AO/431/2006 of NATIONAL INSURANCE CO. LTD. Vs PRAMOD LOHNI and OTHERS

IN THE HIGH COURT OF UTTARAKHANDAT NAINITAL

Appeal From Order No. 431 of 2006

National Insurance Co. Ltd. …Appellant

Versus

Pramod Lohni & others ... Respondents

Sri D.S. Patni, Adv. for appellant-National Insurance Co. Ltd. Sri Rajesh Joshi, Adv. for claimant-respondent no. 1 Sri Z.U. Siddiqui, Adv. for respondent no. 2 Sri T.A. Khan, Adv. for respondent no.5-The New India Assurance Co. Ltd.

Dated: September 18, 2008

Hon’ble B.C. Kandpal, J.

This appeal, under Section 173 of Motor Vehicles Act, 1988, has been preferred by National Insurance Company Limited (insurer of Truck No. UP-02B/9642) against the judgment and award dated 9.5.2006 passed by Motor Accident Claims Tribunal/Addl. District Judge/III Fast Track Court, Nainital, in MACP No. 167 of 2003, Pramod Lohni versus Naseerulla and others

Briefly stated the facts as narrated in the claim petition are that on 26.6.2003, claimant-Pramod Lohni along with Sudhanshu Bisht was going on scooter No. U.P. 04A/1666 from Dineshpur to Haldwani. The aforesaid scooter was being driven by Sudhanshu Bisht in this accident. As soon as the scooter reached at Tanda Railway Station at about 12.30 in night, truck bearing Registration No. UP-02B/9642 coming from opposite direction in rash and negligent manner, hit the scooter, on account of the same claimant-Pramod Lohni as well as

Sudhanshu Bisht sustained grievous injuries on their person. It has been alleged that claimant-Pramod Lohni was 30 years of age and was earning Rs.5000/- per month. The claimant claimed sum of Rs.2,80,000/- as compensation against opposite parties.

Opposite parties no. 1 and 2 (owner and driver of truck in question) filed written statement and pleaded that the scooterist himself was at fault in this accident and therefore claimants are not entitled to get any compensation. The driver of truck was having valid and effective driving licence. Opposite parties no. 1 and 2 or their insurance company are not liable to pay compensation as claim petition has been filed by claimant on wrong facts. The claimant has to prove this fact that accident did not take place due to rash and negligence of scooterist.

Opposite party no. 3-Ghanshyam Singh Bisht (owner of scooter in question) filed written statement admitting the factum of accident, but amount of compensation has been demanded excessively. The said accident had occurred due to rash and negligence of truck driver. His scooter was insured with New India Assurance Company Limited w.e.f. 30.4.2003 to 29.4.2004 and therefore the liability to pay the compensation, if any, is of insurance company. The claim petition filed against opposite party no. 3 is liable to be dismissed.

Opposite party no. 4-The New India Assurance Co. Ltd. (insurer of scooter in question) filed written statement refuting the contents of claim petition

and pleaded that claimant has no cause of action to file claim petition and therefore on that ground the claim petition is liable to be dismissed.

Opposite party no. 5-National Insurance Co. Ltd. (insurer of truck in question) filed written statement pleading therein that driver of vehicle involved in the accident was not made party and therefore the claim petition was bad for non-joinder of necessary party and drivers of both the vehicles involved in the accident were not holding valid and effective driving licence. This accident had occurred due to rash and negligent driving of scooterist and therefore the liability to pay the compensation, if any, is of owner as well as insurer of scooter in question. It has also been pleaded that answering opposite party can be held liable to pay compensation only when owner of vehicle proves that his vehicle was validly insured and all papers relating to vehicle were valid and effective and in case there is breach of conditions of insurance policy on the part of owner of vehicle, the insurance company is not liable to pay any compensation.The learned Tribunal on the basis of pleadings of parties framed relevant issues in the claim petition. Parties led evidence in support of their cases. The learned Tribunal after having considered the entire material available on record and hearing learned counsel for the partiesdecreed the claim petition for sum of Rs.2,37,000/- in favour of claimant-Pramod Lohni and directed opposite party no. 5-National Insurance Co. Ltd. to pay the amount of compensation to the claimant along with

conditional interest @ 6% per annum, vide judgment and award dated 9.5.2006.

