Delhi High Court
The New India Assurance Co Ltd. vs Israr Ahmad Alias Israr Khan And ... on 12 September, 2018
* IN THE HIGH COURT OF DELHI AT NEW DELHI
Date of Decision: September 12, 2018
+ MAC.APP. 482/2016
THE NEW INDIA ASSURANCE CO LTD. ..... Appellant
Through: Mr. Pankaj Seth, Advocate
versus
ISRAR AHMAD alias ISRAR KHAN AND ORS .....Respondents
Through: Ms. Noopur Singhal and Mr. Anil
Grover, Advocates for respondent
No.3
+ MAC.APP. 947/2016
HARYANA ROADWAYS FARIDABAD HARYANA THR ITS
GENERAL MANAGER ..... Appellant
Through: Ms. Noopur Singhal and Mr. Anil
Grover, Advocates
versus
NEW INDIA ASSURANCE CO LTD & ORS .....Respondents
Through: Mr. Pankaj Seth, Advocate for
respondent-Insurer
CORAM:
HON'BLE MR. JUSTICE SUNIL GAUR
JUDGMENT
(ORAL)
1. Impugned Award of 18th March, 2016 grants compensation of
`43,61,800/- with interest @ 9% per annum to injured-Israr Ahmad @
Israr Khan, aged 32 years, on account of grievous injuries suffered by
him in a vehicular accident, which took place on 21st August, 2012.
2. In the above captioned first appeal, New India Assurance Co Ltd.
(hereinafter referred to as „Insurer‟) seeks exoneration from paying the
awarded compensation, whereas in the above captioned second appeal,
the owner of the insured vehicle is aggrieved by grant of recovery rights
against Haryana Roadways, Faridabad. Since both the appeals arise out of
common impugned Award, therefore, with the consent of learned counsel
for the parties, both the appeals have been heard together and are being
decided by this common judgment.
3. The factual background of this case, as noticed in the impugned
Award, is as under:-
"Vide this judgment I shall dispose of the petition
no.233/12 filed by the petitioner through his wife Smt.
Rukaiya with respect to accident took place near Kali
Restaurant Village Sikari, PS Ballabgarh, Sadar Distt.
Faridabad, Haryana on 21.08.2012 at about 8.30 AM for
which FIR no. 135/12 was registered u/s 279/338 IPC at
police station Ballabgarh, Distt. Sadar, Haryana. The
offending vehicle bearing registration number HR 38 R 5696
had hit the motorcycle of the injured / petitioner bearing
registration number DL 9S N 2305."
4. To render the impugned Award, Motor Accident Claims Tribunal
(hereinafter referred to as „the Tribunal‟) has relied upon evidence of
wife of Israr Ahmad @ Israr Khan (hereinafter referred to as „Injured‟)
and as per Disability Certificate (Ex.PW2/A), the Injured had suffered
permanent disability of 85 % in relation to his whole body. On the
strength of evidence recorded, impugned Award has been rendered by the
Tribunal and breakup of compensation awarded is as under:-
Medical expenses ` 36,800/-
Pain & Sufferings & Enjoyment of ` 2,00,000/-
Life
Special Diet and Conveyance ` 30,000/-
Attendant & Future Attendant ` 9,15,000/-
Charges
Loss of amenities ` 2,00,000/-
Loss of life expectancy ` 1,00,000/-
Loss of income/future income `28,80,000/-
Total ` 43,61,800/-
5. Learned counsel for Insurer assails impugned Award on the ground
that there is no eye-witness of this accident and the Tribunal has ignored
that the owner of the insured bus has pleaded lack of negligence. It is
pointed out that the Injured was not wearing helmet at the time of the
accident and so, it is the case of contributory negligence. It is submitted
that the quantum of compensation granted is exorbitant and it needs to be
suitably reduced. It is further submitted that the Tribunal has erred in
assessing the functional disability of the Injured at 100%. It is asserted by
Insurer's counsel that the functional disability ought to be assessed at
40%. It is also submitted that there is no evidence that the shop which the
Injured was running is now closed. It is pointed out that the income of
deceased has been taken to be `15,000/- per month without any basis. It
is also submitted by Insurer's counsel that imposition of 12% penal
interest is unwarranted and it needs to be set aside. Lastly, Insurer's
counsel submits that the Tribunal has rightly held that the insured vehicle
was being plied without any valid Permit, but has erred in fastening the
liability on the Insurer to pay the awarded compensation and then to
recover it from owner of the insured vehicle. Thus, exoneration from
paying the awarded compensation is sought by Insurer.
6. In the above-captioned second appeal, the owner of insured bus
submits that the bus in question was being plied on a valid Permit and the
Tribunal has erred in holding that the insured bus was being plied without
any valid Permit. It is submitted that the route on which the buses are
being plied is required to be mentioned in the Permit and not the
registration number of the bus because the buses on different routes are
interchangeable, depending upon the requirement. So, it is submitted that
the Tribunal has erred in granting recovery rights to Insurer against the
owner of the bus in question. Attention of this Court is drawn to Sections
70, 72 and 103 of the Motor Vehicles Act, 1988 and to Rule 120 of the
Haryana Motor Vehicles Rules, 1993 to point out that there is no
requirement to mention the registration number of the bus on the Permit.
