New India Assurance Company Limited Vs. Tufail Ahmad and Others - Court Judgment

This appeal is directed against the judgment and award dated 31.07.2007 passed by the learned Additional District Judge, FTC.III-cum-Motor Accident Claims Tribunal, Samastipur in Claim Case No.7/1994 by which the appellant has been directed to pay a sum of Rs.2,85,000/- with interest.

The case of the claimant, in brief, is that on 29.07.1993 Anwar Ahmad Sabri @ Mohini Babu (original Respondent No.1) was going from Samastipur to Satanpur by Maxi Tata 407 bearing registration no. BR-33P-2507. It was being driven rashly and negligently and dashed against the Jeep coming from opposite direction, as a result of which, the right hand of claimant was cut and fell down, even then, Tata Maxi was not stopped by the Driver and it reached Satanpur. The injured was brought to the Nursing Home and his right hand was amputated by the doctor in operation. The FIR (Ext.3) was lodged as Mushrigharari P.S. Case No.53/1993 under Sections 279, 337, 338, 427 of the Indian Penal Code.

A petition was filed under Section 170 of the Motor Vehicles Act for permission to contest the case on behalf of the New India Assurance Company (appellant). The insurance company contested the case by filing written statement and asserted that the Mini Bus 407 was insured by the New India Assurance Company Limited from 9.04.1994 to 8.04.1995, whereas, the date of occurrence is 29.07.1993, as such, it was not liable to pay the amount of compensation. The claimant is of 67 years and after the age of 60 years, the man remains of no use. So, question of compensation of huge amount of age group of man of 67 years does not arise and prayed to dismiss the claim case.

After framing the issues, the evidence was adduced on behalf of the claimant. No evidence was adduced on behalf of opposite party including the appellant. After the trial, the tribunal held that the offending vehicle was insured by the appellant and it was directed to pay the amount of compensation, as aforesaid.

The learned counsel for the appellant has submitted that there is no document to show that New India Assurance Company Limited was the insurer of the offending vehicle on the date of occurrence, as such; the appellant is not liable to pay the amount of compensation. The amount of interim compensation paid to the injured is liable to be returned. The surveyor is the private agency and as such, his report is not fit to be looked into without proof. The National Insurance Company has no pleading nor evidence. He has further submitted that the multiplier taken by the Tribunal is not correct. There is no pleading and evidence on the point of composite negligence. The injured was 67 years, as such, appropriate multiplier is 5.

The learned counsel for the substituted heirs of the claimant-respondent no.1 submits that earlier National Insurance Company Limited (Respondent No.6) was made a party to the claim petition as the insurer of the vehicle, but later on, it came to the knowledge of the claimant that the New India Assurance Company Limited was the insurer, as such, National Insurance Company Limited was deleted and New India Assurance Company Limited was added as opposite party no.3 vide order dated 30.07.1997. Since New India Assurance Company Limited was insurer of the offending vehicle, as such, the New India Assurance Company (appellant) has rightly been directed to pay the amount of compensation to the injured.

He has further submitted that the learned Tribunal has not properly considered the pain and suffering of the injured and no proper amount of compensation regarding pain and suffering has been given. The amount of compensation is fit to be enhanced. The National Insurance Company Limited was permitted to be added as respondent no.6, as prayed for by the appellant vide order dated 23.04.2010.

The learned counsel for the respondent no.6 has submitted that earlier the National Insurance Company was described as the insurer of the offending vehicle. The Branch Manager of the National Insurance Company Limited, Muzaffarpur got inquired into the matter regarding the insurer of the offending vehicle by the surveyor and came to know that Tata Maxi BR-33P-2507, the offending vehicle met with an accident in which Mr. Anwar Ahmad Sabri @ Mohini Babu was injured on 29.07.1993 was owned by Sri Ramnarayan Singh and was insured with M/S New India Assurance Company Limited (appellant) and was continued to be insured by the New India Assurance Company up to 28.05.1996, as such, the National Insurance Company is not liable to pay any amount of compensation and requested its learned counsel enclosing the report of Sri S.P.Singh, Surveyor and letter of Sri Ramnarayan Singh, owner of the vehicle, which are available on the record of the Tribunal at page 112, 113 and 114. The New India Assurance Company has filed photocopy of Insurance Policy showing that the vehicle was insured from 9.04.1994 to 8.04.1995, which is at page 115-116, which also supports the letter of the National Insurance Company dated 19.11.1996 that the offending vehicle was insured with the New India Assurance Company Limited (appellant) till 28.05.1996.

