Compensation to be awarded under non-pecuniary heads like ‘pain and suffering’, ‘deprivation of pleasures of life’ and ‘loss of marriage prospects : Jammu and Kashmir High Court

HIGH COURT OF JAMMU AND KASHMIR AT SRINAGAR Reserved on: 17.06.2020 Pronounced on:30.06.2020 CMAM No. 111 2010 IA No. 01 2010National Insurance Company Ltd. Through : Mr. J.A. Kawoosa Advocate. on Video Conferencing from Srinagar) Bilal Ahmad Mir and others. Through : Mr. B.S. Bali Advocate. on Video Conferencing from Srinagar) Coram: HON’BLE MR. JUSTICE SANJAY DHAR JUDGE The instant appeal has been filed by the appellant against the Award dated 15.03.2010 passed by the Motor Accidents Claims Tribunal Srinagarin a claim petition filed by respondent No. 1 herein Bilal Ahmad Mir against the owner driver and insurer of the vehiclebearing Registration No. JKB 4051. As per the case of the claimant on 14.07.2004 while he was travelling in the aforesaid vehicle from Srinagar towards Tral the said vehicle met with an accident on reaching Sempora as a result of which he suffered serious injuries resulting in amputation of his right arm. The claimant sought compensation in the sum of ₹29.00 lacsfrom the owner driver and the insurer of the offending vehicle. 2 CMAM No. 111 2010 a w connected IA. Respondent No. 2 herein the driver and respondent No. 3 the owner did not contest the claim petition and they were set ex parte whereas the appellant insurance company contested the claim petition by filing its reply whereby it admitted the currency of the policy of insurance of the offending vehicle with it at the time of the accident but denied the occurrence. The insurance company further contended that there was breach of policy condition inasmuch as the driver of the offending vehicle was not holding a valid driving licence at the time of the accident. The Tribunal vide its order dated 28.04.2007 on the basis of the pleadings of the parties framed the following issues: Whether on 14.07.2004 Imtiyaz Ahmad Bhat respondent No. 1 was plying bus bearing registration No. JKB 4054 rashly and negligently as a result of which at Sempora it hit Bilal Ahmad Mir petitioner who sustained serious injuries due to which his right arm was amputated which has rendered him permanently disabled and handicapped OPP ii. Whether the respondent No. 1 i.e. driver of the offending vehicle was not holding a valid driving licence on the date of the accident and the vehicle was without valid RP and other relevant documents as such the insurance company cannot be saddled with any liability because injured has committed breach of police stipulations OPR 3 In case issue No. 1 is proved in affirmative to what amount of compensation the petitioner is entitled to from whom and in what proportion OPP After recording the evidence the Tribunal came to the conclusion that the injured had suffered the injuries as a result of the accident which is subject matter of the case and that there was no breach of any policy condition. Accordingly a sum of ₹15 10 000 was awarded as compensation in favour of the injured with a direction to the 3 CMAM No. 111 2010 a w connected IA. appellant insurance company that the awarded sum along with interest @ 6% per annum from the date of institution of the claim petition till final realization of the awarded sum be paid by it within a period of two months failing which the awarded sum shall be recoverable with enhanced interest @ 9% per annum from the date of the default. Aggrieved by the aforesaid award the insurance company has filed the instant appeal on the grounds that the driver of the offending vehicle was booked for offences including the one under Section 3 181 of the Motor Vehicle Act which shows that he was not carrying a valid driving licence at the time of the accident but inspite of this the Tribunal concluded that there was no breach of the policy condition on the part of the insured that the amount of compensation awarded by the Tribunal is exorbitant excessive and unjust and that for about two years the claimant did not prosecute the matter before the Tribunal but even then the interest for this period has been awarded in favour of the claimant that neither the penal interest nor the interest on loss of future income could have been awarded by the Tribunal. The contention of the claimant on the other hand is that the insurance company did not lead any evidence to prove that the offending driver was not holding a valid driving licence at the relevant time and that the amount awarded by the Tribunal in favour of the injured is just and reasonable. 4 CMAM No. 111 2010 a w connected IA. I have heard learned counsel for the parties. I have also gone through the impugned award the grounds of the appeal and record of the Tribunal. The first contention that has been raised by the appellant insurance company is with regard to the validity of the driving licence of the driver of the offending vehicle. It is urged that the file relating to criminal case that was summoned by the Tribunal during the proceedings before it clearly shows that the driver was booked for offence under Section 3 181 of the Motor Vehicle Act meaning thereby that the driver was not holding a valid driving licence at the time of the accident. A perusal of the record of the Tribunal reveals that vide seizure memo dated 04.07.2004 a number of documents relating to the offending vehicle appear to have been seized by the Investigating