Oriental Insurance Company Ltd vs Anuradha Devi And Anr

Sureshwar Thakur, J

The instant appeal is directed, by the aggrieved Insurance company, against, the impugned award(s), pronounced by the Learned Motor Accident Claims Tribunal-II, Shimla, H.P, respectively, upon, MAC petition No. 7-S/2 of 2014, (i) wherethrough hence compensation amount borne, in a sum of Rs. 3,56,700/- along with interest @ 7.5% per annum, and, commencing from the date of filing, of, the petition, till its payment, stood assessed, vis-à-vis, the disabled claimants, The apposite indemnificatory liability thereof, stood fastened, upon, the insurer, of the offending vehicle.

Evidently, the offending vehicle, does fall, in the category, of, a goods vehicle, (a) and when unless, the, disabled claimant, was proven to be aboard thereon, as, owner of the goods loaded thereon, thereupon, she would be construable, to, be aboard thereon, rather as a gratuitous passenger, and hence the apt interdiction, cast in the contract, of, insurance, as, borne in Ext. RW1/A, against the saddling, of, the apposite indemnificatory liability, vis-à-vis, the afore category, of, passengers, becoming visibly attracted qua her (b) and concomitantly also, the saddling, of, the apposite indemnificatory liability, vis-à-vis, the Insurer, rather becoming unsaddlable. In making the afore submission, the, learned counsel for the claimant, has focused, upon, the factum, that, though in the claim petition, the petitioner has not made any averment, vis-à-vis, hers travelling, in, the offending vehicle, alongwith her goods, loaded thereon, (b) yet when she in her testification, has made a deposition, vis-à-vis, hers, at the relevant time, prosecuting studies, as a student, of, B.A. 1st year, in Government College, Sunni, (c) and upon, the, closure of the afore college, hers alongwith her hence carrying goods, in, the vehicle, ratehr upon hers liquidating, a, freight of Rs. 1000/- to the deceased driver, of, the offending vehicle, (d) obviously being a deposition, beyond pleadings, and, hence, it being discardable, (e) and, rather meteing, of, any credence thereto, being unbefitting, as, also therethrough the afore testified incapacity, of, the disabled claimant, to fall hence within the ambit, of, the, contract of insurance, hence graphically surging fortch (f) and in making the afore espousal, as he has placed reliance on, the factum, of, FIR, embodied in Ext. PW1/A, being lodged, at, the instance of disabled claimants, and, also therein hers omitting, to, make the afore voicing(s).

However, the afore submission, cannot be accepted, as it is evident, on a perusal of Ext. PW2/A, and, of, Ext. PW2/B, vis-à-vis, the disabled claimant rather prosecuting her studies at Government College, Sunni, (a) and also when the Insurer omits, to, bring forth any evidence, for, belying the disabled claimants' testification, vis-à-vis, at the relevant time, upon, the closing, of, the college concerned, hence for winter vacation, her becoming aboard, the, offending vehicle alongwith, her, luggage loaded thereon, (b) evidence whereof, is, though, comprised, in, eliciting, from the school concerned, all, the concurrent therewith records. However, when the afore evidence is amiss, (c) and, whereupon it is to be concluded, qua the testification rendered by the disabled claimants, qua, upon the closure, of, Government College Sunni, hers leaving for home, rather alongwith her luggage, hence being alongwith her, hence becoming aboard, the, offending vehicle, hence, carrying an aura of tenacity, dehors, hers not reciting, the afore factum, either in the claim petition or in the FIR concerned.

Even otherwise, furthermore, immense fortification vis-à-vis, the afore inference, is, also garnered from the factum, that, the afore testification would acquire, a, vice of falsity, (a) upon elicitations, being made, of, the apposite records, from the school concerned, and, their making bespeaking(s), vis-à-vis, the disabled claimants, not being housed, in the hostel of the college, (b) whereupon she would, be, precluded, to, make the apposite deposition, vis-à-vis, hers leaving for home, upon closure of the college, rather in the offending vehicle, and, alongwith her goods being aboard thereon. Since the afore records also remained un-elicited, (c) thereupon it would be inappropriate to discard, her testification, as, embodied in her examination-in-chief, (d) more so, when even, during, the course of her cross-examination, she has remained unscathed, vis-à-vis, the afore testified factum, and, despite the fullest opportunities, rather standing granted, to the Insurer, to contest the afore echoing(s), as, made by her, (e) and also when the Insurer, has un-availed hence the elicitation, of, all the afore records, (f) thereupon also the mere factum of hers, not reciting, the, afore, either in the claim petition nor in the FIR, loses significance, nor hence the afore testification, is, to be construed to be beyond pleadings nor it is discardable. In sequel, the fastening, of, the apposite indemnificatory liability, upon, the Insurer is well-merited, and, does not merit any interference, being made, by, this Court.

The disability entailed, upon, the clamant, is, borne in Ext. PW3/B, exhibit whereof, is, proven by PW-4, and, when hence 12%, of, permanent disability, stands encumbered, upon, the claimant, (a) besides when PW-4,in his examination-in-chief, renders a testification vis-à-vis, the claimant facing difficulty, in performing her daily routine activities, (b) yet when in his cross-examination, conducted by the counsel for the insurer, he acquiesces, to, the suggestion, vis-à-vis, the petitioner being not precluded, to, perform her routine work, and, also makes further acquiescing(s), vis-à-vis, a suggestion, qua the disabling injuries, curing with the passage of time, (c) thereupon it appears that the quantification, of, Rs.2 lacs, of, compensation, vis-à-vis, her, under the head, Loss of prospects of marriage, appears to be a mis-befitting assessment, and, also in, gross detraction vis-à-vis, the afore made testification, by PW-4.Even otherwise, the entailment, of, the afore percentum, of, injuries, upon the disabled claimant, does not appertain, to, either her face or to any visible portion of her body, rather it appertains, to the legs, of the disabled claimants, (d) and when hence her legs are also not testified, to suffer disfigurements, and, also further onwards,it, remains un-testified, by PW-4, qua hence, the gait, of, the disabled claimant, becoming staggered, (e) and, rather whereupon her marital prospects, may be impaired, (f) rather when he deposes, vis-à-vis, the afore injuries, not precluding the disabled claimant, to, perform her routine jobs, (f) and also further his deposing qua hers injuries, healing with the passage of time, also constrains this Court, qua the afore quantum, of, compensation, assessed, under the head, "Loss of Prospects of Marriage" being amenable, for interference, and it is deemed fit, to, deduct the compensation amount, borne in a sum of Rs. 2,00,000/- from, the total compensation, as adjudged, by the learned MACT concerned, vis-à-vis, the disabled claimant.

Consequently, the disabled claimant, is, entitled to total compensation borne in a sum of Rs. 1,56,700/- only with interest @ 7.5% per annum, from, the date of filing of the petition, i.e. 17.12.2013, till its realization. The appeal, is, partly allowed, and, the impugned award, is, in the aforesaid manner, hence, modified. All pending applications stands disposed of accordingly. Records be sent back.