Dr. Jyoti Prakash Tayal vs Mohinder Singh And Ors.
2007 Latest Caselaw 111 Del

JUDGMENT

Pradeep Nandrajog, J.

1. By and under FAO 91/1987, New India Assurance Company challenges the award pronounced by the learned Motor Accident Claims Tribunal on 9th February, 1907 insofar as adverse findings have been returned against it on the issue whether the policy in question was restricted to Rs. 50,000/- or not.

2. Finding returned is that the policy was not limited to Rs. 50,000/-.

3. Vide FAO No. 167/1987, the injured Dr. Jyoti Prakash Tayal prays for enhancement of the compensation.

4. Admittedly, the original certificate of insurance nor the original policy of insurance was proved. It was not even filed. A photocopy of the stated policy was filed and was exhibited as Ex. RW 3/D.

5. Ex. RW 3/D shows that a third party insurance cover has been taken by the insured, owner of the vehicle Sardar Kartar Singh.

6. It records that the liability towards third party is restricted to Rs. 50,000/-.

7. However, learned Tribunal has held against the Insurance Company for the reason the original policy nor office copy thereof was produced, much less proved. The accident took place in August, 1987 and notice of the claim petition was served upon the Insurance Company in May, 1981.

8. Witness of the Insurance Company admitted that the record pertaining to policies is preserved for 5 years and if no claim is lodged within said period of 5 years, the record pertaining to the policy is destroyed.

9. Learned Tribunal has noted that notice of the petition was served upon the Insurance Company well within 5 years and therefore there was no reason to destroy the policy.

10. The learned Tribunal has therefore drawn an adverse inference against the Insurance Company.

11. I have questioned learned Counsel for the Insurance Company as to why the Insurance Company did not lead the next best evidence, namely, the premium received when policy was issued by producing the books of account, bill books or ledger of the branch. Learned Counsel admits the lapse, on the part of the Insurance Company to do so.

12. It is unfortunate that the Insurance Company did not bother to preserve the office copy of the policy issued notwithstanding that it was served with a notice of the claim petition much prior to the period of 5 years for which period the record has to be preserved.

13. The injured is not privy to what happened between Insurance Company and the insured. He cannot lead positive evidence to prove the nature of the policy taken out by the insured. Onus is on the Insurance Company to establish its liability under the policy.

14. If for some reason, office copy of the policy is not available, next best evidence would be the accounts of the Insurance Company showing premium credited to the account of the Insurance Company when the insured paid the sum. This evidence would have an element of purity and would satisfy a judicial conscience.

15. It is trite that where a party in possession of best evidence fails to produce the same, an adverse inference can be drawn that had the evidence been produced, it would have gone against the party.

16. I accordingly uphold the award insofar as it has been held that the Insurance Company has failed to prove that its liability was restricted to Rs. 50,000/ - under the policy.

17. Dealing with the appeal filed by the injured, Dr. Jyoti Prakash Tayal, the award shows that in view of the evidence led, medical reimbursement in sum of Rs. 15,000/- has been allowed.

18. Learned Counsel for the appellant Mr. O.P. Goyal states that in view of evidence led he cannot justify the grounds urged that inadequate sum has been awarded by way of reimbursement of medical expenses incurred.

19. Towards conveyance charges, Rs. 4,000/- has been awarded. The award is fair and reasonable keeping in view the evidence led.

20. At this stage, Mr. O.P. Goyal states that he restricts challenge in appeal to the sum awarded on account of future disability and loss of enjoyment of life in sum of Rs. 50,000/-.

21. Learned Counsel urges that the disability certificate Ex. PW 17/2 shows 40% permanent disability. Counsel states that a composite award of Rs. 50,000/-for loss of future income and future enjoyment of life is inadequate.

22. The appellant suffered a fracture on the left femur and the wrist. Ex. PW 17/2 has been issued by the Department of Orthopaedic, Hindu Rao Hospital. It has not been issued by a duly constituted board of doctors.

23. The appellant is a doctor and possibility of his having obtained a favorable certificate from a fellow doctor cannot be ruled out.

24. The certificate does not indicate as to how much loss of mobility has been suffered by the appellant.

25. The appellant is a medical practitioner. He is a general physician and not a surgeon. Appellant earns his bread and butter by prescribing medicines to his patients after examining them and most of them visit him at his clinic. Emergency cases may be required to be handled by visiting the residence of the patients. To this extent, appellant may be hampered in future.

26. An accident cannot become a windfall. Misplaced sympathies have no place in determining compensation.

27. Considering the nature of the injuries suffered by the appellant and taking note of the fact that the accident relates to 3.8.1987, I do not find the award as suffering from any infirmity.

28. The compensation awarded has to be viewed by me as of 1978 and not with respect to the current level of the income.

29. The net result is that both appeals fail. Both appeals are dismissed.

30. No costs.

31. LCR be returned.