Officer which include the driving licence of Imtyaz Ahmad Bhat bearing No. 8374 MVD RTO J with its validity up to 20.04.2006. Though it is written in the challan that the driving licence of the driver of the offending vehicle was invalid yet the nature of the invalidity of the driving licence of the offending driver has remained shrouded in mystery. This mystery could have been unraveled by the Investigating Officer who has stepped into the witness box as a witness for the claimant but no questions have been put to the witness on this aspect by the counsel for the insurance company. Admittedly the insurance company has led no other evidence on this aspect of the case. The copy of the driving licence is not on record of the Tribunal and the insurer on whom the burden of proof of breach of policy conditions lay did not produce any evidence. In fact the isurer 5 CMAM No. 111 2010 a w connected IA. missed the opportunity of extracting evidence in its favour by not examining the Investigating officer on this aspect of the case. It is a settled law that onus of proving breach of policy condition is upon the insurer. The Hon’ble Supreme Court in the case titled “National Insurance Company Ltd. Vs. Swaran Singh and others reported as3 SCC 297” has made it clear by observing as under: “110of 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 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.” From the above it is clear that it was for the appellant insurance company to prove before the Tribunal that the offending driver was not holding a valid driving licence at the time of the accident. The mere assertion in the police challan that the driver of the offending vehicle was not holding a valid driving licence will not amount to discharging of burden by the insurance company particularly when as per the seizure memo the driving licence of the offending driver had been seized by the police during the investigation of the case but no effort was made by the insurance company to unravel before the Tribunal the exact nature of the seized driving licence of the offending driver. The insurance company has not even examined any witness to prove the 6 CMAM No. 111 2010 a w connected IA. condition of the insurance policy regarding which the appellant insurance company is claiming the breach. In the aforesaid circumstances it cannot be stated that the insurance company has discharged its burden of establishing breach of policy condition on the part of the insured. Therefore the finding of the Tribunal that there was no breach of policy condition in the instant case cannot be interfered That takes us to the quantum of compensation that has been awarded by the Tribunal in this case. The main ground urged by the appellant is that the Tribunal has while computing the loss of future income of the injured taken the functional disability of the injured as 100% though the disability of the injured pertains to a particular limb only i.e. the right upper limb. According to the appellant even if the injured was rendered incapable of performing the job of a carpenter he could well perform any other job with less remuneration and as such the Tribunal was not justified in computing the compensation by taking the functional disability of the injured as 100%. It has also been urged that the future attendant charges could not have been awarded in favour of the injured. If we have a look at the impugned award the Tribunal has taken the income of the injured as ₹4000 per month. There is a finding of the Tribunal that the injured was a carpenter by profession and he would earn ₹200 per day as wages. Inspite of this the Tribunal has taken the monthly wages of the injured as ₹4000 only. 7 CMAM No. 111 2010 a w connected IA. Even if we take into account the government notified minimum rate of wages of a skilled worker at the relevant time the monthly wages of a carpenter could have been easily taken as ₹6000 per month and after making allowance for one holiday per week it would would come to around ₹5000 . It is correct that the disability of the injured as assessed by the doctor is pertaining to his right upper limb and not of his whole body but one has to take into account the fact that the injured has lost his right upper limb in the accident which is the normal working limb of a human being. Though it is shown in the cross examination of the doctor who has issued the disability certificate that the injured can run a shop with the assistance of a helper yet after taking into account the expenses that may be incurred in hiring the services of a helper and the poor financial status of the injured the actual earning of the injured by performing the job of a shopkeeper will be peanuts as compared to his earlier income. 