Naresh Kumar vs Parveen Kumar And Ors.
2014 Latest Caselaw 6142 Del

$~R-20.
*    IN THE HIGH COURT OF DELHI AT NEW DELHI

%                                           Date of Decision: 25.11.2014

+     MAC. APP.779/2006

      NARESH KUMAR                                     ..... Petitioner
                  Through             Mr. Pradeep Agrawal, Advocate

                         versus

      PARVEEN KUMAR AND ORS.              ..... Respondents
                  Through Ms. Manjusha Wadhwa and Ms. Arpan
                          Wadhawan, Advocates

CORAM:
HON'BLE MR. JUSTICE JAYANT NATH

JAYANT NATH, J. (Oral)

1. By the present appeal, the claimant seeks to impugn the award dated 20.12.2005. By the award, the tribunal disposed of two claim petitions filed by Noorahi Alam and Naresh Kumar.

2. The brief facts which led to the filing of the claim petition are that on 14.07.2001, the claimants were going in a maruti van from Shakarpur to Haiderpur. It is said that the maruti van was being driven in a rash and negligent manner. When they reached Badli Chowk, at outer ring road, the maruti van hit a tractor. As a result of the accident, the claimant sustained injuries. It is urged that the accident took place due to the composite negligence of tractor and the maruti van.

3. On the issue of negligence, the tribunal concluded that there is no evidence on record to show that the accident took place due to rash and negligent driving of the maruti van. The tribunal opined that the FIR and charge sheet have been filed against the driver of the tractor. It did not rely upon the statement of claimants in as much as no independent witness appeared and no other evidence was there to support their version. Hence, the tribunal concluded that the accident took place due to rash and negligent driving of the tractor and not the maruti van.

4. Regarding compensation as far as the claim petition filed by Noorahi Alam(suit no.441/05), the tribunal awarded compensation of Rs.2,02,500/-. In view of Section 163A of the MV Act the insurer of the maruti van was held to be jointly and severally liable. In the case of the appellant, the tribunal awarded total compensation of Rs.98,000/- for the injuries suffered. However, the tribunal held that the appellant had suffered no permanent disabilities and hence Sec.163A of the MV Act was not applicable. Accordingly, as the driver of the maruti van was held to be not negligent, the award was passed against the driver and owner of the tractor. The tractor was not insured.

5. The learned counsel appearing for the appellant submitted that the appellant should be dealt at par with other occupants of the car. He submits that the view of the tribunal is erroneous and that under Sec.163A of the Act, compensation is payable in the case of death or permanent disablement due to the accident arising out of use of motor vehicle. He submits that permanent disablement is defined under Sec.142 MV Act which includes permanent privation of any member or joint. It is further submitted that even otherwise as

per the insurance policy issued by the insurance company respondent No.5 the passenger was insured. Hence, even otherwise respondent No.5 is liable to pay compensation.

6. As far as the issue of permanent disability is concerned, Section 142 of the Act reads as follows:

Section 142: Permanent disablement.--For the purposes of this Chapter, permanent disablement of a person shall be deemed to have resulted from an accident of the nature referred to in sub- section (1) of section 140 if such person has suffered by reason of the accident, any injury or injuries involving:--

(a) permanent privation of the sight of either eye or the hearing of either ear, or privation of any member or joint; or

(b) destruction or permanent impairing of the powers of any member or joint; or

(c) permanent disfiguration of the head or face.

7. The Division Bench of Madhya Pradesh High Court in Saurabh Kumar Shukla v. Hukum Chand 1988 ACJ 583, held as follows:

"5. "Permanent Disability" is not a purely medical condition. A patient is 'permanently disabled' if under a permanent disability when his actual or presumed ability to engage in gainful activity is reduced or absent because of 'impairment' and no fundamental or marked change in the future can be expected. Physical impairment is a purely medical condition. Permanent physical impairment is any anatomical or functional abnormality or less after maximum medical rehabilitation has been achieved and which abnormality or loss the physician considers stable or non-progressive at the time the evaluation is made. Thus, permanent disability applies to permanent damage or to loss of use of some pan of the body after the stage of

maximum improvement from orthopaedic or other medical treatment has been reached and the condition is stationary."

8. A perusal of the evidence filed by the appellant shows that it is not possible to conclude about the appellant having suffered any permanent disability of any part of the body. The evidence filed by way of affidavit, PW1 is absolutely silent on this part. No medical evidence has been led to show that appellant suffered any permanent disability. Hence there is no merit in the said contention of the appellant.

9. However, I may note that the finding of the tribunal that the maruti van had no role in the accident, appears to be erroneous. I may note the evidence of PW 1 namely the appellant who was an eye witness to the accident. The relevant portion of his affidavit reads as follows:-

"3. I say that the said offending vehicle was being driven rashly, negligently, recklessly and at a very high speed by the respondent No.4, we warned the driver i.e. respondent No.4 many time to not to drive the vehicle in such reckless speed but he did not pay any heed towards the warnings and kept on driving the vehicle on his own whims.

4. I say that at about 12.30 a.m. (night), when we reached at Badli Chowk, red light at Outer Ring Road, the respondent No.4 took a sharp turn towards Haider Pur without waiting or observing that any other vehicle might come from any other direction.

5. I say that in the meantime a tractor bearing No.HR-10A- 1686 which was being driven by respondent No.1 was also crossing the chowk. It is pertinent to mention here that the said tractor was going towards Madhuban Chowk from Bye-Pass- Side.

6. I say that even after seeing the tractor approaching from other direction, respondent No.4, instead of stopping the van tried to cross the said van from the front side of the tractor

and as a result of this negligent act of respondent No.4 an accident occurred between both the vehicles."

10. In his cross examination he reiterates that the accident took place due to negligence of the van driver and not the tractor driver. He further admits that he has not stated in the affidavit that the accident took place due to composite negligence.

11. In the light of the above un-rebutted evidence of PW1 an eye witness, in my opinion, there is no reason to disagree with the said testimony.

12. A perusal of the site plan also shows that the maruti van at the crossing has turned right and hit the tractor. The tractor was coming straight on the road. It was clearly the duty of the maruti van to take reasonable care & caution while turning right at a crossing.

13. In the light of the above, I hold that the accident took place due to composite negligence of the maruti van and the tractor. The award to that extent stands modified. Accordingly, the insurance company of the maruti van and the driver & owner of tractor are jointly and severally liable (See Pawan Kumar and Anr. v. Harkishan Dass Mohan Lal and Others 2014 ACJ 704) .

14. In view of the above, the Respondent no.5/insurance company may deposit the award amount of Rs.98,000/- with upto date interest within eight weeks. On deposit of the amount the same may be released to the claimant/appellant. The Respondent no.5 will have recovery rights of 50% of the said amount from the driver and the owner of the tractor.

15. On the issue of terms and condition of the insurance policy, it is admitted by the learned counsel for the appellant that such a proposition was not raised before the tribunal. In my view, the proposition was neither raised nor was it proved. It is not possible to conclude on the terms and conditions sought to be relied upon by the appellant. De hors, the negligence of the appellant would be covered by the insurance company.

16. The appeal stands disposed of.

JAYANT NATH, J NOVEMBER 25, 2014 'raj'