Jharkhand High Court
National Insurance Company Ltd vs Dharmendra Malah on 10 March, 2022
IN THE HIGH COURT OF JHARKHAND AT RANCHI
M.A. No. 128 of 2010
National Insurance Company Ltd.,
Verma Mansion, Bank More, Dhanbad .... .... Appellant
Versus
1. Dharmendra Malah
2. Deepak Kumar Paul
3. Sunil Paul .... .... Respondents
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CORAM: HON'BLE MR. JUSTICE GAUTAM KUMAR CHOUDHARY
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For the Appellant : Mr. Alok Lal, Advocate
For the Respondents : Mr. Mahesh Tewari, Advocate
Mr. Rajiv Karan, Advocate
C.A.V. ON 25.02.2022 PRONOUNCED ON 10 .03.2022
1. This instant appeal has been preferred by the Insurance
Company against the judgment and award of compensation in Title
(M.V.) Suit No. 224 of 2003 passed by the Additional District & Sessions
Judge, F.T.C.-1-cum-M.A.C.T., Dhanbad, under Section 166 of the M.V.
Act for the permanent disablement sustained by Dharmendra Malah in a
motor vehicle accident.
2. The appeal has been preferred mainly on the ground that the
injured has been examined as P.W.-3 and it has been stated by him that he
was treated in Rubi General Hospital, Calcutta and the expenditure
incurred in the treatment of Rs.3,60,000/- was paid to the hospital by
BCCL from where he had received the medical advance. It is also
submitted that the injured has continued in service and the injury has not
resulted in the functional disability leading to any loss in income on
account of the said disablement. He was absent from duty for a long
period but the period has not been stated by this witness in his deposition.
Regarding the manner of accident, it is submitted that the injured was
driving the motor-cycle at the relevant time of accident without a valid
driving license.
Lastly, it is submitted that a specific defence has been taken in
para-20 of the written statement that the truck was not having a valid route
permit and it was incumbent on the part of the owner of the vehicle to
have produced it but the same has not been produced during inquiry and
under the circumstance it was a case of breach of terms and conditions of
the policy.
3. Learned counsel Mr. Rajiv Karan, appearing on behalf of the
claimant- respondent submits with regard to the manner of accident that at
the relevant time of accident it was not the injured who was driving the
motor-cycle rather it was Sanjay Shankar who was driving the motor-
cycle and the injured Dharmendra Malah was a pillion rider. No contrary
evidence has been led to show that the injured was driving the vehicle.
With regard to defence that the expenditure incurred in the
treatment was duly reimbursed, it is submitted that it is not correct as only
Rs.62,769/- had been received which has been duly deducted by the
BCCL while making the award.
4. It is not in dispute that the claimant sustained injury in the
motor vehicle accident when he was travelling as a pillion rider on the
motor cycle which was dashed by the offending truck due to rash and
negligent driving of the truck bearing registration no.BR-17-G 5006. The
learned Tribunal on issue nos. 4 and 5 has returned a finding on the basis
of eye witness account of P.W. 1 Mahendra Nishad, P.W.2 Ram
Ayodhyaya Nishad and P.W.3 the claimant himself that accident was
caused by rash and negligent driving of the offending truck bearing
registration no. BR-17-G 5006. There is no contrary evidence to draw a
different inference and disturb the finding on this count.
5. In view of the above finding, it is immaterial whether the driver
of the motorcycle was having a driving license or not. The driver of the
motorcycle can not be liable for contributory negligence merely because
he was not having a driving licence. Absence of driving licence can draw
the penal provision under the M.V. Act, but it cannot be a sole ground to
draw a different inference, when other evidence on record establish that
the accident took place due to rash and negligent driving of the truck.
6. Coming to the quantum of compensation, the learned Tribunal
has awarded a compensation of Rs.5,89,567/- after deducting
Rs.62,769.27 received by the claimant from the BCCL as a medical
expenditure. The compensation has been awarded under following heads:
(i) For the absence from duty for about 50 months 6694 X 50 =
Rs.3,34,700/-.
(ii) Pain and suffering Rs.50,000/-.
(iii) Loss of amenity of life Rs.40,000/-.
Total Rs.6,77,336/-
7. I do not find any infirmity in the impugned judgment and
award. The appeal is accordingly dismissed.
The Insurance Company is permitted to withdraw the statutory
amount which was paid the time of filing of appeal.
Consequently, I.A. No. 6920 of 2021 stands disposed of.
(Gautam Kumar Choudhary, J.)
Jharkhand High Court, Ranchi
Dated the 10th March, 2022
AFR / AKT
