Himachal Pradesh High Court
Dinesh Kumar vs Puran Singh And Others on 5 August, 2016
Author: Mansoor Ahmad Mir
Bench: Mansoor Ahmad Mir
IN THE HIGH COURT OF HIMACHAL PRADESH SHIMLA FAO (MVA) No. 189 of 2011.
Judgment reserved on 29th July, 2016 Date of decision: 5th August, 2016.
.
Dinesh Kumar .....Appellant.
Versus
Puran Singh and others ....Respondents
Coram:
The Hon'ble Mr. Justice Mansoor Ahmad Mir, Chief Justice.
of Whether approved for reporting ?1 Yes For the appellant:
rt Mr. Anupinder
Advocate.
Rohall,
For the respondents: Mr. Adarsh K. Vashishta,
Advocate, for respondents No.
1 and 2.
Ms. Seema Sood, Advocate, for
respondent No.3.
______________________________________________ Mansoor Ahmad Mir, Chief Justice .
This appeal is directed against the judgment and award dated 19.2.2011, made by the Motor Accident Claims Tribunal, Fast Track Court, Shimla, H.P. in M.A.C. No. 45-S/2 of 2008, titled Shri Dinesh Kumar versus Puran Singh and others, whereby the claim petition filed by the claimant 1 Whether the reporters of Local Papers may be allowed to see the judgment ?.
::: Downloaded on - 15/04/2017 20:58:15 :::HCHP -2-came to be dismissed, hereinafter referred to as "the impugned award", for short, on the grounds taken in the memo of appeal.
.
2. The insurer, driver and owner have not questioned the impugned award on any ground, thus it has attained finality so far it relates to them.
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3. The claimant has questioned the impugned award on the grounds taken in the memo of appeal.
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4. The claimant being the victim of a vehicular accident, filed claim petition before the Tribunal, for the grant of compensation to the tune of Rs.15 lacs, as per the break-ups given in the claim petition, was resisted and contested by the respondents by filing the replies.
5. Following issues were framed by the Tribunal on 16.5.2009.
(i) Whether the petitioner sustained the injuries due to the rash and negligent driving of Mohindra Pick-up No. HP-63-0952 by the respondent No.2/driver Shri Kamal Singh, as alleged? OPP ::: Downloaded on - 15/04/2017 20:58:15 :::HCHP -3-
(ii) If issue No. 1 is proved in affirmative, whether the petitioner is entitled to the compensation as claimed. If so, its quantum and from whom? OP parties.
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(iii) Whether the petition is not maintainable in the present form? OPR
(iv) Whether the vehicle was being plied in violation of the terms and conditions of the insurance policy. If so, its effect? OPR-3.
(v) Whether respondent No. 2 was not holding and of possessing a valid and effective driving licence to drive the pick up, as alleged. If so, its effect? OPR-3.
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(vi) Whether the vehicle was being plied without valid registration cum fitness certificate and rout permit etc. as alleged? OPR-3.
(vii) Whether the petition is collusive, as alleged? OPR-3.
(viii) Whether the petitioner was travelling in the vehicle as a gratuitous passenger, as alleged. If so, its effect? OPR-3.
(ix) Relief.
6. Parties have led evidence.
7. The Tribunal, after scanning the
evidence held that the claimant has not pleaded in the claim petition that the accident was outcome of rash and negligent driving of driver Kamal Singh and returned the findings on issue No. 1 against ::: Downloaded on - 15/04/2017 20:58:15 :::HCHP -4- the claimant and dismissed the claim petition.
However, the Tribunal has also decided other issues.
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8. Following points arise for determination and consideration in this appeal.
(i) Whether the claim petition filed under Section 166 of the Motor Vehicles Act, 1988, for short "the Act" for of the grant of compensation can be dismissed on the ground that the claimant has not specifically pleaded in the claim rt petition that the accident was outcome of rash and negligent driving of the driver?
(ii) Whether it is necessary to plead rash and negligent driving by the driver in a claim petition?
9. I am of the considered view that sine qua non for granting the compensation, in terms of Section 166 of the Act, is rash and negligent driving.
