New India Assurance Co. Ltd vs Ram Dass & Ors
2021 Latest Caselaw 1285 j&K

       HIGH COURT OF JAMMU & KASHMIR AND LADAKH
                       AT JAMMU


                                            Reserved on : 20.09.2021
                                            Pronounced on : 12.10.2021


                                            MA No.159/2007
                                            IA No.250/2007


New India Assurance Co. Ltd.
                                          .....Appellant/Petitioner


                        Through: Mr. Uday Bhaskar, Advocate
               versus

Ram Dass & ors.                             ..... Respondent(s)

                        Through: Mr. R.P. Sharma, Advocate.

Coram: HON'BLE MR. JUSTICE TASHI RABSTAN, JUDGE


                               JUDGMENT

1. This appeal, filed by the New India Assurance Company Limited, is

directed against the award dated 21.05.2010 passed by the learned Motor

Accidents Claims Tribunal, Jammu in File No.569/claim in case, titled as, Ram

Dass versus Surjit Singh & others, whereby an amount of Rs.7,18,500/- along

with interest @ 7% from the date of filing of claim petition till realization

came to be awarded in favour of claimant Ram Dass, to be satisfied by the

insurance company. However, the insurance company has been given liberty to

recover the amount of compensation from the owner of the offending vehicle

in execution proceedings.

2 MA 159/2007

2. During the pendency of appeal, claimant-Ram Dass died, as such, his

legal representatives came to be impleaded as claimants-respondents 1(a), 1(b)

and 1(c) herein vide order dated 25.07.2019.

3. The facts-in-brief, as gathered from the award impugned, are that the

original claimant-Ram Dass was travelling as a second driver in the offending

Truck bearing registration No.4093-JK02A on 14.11.1999. The truck was

heading towards Jammu from Anantnag and at about 7:40 AM when the truck

reached near Padhshi Bagh, Bijbehara on J&K National Highway, the accident

took place, as a result of which claimant-Ram Dass suffered multiple grievous

injuries, involving his left leg which came to be pressed under the truck. After

getting number of treatments, the petitioner was found to be a case of infected

non-union supracondylar fracture left femur with arthodeses left knee with

shortening of left lower limb. The petitioner became disabled and on

examination his disability was found to be 50% of the left lower limb which

was permanent in nature.

4. Claimant-Ram Dass filed a claim petition before the learned Tribunal and

the learned Tribunal after examination of the evidence led by the parties passed

an award of Rs.7,18,500/- along with interest @ 7% from the date of filing of

claim petition till realization, while taking the income of claimant-Ram Dass as

Rs.6000/- per month in lump sum. Learned Tribunal directed the insurance

company to satisfy the awarded amount with liberty to recover the same from

the owner of offending vehicle in execution proceedings. Learned Tribunal

was of the view that since only one driver had been insured with the insurance

company and as no insurance premium had been paid for the second driver by

the owner of the offending vehicle, as such directed the insurance company to 3 MA 159/2007

satisfy the award in favour of claimant-Ram Dass and recover the same from

the owner in the execution proceedings.

5. Feeling aggrieved, the insurance company-appellant herein filed the

instant appeal on the ground since the claimant-Ram Dass was travelling in the

offending goods vehicle as a gratuitous passenger, the risk of whom was not

covered under the policy-in-question, as such it was not liable to indemnify the

insured owner or pay any compensation to claimant-Ram Dass. Further, it is

averred that the impugned award passed by the learned Tribunal is wholly

unjust and improper and is exceedingly exorbitant. It is further averred that an

amount of Rs.50,000/- has been awarded under the head Loss of Pain and

Suffering and Rs.30,000/- under the head Loss of Amenities of Life. It is

averred that a single head has been bifurcated under sub-heads which is not

permissible under law.

6. I have heard learned counsel appearing for the parties, considered their

rival contentions and also perused the file.

7. Admittedly, the appellant has not disputed the factum of accident. Mainly,

the argument of learned counsel for appellant is that since claimant-Ram Dass

was travelling in the offending goods vehicle as a gratuitous passenger, as such

insurance company is not liable to pay any compensation to him. His next

argument is that the compensation awarded is exceedingly exorbitant and a

single head has been bifurcated under sub-heads.

