of 2003 is allowed and the appeal of the injured in FAO No.3298 is allowed in part to provide for enhancement of compensation referred to above. During the pendency of appeal, if any amount FAO No.2953 of 2003 -6- has been recovered from the insurer, the insurer will apply for refund not against the claimant but it shall be restricted only against the insured, who is 2nd respondent in appeal filed by the Insurance Company. The rate of interest already awarded by the Tribunal shall retain. August 19, 2010 Pankaj* (K. KANNAN) JUDGE