ORIENTAL INSURANCE CO.LTD. Vs. KHURSHID KHAN

JUDGEMENT

(1.) Sbcma No. 450 of 2005 has been Filed by the Oriental Insurance Company Ltd. (in short insurance company) against the award dated 4.9.2004 passed by Motor Accident Claims Tribunal, Laxmangarh, Alwar (in short MACT) in MACT case No. 14/2002 whereby the claim petition of the claimants Khurshid Khan, Laboota Khan and Smt. Hamidi has been partly allowed and an award of Rs. 9,71,236/- was passed in their favour. SBCMA No. 2782/2007 has been filed by Hasina, who is claiming to be wife of Khursid, who is claimant in the claim petition and respondent No. 1 in the appeal filed by the insurance company against the award dated 4.9.2004 passed in the claim petition filed by the claimants. Brief facts of the case are that the claimant-respondents 1 to 3 filed a claim petition before the MACT against the insurance company and the respondents 4 and 5 claiming compensation in the amount of Rs. 37,30,500/- on account of alleged loss sustained by them due to injuries sustained in the road accident by respondent No. 1 allegedly occurred on 9.5.1997 at about 11.12 p.m. when Khurshid Khan (respondent No. 1) was driving Maruti Car No. RJ 02/2 C 1965 going from Malakhera to Alwar and when he reached near Bandipura Phatak, suddenly a Jeep No. RJ 02 C 1162 came from Alwar side which was being driven by Babulal rash and negligently and hit the car resulting number of injuries over the body of Khurshid Khan and Ali Mohammed. The said jeep was owned by Chuttan Lal and was insured with insurance company at the relevant time. The said claim petition later on transferred to Motor Accident Claims Tribunal, Laxmangarh, Distt. Alwar. It was alleged in the claim petition that due to accident Khurshid Khan sustained number of injuries and due to that he has lost his mental status and has become permanently disabled and as such the claim petition is being filed through the parents who are respondents 2 and 3. Respondent No. 2 is father of the injured who died during pendency of the claim petition and this fact was endorsed over the cause title of the case on 1.10.2003. The FIR to the incident was lodged at Police Station Malakhera by one Hanif which was registered as FIR No. 151/1997. The owner and driver of the vehicle did not appear before the MACT despite service and as such exparte proceedings were taken against them vide order dated 18.11.2000 and in such circumstances application under section 170 of the Act of 1988 was filed by the insurance company which was allowed by the order dated 8.9.2003 by the MACT and the insurer was permitted to contest the claim petition on all the defence available to the insured. The insurance company filed reply to the claim petition and it was averred that the accident occurred due to sole negligence of the injured himself and the compensation amount claimed in the claim petition is on very higher side looking to the nature of the injuries sustained by him. The MACT on the basis of the pleadings framed as many as four issues and proceeded to record the evidence of the parties. Three witnesses were produced by the claimants and documents Annexures 1 to 299 were also produced. The MACT after hearing counsel for both the parties and passed the award dated 4.9.2004 holding that the accident occurred due to sole negligence of the driver of the jeep and allowed compensation in the amount of Rs. 9,71,236/- to the claimants.

(2.) The learned counsel for the insurance company has contended that the award passed by the MACT is absolutely illegal, perverse to the facts and material on record and without jurisdiction. The MACT has committed serious error in holding that the accident occurred due to sole negligence of jeep driver. There is ample evidence on record to show that the accident was caused by the negligence of the driver of the Maruti Car. The MACT has awarded a very exorbitant amount as compensation to the claimants. The claimants came with the case that the victim was earning Rs. 5,000/- being contractor of drivers. There is no evidence whatsoever to substantiate the version of the claimants and as such the MACT committed error in assessing the income Rs. 4,000/- per month of the injured. It is settled law that where there is no proof of income it cannot be assumed more than Rs. 15000 per annum as provided by Second Schedule of the Act of 1988. The MACT while assessing the compensation had adopted the multiplier of 18 as if it is a death case. The multiplier system cannot be made applicable in the injury case. The MACT has lost the sight of the fact that one third amount ought to have been deducted while assessing the compensation.

(3.) Mr. Chiranjilal Saini, learned counsel appearing for the appellant Hasina, who is said to be the wife of the claimant Khurshid, has contended that the appellant married with Khurshid on 10.6.1983 and gave birth to a child, who died after about 4-5 days of the birth. The respondents 2 and 3 father and mother of the claimant did not allow the appellant to live in the house and she started living with her parents. She came to know only in the month of Feb. 2005 that a claim petition was filed by her husband and respondents 2 and 3 and the respondents 1 to 3 concealed the material facts and by committing fraud stated in the claim petition that Khurshid husband of the appellant is unmarried. In support of her claim the appellant submitted copy of voter list of Gram Panchayat showing that the appellant is married with Khurshid Khan. The appellant has also produced the copy of the Identity card issued by the Election Commission showing that the appellant is married wife of Khurshid. The learned counsel for the appellant has contended that Khurshid khan is not in a position to identify the appellant as after the accident his mental balance is not proper and he is having 100% mental disability.