Nandan Tiwari vs Virendra Kumar and Others

Arun Mishra, J.—This appeal is by the claimant aggrieved by dismissal of claim petition as per award dated 22.9.2000 passed by 2nd Addl. Motor Accident Claims Tribunal, Dabra, District Gwalior in Claim Case No. 36/2000.

The claimant filed a claim petition for claiming compensation with respect to an accident dated 31.12.1995 which took place at about 6.15p.m. near village Hanskhedi. When the claiamnt was travelling on Yamha Motorcycle along with Malvendra Singh and was going to Dabra, Jeep (MP 04-G/0404) came from Dabra side, it was driven by Virendra Kumar, owned by Hargovind and insured with Oriental Insurance Co. Ltd. had dashed the motorcycle. Claimant sustained compound fracture of tibia and fibula, report of accident was lodged, an offene was registered under Sections 297 and 337, IPC, after due investigation, driver of the jeep was charge-sheeted. Right leg of claimant has become incapacitated, claimant was a contractor earning Rs. 10,000 per month, compensation of Rs. 7,00,000 was claimed.

The driver and owner of the jeep remained ex parte. Insurer in the written statement contended that driver of the jeep was not having valid and effective driving licence, jeep was not involved in the accident, policy was issued in the name of Mr. J.N. Tiwari for the period upto 7.9.1996, insurance was not transferred in the name of Hargovind after sale of jeep to him.

Claims Tribunal has found that involvement of jeep has not been established, it was found that registered owner of the vehicle was Hargovind but policy was not transferred in the name of Hargovind, compensation of Rs. 22,000 has been determined, but it has not been awarded as claim petition has been dismissed.

Mr. M.P. Agarwal, learned Counsel appearing on behalf of appellant has submitted that compenastion ought to have been awarded as there was unrebutted evidence adduced by the claimant with respect to involvement of jeep. Insurer, driver and owner have failed to adduce the evidence in rebuttal, registered owner was Hargovind, merely by non-transfer of policy, insurer could not have absolved from its liability to make payment of compensation, just compensation be awarded in the facts and circumstances of the case.

Mr. V.K. Bhardwaj, appearing with Mr. Anand Bhardwaj and Mr. Raja Sharma have supported the award passed by Claims Tribunal.

After hearing learned Counsel for parties, in my opinion, the award passed by Claims Tribunal cannot be allowed to sustain for various reasons. The finding recorded as to non-involvement of vehicle in question is also perverse. No doubt about it that in the FIR number of the vehicle was not mentioned, however, on due investigation police has found involvement of vehicle in question in the accident, it was seized and handed over on Supurdnama to the registered owner. Apart from that there is unrebutted evidence furnished by claimant Nandan Tiwari (C.W. 2). He has stated that driver of the jeep in question was driving it in drunken condition and dashed the motorcycle, that was the cause of sustaining the injury. His statement has been supported by Malvendra Singh (C.W. 3). There is absolutely nothing to discard the satements of aforesaid witnesses. No evidence in rebuttal has been adduced by driver, owner and insurer. Thus, it is held that accident was caused due to rash and negligent driving by driver of the jeep and the jeep in question was involved in the accident.

Coming to factum of transfer of vehicle. It has been found that vehicle stood transferred in the name of Hargovind and he was the registered owner. Once he was a registered owner, it was not necessary that insurer should have been informed about transfer of the vehicle. In the absence of information to the insure with respect to transfer of vehicle, insurer is not absolved from the liability as held by Full Bench of this Court in National Insurance Company Ltd. Vs. Kansram and Others, Kunj Bihari and Others, Dashrath and Others, Prabhat and Others, Ku. Nirmala and Others, Leela Bai and Others and Dobdhe and Others,

Coming to question of quantum of compensation, compound fracture of tibia and fibula stands established from the overwhelming evidence on record, factum of permanent disability has not been established as no certificate issued by the Medical Board has been placed on record with respect to incurring of permanent disability. However, as evinced from vouchers on record an expenditure of Rs. 491 + 443 + 1170 + 742 + 866 + 463 + 529 + 721 + 758 + 1708 + 439 + 684 + 1160 + 51 + 1772 + 662 + 778 + 873 + 547 + 1566 + 994 + 1193 + 540 + 844 = Rs. 19,994 has been incurred. In addition for loss of earning for a period of four months a sum of Rs. 12,000 at the rate of Rs. 3,000 per month is awarded as the claimant was a contractor, it would be appropriate to assess the income at Rs. 3,000 per month, for physcial pain and mental suffering a sum of Rs. 15,000 is awarded. On account of special diet and conveyance expenses, a sum of Rs. 5,000 is awarded. On account of expenditure on attendant a sum of Rs. 2,500 is awarded. Thus, total compensation comes to Rs. 19,994 + 12,000 + 15,000 + 5,000 + 2,500 = Rs. 54,494 (Rs. fifty four thousand four hundred and ninety four only). The compensation awarded by this Court to tarry the interest at the rate of 6% per annum from the date of filing claim petition till its realization. Liability is held to be joint and several of the respondents to make payment of compensation.

Resultantly, appeal is partly allowed to the aforesaid extent. No order as to costs.