IN THE HIGH COURT OF UTTARAKHAND AT NAINITAL. A.O. NO. 225/2006 The Oriental Insurance Company Ltd… Appellant. Versus Smt. Jayanti Devi and another …. Respondents. Mr. Chhatrapati Pant holding brief of Mr. T.A. Khan, learned counsel for the appellant. Mr. Anand Kumar Aggarwal, learned counsel for the Claimant/Respondent. UDated: 26-8-2008 UHon’ble B.C. Kandpal, J. This appeal, under Section 173 of the Motor Vehicles Act, 1988, has been preferred against the judgment and award dated 28-1-2006, passed by Motor Accident Claims Tribunal/District Judge, Pauri, in MACP No. 5 of 2004, Smt. Jayanti Devi Vs. Puran Singh Bisht and another. 2- Brief facts of the case, in nutshell, are that on 22-4-2004, Smt. Jayanti Devi was going to Pauri from Palisain riding in Bus bearing registration No. DL –1-P- 7300. Near Ghantaghar at Butakhal the said bus met with an accident due to rash and negligence of its driver and the claimant Smt. Jayanti Devi sustained grievous injuries in the accident. She was brought to District Hospital Pauri where seeing her bad condition, she was admitted in Community Health Center, Kotdwar. There she got treatment for seven days. On 23-5-2004 she was admitted in Mittal Nursing Home Ludhiwag and there she was treated upto 29-5-2004. According to the claimant her vertebrae was fractured at three places and her right hand was also fractured in the accident. She spent about Rs.2,50,000/- on her treatment. Therefore, she demanded a compensation of Rs. 11,55,000/- due to the injuries sustained in the accident. 2 4- The opposite party No.1, owner of the offending bus did not contest the case and the case proceeded exparte against him. 5- The opposite party no.2, Oriental Insurance Company contested the case and filed written statement before the learned Tribunal and alleged that the Bus was carrying more passengers than the authorized number and it was being plied against the terms of insurance policy. The driver also had no valid driving license. Therefore, the liability to pay the compensation cannot be fastened upon the insurer. 6- The learned Tribunal, on the basis of pleadings of parties, framed following issues in the petition:- 1- Whether on 22-4-2004, at about 11 A.M. on Buwakhal- Pauri Motor Road, near Ghantaghar the bus No. DL-1P-7300 met with an accident due to the rash and negligent driving of its driver, in which Smt. Jayanti Devi sustained grievous injuries?. 2- Whether on the date of accident the driver was not possessing a valid driving license?. 3- Whether on the date of accident the vehicle in question was not having valid insurance?. 4- Whether the vehicle was being plied against the terms of insurance policy?. 5- Whether the claimant is entitled to get any compensation? If so, how much and from whom?. 7- The claimant in support of her case produced herself as P.W.1 and filed documentary evidence. 3 8- Thereafter, the learned Tribunal, on the basis of material available on record and hearing counsel for the parties, allowed the claim petition for compensation of Rs. 3,13,000/- against the Oriental Insurance Company and directed to pay the compensation within two months, otherwise interest @ 9% per annum from the date of petition till the date of actual payment, shall be payable. 9- Feeling aggrieved the Oriental Insurance Company has filed this appeal before this Court. 10- Heard learned counsel for the parties and perused the record. 11- So far as the question of rash and negligence on the part of the driver of the offending Bus is concerned, the Tribunal has recorded a categorical finding that the claimant Smt. Jayanti Devi appearing in the witness box has deposed that the accident has occurred due to the rash and negligence of the driver of the bus. The claimant also lodged first information report of the accident and the factum of rashness of the driver was mentioned therein. From the other side the on oath statement of P.W.1, has not been controverted. The Tribunal therefore, held the driver of the bus responsible for causing the accident. The copies of driving license, fitness certificate and cover note were also filed on record. According to these documents the driver was possessing valid driving license and the Bus was insured with Oriental Insurance Company at the time of accident. Therefore, the Oriental Insurance Company was rightly held liable to pay compensation. The finding of the Tribunal on the point of rash and negligence and the 4 liability of Insurance Company to pay compensation is confirmed. 12- As far as the amount of compensation is concerned, the learned Tribunal has awarded a sum of Rs. 50,000/- towards the expenses concerning to the medical treatment. The Tribunal has considered that the claimant had to undergo C.T. scan, MRI and she also performed several tests during the course of medical treatment. The vertebrae bone was fractured from three places and there was a fracture in her hand as well as she suffered head injury. The claimant produced the bills for the medical treatment amounting to Rs. 63,000/- which the Tribunal accepted as genuine and granted the amount of Rs. 63,000/- as compensation against the medical expenses. The reasoning recorded by the tribunal in this regard needs no interference. However the claimant has been awarded a sum of Rs. 50,000/- against the expenses incurred in the operation. No specific bills have been produced by the claimant that she actually incurred a sum of Rs. 50,000/- in the operations. The claimant also did not produce any doctor or any authorized person from the Nursing Home where she had undergone the operation. Therefore, the amount awarded by the Tribunal appears to be imaginary and is not founded by any cogent and reliable evidence. However, I am of the view that the claimant must have incurred at least a sum of Rs. 25,000/- as the expenses incurred on her operations. The reasoning recorded by the tribunal for awarding a sum of Rs. 50,000/- against the expenses incurred in the operation appears to be unjustified. It is worthy to mention here that the claimant has not suffered any permanent disability on account of injuries suffered by her in this accident. Although she had to be admitted in the hospital for a 5 quite long time on account of her medical treatment but even then the sum granted by the tribunal for pain and suffering amounting to Rs. 2,00,000/- appears to be very very excessive. This amount would not have exceeded more than Rs. 25,000/- in any manner. The amount awarded by the Tribunal against pain and suffering for a sum of Rs. 2,00,000/- is liable to be set aside and I am of the view that the claimant is entitled to get the compensation of Rs. 25,000/- against the pain and suffering. 13- It appears from the impugned judgment that the claimant had suffered fracture on her hand and several injuries on her head on account of which she had to be operated. Further, there was a disc slip on account of which the claimant had to be bed-ridden for long time. There was also fracture in the vertebrae bone of the claimant. Hence, keeping in view the aforesaid nature of injuries, I am of the view that the claimant is also entitled to get a sum of Rs. 25,000/- for her future medical treatment. 14- On the basis of calculation made above, I am of the view that the claimant is entitled to get a sum of Rs. 63,000/-+ Rs. 25,000/- + Rs.25,000/- + Rs. 25,000/- = Rs. 1,38,000/- instead of Rs. 3,13,000/- awarded by the Tribunal. However, the amount of compensation, i.e. Rs. 1,38,000/- shall be paid to the claimant by the Insurance Company along with interest @ 7.5% instead of conditional interest @ 9% per annum as has been awarded by the Tribunal. 15- For the reasons recorded above, the appeal is allowed. The impugned judgment and award dated 28-1- 2006, is modified up-to the extent that the claimant is 6 awarded a sum of Rs. 1,38,000/- as compensation payable by Oriental Insurance Company instead of Rs. 3,13,000/- awarded by the Tribunal. The amount of compensation, i.e. Rs. 1,38,000/- shall be paid to the claimant along with interest @ 7.5% per annum from the date of filing the claim petition till the date of actual payment, instead of conditional interest @ 9% per annum, as has been awarded by the Tribunal. 16- The statutory amount of compensation deposited with this Court be remitted to the Tribunal concerned. (B.C. Kandpal, J.) ISB 7