Mac App No. 99/202 vs Naseem Akhter And Others
2021 Latest Caselaw 1619 j&K

                                                                 Serial No. 13



      HIGH COURT OF JAMMU & KASHMIR AND LADAKH
                      AT JAMMU

                                           Mac App No. 99/2021
                                           CM No. 7210/2021

                                           In

                                           Cr. Obj No. 2/2021

Mac App No. 99/2021
Bajaj Allianz General Insurance Co. Ltd.        ...Appellant(s)/Petitioner(s)

                    Through:- Mr. Sunny Mahajan, Advocate
                         v/s

Naseem Akhter and others                                  ...Respondent(s)

                    Through:- Mr. Nigam Mehta, Advocate vice
                              Mr. Raghu Metha, Advocate


Cr. Obj No. 2/2021

Naseem Akhter                                   ...Applicant(s)/Petitioner(s)

                    Through:- Mr. Nigam Mehta, Advocate vice
                              Mr. Raghu Metha, Advocate
                         v/s

Mohd. Taj and others                                      ...Respondent(s)
                    Through:- Mr. Sunny Mahajan, Advocate

Coram:      HON'BLE MR. JUSTICE JAVED IQBAL WANI, JUDGE

                                    ORDER

Mac App No. 99/2021

1. In the instant appeal, award dated 24.05.2018 (for short, „the

impugned order‟) passed by Motor Accident Claims Tribunal, Rajouri (for

short, the „Tribunal‟) in claim petition bearing No. 79/Claim, titled as

"Naseem Akhter vs. Mohd. Taj and others", is being assailed.

2. The facts as emerging from the memo of the appeal reveal that the

respondent No. 1 herein filed a claim petition for grant of compensation on

account of injuries sustained in a vehicular accident dated 19.07.2016 while

travelling in a tempo bearing registration No. JK11B-0978 due to rash and

negligent driving of respondent No. 2 herein.

3. It is being stated that upon receipt of a notice from the Tribunal in

the claim petition, the appellant herein entered appearance and filed detailed

objections. Respondent Nos. 2 and 3 are stated to have not appeared before

the Tribunal in response to the notice issued.

4. It is being further stated that the Tribunal framed issues upon the

pleadings of the parties and directed leading of evidence whereupon it is

being stated that the respondent No. 1 besides appearing herself as a witness

examined two other witnesses namely Parveen Akhter and Dr. Abdul Salam.

The appellant herein is stated to have not produced any witness or led any

evidence and thereafter the Tribunal is stated to have passed the impugned

award.

5. The award is being challenged inter-alia on the following

grounds:-

a. That the Award impugned is bad in the eyes of law, as the same has been passed contrary to the facts as well as law, therefore, the same is liable to be set aside.

b. That the Learned Tribunal below has passed the impugned Award, while totally ignoring the evidence adduced as well as pleas raised by the Appellant Company in support of its

defense, therefore, the same is liable to be set aside on this count also.

c. That while passing the impugned Award, the Learned Tribunal below erred in considering the fact that as per the MLC and also as per the FIR/Challan, as annexed by the Claimant/Respondent No.l herself along with the Claim Petition, it was clearly mentioned that as a result of the alleged accident, the Respondent No.l suffered simple injuries, as such, it can be safely inferred that she would not have suffered any kind of disability, whatsoever, as a result of the alleged accident; thus, in view of this fact also, the impugned Award is not sustainable and is liable to be set aside.

d. That the Learned Tribunal below has passed the impugned Award, notwithstanding the fact that the PW-Doctor, in his cross-examination before the Learned Tribunal below, has clearly stated on oath that the as per the injury form, the Claimant/Respondent No.l suffered simple injuries also and also the fact that there is no mention of any fracture or amputation in the said injury form, as such, it is amply clear that the 'Permanent Disability Certificate', as is being relied on by the Claimant/Respondent No.l as also by the Learned Tribunal below, is a manufactured one and, as such, the same cannot be read into evidence.

e. That while passing the impugned Award, the Learned Tribunal below totally ignored the statement of PW-Doctor who has categorically stated on oath that the Disability as mentioned in the Disability Certificate pertains to right lower limb only and not to the whole body, as such, the loss of earning capacity which was assessed to be 30% by the Learned Tribunal below,

is on a much higher side and is liable to be set aside, as the same cannot exceed 12% in any circumstance.

f. That the Learned Tribunal below has totally ignored the law and Guidelines as have been laid down by the Hon‟ble Apex Court invariably with regard to issues of "Loss of Earning Capacity", etc.

g. That the Learned Tribunal, while passing the impugned Award, has not appreciated the evidence adduced, as such, the same needs to set aside.