10. The question is whether the claim petition can be dismissed if it is not pleaded in the claim petition despite the fact that the evidence and other material, i.e., documents on record, do disclose and prove that the driver has driven the ::: Downloaded on - 15/04/2017 20:58:15 :::HCHP -5- vehicle rashly and negligently? The answer is in negative for the following reasons.
11. It is apt to reproduce Section 165 (1) of .
the Act herein.
"(1) A State Government may, by notification in the Official Gazette, constitute one or more Motor Accidents Claims Tribunals thereafter in this of Chapter referred to as Claims Tribunal) for such area as may be specified in the notification for the purpose of adjudicating upon claims for rtcompensation in respect of accidents involving the death of, or bodily injury to, persons arising out of the use of motor vehicles, or damages to any property of a third party so arising, or both."
12. Section 166 of the Act provides how to make an application for grant of compensation, which reads as under.
"(1) An application for compensation arising out of an accident of the nature specified in sub-section (1) of section 165 may be made-
(a) by the person who has sustained the injury; or
(b) by the owner of the property; or
(c) where death has resulted from the accident, by all or any of the legal representatives of the deceased; or
(d) by any agent duly authorized by the person injured or all or any of the legal representatives of the deceased, as the case may be:::: Downloaded on - 15/04/2017 20:58:15 :::HCHP -6-
Provided that where all the legal representatives of the deceased have not joined in any such application for compensation, the application shall be made on behalf of or for the benefit of all the legal representatives of the .
deceased and the legal representatives who have not so joined, shall be impleaded as respondents to the application."
13. In terms of mandate of Section 166 of of the Act, an application has to be made by a person who has sustained injuries or by legal rt representatives where the accident has resulted into death of a person or by owner of property.
14. Section 166 of the Act mandates that the Tribunal has to treat report made by the police agency under Section 158 (6) of the Act as a claim petition. It is apt to reproduce Sections 158 (6) and 166 (4) of the Act herein.
"158 (1 to 5)..... ......
"(6) As soon as any information regarding any accident involving death or bodily injury to any person is recorded or report under this section is completed by a police officer, the officer incharge of the police station shall forward a copy of the same within thirty days from the date of recording of information or, as the case may be, on completion of such report to the Claims Tribunal ::: Downloaded on - 15/04/2017 20:58:15 :::HCHP -7- having jurisdiction and a copy thereof to the concerned insurer, and where a copy is made available to the owner, he shall also within thirty days of receipt of such report, forward the same to such Claims Tribunal and Insurer.
.
166 (1) to (3).... ...... .....
(4) The Claims Tribunal shall treat any report of accidents forwarded to it under sub-section (6) of section 158 as an application for compensation under this Act."
15. The mandate of the said provisions of of the Act is that a police report can be treated as claim petition.
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16. The claimant, in the claim petition under Section 166 of the Act, has to prove rash and negligent driving. It is not the mandate of the Act that it is to be pleaded in claim petition. These proceedings are summary in nature and can be proved during the trial.
17. The apex Court in Oriental Insurance Co. Ltd. vs. Premlata Shukla & Ors, reported in 2007 AIR SCW 3591, has held as under.
"9. Where an accident occurs owing to rash and negligent driving by the driver of the vehicle, resulting in sufferance of injury or death by any third party, the driver would be ::: Downloaded on - 15/04/2017 20:58:15 :::HCHP -8- liable to pay compensation therefore. Owner of the vehicle in terms of the Act also becomes liable under the 1988 Act. In the event vehicle is insured, which in the case of a third party, .
having regard to sub-section (2) of Section 147 of the Act, is mandatory in character, the Insurance Company would statutorily be enjoined to indemnify the owner.
10. The insurer, however, would be liable to re-
of imburse the insured to the extent of the damages payable by the owner to the claimants subject of course to the limit of its rt liability as laid down in the Act or the contract of insurance. Proof of rashness and negligence on the part of the driver of the vehicle, is therefore, sine qua non for maintaining an application under Section 166 of the Act.Tribunal, after scanning the evidence held that the claimants have proved that the driver, namely, Rajinder Gupta has driven the offending vehicle, i.e., tractor rashly and negligently and caused the accident in which the deceased, who was standing by the side of the road, to answer the call of nature, sustained the injuries and succumbed to the injuries."