7. In rebuttal, Insurer's counsel submits that there is no plea in the
written statement by the owner of the bus in question that it had valid
Permit in respect of the insured vehicle in question.
8. Upon hearing and on perusal of impugned Award and the evidence
on record, I find that the FIR registered regarding accident in question is
on record and its bare perusal reveals that it was registered on the
statement of one Anil, who had witnesses this accident. It is not in every
case that an eye-witness is available. FIR of this case has been registered
against the driver of the bus in question. It is settled legal position that the
negligence is not required to be proved beyond reasonable doubt. In view
of statement of the above-named Anil, the negligence of the driver of
insured bus stands proved by preponderance of probability. The manner
of taking place of this accident, as disclosed by above-named Anil, does
not reveal that there was any contributory negligence on the part of
Injured. Merely because the Injured was not wearing helmet, would not
justify finding of contributory negligence against him. In the considered
opinion of this Court, the negligence is of the driver of bus in question in
causing the accident in question. The Tribunal has rightly rendered the
finding on Issue No.1 against the driver of insured bus.
9. On the quantum of compensation awarded, I find that in view of
Disability Certificate of Injured, proved on record by Dr. Laxmitej
Wundavalli (PW-2), I find that the quality of life of Injured has been
severely impaired. It can be so gathered from the evidence of Dr.
Laxmitej Wundavalli (PW-2). Pertinently, the evidence of Dr. Laxmitej
Wundavalli (PW-2) remains unchallenged. The unrebutted evidence of
Dr.Laxmi Tej Wundavalli (PW-2) is extracted as under: -
"Due to this disability, the patient is totally dependent
upon other person even for his daily routines. He has to use
wheel chair for toilet. He can eat only with his left hand. Due
to disability, he has low average intelligence. He needs full
time attendant. He has severe difficulty in working. He has
difficulty in self care, interpersonal activities, communication
and understanding and work also."
10. The Injured was running an Electrical shop and as per the evidence
of his wife, he was earning `25,000/- per month and that the Injured had
studied in Senior Secondary School. No documentary proof regarding the
income of Injured had been placed on record. It has come in the evidence
that Injured is not in a position to run the shop and was not an Income
Tax Payee, but the said shop was in a commercial space. While taking
into account the ground realities, the Income of Injured had been rightly
assessed at `15,000/- per month. On the day of the accident, the Injured
was aged 32 years and so, the applicable multiplier is of 16. The „loss of
earning capacity‟ has been correctly assessed by the Tribunal.
11. So far as „attendant charges‟ are concerned, I find that the Tribunal
has assessed the „attendant charges‟ while taking into account the ground
realities. It was difficult to hire an attendant at a salary of `5,000/- per
month in the year 2012, but still the Tribunal has assessed the „attendant
charges‟ on the aforesaid salary, which cannot be said to be exorbitant.
The compensation granted by the Tribunal under other heads is also
found to be reasonable. No case for reduction in the quantum of
compensation, as determined by the Tribunal, is made out.
12. On the liability aspect, I find that the Tribunal has erred in granting
recovery rights to Insurer by holding that the Permit for plying the bus in
question was not valid. A bare perusal of Sections 70, 72 and 103 of the
Motor Vehicles Act, 1988 and Rule 120 of the Haryana Motor Vehicles
Rules, 1993 reveals that the registration number of a vehicle in not
required to be mentioned in the Permit. Only the route is required to be
spelt out. This Court is of the considered opinion that the plea regarding
the Permit is a legal plea and it can be taken even at the appellate stage.
Since the Permit (R3W1/2) in respect of the bus in question has been
found to be valid by this Court, therefore, impugned Award to the extent
it grants recovery rights to Insurer, is hereby set aside. The liability to pay
the awarded compensation is of Insurer and not of the owner of insured
bus in question. Consequentially, the quantum of compensation, as
awarded by the Tribunal, is maintained and the liability to pay the
awarded amount is put on the Insurer. The awarding of penal interest of
12% by the Tribunal is waived.
13. While entertaining the appeal by Insurer, it was directed that the
entire awarded compensation with interest @ 9% per annum be deposited
by the Insurer with the Tribunal. If it is not already done, the Insurer shall
ensure that it is now done within a period of four weeks from today. The
awarded compensation alongwith interest @ 9% per annum be disbursed
forthwith to Injured in the manner already indicated in the impugned
Award. Statutory deposit, if any, be refunded to Insurer.
14. These appeals are accordingly disposed of while modifying the
impugned Award in aforesaid terms.
(SUNIL GAUR)
JUDGE
SEPTEMBER 12, 2018
s