Feeling aggrieved by the aforesaid impugned judgment and award dated 9.5.2006, the appellant-National Insurance Company Ltd. has preferred the present appeal before this Court.

Heard Sri D.S. Patni, learned counsel for appellant-National Insurance Co. Ltd., Sri Rajesh Joshi, learned counsel for claimant-respondent no. 1, Sri Z.U. Siddiqui, learned counsel for respondent no. 2, Sri T.A. Khan, learned counsel for respondent no.5-The New India Assurance Co. Ltd. and perused the record.

As far as factum of accident is concerned, the evidence available on record shows that claimant Pramod Lohni was going on Scooter No. U.A.04A/1666 from Dineshpur to Haldwani. The aforesaid scooter was being driven by Sudhanshu Bisht in this accident. As soon as the scooter reached at Tanda Railway Station at 12.30 in the night, truck No. UP-02B/9642 coming from opposite direction in rash and negligent manner, hit the scooter, on account of the same Pramod Lohni and Sudhanshu Bisht sustained injuries on their person. The claimant by adducing the evidence before the Tribunal has established the aspect of the accident and the Tribunal on the basis of evidence available on record came to the conclusion that on 26.6.2003 at about 12.30 in the night there was collision between truck and scooter and in this accident Pramod Lohni as well as Sudhanshu

Bisht sustained grievous injuries on their person. Therefore, the factum of accident is established.

Learned counsel for appellant-insurance company has submitted before me that learned Tribunal did not consider the aspect of contributory negligence although it was pleaded by the insurance company in the written statement. He has also invited my attention towards issue nos. 1 and 2 which are indicative of this factor that it is case of contributory negligence. He has further submitted that learned Tribunal has fell in error by ignoring the aspect of contributory negligence although it is established from the evidence on record.

Learned counsel for claimants as well as respondent no. 5-insurer of Scooter No. UA-04A/1666 have submitted that learned Tribunal has recorded categorical finding that the truck was driving at speed of 80 Kms. and with rash and negligence. They have further submitted that the evidence with regard to rash and negligence on the part of driver of scooter is not available on record, therefore, it cannot be assessed that driver of scooter i.e. Sudhanshu Bisht was rash and negligent at the time of accident and finding recorded by the Tribunal is absolutely justified.

In order to decide the question of contributory negligence I will firstly have to take into consideration the dictum of ‘res ipsa loquitur’. It is an admitted case that both the vehicles at the time of accident were coming from opposite direction to each other. It is midnight accident. It is not the case of claimant that truck driver did not lit the head light of the truck and driver of scooter could

not therefore see the truck from longer distance. The evidence further does not indicate that there is blind turn at the place of accident. It is also not the case of claimant that driver of scooter did not have any occasion to see the truck coming from opposite direction from longer distance. It is thus quite clear that driver of scooter had sufficient opportunity to see the truck coming from opposite direction from longer distance. Had the driver of scooter been vigilant at the time of accident, he could have very well avoided the same, but the circumstances available on record clearly indicate towards this aspect that driver of scooter had also contributed the negligence in this case. The same rule applies to the driver of truck also. The truck being bigger vehicle must run on highways with care and caution. The driver of truck had also sufficient opportunity to see the scooter coming from opposite direction from reasonable longer distance and in case, if the driver of truck would have been vigilant he also could have avoided the accident. The rash and negligence on the part of driver of truck cannot be overlooked in any manner.

Now it is to be seen as to what should be the proportion of rash and negligence on the part of drivers of vehicles involved in the accident.

As I have already observed above that scooter is smaller vehicle. Although the driver of scooter had contributed the negligence for causing this accident, but his percentage in contributing the negligence would be certainly on lesser side, while the percentage on the part of driver of truck would be on higher side. Keeping in view the

circumstances of this case, I come to the conclusion that rash and negligence on the part of truck driver is 70%, while rest of rash and negligence of 30% would be on the part of scooter driver.

