Compensation for serious injuries should consider how it will affect the victim in the future: High Court of Jammu and Kashmir

HIGH COURT OF JAMMU AND KASHMIR AT SRINAGAR CMAM no.39 2017 Reserved on: 09.04.2021 Pronounced on: 04.06.2021 United India Insurance Company Limited Through: Ms Rifat Khalida Advocate Fizullah Khan and others Through: Mr S. H. Naqashbandi Advocate CORAM: HON’BLE MR JUSTICE VINOD CHATTERJI KOUL JUDGE 1. Impugned in this Appeal is Award dated 6th January 2015 passed by Motor Accident Claims Tribunal Srinagaron a claim petition no.280 2004 titled Faizullah Khan v. Ali Akbar Khan and others as also Order dated 8th December 2016 passed by the Tribunal on a Review Petition bearing File no.110 2015 primarily on the grounds that: driver of offending vehicle was not having valid and effective driving licence and compensation on account of medical expenses loss of earnings damages for pain suffering and trauma and loss of expectations of life has been given on higher side without application of judicial mind. 2. Heard and considered. 3. A claim petition as is discernible from record on the file was filed by claimant respondent no.1 before the Tribunal on 23rd December 2004 2 CMAM no.39 2017 averring therein that on 30th May 2004 while travelling on motorcycle bearing Registration no.JK01F 1806 he was hit by Tata Sumo bearing Registration no.JK05 2758 on Uri Road near TCP at Challain resulting seriously injuries to him. FIR no.32 2004 in this regard was registered in police station Boniyar. Claimant respondent no.1 maintained that he was sole distributor of castrol products in Kashmir Valley and his monthly income was Rs.30 000 . He claimed that he incurred Rs.2.00 Lakhs on his treatment and engaged two persons for taking his care and pay them weekly Rs.2000 each. Appellant Insurance Company in its written statement before the Tribunal insisted that in absence of policy particulars Insurance Company is not in a position to admit or deny liability. By impugned Award the Tribunal granted compensation in the amount of Rs.6 91 000 along with 4% interest from the date of claim petition till its final realization excluding the period from 11th April 2008 to 29th June 2011 when the matter was lying over as 4. A review petition was preferred by appellant Insurance Company before the Tribunal which was dismissed vide order dated 8th dismissed in default. December 2016. 5. Taking into account case set up and submissions made by learned counsel for appellant Insurance Company it would be apt to go through the record of the Tribunal as also impugned Award order. 6. First contention of appellant Insurance Company relates to validity and effectiveness of driving licence of driver of offending vehicle. Perusal thereof reveals that claimant’s evidence was closed in terms of Order 3 CMAM no.39 2017 dated 4th October 2013 and appellant Insurance Company was asked to lead its evidence. Documents with respect to offending vehicle including driving licence was produced by its owner before the Tribunal which were given to appellant Insurance Company for verification purposes. Learned counsel appearing for Insurance Company before the Tribunal submitted that offending vehicle was under proper insurance cover. However Insurance Company failed to file verification report about het documents and accordingly evidence of appellant Insurance Company was closed vide order dated 14th July 2014. Even a witness namely Jamsheed Saqib Legal Administrative Officer of Insurance Company produced and examined by appellant Insurance Company did not make any whisper as regards documentary evidence produced by owner of offending vehicle. In that view of matter there is no impetus or force in contention of appellant Insurance Company that driver of offending vehicle was not having valid and effective driving licence and as a consequence of which appeal on hand is liable to be dismissed. 7. Another contention of appellant Insurance Company compensation has been given on higher side by the Tribunal. Perusal of impugned Award reveals that while calculating loss of income earnings the Tribunal took into account the fact all facets of the matter. The Tribunal comprehensively discussed Issue no.2 vis à vis entitlement of compensation in consequence of injuries suffered by claimant. Claimant respondent no.1 examined Dr. Ghulam Qadir to strengthen his case. The Tribunal has in clear cut terms mentioned that 4 CMAM no.39 2017 as per disability certificate claimant suffered 40% disability but he did not explain whether it is overall functional disability of his whole body or 40% disability of injured limb only and in absence of any clarification disability can be taken as 40% disability of injured limb and not overall functional disability of his whole body. After saying this the Tribunal further said that it was also to be kept in mind that doctor had stated that by passage of time disability of claimant would aggravate and increase and therefore Tribunal has taken 30% disability instead of 40% and it is on the basis of 30% disability that the Tribunal has computed loss of income earning of claimant respondent no.1. In such circumstances impugned Award as also impugned order does not warrant any interference and as a corollary thereof the present Appeal is liable to be dismissed. 8. For the reasons discussed above the Appeal on hand is dismissed with connected CM(s). Interim direction if any shall stand vacated. 9. The record of the Tribunal along with copy of this judgement be sent Ajaz Ahmad PS Judge Whether the order is reportable: Yes No 

Summary: When a serious injury has been inflicted upon a person, the compensation granted to him needs to include aspects like whether the injury will worsen in the future and whether it will affect his earning capacity or livelihood. A single member bench of Jammu and Kashmir High Court consisting of Justice Vinod Chatterji upheld the decision of the Motor Accidents Claims Tribunal in granting compensation to an accident victim which considered all these aspects in the case of United India Insurance Company Limited v Faizullah Khan [CMAM no. 39/2017] on 4th June 2021. The appellant, United India Insurance Company Limited, filed an appeal against the order passed by Motor Accidents Claims Tribunal, Srinagar in the case of Faizullah Khan v Ali Akbar Khan and others [Claim Petition no. 280/2004] where the tribunal granted an amount of Rs 6,91,000 as compensation along with 4% interest from the date of claim petition to the respondent, Faizullah Khan after he was hit by a Tata Sumo on 30th May 2004, sustaining serious injuries in the process. The owner of the offending vehicle was under proper insurance cover; however the insurance company, i.e., the appellant contends that he did not have an effective and valid driving licence and so they should not be liable to pay the full amount of compensation. Furthermore the insurance company submitted before the court that the respondent’s hospital bill only came to Rs 2,00,000 and so Rs 6,19,000 was too high an amount for the same. However the court dismissed the appeal on hand, stating that the company or its representatives never brought up any problems regarding the documents or licence of the owner of the offending vehicle, despite him submitting the same before the Motor Accidents Claims Tribunal. Additionally the court stated that the respondent had suffered a 40% disability of his injured limb which would adversely affect his future earning capacity and that the tribunal set the amount considering the doctors report which stated that the respondent’s disability would only aggravate and increase over the passage of time and so the amount awarded in compensation could not possibly be said to be too much.