Court No. - 3
Case :- FIRST APPEAL FROM ORDER No.917 of 1999 Appellant :- New India Assurance Co.Ltd. Respondent :- Smt.Savitree Devi And Another Counsel for Appellant :- Brijesh Chandra Naik, Parmatma Rai Counsel for Respondent :- R.B.Yadav, M.S. Haq, M.W. Faridi, S.K. Gupta
Hon'ble Dr. Kaushal Jayendra Thaker, J.
1. Heard Sri M.W. Faridi for the claimant and Sri B.C. Naik for the Insurance company. None present for the owner – respondent.
2. This appeal, at the behest of the claimants, challenges the judgment and award dated 28.5.1999 passed by Motor Accident Claims Tribunal, Gorakhpur, (hereinafter referred to as 'Tribunal') in Motor Accident Claim Petition No. 380 of 1997 awarding a sum of Rs. 2,91,400/- with interest at the rate of 12 per cent.
3. The following grounds have been raised by the Insurance company:-
(i) Because, there is no evidence of accident having taken place with the Jeep in question as denied by owner.
(ii) Because, the statement of PW1 injured and PW3 – Vinod Kumar is self contradictory. PW1 says Jeep Scratched against the bus coming from other side, which PW2 says that Jeep dashed against the straightway bus and the F.I.R. was lodged after 8 days is a clear proof of there being no accident and entire case being an after thought.
(iii) Because, in his statement Dr. Nirankar Singh has stated that the disability will go away after some time as such there is no permanent disability.
(iv) Because, the amount awarded is highly excessive as the shop of jewellery was being run by husband and sun of the claimant and it is impossible that because of her injuries out of total income of Rs.38,000/- per annum, the income loss is Rs.36,000/- per annum.
(v) Because, when cashmemos of only Rs.10,000/- were produced, there is no justification of allowing Rs.20,000/- under the head of medicines.
(vi) Because, when there is no permanent disability according to doctor, there is no justification for allowing Rs.62,000/- for keeping a maid servant as helper.
(vii) Because, allowing Rs.15,000/- for special diet is rather ridiculous.
(viii) Because, allowing Rs.20,000/- for future treatment is just imaginary and wrong.
(ix) Because, allowing another Rs.78,000/- for future loss in business is wrong and without any basis.
(x) Because, the Supreme Court as well as all courts have repeatedly held that an accident should not be allowed to be made a windfall for the injured or family but the compensation should only be just and proper.”
Gist of which is that involvement of Jeep is in doubt as its involvement is denied by owner of the Jeep and there is doubt about the accident having taken place with the Jeep in question.
4. It is submitted that on 12.5.1997, the claimant was travelling in the jeep of one Sri Bal Kisan which was insured by the appellant – company when it reached place of occurrence, there was a bus stationed on the road and the Jeep struck against the bus from the back side resulting injuries to the claimant.
5. It is further submitted that there was no permanent partial disability and there was loss of any income. The cash memos were only for Rs.10,000/- and Rs.20,000/- has been granted under the head of medicines. The disability when was to reduce on a future date, there was no question of granting Rs.62,000/- under the head of keeping a maid servant as helper. The amount under special diet to the tune of Rs.20,000/- is also exorbitant and a future treatment amount granted is bad. Future loss of income granted is also bad. Hence, for all practical purpose, the appeal challenges the grant of compensation to the injured to the tune of Rs.2,91,400/- with 12% rate of interest.
6. Brief facts leading to the litigation by and between the parties is as under:
7. On 12.5.1997 when the claimant was going from Khalilabad to here residence at Gorakhpur by Jeep UP-53- C-2135 and vehicle reached Nausad Chauraha near police station of Belipar, Gorakhpur, at 07.00 a.m., the driver of the Jeep driving the Jeep in a rash and negligent manner, dashed with a bus coming from opposite side and right side cover and seat and iron-rod hit the claimant injured. She had a fracture on the collar bone, injuries on her skull and injuries on the other parts of her bad. The Insurance company and the owner appeared and contended that the Jeep did not met with an accident. The owner filed a cover note but the Insurance company contended that the vehicle was not insured with it and that driver was not made a party and, therefore, the claim petition should be dismissed.
