Partly allowed

Manish Kumar v. Rattan Chand

Himachal Pradesh HC17 Jul 2024FAO/199/2015

Case brief

AI extract

What is this about?

On two appeals, the High Court modified a Motor Accident Claims Tribunal award. It held that a 70% liability split was unsustainable where the accident resulted from contributory negligence by both drivers, instead fixing liability at 50%. The compensation quantum was upheld.

What did the court decide?

The award is modified to make the Insurance Company liable to indemnify the claimant to the extent of 50% instead of 70%. The rest of the award is maintained.

Manish Kumar Vs Rattan Chand — Insurance | Himachal Pradesh HC (2024)

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2024:HHC:10992

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IN THE HIGH COURT OF HIMACHAL PRADESH SHIMLA

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FAO No. 28 of 2014 with
FAO No. 199 of 2015
Decided on: 17.07.2024

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FAO No. 28 of 2014

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Oriental Insurance Company Limited .…Appellant

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Versus

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Manish Kumar and others …Respondents FAO No. 199 of 2015

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Manish Kumar .…Appellant

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Versus Rattan Chand and others …Respondents Coram

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The Hon’ble Mr. Justice Ajay Mohan Goel, Judge.

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Whether approved for reporting?¹ Fao No. 28 of 2014

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For the appellant	:	Mr. Jagdish Thakur, Advocate.
For the respondents	:	Mr. V.S. Rathore, Advocate for respondent No. 1. Respondents No. 2 and 3_exparte_.
FAO No. 199 of 2015
For the appellant	:	Mr. V.S. Rathore, Advocate.
For the resondents	:	None for respondents No. 1 and 2.
	:	M/s Deepak Gupta and Meera Devi Advocates,for respondent No. 3.
Ajay Mohan Goel, Ju	dge	(Oral)

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1 Whether reporters of the local papers may be allowed to see the judgment?

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2024:HHC:10992

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As common issues of law and fact are involved in these

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two appeals, they are being disposed of today by way of a common judgment.

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FAO(MVA) No. 28 of 2014 has been filed by the Insurance Company against the award passed by the Court of learned Motor Accident Claims Tribunal-II, Kangra at Dharamshala, H.P. in MACP No. 25-N/2006, titled as Manish Kumar vs. Rattan Chand and others, dated 30.08.2013, in terms whereof the petition filed under Section 166 of the Motor Vehicles Act by claimant Manish Kumar for the grant of compensation to the tune of Rs. 10,00,000/- (Rs. Ten Lac) on account of injustices sustained by him in a motor vehicle accident was allowed by the learned Tribunal as under:-

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27. In view of my findings on the issues as discussed above, the petition succeeds and the same is hereby allowed in favour of petitioner and against the respondent no. 3 being the insurers of the offending vehicle. The petitioner is awarded total amount of compensation to the tune of Rs.1,48,000/- (Rs.one lac forty eight thousand only) to be paid by the respondent No.3 ie. 70% of the total amount of compensation being the insurer of vehicle No. PB-06-C-0707 as held above. This amount shall be inclusive of the amount of compensation already ordered to be paid under section 140 of Motor Vehicles Act. The respondent No.3 shall pay the entire amount alongwith interest at the rate of 7.5% per annum from the date of

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filing the petition till its realization by each of the insurance company. Memo of costs be prepared accordingly. The file after its due completion be consigned to record room.”

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FAO No. 199 of 20115 has been filed by the claimant seeking enhancement of the award amount.

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Brief facts necessary for the adjudication of these appeals are that a claim petition was filed by the claimant inter alia on the ground that on 25.12.2004, he alongwith his friend were standing on the left side of the road alongwith their Motorcycle at village Nagabari near Jassur. A Toyota Qualis bearing registration No. PB-06C-0707, which came from the Pathankot side, was being driven in a rash and negligent manner by its driver Dilbag Singh. As a result thereof, he could not control the same and the same hit the claimant, resulting in grievous injuries on his person. The claimant suffered multiple fractures on left leg and hip. The claimant was hospitalized for more than 12 days in a hospital at Pathankot and thereafter remained bed ridden for more than six months. The offending vehicle was stated to be owned by Rattan Chand and was stated to be insured with Oriental Insurance Company, Pathankot. According to the claimant, he was running a business in the name and style M/s Pathania Poltries at village Bhod. He was also earning Rs. 3,000/per month as salary by rendering services at R.B. Digital Weighing

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2024:HHC:10992

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Machine. As a result of the accident, the claimant had become permanently disabled to the extent of 40%. He had also spent Rs. 50,000/- on his treatment and had paid Rs. 2400 to one attendant. The claimant had been rendered physically handicapped for his entire life on account of the accident and thus, he prayed for compensation to the tune of Rs. 10.00 Lac.

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The owner and driver of the offending vehicle denied the claim of the claimant. According to them, a frivolous claim stood filed by the claimant. It was denied that the vehicle was being driven in a rash and negligent manner and the accident took place as a result of rash and negligent driving of the driver.

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The Insurance Company besides taking other objections also took an objection with regard to the driver of the offending vehicle not possessing valid and effective driving licence. It was denied that the monthly income of the claimant was to the tune of Rs.11,000/- and that he stood incapacitated for his entire life.

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On the basis of pleadings of the parties, learned Tribunal framed the following Issues:-

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“1. Whether the respondent no.2 was driving the vehicle No. PB-06-C-0707 rashly and negligently on 25.12.2004 and caused injuries to Manish Kumar? OPP

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2. If issue No.1 is proved in affirmative to what amount of compensation the petitioner is entitled and from whom? OPP.

