Punjab-Haryana High Court
Puran Chand vs Balbir Singh And Ors. on 4 February, 1986
Equivalent citations: AIR1987P&H1, [1987]61COMPCAS763(P&H), AIR 1987 PUNJAB AND HARYANA 1, (1986) 3 CURLJ(CCR) 596, (1987) 61 COMCAS 763, (1986) 89 PUN LR 561
Author: M.M. Punchhi
Bench: M.M. Punchhi
JUDGMENT
1. An award of the Motor Accidents Claims Tribunal, Kapurthala, has been challenged in appeal by the victim, dissatisfied with the sum of Rs. 30,000/-, awarded as compensation for the permanent loss of his limb, i.e., his right arm, short of the shoulder joint. The two cross-objectors separately are the owner of the offending truck, the insured, and the Insurance Company, the insurer, seeking wiping out or reduction of the sum awarded and, in either event of its maintenance or alteration, proper apportionment of the liability.
2. The accident which has given rise to this litigation took place on 7-10-1978 and the victim is Puran Chand AW 5, a police constable working with the Chandigarh Administration. He had an official errand to fulfil and, for the purpose, had boarded bus No. PUG-1772 belonging to the Punjab Roadways, from Jullundur in order to go to Gurdaspur. The same was driven by Karnail Singh AW 2. When the bus reached near a level crossing in the area of village Godana; falling within the jurisdiction of Police Station, Dhilwan, truck No. PNQ-2942 driven by Balbir Singh driver-respondent; came from the opposite direction at a high speed, being driven rashly and negligently, for it was headed to cause a head-on collision with the bus, The bus driver timely swerved to his left to avoid the accident. The truck all the same brushed by the bus, touching its body at its hind portion. Unfortunately, on the right hand side of the bus, on its third rear seat, the victim Puran Chand was sitting and, since a portion of his arm was out, it got traumatically chopped off near the shoulder joint. The severed arm fell on the road and part of it was dismembered. According to the victim, it happened when on the swerving of the bus, the two passengers sitting on his left side suddenly leaned on him with a jerk and thus his right arm, due to their weight, got pushed out of the window and, at that moment, the truck hit him causing the dismemberment of his arm. The offending truck, in any case, fled away: Its number was noted by the bus driver. He lodged the first information report at Police Station, Dhilwan. Besides, he took the victim to Civil Hospital, Jullundur, where Dr. Joginder Singh Rattan AW 1 examined him and extended him medicare. Finally, at the trial, the doctor opined that Puran Chand had suffered permanent damage to his right upper arm and, for that reason, he was not in a position to do any strenuous or hard work. He termed his disability complete and rather permanent.
3. The claimant claimed a sum of Rs. one lac as compensation before the Motor Accidents Claims Tribunal.
4. The truck driver initially joined hands with his employer Kartar Shah alias Kartar chand in filing a joint written statement. The Insurance Company, on the other hand, filed its written statement separately. The driver and the owner of the offending truck disowned the accident. They even did not offer the complete particulars and the name of the owner of the truck if there vas any other. The Insurance Company, however, toeing that line took the plea that the truck was not insured by it. At the trial, the appellant summoned the relevant record from the Insurance Company: Anil Kumar AW 4, an Assistant o~ the Insurance Company, produced insurance policy Exhibit A. 3 and neither counsel for the opponents-respondents directed any cross examination towards him. In defence, Balbir Singh, driver of the truck, was put as RW 1 who produced a certified copy of the insurance policy Exhibit R. 1 on the record.
5. Before the Tribunal, the contentious issues were issues Nos. 2 to 4 and issue No. 3 was "whether the offending truck was insured with the Company and, if so, its effect". The Tribunal; on the basis of Insurance Certificate (Exhibit A. 3), held that the offending truck was insured with the Insurance Company but in the name of Messrs Kullu Ram Kartar Chand, General Rice Mills, Mehta Chowk, District Gurdaspur. Much capital was made by the opponents-respondents that Messrs Kullu Ram Kartar Chand had not been impleaded as a party and, in the absence of the said party being impleaded, the claim petition against the Insurance Company was not maintainable. Yet, both sets of respondents took no courage to urge that Kartar Shah alias Kartar Chand respondent had no connection with the said owner-firm. The Tribunal thus, on inferences drawn recorded a finding that Kartar Chand was the partner of the insured firm Messrs Kullu Ram Kartar Chand and his identity with the firm did appear from the particulars and his address given in the petition. This issue now does not survive because Mr. Sanjiv Walia, learned counsel for respondent 2, has candidly made a statement at the Bar that the said firm is under the sole proprietorship of Kartar Chand and, as such, it emerges that the insured and the insurer have properly been impleaded and are properly represented even at the appellate stage. This stance of Mr. Walia blurts altogether the defence of the Insurance Company on this aspect of the case.
