Oriental Insurance Company Ltd vs Mst. Jameela And Ors

Rajnesh Oswal, J

This appeal arises out of the award dated 30/05/2013 passed by the Motor Accident Claims Tribunal Srinagar (hereinafter referred to as

Tribunal) by virtue of which compensation of Rs. 2 lakhs along with interest at the rate of 6% from the date of institution of the petition has been awarded in favour of the respondent Nos. 1-6.

The award has been impugned by the appellant- insurance company on the grounds that after the death of the original claimant/petitioner, the respondent Nos. 1-6 had no right to prosecute the claim petition and further that the respondent Nos. 1-6 had miserably failed to prove the expenditure incurred towards the medical treatment of the deceased and further sum of Rs. 2 lakhs awarded as compensation on account of so-called medical expenses and loss to the estate, is excessive.

Despite notice, the respondent Nos. 1-6 did not appear and after setting them ex-parte, the matter was heard finally on the basis of record.

Mr. Khuroo, Ld. counsel appearing for the appellant-insurance company argued that without there being any evidence on record with regard to the expenditure incurred on the medicines, the Ld. Tribunal has awarded the sum of Rs. 2 lakhs in lump-sum towards the loss to the estate, as such the award is liable to be set aside.

Heard and perused the record.

The perusal of the record reveals that the predecessor in interest of the respondent nos. 1-6 namely Abdul Rehman Dar (herein after referred to as original claimant) had filed a claim petition for grant of compensation on account of injuries suffered by him in a vehicle accident on 06/03/2005 at Fruit Mandi Crossing Srinagar. In the said claim petition, the claimant had claimed compensation of Rs. 41.50 lacs including sum of Rs. 50,000 as medical expenses and had claimed to have remained bed ridden for 25 days at Soura Hospital and he had further stated in the petition that he was advised bed rest for 3 months and due to the accident he had lost his earning capacity. He had also claimed to have suffered permanent disability of his left leg. The Ld. Tribunal after the filing of the response by the appellant, framed the issues and claimant appeared as his own witness in the case and his statement was recorded. During the pendency of the said petition, the claimant died and his legal representatives i.e. respondent Nos. 1-6 were brought on record and the amended claim petition was filed, in which it was pleaded that the claimant died due to the injuries suffered in the accident. Thereafter the Tribunal reframed the issues. Besides claimant, Pw Mohammed Farooq Khan, Pw Mohammed Amin, PW Mohammed Lateef, Mst. Jameela, PW Mohammed Amin Bhat, Pw Bilal Ahmed and PW Dr. S.D Palijor were examined in support of claim petition. The appellant examined RW Ab. Majid Darzi and Rw. Zubair Ahmad Farooqi. The Ld. Tribunal vide impugned award directed the appellant-insurance company to pay sum of Rs. 2 lacs along with interest at the rate of 6% per annum from the date of institution of petition to the respondent Nos. 1 to 6. The Ld. Tribunal held that the respondent Nos. 1-6 have not been able to prove the cause of death of claimant because of injuries suffered due to accident but nonetheless the Tribunal awarded compensation on account of loss to the estate.

The issue is no more res-integra that the death of original complainant would not result in abatement of the claim petition filed by the injured claimant but the compensation on account of pain and sufferings cannot be granted in such cases. In the “Oriental Insurance Company versus Kahlon” reported in 2021 SCC OnLine SC 691 Apex Court has held that loss of estate would include expenditure on medicines, treatment, diet, attendant, Doctor's fee, etc. including income and future prospects which would have caused reasonable accretion to the estate but for the sudden expenditure which had to be met from and depleted the estate of the injured, subsequently deceased. So far as instant case is concerned, though it was stated by the claimant that he had suffered permanent disablement but from the record it is evident that there is no medical certificate issued by the Medical Board that the claimant had suffered permanent disablement. Even in the medical certificate Exp-M it has been mentioned that the nature of disability is temporary. Dr. S D Paljora who was examined by the respondent Nos. 1-6 stated that operation was conducted in the hospital free of cost but the medicines, plaster, implant and bandages were purchased from outside and the patient was also advised special diet. The claimant had claimed Rs. 50,000/ as medical expenses but there is no evidence on record in the form of bills to substantiate the said claim but nonetheless taking into consideration the evidence of Dr Paljora and the nature of injuries suffered by the claimant, sum of Rs.50,000 can be considered as an amount spent by the claimant for purchase of medicines, implant etc. The claimant claimed to have been advised bed rest for 3 months and even if his earnings as stated in the petition as Rs. 10,000 per month are taken as such, even then sum of Rs. 40,000 can be awarded for loss of earnings. As there is no evidence on record that the claimant suffered permanent disablement as such no compensation on account of loss of future income can be granted. Further the deceased was prescribed special diet as such sum of Rs. 10,000/ can be considered as sufficient amount for the same. Further sum of Rs. 10,000 can be granted as attendant expenses. Thus the respondent Nos. 1-6 are entitled to sum of Rs. 1,10,000/ as total compensation on account of loss to the estate.

In view of above, this Court is of the considered opinion that the sum of Rs. 2 lakhs awarded by the Tribunal as loss to the estate is excessive and as such the compensation is reduced to Rs. 1,10,000/ along with interest at the rate of 6% from the date of institution of petition. As the whole of the amount has been released in favour of respondent Nos. 1-6 as such the appellant shall be at liberty to initiate appropriate proceedings for the recovery of the balance amount of Rs. 90,000/ from the respondent Nos. 1-6.

Disposed of.