Jammu & Kashmir High Court

Oriental Insurance Co. Ltd vs Act on 10 September, 2021

                      HIGH COURT OF JAMMU AND KASHMIR AND LADAKH
                                       AT JAMMU



                                                                 Mac App No. 147/2020


                Oriental Insurance Co. Ltd.                                    ..... appellant (s)

                                               Through :- Mr. Suneel Malhotra Advocate

                Anjali Razdan and ors                                        .....Respondent(s)

                                               Through :-   Mr. P.N.Raina Sr. Advocate with
                                                            Mr. J. Hamal Advocate.


            Coram: HON'BLE MR. JUSTICE SANJAY DHAR, JUDGE


                                           JUDGMENT

1 Appellant-Insurance Company has challenged the impugned award dated

27.07.2020 passed by the Motor Accident Claims Tribunal, Jammu (hereinafter

referred to as the 'Tribunal) whereby respondent No.1/claimant has been

awarded a sum of Rs.11,50,000/- as compensation along with interest at the

rate of 7.5% from the date of institution of the claim petition till realization of

the awarded amount.

2 Briefly stated the facts leading to filing of the instant appeal are that on

18.11.2009, while the claimant along with other passengers was travelling in a

passenger vehicle bearing registration No.JK02E-2907, the said vehicle

suffered an accident near Army School, Barnai Jammu. The accident was

caused due to rash and negligent driving of offending vehicle by its driver/

respondent Jagdish Raj and it resulted in multiple injuries to

claimant/respondent No.1. She had to undergo prolonged treatment in the

Hospital and her left kidney had to be removed.


MOHAMMAD ALTAF BHAT
2021.09.16 17:21
I attest to the accuracy and
integrity of this document
                                            2                         Mac App 147/2020




            3         The claimant filed a claim petition before the Tribunal claiming

compensation against the owner, driver and the insurer of the offending

vehicle. The claim petition was contested by the insurance company, whereas

the driver and owner of the offending vehicle did not contest the claim petition.

The Insurance Company in its reply admitted the currency of policy of

insurance of offending vehicle with it at the time of the accident, but it denied

the occurrence. It was further claimed by the insurance company that the driver

of the offending vehicle was not holding a valid and effective driving licence at

the time of the accident and, as such, there was breach of policy conditions on

the part of the insured.

4 On the basis of the pleadings of the parties, the Tribunal framed the

following issues:

1 Whether an accident took place on 18.11.2009 at 6.15 pm, near Army School, Barnai Jammu under the jurisdiction of Police Station, Domana by rash and negligent driving of the vehicle bearing registration No. JK02E-2907 by its driver as a result of which petitioner Anjali Razdan received grievous injuries and has been disabled ? OPP 2 If issue No.1 is proved in affirmative, whether petitioner is entitled to compensation, if so to what amount and from whom ? OPP 3 Whether the offending vehicle was being driven at the time of accident in violation of terms and conditions of policy of the insurance ? If so to what effect ? OPR-3 4 Relief OP. Parties

5 After trial of the case, the Tribunal held that there was no loss of future

income to the claimant as a result of the injuries which she sustained in the

accident. According to the Tribunal, having regard to the nature of injuries

suffered by the claimant, particularly removal of one of her kidneys, she may

have to take extra precaution for maintaining her health and hygiene and she MOHAMMAD ALTAF BHAT 2021.09.16 17:21 I attest to the accuracy and integrity of this document 3 Mac App 147/2020

may also have to undergo further treatment. Accordingly, the Tribunal has

awarded a sum of Rs.10.00 lac in favour of the claimant in this regard

including the future cost of treatment and another sum of Rs.50,000/- as

medical expenses. Besides this, the Tribunal also awarded a sum of Rs.50,000/-

as compensation on account of pain and suffering undergone by the claimants.

Thus, in all, the Tribunal has awarded a sum of Rs.11,50,000/- as

compensation in favour of the claimant along with interest @ 7.5% per annum.

6 The Insurance Company has challenged the impugned award primarily

on the ground that the driver of the offending vehicle was not holding a valid

and effective driving licence at the time of the accident and that the Tribunal,

despite noticing that the challan against the driver was filed not only for

offence under Sections 279/337/338 RPC, but also for offences under Section

3/181 of M. V. Act, went on to hold that the Insurance Company has failed to

prove that the vehicle was being driven in contravention of the terms and

conditions of the insurance policy. According to the appellant-Insurance

Company, the course adopted by the Tribunal amounts to total non-application

of mind on its part. It has been further contended that the compensation

awarded in favour of the claimant is on higher side, inasmuch as no permanent

disability was suffered by her as a result of the accident. It has also been

contended that the Tribunal was not justified in awarding interest @ 7.5 when

the bank interest rate has dropped drastically.

7 I have heard learned counsel for the parties and perused the record of the

case.

8 So far as the occurrence is concerned, there is no dispute that the

accident did take place due to rash and negligence driving of the offending MOHAMMAD ALTAF BHAT 2021.09.16 17:21 I attest to the accuracy and integrity of this document 4 Mac App 147/2020

vehicle by its driver which resulted in multiple injuries to the claimant. It is

also not in dispute that the offending vehicle was insured with appellant-

Insurance Company at the relevant time. So far as quantum of compensation is

concerned, as already noted, the appellant-Insurance Company has contended

that the claimant has not suffered any permanent disability, as such, the

compensation awarded by the Tribunal is on higher side.

