Jammu & Kashmir High Court
Oriental Insurance Co. Ltd vs Guldev Raj And Ors on 18 February, 2022
HIGH COURT OF JAMMU AND KASHMIR AND LADAKH
ATJAMMU
Reserved on 28.01.2022
Pronounced on 18.02.2022
MA No. 212/2018
Oriental Insurance Co. ltd.
.....Appellant/Petitioner(s)
Through :- Mr. Amrit Sarin, Advocate
v/s
Guldev Raj and ors. .....Respondent(s)
Through :- Mr. Mohinder Singh Charak,
Advocate for R-1
Coram: HON'BLE MR. JUSTICERAJNESH OSWAL, JUDGE
JUDGMENT
1. The present appeal arises out of the award dated 24.07.2018 passed by
the Motor Accident Claims Tribunal, Samba (hereinafter referred to be
as the Tribunal) in file No. 216/CP, titled Guldev Raj vs. Oriental
Insurance Co. ltd. & Ors, by virtue of which a sum of Rs. 7,70,400/- as
compensation has been awarded to the claimant/respondent No. 1 along
with interest @ 7.5% per annum from the date of filing of the claim
petition till its realization.
2. The award has been impugned by the appellant-Insurance Company
mainly on ground that the learned Tribunal has not considered the fact
that there was no evidence that the deceased was running the Barber
shop and was earning Rs. 500-600 per day. It is also stated that the
Tribunal has wrongly determined the quantum of compensation.
3. Mr. Amrit Sarin, learned counsel for the appellant vehemently argued
that the quantum of compensation awarded to the claimant/respondent
No. 1 is on higher side, particularly when there was no evidence on
record that the claimant was earning Rs. 500 per day and further that
loss of income has wrongly been determined.
4. On the other hand, Mr. Mohinder Singh Charak, learned counsel for
respondent No.1 submitted that the learned Tribunal has rightly
assessed the compensation and there is no illegality in the award
impugned.
5. Heard learned counsel for the parties and perused the record.
6. The facts necessary for disposal of the present appeal are that the
claimant/respondent No. 1 filed a petition for grant of compensation on
account of permanent disablement caused to him in a road accident
occurred on 28.07.2011 at 8.00 AM at National Highway at Kainthpur
due to rash and negligent driving by driver of the offending vehicle
bearing registration No. JK02B-0551. It was stated that the claimant
was 45 years of age at the time accident and was working as a Barber at
his shop at Kainthpur and was earning Rs. 15,000/- per month. It was
also stated that the claimant/respondent No. 1 suffered multiple injuries
and fracture in shoulder and other injuries due to rash and negligent
driving by the driver of the offending vehicle and due to the said
accident, the claimant is permanently disabled due to which his income
was reduced to zero, as he was not able to open his shop, which
remained closed for three to four months.
7. Respondent Nos. 2 & 3 were ex parte before the Tribunal. Appellant
herein filed the objections denying the averments made in the claim
petition. On the basis of the pleadings of the parties, the following
issues were framed:
(1) Whether the petitioner Guldev Raj was injured in the accident on
28.07.2011 at about 8 AM at Kainpur National Highway, Tehsil and
District Samba when he was hit by a bus bearing registration No.
JK02B-0551, driven by the respondent No. 2 in a rash and negligent
manner, as a result of which the petitioner received multiple
grievous injuries? OPP
(2) Whether the respondent No. 2 was not holding a valid driving
license at the time of the accident? OPR1
(3) Whether the respondent No. 1 is not liable to pay any compensation
as the offending vehicle was driven in contravention of the terms
and conditions of the insurance policy, RC and R/P? OPR1
(4) In case issue No. 1 is proved affirmative whether petitioners are
entitled to any compensation under Motor Vehicle Act and if so
from whom and to what extent? OPP
(5) Relief."
8. The claimant/ respondent No. 1 besides examining himself, examined
Mir Hussain, Anil Kumar and Dr. V. K. Sharma, Orthopedic Surgeon,
District Hospital Samba in support of his case, whereas the appellant-
Insurance Company has produced RW-Rakesh Kumar in support of its
case. The learned Tribunal determined the compensation payable to the
claimant as under:
1. Loss of income 26/100 x500x30x12x13: = Rs. 6,08,400/-
2. Pain and suffering: = Rs. 30,000/-
3. Medical expenditure: = Rs. 20,000/-
4. Special diet: = Rs. 12,000/-
5. Loss of enjoyment & disfigurement: = Rs, 50,000/-
6. Loss during hospitalization & period of recovery: = Rs. 50,000/-
Total award: Rs. 7,70,400/-
9. The contention of the appellant is that there is no evidence with regard
to the fact that the claimant was running a Barber shop and earning Rs.
15,000/ per month. A perusal of the statement made by the claimant
clearly reveals that he has categorically stated that he was running a
barber shop and prior to the accident, he was earning Rs. 500 to 600 per
day and because of the accident his income was reduced to Rs. 100 to
150 per day. Further, for 5/6 months, he could not open his shop. In
cross-examination, he has stated that he has suffered loss of Rs. 200 to
300 per day and also that he has taken the shop on rent. PW-Anil
Kumar, who was examined by the claimant/respondent, in his statement
stated that after the accident, the work of the claimant/respondent has
been substantially reduced and the income of the claimant has reduced
after the accident.
10. Thus, it is evident that the claimant was working as a Barber in a rented
shop and the appellant has not been able to rebut the said statement of
claimant/respondent No. 1, as such, it is proved that the respondent No.
1/claimant was working as a Barber. Now, it is to be seen whether the
claimant was earning Rs.15,000/- per month as held by the Tribunal.
The claimant/respondent No. 1 has stated that he was earning Rs. 500/-
to 600/ per day and despite cross-examination, the appellant has not
been able to dislodge the claim of the claimant/respondent No. 1 with
regard to his monthly income. It also requires to the noted that the
claimant was working as a Barber in a rented shop and he must have
been paying rent for the shop also. Thus, this Court does not find any
reason to interfere with the monthly income assessed by the learned
Tribunal as Rs. 15,000/- per month.
11. The other contention of the appellant is that loss of income has been
wrongly determined by the Tribunal. Claimant in his deposition has
stated that after the accident, he is earning Rs. 200 to Rs. 300 per day. It
requires to be noted that PW-Dr. V. K. Sharma has categorically stated
that there is 26% disability of his particular limb i.e. right upper limb
and taking into consideration the nature of profession of respondent No.
1 as Barber and in view of nature of injuries suffered by him, his
capacity to work must have been reduced. Therefore, the learned
Tribunal has rightly determined the loss of income at the rate 26% of
the earnings.
12. Viewed thus, there is no illegality in the award impugned. As such, the
present appeal is dismissed. The awarded amount shall be released in
favour of the claimant/respondent No. 1 strictly in accordance with the
judgment dated 24.07.2018 after due verification.
13. Record of the Tribunal be sent back.
(Rajnesh Oswal)
Judge
JAMMU
18.02.2022
Karam Chand
Whether the order is speaking: Yes/No
Whether the order is reportable: Yes/No
