The New India Assurance Co Ltd vs Smt Kuntesh And Others
2017 Latest Caselaw 7815 ALL

HIGH COURT OF JUDICATURE AT ALLAHABAD
 
 

A.F.R.
 
Judgment Reserved on 30.10.2017
 
Judgment Delivered on 08.12.2017
 
Court No. - 37
 

 
Case :- FIRST APPEAL FROM ORDER No. - 2871 of 2008
 

 
Appellant :- The New India Assurance Co Ltd
 
Respondent :- Smt Kuntesh And Others
 
Counsel for Appellant :- Rakesh Bahadur
 
Counsel for Respondent :- Radhey Shyam,Sumit Daga,Vinay Sharma
 

 
Hon'ble Amreshwar Pratap Sahi,J.

Hon'ble Saral Srivastava,J.

(Delivered by Hon'ble Saral Srivastava J.)

Heard Sri Rakesh Bahadur, learned counsel for the appellant, Sri Sumit Daga, learned counsel for the claimant/respondent no.-1 and Sri Radhey Shyam, Advocate for the National Insurance Company.

The present appeal has been filed by the New India Assurance Company challenging the award dated 05.06.2008 passed by the Motor Accidents Claim Tribunal/Additional District Judge, Court No.11, Muzaffarnagar in Motor Accident Claim Petition No. 154 of 2005 whereby the Tribunal has awarded Rs. 7,67,150/- with 6% interest as compensation to the claimant/respondent no.1.

The claimant/respondent no.1 instituted a claim petition claiming compensation of Rs. 87,22,000/- for the injuries suffered by her in an accident on 28.01.2004. In the claim petition, the claimant/respondent no.1 stated that the she was travelling in a Tata Indica Car No.DL-8S-X-0061 from Baghpat to Muzaffarnagar, and while Tata Indica Car No.DL-8S-X-0061 was moving towards Sakauti, it was hit by a Truck Tanker No. U.P.15-C-7581 coming from the opposite direction which was being driven rashly and negligently. It was further stated that claimant suffered severe injuries on her face. She has lost her right eye due to the injuries sustained and cannot perform her daily routine work for which she has to keep two helpers to help her in doing daily routine work.

The claim petition was contested by the owner of the Tanker by filing a written statement contending the claim to have been instituted on wrong and incorrect facts. The owner further stated that there was no negligence of the driver of the Tanker, and the accident had taken place due to the negligence of the driver of Tata Indica Car. He further stated that the Tanker was driven by a person holding valid driving licence, and was insured with the New India Assurance Company, and the liability to pay compensation, if any, is of The New India Assurance Company.

The appellant Insurance Company also filed written statement stating therein that the driver of the Tanker was not negligent in the accident, and that the Tanker was not driven as per the terms and condition of the insurance policy. It further stated that the claimant did not suffer any permanent disability due to injuries alleged to have been suffered by her in the accident, and prayed for dismissal of the claim petition.

The owner of the Tata Indica Car filed written statement stating therein that the claimant was travelling in the car and suffered serious injuries in the accident. He further stated that the accident had occurred due to the negligence of the driver of the Tanker.

The Insurance Company of the Tata Indica Car also filed written statement stating therein that the accident occurred due to negligence of the driver of the Tanker, and denied its liability to pay compensation.

On the basis of pleadings between the parties the Tribunal framed five issues. In the present appeal, the contest is with regard to issue no. 1 regarding the negligence of driver of Tanker in the accident and issue no. 5 regarding the quantification of compensation. Findings on only these two issues have been assailed by the Insurance Company.

The Tribunal, after appreciating the entire evidence on record, while deciding the issue with regard to the negligence of driver of both the vehicles arrived at the conclusion that there was negligence of the driver of the Tanker to the extent of 90% and that of Car to the extent of 10%. The Tribunal on the quantification of compensation has after considering the entire evidence on record awarded Rs.7,67,150/- with 6% interest as compensation to the claimant/respondent.

Challenging the finding on negligence, the counsel for the appellant has submitted that it was a case of accident of two vehicles coming from opposite directions. It was a single road and the accident had taken place almost in the middle of the road, and therefore, the Tribunal was not justified in fixing 90% negligence on the driver of the Tanker in the accident. He submits that a perusal of site plan of the accident and the statement of PW-1 (Virendra Kumar Tyagi) and PW2(Vinit) , alleged eye witness, establishes that the negligence of both the drivers in the accident was equal i.e. 50%.

On the issue of quantification of compensation, he submits that though the claimant had filed her disability certificate issued by the Chief Medical Officer, but it was not proved as per law, therefore, the Tribunal has erred in law in relying upon the disability certificate. He further submits that the Tribunal without any basis has awarded Rs. 2,16,150/- towards expenses already paid and to be incurred in future on salary of helper. The counsel for the appellant lastly submitted that the award of Rs. 1,00000/- towards pain and suffering, and Rs. 1,00000/- towards loss of amenities and future treatment etc. is also on the higher side.

