United India Insurance Company ... vs Barkat Ali Alias Bargat Ali
2023 Latest Caselaw 2153 j&K

                                                                         Sr. No. 145

           HIGH COURT OF JAMMU & KASHMIR AND LADAKH
                           AT JAMMU

                                                     Pronounced on : 04.10.2023


Case No : MA No. 431/2014
         IA No. 622/2014


United India Insurance Company Limited,
Divisional Office-I, Gandhi Nagar, Jammu
through Sh. M.L.Verma,
Divisional Manger, Jammu.                                                .....Appellant(s)..



                         Through :- Mr. Vishnu Gupta, Advocate.


                    Vs


1.        Barkat Ali alias Bargat Ali,
          S/o Reham Din R/o Vilalge Qulli,
          Tehsil and District, Samba.
2.        Parvinder Sharma, S/o Sham Sundar
          R/o Bishnah, Tehsil and District Samba.
          (Owner of Mini Bus No. JK02R/8884).
3.        Rakesh Kumar S/o Balkrishan R/o
          Village Quilli Tehsil Samba.
          (Driver of Mini Bus No. JK02R-8884).


                                                                       ....Respondent(s)..


                         Through :- Mr. C.B.Salathia, Advocate.


Coram:       HON'BLE MR. JUSTICE PUNEET GUPTA, JUDGE

                                     JUDGMENT

04.10.2023

1. Barkat Ali-claimant, respondent No.1 herein, in the appeal asserted in the

claim petition filed by him before the learned Motor Accident Claims

Tribunal, Jammu that he had suffered permanent disability in a road

traffic accident on 12.01.2009 which took place due to rash and negligent

driving by the respondent No.2-Parvinder Sharma, who was driving

matador bearing No. JK02R-8884. The claimant was also travelling in the

same vehicle which turned turtle as the driver of the vehicle lost control

over the vehicle in question.

2. The appellant herein-Insurance Company Contested the claim petition.

The respondents, owner and driver of the vehicle, were proceeded ex-

parte before the Tribunal.

3. As far as the rash and negligent act of the driver of offending vehicle is

concerned, the same was held to have been proved by the Tribunal and

the same is also not disputed in the appeal. The claimant was held entitled

to compensation to the tune of Rs.2,92,000/- along with interest @ 7.5%

per annum pendentelite and future except on the amount of loss of future

income and the liability to pay the amount was fastened upon the

appellant-Insurance Company.

4. The appeal is preferred mainly on the ground that the liability has not

been fastened upon the Insurance Company correctly as the vehicle was

being plied by the driver of the vehicle not as per route permit. It is

submitted that the vehicle as per the route permit was required to be plied

from High Court Complex, Janipur to Bishnah by B.C.Road, G.L.Dogra

Marg, Satwari and vice versa whereas the accident took place at Kalu

Chak meaning thereby that the vehicle was not plying as per the route

permit.

5. The learned Tribunal while deciding this issue has relied upon the

judgment of this Court reported in 2010 ACJ, 1526. Admittedly, the place

where the accident took place does not strictly fall within the route permit

on which the vehicle was supposed to ply. At the same time, it may also

be noted that the place where the accident took place is not a far off place

from the area where the vehicle was required to ply as per route permit

and thus deviation was not significant one so as to absolve the Insurance

Company to compensate the claimant in case the Insurance Company is

to be otherwise held liable to pay compensation to the claimant. Thus, the

contention raised that the Insurance Company is not liable to compensate

the claimant for the compensation to which the claimant may be held

entitled to on the aforesaid ground is rejected.

6. The learned counsel appearing for the appellant-Company has also argued

that the Tribunal has not assessed the monthly income of the claimant in

accordance with law and the permanent disability assessed by the

Tribunal is also not as per the record.

7. The perusal of the file reveals that the claimant has suffered permanent

disability to the extent of 24% of right lower limb and when the disability

is compared to whole body it will get reduced by one half. The statement

of Dr. Som Kumar Chadgyal is on the file and so is the certificate of

permanent disability issued in favour of the claimant-Barkat Ali. The

doctor, who was one of the members of the Medical Board, in his

statement has deposed qua the disability certificate issued which is

exhibited as EXPW-SKC. As per the medical record, the victim was

found to be treated case of sub-trochantric facture with displacement of

fracture with history of RTA. The patient was treated at GMC Hospital,

Jammu with close reduction of internal fixation. The implant is still inside

and its removal requires another surgery. The patient has difficulty in his

movement and doing heavy work.

8. There cannot be normally reassessment by this Court of the disability

suffered by the claimant as per the medical evidence on record. The

Tribunal has assessed the monthly income of the claimant as Rs.6000/-.

The victim is a labourer. The learned counsel for the appellant though

disputes the income assessed by the Tribunal, the Court is of the view that

the Tribunal has not assessed the same exorbitantly which requires any

scaling down by this Court while assessing the compensation.

9. The Court has, however, assessed the loss of earning capacity as 20% and

also assessed the future loss of income accordingly.

10. The Court finds no reasons to make any amends in the same. The

multiplier of 16 has been applied in the case in hand keeping in view the

age of the victim as 31 years. Again no reason to interfere in the said

finding. The Court has also held the petitioner entitled to loss of

amenities, pain and sufferings to the tune of Rs.20,000/- each and medical

expenses to the tune of Rs.21,000/- keeping in view the Medical Bills on

record.

11. The learned counsel for the appellant though tried to impress upon the

court that the Tribunal has granted more compensation than what is

required in the facts and circumstances of the case, the Court does not

agree with the submission of the appellant. The awarding of

compensation as mentioned in the award along with interest is just and

does not require any interference by this court and is upheld.

12. The appeal is found to be without merit and is dismissed.

(PUNEET GUPTA) JUDGE Jammu:

04.10.2023 Pawan Chopra

Whether the Judgment is speaking: Yes/No Whether the Judgment is reportable: Yes/No

PAWAN CHOPRA 2023.10.06 13:13 I attest to the accuracy and integrity of this document