Learned counsel for appellant-insurance company has further submitted that claimant-Pramod Lohni in this case was aged about 30 years at the time of accident and on the basis of evidence adduced by the clamant-injured before the Tribunal he is considered to be disabled upto an extent of 20% on the basis of certificate filed by him. As far as percentage in the disablement of injured is concerned, I do not find any reason to disbelieve this aspect that injured-Pramod Lohni suffered disability upto an extent of 20% and the Tribunal appears to be justified in considering the disability of the injured upto an extent of 20%. As far as multiplier adopted by the Tribunal is concerned, the same appears to be absolutely on higher side keeping in view the age of claimant-injured Pramod Lohni. In view of the latest pronouncement of the Hon’ble Apex Court given in the cases of Tamil Nadu State Transport Corporation Ltd. Versus S. Rajpriya & others, reported in 2005 (4) SC 87, The Managing Director, TNSTC versus Sripriya & others, reported in 2007(5) Supreme 301, New India Assurance Co. Ltd. vs. Kalpana (Smt) and others, reported in (2007) 2 SCC (Cri) 94 and Laxmi Devi & others vs. Mohammad Tabbar & another, reported in 2008 UAD 587, the multiplier in this case cannot travel more than 15 in any case. In case, if the multiplier of ‘15’ is adopted on the income of injured-Pramod Lohni, then the amount of compensation comes to Rs.36,000 x

15=Rs.5,40,000. The Tribunal has assessed the annual income of claimant-Pramod Lohni at Rs.36,000/- on the basis of income tax return submitted by him and I do not find any ground to disbelieve the same.

The claimant-Pramod Lohni has suffered 20% disability in this case, therefore, keeping in view his disability upto an extent of 20%, the amount of compensation comes to Rs.5,40,000 x 20%=1,08,000/-. The Tribunal further awarded sum of Rs.30,000/- for future expenses on the medical treatment which appears to be justified. The Tribunal has further awarded sum of Rs.15,000/- for pain and suffering which also appears to be justified. The Tribunal has taken into consideration the documents filed by claimant-Pramod Lohni indicating the expenses incurred by him on his medical treatment and the Tribunal after assessing the documents available on record, awarded sum of Rs.70,000/- to the claimant, which also appears to be justified.

Now it is to be seen as to how much amount claimant-Pramod Lohni is entitled to get, as compensation in the light of evidence available on record. As I have already discussed above that the rash and negligence on the part of driver of scooter is 30%, while it is 70% on the part of truck driver. The scooter in question was insured with The New India Assurance Co. Ltd. at the time of accident and insurance policy paper has also been filed by the owner of scooter before the Tribunal which indicates that scooter in question was insured with The New India Assurance Co. Ltd. at the time of accident.

Sri T.A. Khan, learned counsel for The New India Assurance Company Limited has submitted before this Court that injured-Pramod Lohni was pillion rider at the time of accident and no premium was paid by the insured with regard to pillion rider, hence, the insurance company of scooter is not liable to pay the amount of compensation to the claimant-injured.

The argument advanced by learned counsel for The New India Assurance Co. Ltd. appears to be devoid of any force. The New India Assurance Co. Ltd. did not raise any plea either in its written statement or before the Tribunal. There is no foundation with regard to this argument on the record. Therefore, the counsel for The New India Assurance Co. Ltd. cannot not raise this plea at the stage of appeal. The argument advanced by learned counsel for insurance company appears to be result of afterthought. I am, therefore, of the view that The New India Assurance Co. Ltd. is liable to pay the amount of compensation to the claimant-Pramod Lohni upto an extent of 30% being insurer of scooter in question.

For the reasons stated above, I am of the view that claimant is entitled for sum of Rs.1,08,000+ Rs.70,000 + Rs.30,000 + Rs.15,000 = Rs.2,23,000/- as compensation, along with interest the rate of 6% per annum, instead of conditional interest awarded by the Tribunal.

The amount so awarded in favour of claimant shall be paid by both the insurance companies i.e. appellant-National Insurance Company Ltd. (insurer

of truck in question) as well as respondent no. 5-The New India Assurance Co. Ltd. (insurer of scooter in question), upto an extent of 70% and 30% respectively.

For the reasons stated above, the appeal is liable to be partly allowed.

Accordingly, the appeal is partly allowed. The impugned judgment and award dated 9.5.2006 passed by MACT, Nainital, in MACP No. 167 of 2003, is modified to the extent that claimant is entitled for sum of Rs.2,23,000/- (Two Lacs Twenty Three Thousand only) as compensation, instead of Rs.2,37,000/- as awarded by the Tribunal, along with interest of 6% per annum, instead of conditional interest awarded by the Tribunal.

The statutory amount deposited by the appellant before this Court be remitted to the Tribunal concerned.

(B.C. Kandpal, J.)