6. Before adverting to the grounds of the challenge it would be

pertinent and relevant to refer to the issues framed by the Tribunal which are

extracted and reproduced here under :-

1) Whether petitioner Naseem Akhter sustained injuries in road traffic accident on 19.07.2016, at Tralla Gujran within the jurisdiction of Police Station Rajouri, due to rash and negligent driving of the vehicle No. JKllB-0978 by respondent No. 1 ? GPP

2) In case issue No.1 is proved in affirmative, to what amount of compensation the petitioner is entitled to and from whom ? OPP

3) Whether the offending vehicle was being driven in violation of insurance policy ? OPR-3

4) Whether the vehicle was having no valid documents at the time of accident ? OPR-3

5) Relief ?

7. Perusal of the record would reveal that the claimant/respondent

No. 1 herein appeared in respect of the issues supra framed by the Tribunal

as her own witness besides examining one Parveen Akhter (PW-2) and Dr.

Abdul Salam (PW-3).

8. Perusal of the record further tends to show that the

claimant/respondent No. 1 herein has discharged the onus of proof in respect

of the issues she has been burdened with by leading cogent and credible

evidence proving that she sustained injuries in a road traffic accident on

19.07.2016 within the jurisdiction of Police Station Rajouri on account of

vehicle No. JK11B-0978 being driven by driver-respondent No. 2 herein.

9. The Tribunal while taking into account the statement of the

claimant/respondent herein as also the other witnesses produced by her

inasmuch as final police report including a medical certificate on file rightly

came to the conclusion that the issues Nos. 1 to 4 came to be proved by the

claimant/respondent No. 1 herein.

10. Perusal of the record also reveals that the respondent-appellant

herein did not lead any evidence before the Tribunal or else contradicted and

extracted evidence contrary to the evidence led by the claimant/respondent

No. 1. The grounds urged in the instant appeal by the appellant in view of

the clear admission made by the appellant in the memo of the appeal that it

did not produce any evidence in order to defend the claim petition of the

respondent No. 1 thus, pales into insignificance. The appellant herein

therefore, is precluded from urging the grounds in this regard in the appeal.

The appellant convincingly has discharged the onus while leading evidence

qua the issues framed by the Tribunal. Be it about the occurrence of

vehicular accident, injuries sustained thereof by a claimant/respondent No. 1

sustained due to rash and negligent driving of respondent No. 2 or else the

amount of compensation petitioner became entitled thereto. Since in respect

of the rest of the issues, onus to discharge the same was upon the

respondents and that the respondents indisputably did not lead any evidence,

making any discussion qua the said issues becomes insignificant and

irrelevant.

11. The contention and the grounds urged by the appellant in the

instant appeal that the Tribunal passed the impugned award while ignoring

the evidence adduced as well as plea raised by the appellant and that the

Tribunal did not appreciate the evidence adduced are bald and are based on

summarizes and conjectures. The law is no more res-intgra that in motor

accident claims the strict principle of evidence and standard of proof like in

criminal case are inapplicable. A reference here in this regard to the

judgment of the Apex Court passed in "Anita Sharma and others vs. New

India Assurance Co. Ltd. and another, 2021 (1) JKJ[SC] 140", would be

relevant and germane herein where at para No. 22, following has been

noticed :-

"22. Equally, we are concerned over the failure of the High Court to be cognizant of the fact that strict principles of evidence and standards of proof like in a criminal trial are inapplicable in MACT claim cases. The standard of proof in such like matters is one of preponderance of probabilities, rather than beyond reasonable doubt. One needs to be mindful that the

approach and role of Courts while examining evidence in accident claim cases ought not to be to find fault with non-examination of some best eyewitnesses, as may happen in a criminal trial; but, instead should be only to analyze the material placed on record by the parties to ascertain whether the claimant‟s version is more likely than not true."

12. Having regard to what has been observed, considered and analysed

herein above, the instant appeal entails dismissal and is accordingly,

dismissed.

Cr. Obj No. 2/2021 in Mac App No. 99/2021

13. In the instant cross objections, the appellant herein while throwing

challenge to an award dated 24.05.2018 (for short, „impugned award‟)

passed by Motor Accident Claims Tribunal, Rajouri (for short, the

„Tribunal‟) passed in file No. 79/Claim/2016 titled as "Naseem Akhter vs.