18. The apex Court in another judgment reported in case titled Surinder Kumar Arora and another vs. Dr. Manoj Bisla & Ors. reported in ::: Downloaded on - 15/04/2017 20:58:15 :::HCHP -9- 2012 AIR SCW 2241, has laid down the similar principles of law. It is apt to reproduce paras 9 and 10 of the said judgment herein.
.
"9. Admittedly, the petition filed by the claimants was under Section 166 of the Act and not under Section 163-A of the Act. This is not in dispute. Therefore, it was the entire responsibility of the parents of the deceased to have established that respondent no.1 of drew the vehicle in a rash and negligent manner which resulted in the fatal accident. Maybe, in order to help respondent no.1, the claimants had not taken up that plea before the Tribunal. Therefore, High Court was rt justified in sustaining the judgment and order passed by the Tribunal. We make it clear that if for any reason, the claimants had filed the petition under Section 163-A of the Act, then the dicta of this Court in the case of Kaushnuma Begum (Smt.) & Ors. (supra) would have come to the assistance of the claimants.
10. In our view the issue that we have raised for our consideration is squarely covered by the decision of this Court in the case of Oriental Insurance Co. Ltd. (supra). In the said decision the Court stated :
"....Therefore, the victim of an accident or his dependants have an option either to proceed under Section 166 of the Act or under Section 163-A of the Act. Once they approach the Tribunal under Section 166 of the Act, they have necessarily to take upon themselves the burden of establishing the negligence of the driver or owner of the vehicle concerned. But if they proceed under Section 163-A of the Act, the compensation will be awarded in terms of the Schedule without calling upon the victim or his ::: Downloaded on - 15/04/2017 20:58:15 :::HCHP
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dependants to establish any negligence or default on the part of the owner of the vehicle or the driver of the vehicle."
.
19. Claimant has examined four witnesses and respondents have also examined four witnesses.
20. Claimant has proved discharge of certificate Ext. PW1/A and disability certificate Ext.
rt PW2/A. While going through the said certificates, one comes to an inescapable conclusion that the claimant has proved prima facie that he has sustained the injuries in a tractor accident.
21. RW2 H.C. Satya Prakash has also proved the contents of FIR and investigation report which do disclose that the accident was outcome of rash and negligent driving of the driver.
22. The driver has filed the reply and admitted the accident and the fact that the claimant has sustained the injuries. Thus, there is sufficient proof on the file to the effect that the accident was outcome of use of a motor vehicle, which was ::: Downloaded on - 15/04/2017 20:58:15 :::HCHP
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caused by the rash and negligent driving of the driver.
23. The granting of compensation is a social .
legislation for the benefit of the victims of the vehicular accident. The mandate of Chapter XI of the Act provides for the grant of compensation to of the victim without succumbing to the niceties and technicalities of procedure. It is beaten law of the rt land that technicalities or procedural wrangles and tangles have no role to play.
24. My this view is fortified by the judgment delivered by the apex court in Dulcina Fernandes and others vs. Joaquim Xavier Cruz and another, reported in (2013) 10 Supreme Court Cases 646, N.K.V. Bros. (P.) Ltd. versus M. Karumai Ammal and others etc., reported in AIR 1980 Supreme Court 1354, Oriental Insurance Co. versus Mst. Zarifa and others, reported in AIR 1995 Jammu and Kashmir 81 and latest judgment delivered by the apex Court in case ::: Downloaded on - 15/04/2017 20:58:15 :::HCHP
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titled Savita versus Binder Singh and others, reported in 2014 AIR (SCW) 2053.