8. As regards the contention of learned counsel for appellant that the

insurance company is not liable to pay the amount of compensation, the same

has already been set at rest by the learned Tribunal while giving liberty to the 4 MA 159/2007

insurance company to recover the amount of compensation from the original

owner of the offending vehicle in execution proceedings without filing a

separate suit. Therefore, I find no force in this contention and the same is

hereby rejected.

9. Now I come to the next contention of learned counsel for appellant that

the compensation awarded is exceedingly exorbitant.

10. The record of the learned Tribunal reveals that after the accident claimant-

Ram Dass was taken to Srinagar hospital where his leg was operated and

thereafter was referred to Government SMGS Hospital, Jammu for further

treatment where he remained for about a month. Further, PW3 Dr. Dara Singh

had deposed that on examination claimant-Ram Dass was found to be a case of

infected non-union supracondylar fracture left femur with arthodeses left knee

with shortening of left lower limb and his disability was found to be 50% of

the left lower limb which is permanent in nature. He further deposed that

claimant-Ram Dass had suffered multiple injuries over his left limb which

included multiple fractures over the lower end of left femur bone and extensive

soft tissue injuries around knee and leg area. The first surgery was done in the

form of external fixation of femur bone and later on another surgery was done

in the form of skin grafting. The internal fixation of femur bone, however, did

not succeed in fracture union and simultaneously claimant-Ram Dass got the

infection of fracture area which led to the non-union of fracture. He further

deposed that claimant-Ram Dass had undergone a number of surgeries over a

span of three years. He was handicapped for the life time, was required a

regular follow up for the disability and must have spent a lot of expenditure.

The witness further deposed that claimant-Ram Dass was lastly examined by 5 MA 159/2007

him on 14.07.2004 and that any job which required prolong sitting would be

difficult for claimant-Ram Dass.

11. Thus, from the evidence adduced by the doctor, claimant-Ram Dass

suffered multiple injuries, had to undergo number of surgeries over a span of

three years, must have spent a lot of expenditure and was required a regular

follow up as he was handicapped for the life time. The disability certificate

issued from the Government Medical College Hospital, Jammu reveals that the

disability suffered by claimant-Ram Dass was about 50% of left lower limb

which was permanent in nature. Since claimant-Ram Dass remained under

treatment for a number of years and must have spent a lot of expenditure,

therefore, the contention of learned counsel for appellant that the compensation

awarded is exceedingly exorbitant is of no consequence. Further, as per the

record of learned Tribunal, claimant-Ram Dass was 27 years of age when the

accident took place on 14.11.1999 and, as per the death certificate, he died on

25.04.2010; meaning thereby claimant-Ram Dass died at the age of merely

37½ years. Though the cause of death has not been mentioned, it might be due

to the injuries he suffered during the accident because as per the deposition of

doctor himself the internal fixation of femur bone, however, did not succeed in

fracture union and simultaneously claimant-Ram Dass got the infection of

fracture area which led to the non-union of fracture. Therefore, I do not find

any force in the contention of learned counsel for appellant that the

compensation awarded is exceedingly exorbitant.

12. As regards the last contention urged by the learned counsel for appellant

that a single head has been bifurcated into two sub-heads, i.e., pain and

sufferings and loss of amenities of life which is not permissible under law, it is 6 MA 159/2007

seen from judicial pronouncements that the 'non-pecuniary losses' have been

sub-divided into three items: (1) pain and suffering; (2) loss of amenities of

life; and (3) loss of expectation of life. Therefore, this contention of learned

counsel for appellant also fails.

13. Viewed thus, I do not find any merit in the appeal and the same is,

accordingly, dismissed. Since the learned counsel for claimants have failed to

disclose the relation of legal representatives with the deceased original

claimant in the application for bringing on record the legal representatives of

Ram Dass, as such it is directed that the amount of compensation along with

interest accrued thereon be released in favour of wife of Ram Dass after proper

verification and identification and the payments are to be made through RTGS.

Connected IA, accordingly, stands disposed of.

14. Registry to send back the record of learned Tribunal along with a copy of

this judgment.

              Jammu:                                                         (Tashi Rabstan)
              12.10.2021                                                         Judge
              (Anil Sanhotra)



                                         Whether the order is reportable ?        Yes
                                         Whether the order is speaking ?          Yes




ANIL SANHOTRA
2021.11.01 14:11
I attest to the accuracy and
integrity of this document