National Insurance Company vs Dinesh

Bhawani Singh, Chief Justice

l. This appeal is directed against the judgment of Single Judge dated 18111997. Before dealing with, the case on merits, material facts of the case

may be mentioned.

2.Accident dated April 10,1993 took place at Kotla village, near Crossing Shati Garden North, New Delhi at 5.30 A.M. Claimant Rakesh Singh

was the codriver in the offending Goods Vehicle No. JKU J833. As a result of this accident, both of his legs amputated. It is alleged that rash and

negligent driving by Dinesh Singh (Driver) contributed to this accident. Compensation to the extent of Rs. 11,70,590.21 was claimed through

petition filed before N.C.T, Delhi. Therefore, claimant approached the Apex court for the transfer of the claim petition to N.C.T, Jammu.

Accordingly, vide order dated January 31,1994, it was transferred to M.A.C.T, Jammu where parties appeared and contested the claim. Dinesh

Singh has denied that he was driving the Vehicle rashly and negligently though taking place of accident has been admitted. Darence of appellant is

that it was not liable to indemnify the owner since the vehicle was being driven in violation of the terms of the Insurance policy though the vehicle

was covered under insurance. It is also stated that the driver did not possess valid driving licence at the relevant time.

3.On the pleadings of the parties, the following three issues were framed.

1.Whether the accident involving injuries to the petitioner has occurred by the use of the offending vehicle driven rashly and negligently by its driver

respondent No. 1 ? Opp

What is the amount of compensation payable to the petitioner in the event of proof of issue No. 1 in affirmative and by whom ? Opp

Relief.

4.After considering the rival submission of parties, M.A.C.T, Jammu awarded Rs.8,80,000/ compensation to the claimant with interest at the rate

of 12% from the date of presentation of claim petition till final payment.

5.The award of MACT, Jammu was challenged before the Single Judge of this court. By decision of November 18,1997, the appeal was

accepted to the extent that amount of compensation awarded by the M.A.C.T, N, Jammu has been reduced by Rs.60,000/by adopting multiplier

of 18 instead of 20.

Not satisfied with the decision of Single Judge, present appeal has been filed by the appellant, Shri C.S.Gupta, learned counsel for the appellant

contended that the order of Tribunal and that of Single Judge is erroneous for rejection of contention by the appellant that apart from multiplier of

20, award of compensation on other heads was bad. There could be no justification for applying multiplier of 18 and 20 by the courts and no

compensation could be awarded under other heads like pain, suffering and shock (Rs.50.000). permanent disability and loss of amenities of life

(Rs.70,000). Medicines, special Diet and Hospital charges (Rs. 1,40,000) and towards service rendered by the claimant (Rs. 15,000). If we turn

to the findings on issues framed in the case, we find that the same has gone in favour of the claimant.

With this appeal, claimant has filed crossobjections No. 28/1998, assailing the judgment of Single judge and claiming more compensation. Shri

C.S.Gupta, contends that these crossobjections are not maintainable for want of necessary party, namely, the owner of the vehicle. We find that

owner of vehicle has not been made party in the crossobjections which ought to have been done for the proper adjudication of the case. Although

we have rejected the crossobjection, however, in exercise of power under order 41 Rule 33 Code of Civil Procedure 1997 (1920 A.D) we deal

with the case on merits.

Section 149 Motor Vehicle Act. 1988 provides defence vailable to the insurer. But section 149(2)(a) does not provide that the insurer can assail

the quantum of compensation before the Appellate Court except where there is collusion between the insured and the claimant. There also,

permission for raising such questions have to be sought from by the insurer in writing (see Shankarayya and Another Vs. United India Insurance

Company Limited and Another: 1998 (3) SCC140).

Accordingly, we find no merit in this appeal and the same is dismissed.

During the course of hearing of this case, learned counsel for the parties brought to our notice that the claimant is totally handicapped as both of his

legs stand amputated. Shri A.V.Gupta, submits that the claimant has spent subsequential amount towards medical expenses and litigating before

M.A.C.T, Delhi, Supreme Court of India and M.A.C.T, Jammu, apart from in this court. However, learned counsel agrees that the amount be

ordered to be invested in such a manner that it is beneficial to his client in later life since he has not only to look after himself but also his wife and

minor son. Accordingly, we direct as under:

l/. That out of the unpaid amount of compensation, Rs one Lac be released to him through Counsel.

2/. That remaining amount be invested in Fixed Deposit Receipt in his name, in the name of his wife and minor son (Name to be provided to the

Bank) for a period often years in the first instance in the Jammu and Kashmir Bank Samba Branch.

3/. That the Manager of the Jammu and Kashmir Bank, Samba Branch is directed to pay the interest accrued on the FDR to the claimant after

every quarter or as may be intimated by the Claimant.

4/. The FDR shall be renewed on expiry of the period mentioned above and there shall not be premature encashment of the FDR unless

permission is sought from this court.

5/. That there shall not be any transfer, creation or lien, guarantee for Joan or any other facility on this Fixed Deposit Receipt.