25. This Court has also laid down the .
similar principles of law in FAO No. 692 of 2008 decided on 4.9.2015 titled Cholamandlan MS General Insurance Co. Ltd. Versus Smt. of Jamna Devi and others, FAO No. 287 of 2014 along with rt connected matter, decided on 18.9.2015 titled Tulsi Ram versus Smt. Mena Devi and others, FAO No. 72 of 2008 along with connected matter decided on 10.7.2015 titled Anil Kumar versus Nitim Kumar and others and FAO No. 174 of 2013 titled Kusum Kumari versus M.D. U.P Roadways and others, decided on 5.9.2014.
26. The Tribunal has come to the conclusion that the accident was outcome of use of a motor vehicle but the averments to the extent of rash and negligent driving was not made in the claim petition and dismissed the claim petition, which is against ::: Downloaded on - 15/04/2017 20:58:15 :::HCHP
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the concept of granting the compensation and is not legally correct.
27. In remote areas, pleadings are drafted .
loosely and that cannot be a ground to dismiss the suit or a claim petition. It is the duty of the Court or Tribunal to see that the lis is taken to its logical of conclusion without succumbing to the technicalities.
It is also the duty of the Tribunal/Appellate Court to rt achieve the aim and object of the granting of compensation. The strict proof is not required and discrepancies or pleadings or loose pleadings cannot be made a ground to dismiss the claim petition. These proceedings are summary in nature;
do not require strict compliance of the rules of evidence and pleadings.
28. It is well established principle of law that the Tribunal, while dealing with claim petition, has to keep in mind that it is outcome of a social legislation, has to follow the principles of justice, equity and good conscience.
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29. The Apex Court in a case titled as Madan Gopal Kanodia versus Mamraj Maniram and others, reported in (1977) 1 Supreme Court .
Cases 669, held that the Courts should not scrutinize the pleadings with such meticulous care resulting in genuine claims being defeated on trivial of grounds. It is apt to reproduce para 13 of the judgment herein:
rt "13. ...... It is well-settled that pleadings are loosely drafted in the Courts and the Courts should not scrutinise the pleadings with such meticulous care so as to result in genuine claims being defeated on trivial grounds. In our opinion the finding of the High Court that there was wide gap between the pleadings and the proof is not at all borne out from the record of the present case."
30. Similar principles of law have been laid down by this Court in case titled Smt. Shreshtha Devi and others versus Kishori Lal and others, (FAO No. 465 of 2009) decided on 1.7.2016.
31. Driver and owner have also not specifically denied the factum of rash and negligent driving rather admitted the cause of accident and pleaded that it was outcome of mechanical defect.
Thus, the accident in the use of a motor vehicle is ::: Downloaded on - 15/04/2017 20:58:15 :::HCHP
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admitted. They have also pleaded that if the Court comes to the conclusion that the claimant is entitled to compensation, the insurer has to indemnify the .
same. It is apt to reproduce relevant portion of para 14 of the reply filed by respondents No. 1 and 2 herein.
of "......It is further submitted that the accident did not take place due to rash and negligent rtdriving by the respondent No. 2 and vehicle in question was not being driven in rash and negligent manner. It is further humbly submitted that mechanical defect in the vehicle has caused the accident. However, ion alternate, it is submitted that if this Hon'ble Tribunal comes to this conclusion that the petitioners is entitled for compensation, it will be the duty of the respondent No. 3 to pay the awarded amount as the vehicle in question was insured by the respondent No. 3 for all intents and purposes and the there was a valid insurance policy for the said period"
32. Having said so, the findings returned by the Tribunal on issue No. 1 are set aside and it is ::: Downloaded on - 15/04/2017 20:58:15 :::HCHP
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held that the accident was outcome of rash and negligent driving of tractor driver.
33. Before I deal with issue No. 2, I deem it .
proper to deal with issues No. 3 to 7 at the first instance.
34. The insurer has not questioned the of findings returned on these issues, are to be upheld, for the following reasons.
35. rt It was for the insurer to plead and prove that the owner has committed any willful breach in terms of Sections 147 and 149 of the Motor Vehicles Act read with National Insurance Co. Ltd. versus Swaran Singh and others, reported in AIR 2004 Supreme Court 1531.
It is apt to reproduce relevant portion of para 105 of the judgment herein:
"105. .....................
(i) .........................
(ii) ........................