Mohd. Taj and others" seeks following reliefs:-

"It is, therefore, prayed that the impugned award dated 24.05.2018 passed by MACT Rajouri titled Naseem Akhter V/s Mohd. Taj and others whereby an award of Rs. 2,50,500/- alongwith pendalite and future interest with 7.5% interest minus the interest on the future loss of income from the date of claim petition till the realization of the whole amount may be enhanced to Rs. 7,58,000/- which may be paid with 9% interest p.a. from the date of claim petition till the realization of the whole award amount. And this Hon'ble Court may pass any other order or direction, which this Hon'ble Court may deems fit and proper in the present set of circumstances."

14. The aforesaid relief is being claimed inter-alia on the grounds that

the findings of the Tribunal on the quantum of compensation are against the

evidence on record and are on lower side and that as per the evidence on

record, it had been proved by the PW-3-Dr. Abdul Salam that the claimant

suffered Post traumatic instability of neck and developed giddiness vertigo

with change in position of head and has IDK right knee with osteoarthritis of

knee joint resulting into wastage of thigh and red muscles resulting into

permanent disability of 35 % and that as per the evidence the claimant was a

housewife looking after household affairs besides doing knitting sweaters

having proved her income Rs. 8000/- per month and that the Apex Courts

and other Courts have held that a housewife works 24 hours a day and that

her service cannot be valued less than a daily wager/labourer and in the

present day, a daily wager/labourer gets Rs. 450/- per day for working 8

hours a day and that a maid gets not less than Rs. 9000/- per month as such,

the service of the petitioner could not be assessed less than Rs. 8000/- per

month and that the Tribunal having assessed the overall disability of the

whole body of the claimant at Rs. 25 %. The Tribunal ought to have

assessed the loss of future earning as Rs. 8,000X12X17X25%= Rs.

4,08,000/- and that the Tribunal awarded Rs. 3000/- as expenses on

attendants, Rs. 5000/- on medical expenses, Rs. 3000/- on Special Diet, Rs.

5000/- for pain and sufferings and Rs. 5000/- for loss of amenities of life and

that since the petitioner remained admitted in the hospital and had to attend

for follow up for six months, the expenses on attendants ought to have been

assessed at Rs. 50,000/-, medical expenses at Rs. 50,000/- and expenses of

special diet at Rs. 50,000/- and that the Tribunal instead awarded meagre

compensation of Rs. 5000/- on account of pain and sufferings instead of Rs.

1,00,000/-and ought to have awarded Rs. 1,00,000/- for loss of amenities of

life instead of Rs. 5000/-.

15. The Tribunal is also stated to have erred in not awarding the

interest of future loss income and the interest awarded ought to have been

9% instead of 7.5% awarded on the whole of the compensation.

Heard learned counsel for the parties.

16. Indisputably, the appellant/claimant established before the

Tribunal to be a housewife and that she suffered injuries on account of

vehicular accident on 19.07.2016 and on account of the injuries sustained

resulted into her 30% disability.

17. Perusal of the record tends to show that the evidence led by the

appellant before the Tribunal has been appreciated rightly by the Tribunal

while relying upon the judgment of the Apex Court passed in "Raj Kumar

vs. Ajay Kumar", 2011 ACG 1.

18. Further, the issue of disability has been rightly considered by the

Tribunal on the principle laid down by the Apex Court in Raj Kumar's case

supra as while slashing down the earning capacity to 25%. Further, the

Tribunal has rightly applied the multiplier of 17 in view of the fact that the

claimant being in the age group of 26-30 while assessing yearly loss to the

appellant/claimant based on the law laid down by the Apex Court in case

titled "Sarla Verma & Ors. Vs. Delhi Transport Corporation and Anr."

reported in 2009(3) Supreme 487. The amount of compensation thus,

awarded by the Tribunal seemingly is proportionate to the injury/disability

suffered as also granted under different heads by the Tribunal to the

claimant/appellant. The award of pendent lite and future interest @ 7.5% per

annum also seemingly is fair and reasonable.

19. Resultantly, what emerges from above is that the award passed by

the Tribunal is well-reasoned and does not call for any interference on any

grounds urged by the appellant in the instant appeal. The appeal, thus, entails

dismissal and is accordingly, dismissed.

(JAVED IQBAL WANI) JUDGE

Jammu 06.12.2021 SUNIL-I

Whether the order is speaking ? : Yes/No Whether the order is reportable ? : Yes/No