CIMA No. 21 of 2012. Case: Mahoora Banu Vs Mohammad Shafi Channa. High Court of Jammu and Kashmir (India)
| Case Number | CIMA No. 21 of 2012 |
| Counsel | For Appellant: Mr. M.A. Qayoom, Advocate and For Respondents: Mr. J.A. Kawoosa, Advocate for No. 4 |
| Judges | Ali Mohd. Magrey, J. |
| Issue | Motor Vehicles Act, 1988 - Section 168(1) |
| Judgement Date | June 11, 2014 |
| Court | High Court of Jammu and Kashmir (India) |
Judgment:
Ali Mohd. Magrey, J., (At Srinagar)
1. This appeal has been preferred by the appellant-claimant against the judgment and order dated 14.11.2011 passed by the Motor Accidents Claims Tribunal, Srinagar, (hereafter, the Tribunal) awarding a total compensation of Rs. 2,75,000 in favour of the petitioner, disallowing her claim on account of medical checkup and treatment outside the State as well as the permanent disability, opined by the Doctor to be to the extent of 60%, caused to the appellant on account of the accident and not awarding any compensation for loss of earnings.
2. On 17.11.2007, the appellant was traveling by a Bus bearing registration no. JKE/3788. Somewhere on the National Highway within the jurisdiction of Police Station Pattan, the Bus, being driven by its driver rashly and negligently, collided with a standing Maruti Car and turned on his left side. The appellant received multiple fatal injuries on various parts of her body, including left arm.
3. The petitioner filed a claim petition claiming a total sum of Rs. 30,000,00.00 on the following counts:
a) Rs. 15,00,000 on account of disablement: Appellant in her claim petition claimed that, being a young lady of the age of 26 years, she was working in the agriculture farm, and that, because of the disablement caused to her she had been deprived of her future earnings for livelihood on this count;
b) Rs. 10,00,000 on account of shock, pain, mental agony and the tastes of life. Petitioner further claimed that on account of disablement she would permanently require an attendant for herself;
c) Rs. 5,00,000 on account of treatment, medical expenses etc.
4. The respondent, Insurance Company, while resisting the claim petition, in paragraph 8 of its objections, inter alia, stated that the quantum of compensation adjudicated to be payable by the answering respondent was highly exaggerated and that the liability of the answering respondent cannot be fixed beyond the scheduled provided under the Motor Vehicles Act and other provisions thereof.
5. The Tribunal by its impugned judgment has awarded compensation to the appellant-petitioner under different heads as mentioned below:
The petitioner-appellant has filed this appeal on the grounds taken in the memorandum of appeal.
6. I have heard learned counsel for the parties, perused the record and considered the matter.
7. It may be mentioned here that the Driver and prospective owner of the vehicle in question have not filed any objections to the Claim petition before the Tribunal and, in fact, they were proceeded ex parte. However, the original owner of the vehicle and the Insurance Company filed their written statements, and the Tribunal framed the following four issues in the petition:
1. Whether on 17th of November, 2007, the petitioner was traveling in bus No. JKE-3788 towards Srinagar, being plied by respondent driver rashly and negligently which collided with maruti car No. JK-4629. The petitioner sustained serious injuries in the said accident which resulted in her permanent disablement OPP
2. Whether the respondent owner has committed breach of insurance contract by permitting the respondent driver, not holding a valid and effective driving license on the date of accident. If yes, the respondent insurance company is not liable to indemnity the respondent owner OPR3
3. In case the issue No. 1 is proved in affirmative, to what amount of compensation the petitioner is entitled to, from whom and in what proportion OPP
4. Relief
8. One of the two eye witnesses examined by the petitioner stated that left arm of the appellant had come under the bus and it was only after 200/300 people, who gathered on spot, lifted the bus up, using logs, that the appellant could remove her arm from underneath the Bus. The Tribunal recorded its finding that the accident had taken place as a result of rash and negligent driving by the respondent/driver which has resulted in grievous injuries to the petitioner. Accordingly, the Tribunal decided issue no. 1 in favour of the appellant and against the respondent Company.
9. Insofar as issue no. 2 is concerned, the Tribunal recorded the finding that the vehicle was insured on the material date of occurrence and that the driver was holding a valid license. The Tribunal came to the conclusion that the Insurance Company miserably failed to discharge the onus and, consequently, issue no. 2 was decided against the Insurance Company and in favour of the driver and owner.
10. Issue no. 1 having been proved in affirmative, the Tribunal has proceeded to determine the quantum of compensation payable to the appellant.
11. Perusal of the impugned judgment reveals that on behalf of the appellant it was argued that she was a young lady of the age of about 29 years and was working in the agriculture farm. She having suffered 60% permanent disablement in her arm has rendered her permanently disabled for life. By reason of such disablement she would not be able to do domestic work not to speak of agriculture work in her farm at Kupwara.
12. The learned Tribunal in its impugned judgment has recorded that since the appellant was working as a Rahbar-e-Taleem, getting Rs. 1500 per month, and that by now she would be confirmed as a Teacher, therefore, it can safely be said that the appellant did not suffer any loss of income on account of the disablement. The Tribunal, accordingly, held that award cannot be granted under this head.
13. Mr. M.A. Qayoom, learned counsel for the appellant, submitted that that it was the specific case of the appellant-petitioner before the Tribunal that the appellant had been engaged as a Rahbar-e-Taleem which was a contractual engagement and that, since by reason of the...
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