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3. Whether the injuries were suffered by the applicant due to his own fault? If so its effect ? OPR. 1&2

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4 Whether the respondent No.2 was not holding a valid and effective driving licence and the offending vehicle was being plied by the respondents No.1 and 2 without any proper documents and insurance as alleged? OPR-3

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5. Whether the petition is bad for non joinder of necessary parties? OPR

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6. Relief.

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On the basis of evidence led by the parties in respect of

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their respective contentions, the Issues so framed were answered by learned Tribunal as under:-

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Issue No. 1 : Yes. Issue No. 2 : Decided accordingly. Issue No. 3 : No. Issue No. 4 : No. Issue No. 5 : No. Issue No. 6 : No. Relief : Petition is allowed as per operative part of the award.

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Learned Tribunal thus awarded compensation to the

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tune of Rs.1,48,000/- in favour of the claimant as already mentioned hereinabove.

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Feeling aggrieved by the award, the Insurance Company has assailed the award inter alia on the grounds that the award passed by learned Tribunal was bad as learned Tribunal erred in holding that the Insurance Company was liable to indemnify the claimant to the extent of 70% qua the award amount and further learned Court also erred in not appreciating that the vehicle was being driven in gross violation of the terms and conditions of the Insurance Policy. It is further the contention of the Insurance Company that the award is otherwise on the higher side.

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On the other hand, the claimant by way of separate appeal, has prayed that in view of the fact that he has been rendered disabled to the extent of 40%, the award is on the lower side.

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I have heard learned Counsel for the parties and also carefully gone through the award passed by the learned Tribunal as well as the record of the case.

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Learned Tribunal, while deciding the Issues No. 1 and 2, took note of the fact that the evidence on record demonstrated that the claimant was driving his Motorcycle and was on his way towards Jassur side from Nurpur and when he reached near Nagabar, the offending vehicle came from the Pathankot side,

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which was being driven in a rash and negligent manner and it collided with the Motorcycle of the claimant, resulting in grievous injuries to the claimant. Learned Tribunal held that the evidence demonstrated that the accident took place due to compository negligence of drivers of both the vehicles. However, thereafter it went on to hold that the driver of the offending vehicle (Toyota Qualis) was required to be more cautious as evidence demonstrated that driver of this vehicle was more negligent. On these bases, it fixed the liability for paying the compensation 70% on the driver of the offending vehicle and 30% on the claimant.

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While assessing the compensation, learned Tribunal held that it had come in evidence that the petitioner was earning Rs. 3000/- per month from the Digital Company by providing his services as engineer and in addition to it he was running a poultry farm. After holding that the claimant had not proved his exact income, learned Tribunal went on to take the monthly income of the claimant to be Rs. 4500/- on the basis of daily wage of a labourer.

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Thereafter, taking into consideration the injuries suffered by the claimant and also the fact that he had remained hospitalized for 33 days, he was a young man of 30 years of age and he had also spent some amount on his treatment, it awarded

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an amount of Rs. 1,50,000/- under the head of pain and sufferings. Under the head of attendant charges it awarded Rs. 4000/- and under the head of loss of amenities and future disability Rs. 50,000/-, Rs. 10,000/- under the head of loss of marital prospectus and on account of medical bills, an amount of Rs. 1500/- was awarded. By deducting 30% from the said total amount, it ordered compensation to the tune of Rs.1,48,000/- in favour of the claimant.

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Learned Tribunal returned the findings about the contributory negligence of the parties in the occurrence of the accident by taking note of the fact that no FIR was registered by the claimant against respondent No. 2 (Dilbag Singh) for causing grievance injuries to him and this as per learned Tribunal demonstrated that the accident indeed was a result of contributory negligence of both the parties.

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During the course of hearing of this petition, it could not be demonstrated before this Court that the findings qua the factum of the accident being a result of compository negligence on the part of the drivers of both the vehicles were incorrect. In fact, it is clearly borne out from the record that after the accident took place, in which the claimant was grievously injured, he did not initiate any criminal proceedings against the driver of offending

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vehicle, why so? The answer is obviously that this is for the reason that the accident was on account of negligence of drivers of both the vehicles.

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That being the case, this Court is of the considered view that the fastening of the liability of 70% upon the driver of offending vehicle on simple conjectures that the driver of said vehicle ought to have been more cautions is not sustainable in law. When learned Tribunal has come to a conscious decision that the accident was the result of contributory negligence of the claimant and driver of the other vehicle, then, negligence ought to have been contributed equally upon both the parties. Now as far as the findings returned by learned Tribunal with regard to the quantum of compensation are concerned, this Court does not find any reason to interfere with them. During the course of hearing of these appeals, learned Counsel for the claimant-appellant could not demonstrate that the claimant had placed any evidence on record from which it could be cogently inferred that he was earning Rs.11,000/- per month or incurred expenses after the accident as were mentioned in the claim petition. Therefore, the findings returned in this regard by the learned Tribunal being clearly borne out from the record of the case call for no interference. This Court also concurs with the findings returned

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by the learned Tribunal that the vehicle was not being driven in terms and conditions of the insurance policy because record does not demonstrates so.

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Accordingly, both these appeals are disposed of by modifying the award passed by learned Tribunal to the extent that the Insurance Company is held liable to indemnify the claimant to the extent of 50% and not 70% as was held by learned Tribunal in light of the fact that the accident had occurred on account of contributory negligence of drivers of both the vehicles. Rest of the award is maintained as it is. The appeals are disposed of accordingly. Pending miscellaneous application(s), if any, also stand disposed of accordingly. No orders as to costs.

Manish Kumar v. Rattan Chand

Case brief

What is this about?

What did the court decide?

Manish Kumar v. Rattan Chand

Case brief

What is this about?

What did the court decide?

What the court decided

A compact analysis

Issues for consideration

Statutes considered

Parties & counsel

Coram

Case details

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