(iii) The breach of policy condition e.g. disqualification of driver or invalid driving licence of the driver, as contained in sub-section (2) (a) (ii) of Section 149, have to be proved to have been committed by the insured for avoiding liability by the insurer. Mere absence, fake or invalid driving licence or disqualification of the driver for ::: Downloaded on - 15/04/2017 20:58:15 :::HCHP
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driving at the relevant time, are not in themselves defences available to the insurer against either the insured or the third parties. To avoid its liability towards insured, the insurer has to prove that the insured was guilty of negligence and failed to exercise reasonable .
care in the matter of fulfilling the condition of the policy regarding use of vehicles by duly licensed driver or one who was not disqualified to drive at the relevant time.
(iv) The insurance companies are, however, with a view to avoid their liability, must not only establish the available defence(s) raised in the said proceedings but of must also establish 'breach' on the part of the owner of the vehicle; the burden of proof wherefore would be on them.
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(v).........................
(vi) Even where the insurer is able to prove breach on the part of the insured concerning the policy condition regarding holding of a valid licence by the driver or his qualification to drive during the relevant period, the insurer would not be allowed to avoid its liability towards insured unless the said breach or breaches on the condition of driving licence is/are so fundamental as are found to have contributed to the cause of the accident.
The Tribunals in interpreting the policy conditions would apply "the rule of main purpose" and the concept of "fundamental breach" to allow defences available to the insured under Section 149 (2) of the Act."
36. It would also be profitable to reproduce para 10 of the judgment rendered by the Apex Court in Pepsu Road Transport Corporation versus National Insurance Company, reported in (2013) 10 Supreme Court Cases 217, herein:
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"10. In a claim for compensation, it is certainly open to the insurer under Section 149(2)(a)(ii) to take a defence that the driver of the vehicle involved in the accident was not duly licensed. Once such a defence is taken, the onus is on the insurer. But even after .
it is proved that the licence possessed by the driver was a fake one, whether there is liability on the insurer is the moot question. As far as the owner of the vehicle is concerned, when he hires a driver, he has to check whether the driver has a valid driving licence. Thereafter he has to satisfy himself as to the of competence of the driver. If satisfied in that regard also, it can be said that the owner had taken reasonable care in employing a person who is qualified rt and competent to drive the vehicle. The owner cannot be expected to go beyond that, to the extent of verifying the genuineness of the driving licence with the licensing authority before hiring the services of the driver. However, the situation would be different if at the time of insurance of the vehicle or thereafter the insurance company requires the owner of the vehicle to have the licence duly verified from the licensing authority or if the attention of the owner of the vehicle is otherwise invited to the allegation that the licence issued to the driver employed by him is a fake one and yet the owner does not take appropriate action for verification of the matter regarding the genuineness of the licence from the licensing authority. That is what is explained in Swaran Singh case. If despite such information with the owner that the licence possessed by his driver is fake, no action is taken by the insured for appropriate verification, then the insured will be at fault and, in such circumstances, the Insurance Company is not liable for the compensation."::: Downloaded on - 15/04/2017 20:58:15 :::HCHP
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37. What is pleaded is that the sitting capacity of the vehicle was three but more than three persons were travelling in the vehicle, is not a .
ground to dismiss the claim petition. Only one claimant has filed the claim petition and he is third party and not a gratuitous passenger as held by the of Tribunal. The insurer has not questioned these findings. The Driving licence is on record, which rt does disclose that the driver was competent to drive the tractor. The insurer has not led any evidence, has failed to discharge the onus. Thus, the findings returned on these issues are upheld.
38. Issue No.8. The Tribunal has held that the claimant had hired the vehicle and he has loaded the vegetables in the vehicle in order to conduct its sale at Shimla. The insurer had not questioned the said findings. Thus, the findings returned on this issue are to be upheld.
39. My this view is fortified by the judgment delivered by the apex Court in a case titled as National ::: Downloaded on - 15/04/2017 20:58:15 :::HCHP
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Insurance Co. Ltd. versus Kamla and others, reported in 2011 ACJ 1550, while referring to the judgment of the Apex Court in National Insurance Co.
