NATIONAL INSURANCE CO. LTD. Vs. SOHNA SINGH

JUDGEMENT

(1.) Fma 644 of 2017 is an appeal under section 173 of the Motor Vehicles Act, 1988 (hereinafter referred to as the "1988 Act"). It questions the correctness of a judgment and award dated June 28, 2016 passed by the learned Additional District Judge, 3rd Court, South 24-Parganas at Alipore (hereinafter referred to as the "learned tribunal") in M.A.C.C. No. 195 of 2012/CIS No. M.A.C.C. No. 1352 of 2016 filed under section 166 of the 1988 Act. By the said order, the learned tribunal awarded compensation to the tune of Rs. 1,59,46,360/- (Rupees One Crore, Fifty-Nine Lakh, Forty-Six Thousand, Three Hundred and Sixty) in favour of the claimants/ respondents (hereinafter referred to as "the claimants") who are the mother, widow and two daughters of one Amardeep Singh (hereinafter referred to as "the victim") who was a victim of a road car accident. According to the records brought before us, the victim was grievously injured in the said road accident which occurred on May 16, 2007 at around 21:30hrs. on the New Town Road near Jatragachi More while the victim was on his way home alongwith his brother and a driver. The unfortunate accident took place when a Dumper Truck (hereinafter referred to as "the offending vehicle") collided with the car in which the victim was travelling. The said car belonged to the deceased. At the relevant point of time, the offending vehicle having registration number WB-37A/3616 was insured as goods carrying commercial vehicle in the name of one Kamaliya Dutta, owner of the offending vehicle, under an Insurance Policy which covered third party liabilities. The appellant is the insurer of the offending vehicle (hereinafter referred to as "the Insurer").

(2.) Initially, the claimants filed a motor accident claim application dated July 23, 2007before thelearned tribunal for grant of compensation on account of grievous accidental injuries sustained by the victim due to the said road accident under section 166 of the 1988 Act. The injuries suffered by the victim were particularly a closed fracture of the shaft of the right femur and complete dislocation of C4 over C5 causing severe compression of cervical cord by C5 body against posterior elements of upper column due to fragmentation of posterior elements of C4 bi-lateral. The victim also suffered complete rupture of interior and posterior spinal ligament with hematoma between C4 and C5, deformity, compression and contusion of cervical cord from C3-C4 to C6-C7. Due to such injuries sustained by the victim, he suffered from paralysis of all four limbs, a condition termed "quadriplegia" as a result of which he was rendered completely disabled. Immediately after the incident, the victim was removed to Apollo Gleneagles Hospital. Having been admitted on the same day, he underwent treatment till July 03, 2007. Thereafter, the victim was discharged from the said Hospital but the treatment continued at his residence according to the advice and under the aegis of doctors of the said Hospital as well asa team of renowned experts in the field of medicine. Despite the intensive treatment, the victim died on February 13, 2008. Soon thereafter, the claim petition was amended on February 17, 2008 and was converted into an application for grant of compensation for death of the victim as a result of succumbing to the accidental injuries.

(3.) The aforesaid facts are not in dispute. It is nobody's case that the abovementioned vehicles were not involved in the said accident, or that the injuries sustained by the victim werethe result of an altogether independent incident, or that the offending vehicle was not insured by the Insurer. Rather, this appeal of the Insurer is based on the evidence recorded by the learned tribunal and whether on that basis the claimants were entitled to recover anything from the Insurer. If we summarize the grounds taken briefly, the first is that the death of the victim did not occur because of the accident, but because of the failure of the victim to mitigate its effects by adopting quack remedies such as acupuncture instead of proceeding strictly with the regimen as prescribed by the doctors of Apollo Gleneagles, the second is that there was contributory negligence as held by the learned tribunal and since this was challenged in the cross-appeal, at least composite negligence, and most importantly, that the income of the deceased should have been pegged at Rs.20 lakhs per year less taxes, and the questions of consortium and future prospects should have been calibrated accordingly. In the cross-objection, the claimants have challenged the finding of contributory negligence or even composite negligence on the basis of the evidence recorded, and sought to have the income of the deceased per year to be pegged at a higher level than taken by the learned tribunal. Of course, the claimants have demanded consortium not just for the wife but also the mother of the deceased, though the deceased son was major and married at the time of his death.