National Insurance Company Limited v. Udit Chaudhary and Ors.

1. This appeal has been filed challenging the Award dated 26.11.2020, passed by the learned Motor Accidents Claims Tribunal, South District, Saket Courts, New Delhi (hereinafter referred to as the ‘Tribunal’) in Petition no. 175/18, titled Udit Chaudhary v. Bhudev Singh & Ors..

2. It was the case of the injured, that is the respondent no.1 herein, before the learned Tribunal that on 12.01.2018 at about 11:15 AM, the respondent no.1 along with his friend Akhil was going towards Kasba Modi Nagar from Modi Nagar on his scooty, which was driven by the respondent no.1 at a normal speed and on the correct side of the road. When he reached in front of Modi Sugar Mill, the offending vehicle, that is, a Truck bearing registration No. UP-12AT-1652, which was being driven by the respondent no.2 herein at a very high speed and in a rash and negligent manner, came from the back side and hit the scooty with a great force. As a result of the accident, the respondent no.1 sustained injuries, which were later certified as 78% permanent physical impairment in respect of his both lower limbs. Challenge of the appellant to the Impugned Award: The appellant challenges the Impugned Award on the following grounds:a. That the offending vehicle has been falsely implicated in the accident at a later stage; b. That the determination of income of the injured made by the learned Tribunal is incorrect. On the question of the involvement of the vehicle:

3. The learned counsel for the appellant submits that the offending vehicle has been wrongly implicated in the accident. He submits that though the accident had taken place on 03.01.2018, the FIR was registered on a complaint made by the father of the respondent no.1 mentioning the number of the offending vehicle, only on 17.01.2018. He submits that clearly it was a case of hit and run and later the offending vehicle was involved in the accident to claim compensation from the appellant.

4. On the other hand, the learned counsel for the respondent no.1 submits that the respondent no.1 had sustained grievous injuries in the accident and was admitted in the Intensive Care Unit (in short ICU). It was for this reason that the father of the respondent no.1 was more concerned about the recovery and health of the respondent no.1 rather than rushing to the Police for recording of the complaint. It is only when the respondent no.1 became a little stable that on 17.01.2018, that the father of the respondent no.1 made a complaint to the Police, clearly disclosing the number of the offending vehicle. He submits that the respondent nos.[2] and 3, that is, the driver and the owner of the offending vehicle, did not enter the witness box to dispute their involvement in the said accident. A charge-sheet has also been filed against the respondent no.2, the driver of the offending vehicle.

5. I have considered the submissions made by the learned counsels for the parties.

6. The father of the injured, in his complaint dated 17.01.2018, had also stated that he could not make the complaint earlier thereto as the respondent no.1 was admitted in the ICU and was struggling for his life. There is no reason to doubt the same. Respondent no.1 also entered the witness box as PW-1, and stated that the accident had taken place with the offending vehicle hitting his scooty from behind. A suggestion was put to him that he had not disclosed the number of the offending vehicle to the Police, he truthfully answered that he had not done so. This would be so as the information in regard to the accident and the Offending Vehicle had been, in fact, given by the father of the respondent no.1. The respondent nos.[2] and 3 did not contest the involvement of the offending vehicle in the accident. Due to mere delay in filing of the complaint, therefore, the version of the respondent no.1 of the involvement of the offending vehicle in the accident, cannot be doubted.

7. In Janabai WD/O Dinkarrao Ghorpade & Ors. v. M/s ICICI Lamboard Insurance Company Ltd, (2022) 10 SCC 512, the Supreme Court, in similar circumstances where there was a delay of a month in lodging the report, observed as under:-

8. In view of the above, I find no merit in the challenge of the appellant regarding the involvement of the offending vehicle in the accident. On the question of determination of income of the injured by the learned Tribunal

9. The next challenge of the appellant to the Impugned Award is on the determination of the income of the respondent no.1 by the learned Tribunal. The learned counsel for the appellant submits that in the Claim Petition, the respondent no.1 had asserted that he was working as a ‘System Engineer’ with ‘Online Recharge Service Private Limited’ (hereinafter referred to as the ‘Online Recharge’) and was drawing a salary of Rs.4,00,000/- per annum. He submits that in the documents filed, however, there was an Offer Letter dated 27.09.2016 from Online Recharge, which stated that the total cost to the Company for the respondent no.2 would be Rs.2,00,000/- per annum. He submits that the same also included travel allowance of Rs.2000/- per month, which would also need to be deducted from the income of the respondent no. 1. He submits that, therefore, the income of respondent no.1 should have been determined only at Rs.1,76,000 per annum.

10. He submits that the respondent no.1, in his evidence by way of affidavit, falsely stated that he was working as a Marketing Executive with Aditya Enterprises, and getting a salary of Rs.20,000/- per month. The respondent no. 1 sought to prove the same by examining Shri. Shakti Singh, Marketing Manager of Aditya Enterprises as PW-3. PW-3 in his statement, however, admitted that though the purported Offer Letter is dated 20.09.2017, it had been signed by him only in November- December 2018, that is, much after the date of the accident. He submits that, therefore, the claim of the respondent no.1 of him working with Aditya Enterprises could not be accepted by the learned Tribunal.

11. On the other hand, the learned counsel for the respondent no.1 submits that the Offer Letter dated 20.09.2017 issued by Aditya Enterprises having been proved through the testimony of PW-3, no fault can be found in the learned Tribunal relying upon the same. He submits that, even otherwise, the respondent no.1 was a graduate in B.Tech and looking into the prevalent income structure, no fault can be found in the learned Tribunal assessing his income as Rs.2,40,000/- per annum.