8. Oral evidence produced on behalf of the petitioner for adducing evidence are PW-1 Smt. Savitri Devi, the petitioner herself, PW-2 Dr. Virendra Srivastava, PW-3 Vinod Kumar and PW-4 Dr. Nirankar Singh. Filed through the list 22/C as documentary evidence are the following documents: First Information Report, Charge-sheet, Site Map, Application for Bail, Order on Bail and Injury Report. The papers such as CT Scan Report, X-ray Report, X-ray Plates (Film), Pharmacy Bill, Prescription Slips of Dr. Virendra Srivastava and A.K. Singh, papers related to treatment by Dr. Rehmat Ali, copy of the certificate of gold business and papers for income-tax payment have been filed.
9. No oral evidence has been adduced on behalf of the opposite parties. Papers such as Insurance Policy, Registration Certificate, Fitness Permit and Driving License have been filed on behalf of the vehicle's owner. No paper has been filed on behalf of the Insurance Company.
10. The Insurance company has not challenged the judgment on the basis of any breach of policy conditions. What has been assailed is non involvement of the vehicle and on quantum.
11. The evidence goes to show that the claimant has lodged an F.I.R. which is corroborative of her oral testimony. The owner of the Jeep except stating that the vehicle was not involved and that the Jeep was stationary and while getting down, she injured herself was his stand. Just because the name and number of the bus was not mentioned, it would make no difference. The claimant was in the Jeep. PW3 has also opined to the said effect. The driver of Jeep has not stepped into witness-box. This categorically show that finding of fact by the Tribunal as far as involvement of the vehicle is concerned, is proved to the hilt and no fault can be found that the finding of Tribunal is to the said effect.
12. This appeal now requires to be considered on the basis of the quantum awarded. The Tribunal has considered the income of the injured. The injured was so many years of age. There is no finding of fact by the Tribunal as to what was the functional disability which he has suffered. The Tribunal, while considering the income of the injured, has granted exorbitant amount as in her evidence it is admitted that the shop is still being run. She was only sitting in the office. For years, she has stopped going to the shop. The income-tax is being paid by her and, therefore, it is he, who would show what was the income loss.
13. While going through the factual scenario, the Tribunal has considered the total amount only under the head which this Court can interfere is the future amount. The Tribunal has considered granting her amount with 12% rate of interest which is Rs.500.00 per month. So Rs.500 x 12 x 13 comes to Rs.78,000.00. On what basis the amount of Rs.500/- is calculated is that she is deemed to be earning 50% of loss of income. However, the Tribunal has granted Rs.96,000/- and also Rs.78,000/-. The amount of Rs.7,000/- on what basis has been calculated at Rs.3,000/- again and multiplied by 7 is not understood (Para 36 of the judgment) is the submission of learned counsel for the appellant.
14. The medical evidence according to the counsel nowhere shows what was the functional disability. If we consider her whole body disability to be 60% as held by Dr. Nirankar Singh in the year of accident, her income has been considered by the Tribunal at some place as Rs.1,000/- and at some place as Rs.3,000/-. This is not permissible.
15. The Tribunal has not granted interest on the total amount and, therefore, in the peculiar facts and circumstances of the case, the rate of interest does not require any interference.
16. The amount awarded under the head of services of maid servant granted @ Rs.400.00 per month for 13 years is required to be interfered with as it is not proved that the claimant had availed services of any maid servant but for future a sum of Rs.15,000/- is awarded and out of the amount of Rs.21,000.00 awarded under the head of for actual loss of income when her income has been considered as Rs.1,000/- and then again for 7 months Rs.21,000/- has been granted that is slashed to Rs.7,000.00, hence total of which is Rs.22,000.00 only. Hence, Rs.62,400.00 – Rs. 22,000.00 comes to Rs.40,400.00. Hence, a round figure of Rs.40,000.00 would be refunded to the appellant - Insurance company from the Fixed Deposit.
17. This appeal is partly allowed. The judgment and decree shall stand modified to the aforesaid extent. However, as the Tribunal has not granted interest on the entire amount without assigning any reasons, the said amount of Rs.40,000/- can be apportioned under the head of interest and, therefore, though the amount of refund is there, the injured – claimant will not have to pay any amount though the appeal in principle is partly allowed qua quantum. The amount kept in Fixed Deposit is released as 20 years have elapsed.
18. Record and proceedings of the court below be sent back forthwith.
Order Date :- 29.4.2019 Irshad