.
Ltd. versus Cholleti Bharatamma, reported in 2008 ACJ 268 (SC) and held that the person, who had hired the vehicle for transporting goods, was returning in the same vehicle, met with the accident, cannot be said to of be an unauthorized/gratuitous passenger.
40. It is apt to reproduce paras 8 to 11 of the rt judgment rendered in Kamla's case (supra) herein:
"8. Coming to the second plea taken by the learned counsel for the appellant that the deceased was a gratuitous passenger, a perusal of the reply filed by respondent No. 2, insurance company shows that they had only pleaded that the deceased was admittedly not employee of the insured and was traveling in the truck as a gratuitous passenger. Thus, it was submitted that the Insurance Company was not liable. Reliance was also placed upon the decision in National Insurance Co. Ltd. v. Cholleti Bharatamma, 2008 ACJ 268 (SC)wherein the plea was taken that the owner himself travel in the cabin of the vehicle and not with the goods so as to be covered under Section 147. However, in case the driver permits a passenger to travel in the tool box, he cannot escape from the liability that he was negligent in driving the vehicle and moreover, in a petition under Section 163-A of the Motor Vehicles Act, rash or negligent driving is not to be proved and, therefore, this decision does not help the appellant.::: Downloaded on - 15/04/2017 20:58:15 :::HCHP
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9. Learned counsel for the appellant had also relied upon the decision in National Insurance Co. Ltd. v. Maghi Ram, 2010 ACJ 2096 (HP), wherein a learned Judge of this Court has considered the question and had .
observed that the Insurance Company is liable in respect of death or bodily injury to any person including the owner of goods or his authorized representative carried in the vehicle. It was observed that it is apparent that the goods must normally be carried in the vehicle at the time of accident.
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10. The allegations made by the petitioners in the petition as well as in the evidence were that the deceased had gone after hiring the truck with his rt vegetable and was coming in the same vehicle when the accident took place. The learned counsel for the claimants/respondents No. 1 to 4 had relied upon the decision of Hon'ble Punjab & Haryana High Court in National Insurance Co. Ltd. v. Urmila, 2008 ACJ 1381 (P&H), wherein it was observed that a passenger was returning after selling his goods when the vehicle turned turtle due to rash and negligent driving. Insurance Company seeks to avoid its liability on the ground that the deceased was no longer owner of the goods as he had sold them off. It was observed that the deceased had hired the vehicle for transporting his animals for selling and was returning in the same vehicle. It was held that the deceased was not an unauthorized/gratuitous passenger in the vehicle till he reached the place from where he had hired the vehicle.
11. The above decision clearly applies to the present facts, which are similar to the facts of the case and accordingly, I am inclined to hold that the deceased was not an unauthorized/ gratuitous passenger. No conditions of the insurance policy have been proved that ::: Downloaded on - 15/04/2017 20:58:15 :::HCHP
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the risk of the owner of goods was not covered in the insurance policy and as such, there is no substance in the plea raised by the learned counsel for the appellant, which is rejected accordingly."
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41. Following the same principle, this Court in a bunch of two appeals, FAO No. 9 of 2007, titled as National Insurance Company Limited versus Smt. Teji Devi & others, being the lead case, decided on 22nd of August, 2014; FAO No. 22 of 2007, titled as Naresh Verma versus The New India Assurance Company Ltd.
& others, decided on 26th September, 2014, FAO No. 77 rt of 2010, titled as NHPC versus Smt. Sharda Devi & others, decided on 17th October, 2014, FAO No.638 of 2008, titled National Insurance Company vs. Smt.Sundri Devi and another, decided on 3rd July, 2015, and FAO No.448 of 2011, Sarita Devi and others vs. Ashok Kumar Nagar and others, decided on 17th June, 2016, held that in case the vehicle hired for loading of goods meets with an accident after loading the goods or while coming back after unloading the goods, prior to reaching the destination, the hirer of the goods traveling in the said vehicle cannot be termed as gratuitous passenger.
Accordingly, the findings recorded on this issue are upheld.
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Issue No.2.