He has further submitted that it appears from the report of the surveyor that the offending vehicle was financed by M/S Ganesh Mal Sampat Lal, Kolkata and the financer told that he would only give the insurance policy to Sri Ram Narayan Singh, the owner of the offending vehicle. Thereafter, the Surveyor met with Ram Narayan Singh, the owner of the offending vehicle and he accepted that his vehicle was insured with New India Assurance Company Limited (appellant) and he assured that he would consult the financer and after getting the policy, he would give it to the Branch Office of the National Insurance Company Limited, Samastipur and he gave a letter addressed to the Branch manager, National Insurance Company Limited, Samastipur in which it has been mentioned that the vehicle was insured with the New India Assurance Company Limited at the time of accident and he also gave a letter addressed to the financer and requested him to give the policy of period which the accident took place. The letter of owner is at page 114 of the record of the Tribunal. Thereafter, claimant filed petition regarding the deletion of National Insurance Company Limited and for addition of New India Assurance Company (appellant) as opposite party no.3. After being satisfied with the documents and the prayer made by the claimant, the learned Tribunal deleted the name of National Insurance Company as a party and the New India Assurance Company (appellant) was added as opposite party no.3 (appellant). He has further submitted that in this appeal the appellant has not even whispered that the offending vehicle was not insured by the appellant.

He has further submitted that a petition under Section 140 of the MV Act for grant of interim compensation of Rs.25,000/- with interest was contested by the New India Assurance Company (appellant) and the learned Tribunal after being satisfied that the New India Assurance Company is the insurer of the offending vehicle passed the order dated 6.03.2002 directing the appellant to pay interim compensation of Rs.25,000/- within one month from the date of the order failing which the interest @ 8% per annum shall be payable to the claimant-petitioner from the date of application till the date of realization. Thereafter, the appellant filed a petition dated 4.04.2002 to recall the order dated 6.03.2002 directing the appellant to pay the amount of compensation. This petition was heard by the Tribunal. Again the matter was contested by the parties and the petition of the appellant was rejected vide order dated 11.07.2002 directing the appellant to comply the order dated 6.03.2002. The appellant did not challenge the order dated 6.03.2002 or the order dated 11.07.2002 before any higher court. As such, the appellant cannot raise the grievance now that the offending vehicle was not insured by the appellant and it is not liable to pay the amount of compensation.

After hearing learned counsel for the parties and on perusal of record, it appears that the contention of the learned counsel for respondent no.6 is correct. The offending vehicle was insured by the appellant.

It further appears that the FIR (Ext.3) was lodged by Ruplal Paswan, the driver of the Jeep. The FIR shows that Tata Maxi was rashly and negligently driven dashed against the Jeep in which hand of a person was separated and fell down on the place of occurrence and the driver of the offending vehicle (Bus) fled away taking the vehicle. Ext. 1 is the charge-sheet showing that Md. Baksim, the driver of the Tata Maxi was rashly and negligently driven which caused the occurrence. The charge-sheet was submitted against him. Ext.2 is the certificate of disablement showing the extent of deficiency 85% and he cannot travel without escort. Ext.3 is the FIR. Exts. 4 to 4/2-1 are the medical certificate and prescription of medicine etc. and Ext.5 to 5/8 are medicine price list etc. The claimant has examined three witnesses. C.W.1 is the claimant himself. He has stated that on the date of occurrence, he was going from Samastipur to Satanpur by Tata Maxi 407 bearing registration no.BR-33P-2507. The driver was rash and negligent and he dashed the bus against Jeep coming from opposite direction and due to this, his right hand was injured and cut down. He has also stated regarding his income as Rs.3000/-per month from agriculture and selling of readymade clothes. C.W.2 is the co-villager of the claimant. He has also supported the claim of the claimant. C.W.3 has also supported the claim of the claimant. There is nothing in their cross-examination to discard and disbelieve their evidence.

The learned Tribunal has estimated the income of the claimant as Rs.1500/-per month in absence of any documentary evidence regarding his income. At the time of accident, the injured was 67 years of age.

In the case of Govind Yadav Vs. The New India Insurance Company Limited reported in 2012 (2) PLJR 142 (SC) the guidelines have been given regarding determination and award of compensation after considering several decisions of the Honble Supreme Court. The multiplier used in case of Sarala Verma has also been applied in that case.

Considering the materials on the record, the income of the injured is assessed as Rs.2000/-per month, as such, his annual income comes to Rs.24,000/-. The age of injured was 67 years, as such, the multiplier is used as 5, which comes to Rs.1,20,000/-. There is disablement of 85%, as such, 15% of this amount is deducted, which comes to Rs.1,02,000/- to which medical and nursing charge are added as Rs.5,000/- and due to pain and suffering and trauma of loosing right hand is estimated as Rs.50,000/-. Thus, the claimant is entitled to get Rs.1,57,000/- from the appellant. Out of this amount, the appellant has already paid Rs.25,000/-.

Now, the claimant is entitled to get Rs.1,32,000/- with interest @ 6% per annum from the date of filing of the claim application i.e. 24.01.1994 till its realization.

To this extent, the impugned judgment and award are modified.

The insurer-appellant is directed to pay the amount of compensation within a period of two months.

In the result, this appeal is allowed to the extent indicated above.

The parties will bear their own costs.

Let the lower court records be sent to the Tribunal.