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New India Assurance Co. Ltd. Vs. Basant Lal Gupta and ors. - Court Judgment

LegalCrystal Citation
SubjectMotor Vehicles
CourtAllahabad High Court
Decided On
Case NumberFirst Appeal From Order No. 298 of 1978 connected with FAFO Nos. 393 and 479 of 1978
Judge
Reported inII(1985)ACC434; [1987]61CompCas817(All)
AppellantNew India Assurance Co. Ltd.
RespondentBasant Lal Gupta and ors.
Appellant AdvocateA.K. Saxena and ;G.K. Sahai, Advs.
Respondent AdvocateA.N. Bhargava, Adv.
DispositionAppeal allowed
Excerpt:
- - the other two appeals fail......forward on their behalf has been that the vehicle in question was not insured during the relevant period. chhotey lal, the vehicle owner, filed first appeal from order no. 393 of 1978. first appeal from order no. 479 of 1978 has been filed by basant lal gupta in regard to the part of the claim which has been disallowed by the tribunal. these were heard together.5. i have heard sri. a.k. saxena, learned counsel for the assurance co., sri g.k. sahai, appearing for the vehicle owner, and sri. a.n. bhargava for the claimant.6. for the claimant, reliance has been placed on his testimony and the evidence of p.w., srivastava, another eye witness to the accident. the accident occurred on august 14, 1969, around 8 a.m. on the eastern road patari near the octroi post. the claimant was on his foot.....
Judgment:

B.D. Agarwal, J.

1. These connected appeals arise against an award of the Motor Accidents Claims Tribunal (Third Additional District Judge, Jaunpur), dated May 8, 1978.

2. According to the case of the claimant, Basant Lal Gupta, he was standing on the road patari to the eastern side near the octroi-post of Mandi Ahmad Khan. On August 14, 1969, at about 8 a.m., PW, B.P. Srivastava, was also beside him. Ambassador Car No. USF No. 711 belonging to Chhotey Lal and being plied as a taxi through the driver, Gulab, took a turn to the right side and hit the claimant by its bumper. The claimant as a result sustained compound fracture of his left leg. He had to be under medical treatment for a number of months and there was loss in his earnings as a legal practitioner on the income-tax side in Jaunpur. A sum of Rs. 23,000 was claimed by him as compensation. Chhotey Lal resisted the claim refuting liability on his part in the matter.

3. The Tribunal came to the finding that the accident occurred due to rash and negligent act of the driver plying the taxi run by Chhotey Lal. A sum of Rs. 8,000 was awarded as compensation to Basant Lal Gupta with the direction that half of the amount has to be borne by New India Assurance Co. Ltd. on the finding that the vehicle aforementioned was insured with it.

4. Aggrieved, the New India Assurance Co. Ltd. has filed First Appeal From Order No. 298 of 1978. The contention put forward on their behalf has been that the vehicle in question was not insured during the relevant period. Chhotey Lal, the vehicle owner, filed First Appeal From Order No. 393 of 1978. First Appeal From Order No. 479 of 1978 has been filed by Basant Lal Gupta in regard to the part of the claim which has been disallowed by the Tribunal. These were heard together.

5. I have heard Sri. A.K. Saxena, learned counsel for the Assurance Co., Sri G.K. Sahai, appearing for the vehicle owner, and Sri. A.N. Bhargava for the claimant.

6. For the claimant, reliance has been placed on his testimony and the evidence of P.W., Srivastava, another eye witness to the accident. The accident occurred on August 14, 1969, around 8 a.m. on the eastern road patari near the octroi post. The claimant was on his foot at the moment facing north-west. The vehicle came from the southern side. Another vehicle appeared in the opposite direction. Gulab, the driver of the vehicle belonging to Chhotey Lal, took a sudden turn towards the right and hit the claimant on the road patari. There is no sound reason for disbelieving this eye-witness account. In the written-statement filed by him, Chhotey Lal did not give any counter-version of the accident. He came to the witness-box and stated that he also was in the taxi at the moment. Curiously enough he proceeded ahead to say that he is unaware if the taxi caused or met with any accident. The ignorance, thus, pretended by him could hardly inspire confidence. Gulab, the driver, could be a material witness to throw light in this connection, but he has not been produced nor did he put in appearance in reply to the notice issued to him. The Tribunal, in my opinion, rightly concluded upon the evidence placed on the record that the accident took place due to rash and negligent driving of the taxi car.

7. Sri Bhargava submitted that the compensation awarded is not commensurate with the injury caused. I am unable to agree. The claimant asked for a sum of Rs. 2,000 towards medical expenses incurred by him. The evidence shows that from the Jaunpur Civil Hospital he was shifted to Sir Sunder Lal Hospital, Varanasi, where he remained up to August 25, 1969. The fracture was plastered ; the plaster was removed on January 5, 1970. The claimant, it may be noted, was about sixty years of age at the time of the accident. He stated that his movements still remained restricted till about the end of May, 1970. Consideration being had to this fracture, the Tribunal is not wrong in having awarded Rs. 2,000 under the head of medical expenses.

8. The claimant asked for Rs. 20,000 to be awarded to him under the head of reduction in earning capacity, besides Rs. 5,000 for the loss of earning. On the own showing of the claimant, his income from the practice on the income-tax side during the relevant period prior to the accident was near to Rs. 500 per month only. In cross-examination he admitted that there was no diminution in the earning and that in terms of money he indeed earns more subsequent to his recovery. It is true that his appearance was impeded during the period that he was receiving medical treatment. The Tribunal has taken on the whole a balanced view in awarding Rs. 4,000 to the claimant under this item calculating roughly at the rate of Rs. 500 per month. The claim for the rest in this connection could easily be discarded as exaggerated.

9. In addition, a sum of Rs. 2,000 has been awarded to the claimant for mental and physical fall and anguish, which top is reasonable money, regard being had to the nature of the injury sustained and the resulting suffering due to the same.

10. For M/s New India Assurance Co. Ltd., Sri A.K. Saxena submitted that the vehicle was not insured and hence there could be no question of holding the Assurance Co. liable to any extent. Basant Lal Gupta, the claimant himself, pleaded ignorance on the point whether the taxi was insured during the relevant period, Chhotey Lal, the vehicle owner, could be in a position to give particulars of the insurance, if any, during the period in question, but he was unable to do the same. The insurance cover placed on the record is dated August 10, 1970, which covers the period up to August 9, 1981 (vide exhibit A-1). Nothing contained in this certificate or on the record suggests that this was a renewal of an earlier policy. The Tribunal attached undue importance to the contention of Chhotey Lal that he had been paying road tax. From this it could not be inferred necessarily that the vehicle was also insured during the relevant period; In the absence of any particulars furnished from the side of the taxi owner, it cannot be assumed that the insurer has been withholding papers from the Tribunal. Sri Saxena, in my view, rightly contends in the face of the evidence that it was not established satisfactorily that the vehicle stood insured on August 14, 1969.

11. In view of the discussion made above, the appeal filed by the insurer succeeds. The other two appeals fail. The claimant shall be entitled to recover the sum of Rs. 8,000 together with interest pendente lite and future interest at the rate of six per cent, from the vehicle owner, namely, Chhotey Lal.

12. Accordingly, First Appeal From Order No. 298 of 1978 is allowed. The award dated May 8, 1978, is set aside in so far as it fixes liability on the appellant in this case. The other two appeals are dismissed. Costs in each of these appeals shall be borne by the parties.


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