42. It is pleaded in the claim petition that the claimant was performing agricultural vocations and .
was also a green grocer but due to amputation of right arm and the injuries suffered which has rendered him permanently disabled, is not in a of position to work. He has engaged a labourer and has paid him Rs.250/- per day. The discharge rt certificate Ext. PW1/A is on record, which does disclose that the claimant remained in the hospital w.e.f. 23.6.2008 to 21.8.2008.
43. In the injury cases, the compensation has to be awarded under two heads "pecuniary damages" and "non-pecuniary damages" by exercising guess work. This view lends support from the judgments made by the Apex Court in the cases titled as R.D. Hattangadi versus M/s Pest Control (India) Pvt. Ltd. & others, reported in AIR 1995 SC 755, Arvind Kumar Mishra versus New India Assurance Co. Ltd. & another, reported in 2010 ::: Downloaded on - 15/04/2017 20:58:15 :::HCHP
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AIR SCW 6085, Ramchandrappa versus The Manager, Royal Sundaram Aliance Insurance Company Limited, reported in 2011 AIR SCW 4787, .
and Kavita versus Deepak and others, reported in 2012 AIR SCW 4771.
44. This Court has also laid down the same principle in a series of cases.
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45. Thus, by a guess work, it can be said rt that the claimant is entitled to compensation to the tune of Rs.20,000/- under the head "Loss of income", and Rs.20,000/- under the head "attendant charges". He has also placed on record the receipts Mark 1 to Mark 64, of the amount which he has spent during the said period, total to the tune of Rs,32,691/-. Thus, he is also entitled to Rs.32691/-, under the head "Medical expenses."
46. The claimant has proved Ext.PW2/A disability certificate, as his right arm was amputated and suffered 85% permanent disability, is not in a position to earn anything. Doctor has stated that he is not in a position to work. It can be safely held ::: Downloaded on - 15/04/2017 20:58:15 :::HCHP
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that he has lost source of dependency to the tune of Rs.6,000/- per month. The claimant was 34 years of age at the time of accident. The multiplier .
of "15" is applicable, in view 2nd Schedule Act, read with the ratio laid down in Sarla Verma and others versus Delhi Transport Corporation and another of reported in AIR 2009 SC 3104 and upheld in Reshma Kumari and others versus Madan rt Mohan and another, reported in 2013 AIR SCW 3120. Thus, the claimant has lost source of dependency to the tune of Rs.6,000/-x12x15= Rs.
10,80,000/-.
47. In addition to the above, Rs.50,000/- is awarded under the head "pain and suffering", Rs.50,000/- is awarded under the head "future pain and sufferings" and Rs. 1 lac is awarded under the head "loss of amenities of life."
48. The claimant has to go through treatment throughout his life because of amputation ::: Downloaded on - 15/04/2017 20:58:15 :::HCHP
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of right arm and Rs.50,000/- is awarded under the head "further medical treatment".
49. Having said so, the claimant is entitled .
to compensation, in all, to the tune of Rs20,000/-+, Rs.20,000/-+ Rs.32,691/- + Rs.10,80,000/- + Rs,50,000/- + Rs.50,000/- + Rs.1,00,000/-
of +Rs.50,000/- = Total to the tune of Rs.14,02,691/-.
50. The factum of insurance is admitted.
rt The insurer has failed to prove that the owner has committed any willful breach. Accordingly, the findings returned on issue No. 2 are set aside and claimant is held entitled to compensation to the tune of Rs. 14,02,691/-. The insurer is saddled with the liability with interest @ 7.5% from the date of claim petition till its realization.
51. The insurer is directed to deposit the amount, within six weeks from today before the Registry. On deposit, the entire amount be released to the claimant, through payees' cheque ::: Downloaded on - 15/04/2017 20:58:15 :::HCHP
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account or by depositing the same in his bank account.
52. Viewed thus, the impugned award is set .
aside, appeal is allowed and claimant is granted compensation, as indicated hereinabove.
53. Send down the record forthwith, after of placing a copy of this judgment.
(cm Thakur) rt August 05, 2016. (Mansoor Ahmad Mir) Chief Justice.
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