Refuting the aforesaid submissions, the learned counsel for the claimant has submitted that the Tribunal has recorded findings after appreciating the site plan of the accident and unrebutted oral testimony of witnesses produced by the claimant, proving that the Tanker was driven rashly and negligently. He further submitted that the Tanker after hitting the Indica Car had hit an Ambassador car, which speaks of the fact that the tanker was driven at a very high speed. Thus, the negligence of the driver of the Tanker was more than the negligence of the driver of the Indica Car, and therefore, finding of the tribunal that negligence of the driver of Tanker was 90% and the negligence of the driver of the Indica car was 10% is correct and based on a proper appreciation of evidence on record. He submitted that the appellant could not indicate any perversity in the finding recorded by the Tribunal with regard to negligence and therefore, the contention of the appellant on the issue of negligence deserves to be rejected.

The counsel for the respondent further submitted that so far as the quantification of compensation is concerned, the Tribunal has relied upon the judgement of this Court in 2007 (3) T.A.C. 40 (Alld.) Oriental Insurance Company Ltd. Vs. Surendra Umrao and Another, while holding that disability certificate issued by the Chief Medical Officer is a public document, and thus the disability certificate issued by Chief Medical Officer is not required to be proved. He further submits that the genuineness of the disability certificate was not disputed by the Company nor the Company led any evidence to rebut the same. The Tribunal was, therefore, justified in relying upon the disability certificate. He further submits that the claimant has proved by producing cogent documentary evidence, namely prescriptions, medical investigation reports, details of the hospitalization of claimant, etc. that the injuries suffered by her in the accident were grave and serious in nature. He submits that the claimant had lost her right eye and also suffered fracture and disfigurement of her face. He submits that because of injuries, the claimant had to engage helper/nurse to do her day to day routine work, and evidence with regard to the engagement helper/nurse has been filed by the claimant before the Tribunal which was not rebutted by the Company. He submits that the Tribunal has awarded Rs. 2,16,150/- for keeping helper/nurse, after considering the evidence on record. He submits that the Tribunal was also justified in awarding Rs. 1,00,000/- towards pain and suffering and Rs. 1,00,000/- for future treatments, loss of amenities etc.

We have heard rival submissions of the parties and have perused the record of the appeal as well as the original record of the Trial Court.

So far as the contention of the counsel for the appellant regarding contributory negligence is concerned, we have perused the finding on the issue no.1 and what we find is that the Tribunal has considered in detail the testimony of PW-1 Virendra Kumar Tyagi, PW-2 Vineet, PW-3 Brijesh Kumar, eye witness of the accident, and the site plan of the accident, and thereafter, has held the negligence of the driver of the Tanker to the extent of 90% and negligence of the driver of the Tata Indica Car to the extent of 10% in the accident. We have gone through the statements of the eye witnesses namely, PW-1, PW-2, PW-3 who have stated in detail the manner in which the accident had taken place, and if their statements are read as a whole, we do not find any contradiction or inconsistency in their statement, and the only conclusion that can be arrived at is that the negligence of the driver of the Tanker was more than the negligence of the driver of the Indica Car.

Further, we find from the record that the finding of negligence of the driver of the tanker to the extent of 90% is also based upon the appreciation of the fact that the Tanker after hitting the Indica Car had hit an Ambassador Car, and this fact establishes that the Tanker was being driven at a high speed, and the driver of the Tanker did not have control over the Tanker. It transpires from the record that the finding of the tribunal that the Tanker after hitting the Indica Car had hit an Ambassador Car was not challenged by the appellant nor the appellant could point out anything from the record to indicate that the said finding of the Tribunal is perverse. Thus, the finding of the Tribunal fixing the negligence of the driver of the Tanker to the extent of 90% in the accident is correct and based upon a proper appreciation of evidence on record, and is hereby affirmed.

So far as the contention of the counsel for the appellant that the disability certificate was not proved by the claimant, we may record that the Tribunal has relied upon the judgement of this Court in the case of Oriental Insurance Company (Supra) while holding that the certificate issued by the Chief Medical Officer is a public document and is not required to be proved. We find that the Tribunal has rightly held 75% disability suffered by claimant on the basis of disability certificate. Since the nature of injuries suffered by the claimant has not been disputed by the appellant, and further it is also established from the record that the claimant had to engage a helper/nurse to do day to day routine work, and therefore, in these circumstances the Tribunal was justified in holding the loss of earning capacity of the claimant to be 75%.

So far as the award of Rs. 2,16,150 towards expenses on the salary of the helper is concerned, we find from the original record that the claimant has filed the salary certificate of the helpers which was not rebutted by the appellant, and further the nature of injuries suffered by the claimant i.e. loss of one eye, distortion of her face etc. indicates that she cannot perform day to day routine work without the assistance of a helper/nurse. Thus, the award of Rs. 2,16,150/- for the salary already paid by the claimant and to be incurred in future for engagement of the helper/nurse is correct and do not call for any interference by this Court.

Considering the nature of the injuries suffered by the claimant, the Tribunal was justified in awarding Rs. 1,00000/- towards pain and suffering, and 1,00000/- towards expenses to be incurred in future on treatment, loss of amenities, etc., and thus we reject the submission of the counsel for the appellant that the amount awarded under aforesaid head is on the higher side.

Thus, for the reasons given above, the appeal lacks merit and is hereby dismissed.

There shall be no order as to costs.

Order Date :- 08.12.2017

Israr