NIKITA MANGAL Vs. BANARSI DASS

JUDGEMENT

(1.) Since all the afore appeals, arise, from a mishap, involving an offending vehicle, bearing No. H.P. -02A-2621, thereupon all the FAOs are amenable for a common verdict being recorded thereon.

(2.) The insurer of the offending vehicle is aggrieved, by the fastening of the liability, vis-à-vis, the afore compensation amount, upon it, and has, for un-saddling the afore liability, has reared FAO No. 473 of 2018, against claimant Anju. The contest appertaining to the afore, is rested, upon, the contract of insurance, executed interse the deceased owner, of, the offending vehicle, and, the United India Insurance Company Ltd., contract of insurance whereof, is embodied in Ext. RW1/B, rather therein carrying hence reflections, vis-à-vis, the seat carrying capacity, of, the offending vehicle, being upto 9. However, he contends that with the dependants', of, the deceased one Sikandara Devi, widow of the deceased driver, of, the offending vehicle, though, in her cross-examination, rendering an answer in the dis-affirmative, to a suggestion, meted to her, during, her cross-examination, as conducted by the learned counsel for the Insurance Company, vis-à-vis, at the relevant time 30-35 passengers, being aboard in the bus, (i) yet, the afore denial is ill-consequential, in, the face of subsequent thereto, hers' acquiescing, to suggestions, qua hers' not being present at the site of occurrence, and rather in the face of the claimant, in MAC petition No. 21-s/2 of 2015, during the course, of, her examination-in-chief, upon, stepping into the witness box as PW-1, hence hers tendering into evidence, Ext. PW1/A, (ii) with echoing(s), vis-à-vis, the offending vehicle, at the relevant time, carrying 30-35 passengers, and, thereupon he contends qua dehors the factum qua the FIR, not, constituting any substantive piece of evidence, yet when in conjunction with echong(s) borne in Ext. PW1/A, and also with RW-3 in his examination-in-chief, ensuring the making, of, exhibition marks, upon the FIR, from the originals thereof, thereupon the afore echoing(s) being prima-facie correct, (iii) thereupon hence firm, evidence, for, his afore espousal, rather succeeding, obviously emerging (iv) however, no reliance can be placed upon, the, afore purported admissions, made, by the claimant Anju, in claim petition, bearing No. 21-S/2 of 2015, given theirs being surmisingly made (v) given evidently with hers at the relevant time, carrying her ward, to school, and when for, meteing an absolute tenacity, to the afore espousal, rather, she also was enjoined to make a further detailing(s), of, the names, of, the parents of the wards, hence traveling alongwith her, at, the relevant time, hence in the offending vehicle, (vi) however, the afore echoing(s) are not made in Ext. PW1/A, nor when the Inevestigating Officer concerned hence has not ensured the placing on record, of, statement(s), of the afore, and, more imperatively, of, PW, as recorded under Section 161, of, the Cr.P.C. (vii) thereupon it is formidable to conclude qua the afore echoing(s) also not purveying, the, apposite facilitation(s), to the learned counsel for the Insurer, importantly also, with, the, Insurer, thereafter seeking to prove the afore espousal, through ensuring, the, stepping into the witness box, of, RW-3, hence also is construed, to, not mete, any relevance or credence thereto, and, whereupon the afore recital(s) are also acquiesced rather to be false. Moreover, the reasons for disapprobating, the, afore aspousal is also derivable, from, RW-3, Const. Gulab Singh, though, an official of the police station concerned, hence proving the photo copy of the apposite FIR through the original records, brought by him, in, Court, (viii) yet thereupon, also the requisite echoing(s), borne in the apposite FIR, vis-à-vis, 30-31 passengers, traveling in the bus, at the relevant time, being not, ipso-facto, hence proven, (vii) given in his cross-examination, his making acquiescing(s) vis-à-vis, suggestion, meted to him, qua his not conducting investigation and, when the best person to render firm echoing(s), vis-à-vis, the offending vehicle, at the relevant time, rather carrying 30-31 passengers, was hence the Investigating Officer, whereas, the latter not stepping into witness box, (ix) thereupon the echoing(s) borne in the testification rendered by PW-1 Anju, do not, empower the learned counsel, for, the Insurance Company, to contend, qua the afore terms, and, conditions of the insurance policy rather being breached.

(3.) Moreover, the learned counsel, for the Insurer, makes a submission, that, the compensation amount, borne in a sum of Rs. 50,000/-, as assessed vis-à-vis, the claimants, under, the head "Nonpecuniary Damages" of pain, suffering and trauma, and Rs. 5,000/- assessed under the head "Pecuniary Damages" and, towards the expenditure over treatment, transportation and special diet, being grossly disproportionate, vis-à-vis, the reflections, cast in Ext. PW2/A, Ext. PW2/B, Ext. PW2/C, Ext. PW2/D and Ext.PW2/E. The afore submission has vigor, as the echoing(s), made in the afore alluded exhibits, dehors the Doctor, not stepping into the witness box, for proving qua immense trauma, being encumbered, upon, the claimant, in sequel to the injuries, rather not carrying the apposite evidentiary worth. Consequently, for want of adduction, of, expert evidence, pronouncing vis-à-vis, the injuries and, concomitant therewith, excruciating trauma, being encumbered upon the claimant, thereupon renders assessment, of, a sum of Rs. 50,000/-, qua her, being exorbitant and, hence it requiring interference, being modified to a sum of Rs. 25,000/-. However, a sum of Rs. 5,000/-assessed, vis-à-vis, transportation charges, and costs incurred, on, purchasing, of medicines, and special diet, does not warrant, any interference.