9 It is true that the claimant did not suffer any permanent disability on

account of the accident, but then, it has been established from the material on

record that one of her kidneys was removed. There is medical record on file of

the Tribunal which shows that the claimant underwent a surgery to remove her

left kidney and she remained hospitalized for about fifteen days.

10 The Tribunal has lucidly and in a detailed manner dealt with the

aftereffects of removal of a kidney and has clearly mentioned the adverse effect

which a person with only one kidney is going to encounter during rest of his

life. The claimant in her statement before the Tribunal has clearly stated that

the Doctors have informed her that she cannot give birth to a child henceforth

because of the injuries which she has suffered. Thus, it is a clear case of loss of

amenities of life by the claimant lady. The Tribunal, as such, was fully justified

in awarding composite compensation in the amount of Rs.10.00 lac on account

of loss of amenities of life and the cost of future treatment in favour of the

claimant.

11 Having regard to seriousness of injuries suffered by the claimant and the

period for which she has undergone hospitalization, the amount of

compensation awarded by the Tribunal under the heads 'pain and suffering'

and 'medical expenses' appears to be on lower side. However, the claimant MOHAMMAD ALTAF BHAT 2021.09.16 17:21 I attest to the accuracy and integrity of this document 5 Mac App 147/2020

has not laid a claim for enhancement of compensation, as such the

compensation awarded by the Tribunal in this regard is left untouched. Thus,

by no stretch of imagination, it can be said that the compensation awarded by

the Tribunal in favour of respondent No.1/claimant is on higher side or

exorbitant as has been claimed by the insurer.

13 It has been next contended by the leaned counsel for the insurer that

there was material on record before the Tribunal in the shape of challan

relating to the accident to show that the driver of the offending was not holding

a valid and effective driving license, but the same been ignored by the Tribunal

while deciding issue No.3 against it.

14 A perusal of the record of the Tribunal shows that the driver of the

offending vehicle, namely Jagdish Raj, after investigation of the case, has been

found to have committed offences under Sections 279/337/338 RPC and 3/181

M.V Act which means that the police, during investigation of the case, has

found that the driver of the offending vehicle was not holding a driving licence.

The said document has been relied upon by the claimant as well as by the

insurer. A document brought on record, which is relied upon by a party on one

aspect of the matter cannot be ignored or overlooked on another aspect of the

matter. Thus, the challan which has been relied upon for the purpose of proving

the accident in question has to be relied upon for the purpose of establishing

the fact that the driver of the offending was not carrying the driving licence. At

least, by relying upon the said document, the insurance company has

discharged its initial burden of showing that there has been violation of policy

conditions, inasmuch as the driver of the offending vehicle was not carrying a

driving licence. Neither the driver, nor the owner of the offending vehicle MOHAMMAD ALTAF BHAT 2021.09.16 17:21 I attest to the accuracy and integrity of this document 6 Mac App 147/2020

chose to contest the claim petition and they did not lead any evidence to rebut

this fact. Therefore, it cannot be sated that the driver of the offending vehicle

was carrying a valid and effective driving licence. The Tribunal, by ignoring

the aforesaid aspect of the matter, has fallen into error in holding and deciding

issue No.3 against the Insurance Company. The finding of the Tribunal to this

extent deserves to be set aside.

15 In view of what has been stated in preceding para, the question arises as

to who should satisfy the award. In the instant case, the claimant lady has

suffered the accident about 12 years back and till date, she has not been paid

the compensation. The driver and the owner of the offending vehicle have

eluded the process of the Court, inasmuch they have not contested the claim

petition before the Tribunal, nor have they appeared before this Court. In these

circumstances, to expect the claimant to chase the driver and owner for

satisfaction of her claim would be adding insult to her injury.

16 In view of what has been discussed hereinabove, while maintaining the

quantum of compensation awarded by the Tribunal vide the impugned award,

the interests of justice will be served if the insurer is directed to satisfy the

award with a right to recover the same from the driver and the owner of the

offending vehicle.

17 So far as the contention of learned counsel for the insurer that presently

the rate of bank interest has dropped drastically, as such, the Tribunal was not

justified in awarding interest at the rate of 7.5% is concerned, as recently as in

February, 2020, the Supreme Court in the case of Kajal vs. Jagdish Chand

and ors, (2020) 4 SCC 413 has awarded interest at the rate of 7.5% per annum.

Thus, there is no justification for reducing the rate of interest on the awarded MOHAMMAD ALTAF BHAT 2021.09.16 17:21 I attest to the accuracy and integrity of this document 7 Mac App 147/2020

sum in the instant case. Accordingly, it is provided that the insurer shall have to

pay interest at the rate of 7.5% per annum on the awarded amount.

18. Accordingly, the impugned award passed by the Tribunal is upheld with

the modification that the awarded sum shall, in the first instance, be paid to the

claimants by the insurer with a right to recover the same from the owner and

driver of the offending vehicle. Other terms and conditions of the impugned

award shall remain unchanged.

19. The awarded sum deposited with the Registry of this Court be released

in favour of the claimants after proper verification/identification.

Appeal at hand stands disposed of in above terms.

Record, if summoned/received, be sent down.

(SANJAY DHAR) JUDGE Jammu 10 .09.2021.