National Insurance Co Ltd v. Suraj Kumar & Ors.

1. This appeal has been filed by the appellant challenging the Award dated 21.03.2018 (hereinafter referred to as the „Impugned Award‟) passed by the learned Motor Accidents Claims Tribunal, District Shahdara, Karkardooma, Delhi (hereinafter referred to as the „Tribunal‟) in MACT Case no.765/2016, titled Suraj Kumar v. Sh.Lal Giri & Anr..

2. The facts leading to the filing of the claim petition before the learned Tribunal are that on the intervening night of 05/06.07.2013, the claimant/respondent no.1 herein, Suraj Kumar was travelling as a conductor on the truck bearing no. RJ-14-2G-9415, being driven by the deceased- Rajesh Kumar. While they were returning from Jaipur to Delhi, at about 12.30 a.m., when the truck of the victims reached the flyover near Rajiv Chowk, Gurugram, the driver of Container bearing No. HR-55B-1891 (hereinafter referred to as the „Offending Vehicle‟), which was going ahead of the vehicle of the victims, suddenly applied brakes without any indication and in a rash and negligent manner, which resulted in crashing of the vehicle of victim into the Container from behind. The driver of the truck died in the accident, and the claimant suffered grievous injuries. The claim petition was filed by the claimant/respondent no.1 seeking compensation before the learned Tribunal. Challenge of the Appellant:

3. The appellant challenges the Impugned Award on the following grounds: a. That the claimant/respondent no.1 was a resident of District Jaunpur, Uttar Pradesh (in short, „UP‟); the accident had taken place in Gurugram (previously referred to as „Gurgaon‟); the deceased was driving the truck which was registered in Rajasthan; the insurance for the offending vehicle was also taken in Noida, UP; and the respondent no.2, the driver of the offending vehicle, was a resident of District Champawat, Uttarakhand. It is contended that, therefore, the learned Tribunal lacked the territorial jurisdiction to adjudicate the Claim Petition filed by the respondent no. 1; b. The appellant challenges the award of compensation under various heads, claiming the same to be exorbitant; c. That the learned Tribunal has erred in not granting a right to the appellant to recover the compensation amount from the driver and owner of the offending vehicle, that is, the respondent nos.[2] and 3 herein, as the offending vehicle was being driven without a valid permit. The respondent nos.[2] and 3 had failed to produce a valid permit for the truck in spite of a notice being sent to them for the production thereof. Territorial Jurisdiction:

4. On the challenge of the territorial jurisdiction of the learned Tribunal to adjudicate on the claim petition, I would note that the claimant/respondent no. 1 had stated that though he is a permanent resident of District Jaunpur, (UP), however, at the time of filing of the claim petition, he was residing at Nand Nagari, Shahadra, Delhi. The owner of the offending vehicle was also claimed to be a resident of Delhi. There was no challenge to the above assertions from any of the respondents, that is, the driver, owner, or the Insurance Company. In absence of any challenge to the above averments, the submission of the appellant of lack of territorial jurisdiction of the learned Tribunal, cannot be accepted. Section 166(2) of the Motor Vehicles Act, 1988, empowers the claimant to file an application seeking compensation on the option of the claimant either to the Claims Tribunal having jurisdiction over the area in which the accident has occurred or within the local limits of whose jurisdiction the claimant resides or carries on business or within the local limits of whose jurisdiction the defendant resides. In the present case, with the averment of the claimant, they have satisfied two out of the three criteria to invoke the jurisdiction of the learned Tribunal. I, therefore, find no merit in the challenge of the appellant to the Impugned Award on this ground. Recovery rights:

5. The last challenge of the appellant to the Impugned Award is on the non-grant of right to recover the compensation paid to the claimants, from the respondent nos.[4] and 5 herein, being the driver and the owner of the offending vehicle.

6. The learned counsel for the appellant submits that in spite of the notice being served, the respondent nos.[4] and 5 had failed to produce a valid permit as on the date of the accident for the offending vehicle. However, he fairly admitted that in the written statement filed before the learned Tribunal, this plea was not taken by the appellant nor any evidence on this led before the learned Tribunal. In absence thereof, no fault can be found with the finding of the learned Tribunal in not granting a right to the appellant to recover the compensation paid to the respondent nos.[1] to 3 herein, from the respondent nos.[4] and 5. I therefore, find no merit in the said challenge and the same is rejected. Challenge to the Impugned Award under various heads of compensation:

7. The next challenge of the appellant to the Impugned Award is on the various heads on which compensation has been awarded by the learned Tribunal in favour of the respondent no.1 herein.

8. Before proceeding to consider the challenge, the compensation awarded by the learned Tribunal in favour of the respondent no. 1 under various heads is reproduced herein below:

1. Reimbursement of medical expenses: Rs.26,629/-

2. Pain and Suffering: Rs.1,50,000/-

3. Attendant charges for 12 months: Rs. 7000 x 12 = 84,000/-

4. Lose of Income during treatment period: (18 months Rs. 6500 X 18 = 1,17,000/-

5. Loss of earning capacity including future due to this disability NIL

6. Conveyance & special diet: Rs.75,000/-

7. Compensation for mental and physical shock: Rs.1,00,000/-