16. The Hon’ble Supreme Court has in the case titled “Raj Kumar Vs. Ajay Kumar and Another reported as1 SCC 343” vide illustrationgiven in the said judgment relating to a case of amputation of right hand taken the functional disability of the injured as 70%. In the instant case the injured has lost whole of his right upper limb and permanent disability of the said limb is 100% therefore the functional disability of the injured in the facts and circumstances of the case can easily be taken as 80%. By applying this formula and taking the monthly income of the injured as Rs. 5000 the monthly loss of future income of the injured will come to ₹4000 . After applying the multiplier of 17 the loss of future income to the injured will come 8 CMAM No. 111 2010 a w connected IA. to ₹4000 X 12= ₹48 000 X 17= ₹8 16 000 . The Tribnal has also assessed the same amount as loss of future income to the injured. The other ground urged by the appellant is that the injured has been awarded a sum of ₹1 44 000 as attendant charges for the next twelve years by taking the attendant charges of ₹4000 per month which according to the appellant could not have been awarded. In my opinion the Tribunal has been justified in awarding the future attendant charges in favour of the attendant because from the statement of the doctor who examined the injured it is clear that during the period of hospitalization such patients need constant attendant and further an attendant is needed for such patients for whole of their lives as they are unable to perform their daily routine duties and have to depend upon the services of attendants for whole of their lives. The doctor has clearly stated that the injured cannot go for an artificial limb because his right limb has been amputated from the shoulder joint. There is no cross examination of the doctor on this aspect of the case and his statement in this regard has remained un rebutted. In the face of the above evidence it is clear that the injured needs an attendant throughout his life. A person who has lost his working limb cannot perform even his daily chores and he would usually need assistance of another person. Therefore to argue that the Tribunal was not justified in awarding attendant charges in favour of the attendant is wholly misconceived. The Tribunal has awarded the attendant charges in favour of the injured only 9 CMAM No. 111 2010 a w connected IA. for twelve years whereas the multiplier applicable to the age of the injured is 17. Since the injured has not filed any cross appeal therefore I leave it there but one thing is clear that the attendant charges awarded by the Tribunal in favour of the injured are not exorbitant. The appellant has challenged the quantum of compensation under non pecuniary heads like ‘pain and suffering’ ‘deprivation of pleasures of life’ and ‘loss of marriage prospects’. The amount awarded by the Tribunal under head ‘pain and suffering’ is ₹2.50 Lacs SANJAY DHAR) JUDGE Whether the order speaking: Whether the order is reportable: Yes No 

Summary: Compensation awarded by a Tribunal in favour of the injured under other non-pecuniary heads is also wholly justified when the injured with the kind of disability which he has suffered, will certainly not be able to live a normal life and he will certainly be dependent on others for routine functioning like putting on clothes, eating food etc. This was held in the judgment passed by a single judge bench comprising of HON’BLE MRS. JUSTICE SINDHU SHARMA, in the matter M/s New J.K. Roadways V. Union Territory of J&amp;K and others. [CMAM No. 34/2014], dealt with an issue where the petitioner filed a petition challenging award passed by the Motor Accidents Claims Tribunal, Srinagar in a claim petition filed by respondent against the owner, driver and insurer of the vehicle (Bus). As per the case of the claimant, while he was travelling in the aforesaid vehicle from Srinagar towards Tral, the said vehicle met with an accident, as a result of which, he suffered serious injuries, resulting in amputation of his right arm. The claimant sought compensation in the sum of ₹29.00 lacs from the owner, driver and the insurer of the offending vehicle. The owner did not contest the claim petition and they were set ex-parte, whereas the appellant-insurance company contested the claim petition by filing its reply, whereby it admitted the currency of the policy of insurance of the offending vehicle with it at the time of the accident, but denied the occurrence. The insurance company further contended that there was breach of policy condition inasmuch as the driver of the offending vehicle was not holding a valid driving licence at the time of the accident. Aggrieved by the aforesaid award, the insurance company has filed the instant appeal on the grounds that the driver of the offending vehicle was booked for offences including the one under Section 3/181 of the Motor Vehicle Act, which shows that he was not carrying a valid driving licence at the time of the accident, but inspite of this, the Tribunal concluded that there was no breach of the policy condition on the part of the insured; that the amount of compensation awarded by the Tribunal is exorbitant, excessive and unjust and that for about two years, the claimant did not prosecute the matter before the Tribunal, but even then the interest for this period has been awarded in favour of the claimant; that neither the penal interest nor the interest on loss of future income could have been awarded by the Tribunal. After hearing both sides, the Hon’ble High Court of Jammu and Kashmir dismissed the petition and held that the Tribunal has been justified in awarding the future attendant charges in favour of the attendant, because from the statement of the doctor who examined the injured, it is clear that during the period of hospitalization, such patients need constant attendant and further an attendant is needed for such patients for whole of their lives as they are unable to perform their daily routine duties and have to depend upon the services of attendants for whole of their lives. Click here to view judgement