6. It must be stated straightway that the occurrence as such is not disputed by the respondents. They, however, put the blame entirely on the bus driver and; in the alternative, claim the bus driver to be partially responsible for the accident. This plea is not open to the respondents, for, finding on issue No. 1, which was "whether the Claim-petition is bad for non-joinder of necessary parties', has gone against them. The specific plea before the Tribunal was that both the bus driver and the owner of the bus had to be impleaded by the claimant as parties to the petition. When the non-impleading of the bus driver and the owner of the bus had not found favour with the Tribunal and especially when there is no challenge to that view, I find it difficult to subscribe to the view of the respondents that those can be held responsible for the entire blame or, in the alternative, share it. Additionally, from the facts and circumstances as also the specific averments of Karnail Singh AW 2 and Puran Chand AW 5, it becomes crystal clear that the truck was heading towards the bus in order to cause a head-on collision but the truck driver made no effort to swerve his vehicle to his left side to widen the gap permitting the vehicles safe passage. This goes to show that the Tribunal was right in its view that the offending truck must be held responsible for the entire accident as the negligence was solely his and not that of the bus driver.
7. As said before, the victim claimed Rs. 1,00,000/- as compensation. The Tribunal awarded compensation under two heads, i.e. Rs. 25 000/- as general damages and Rs. 5000/- as special damages. With regard to Rs. 25,000/-, the Tribunal observed as follows:
"The petitioner himself stated that it has not been possible for him to have an artificial limb from the hospital at Saket in the State of Haryana, which is the institution where artificial limbs are provided. According to him, he is unable to do his normal work and even physically he has suffered too much, apart from the great mental agony on account of the accident and the loss of his right arm. He even finds dark and oblique further service career on account if the bodily injury he has suffered, for he may not be promoted as Head Constable.
Even otherwise it can well be imagined that the petitioner might have lost the pleasure of life by losing a very important limb of his body, i.e., the right arm. He cannot also have smooth and comfortable living apart from the fact that, being destitute, he would become dependent upon his kith and kin even in the performance of his routine chores of life. Although it is extremely difficult, rather impossible, to make proper assessment of damages or compensation for an injury more particularly of the type here in terms of money yet, in my opinion, a sum of Rs. 25000/- may well be just and fair compensation by way of general damages."
And with regard to special damages, the Tribunal observed as follows:--
"The petition also has claimed to have spent sufficient amount on his medical treatment though he admitted that he has been reimbursed by the State Government by reason of being a public servant. He cannot, however, be said to have been reimbursed for his actual expenses during or after his confinement in the hospital much less the mental and physical agony suffered by him. In this view of the matter. therefore. 1 feet inclined to allow him special damages to the extent of Rs. 5000/-."
8. The victim A. W. 5. with regard to his future prospects in service, stated on 7-8-1981 i.e.; a little less than three years after the accident, that he would have become a Head Constable by then and, but for the loss of his arm, he by promotion, would have earned an-additional salary of Rs. 150/- per month. This means that approximately for ten years he could look forward to work as Head Constable and possibly to be an Assistant Sub Inspector of Police also. In that case; he would have drawn a additional salary close to Rs. 20,000/- in ten years' time when, at the stage of 58, he would have retired, as at the time of the accident, he was 47 years of age. This factor seemingly was omitted by the Tribunal in assessing the damages. Additionally, the factor of loss of joy of life was also under-estimated besides the suffering of being disfigured as a human being. Taking all these factors into consideration and the span of life, the expectancy of which can be put around 70 years, and that but for the accident he could have looked forward to at least 23 years of normal life, 1 would assess his compensation at the level of Rs. 75,000/as general damages in place of Rs. 25,000/- as awarded by the Tribunal. Under the count of special damages, I do not propose to cause any increase. Thus, the total 'compensation due to the appellant at Rs. 80,000/Damages much more than that figure were awarded by this Court in Inderjit Kaur v. Punjab State (1985) 87 Pun LR 521; where a young unmarried girl had lost her arm and the prospect of a comfortable wedded life. She was successful in obtaining compensation of Rs. 2,00,000/- under all counts. The figure here arrived at is rather conservative than liberal.
9. Then conies the turn of apportionment of liability between the insured and the insurer inter se. Exhibits A. 3 and R. 1 are the insurance policies. It is clearly stated therein that the liability of the Insurance Company is limited up to Rs. 50,000/-. It is significant that, in the written statements of the insured and the insurer, no reference was made to the insurance policy or the plea of limited liability. It is only when the claimant successfully brought Exhibit A 3 on the record during evidence that his case seemed to tilt against the respondents. Even at that time, no effort vas made by them to-have-the written statements amended. In particular, the Insurance Company made no effort in that direction at that time despite the fact that the truck driver as RW 1 also had produced Exhibit R. 1, the insurance policy. Now, two separate miscellaneous applications Nos. 516CII and 517-CII of 1986 have been filed by the Insurance Company seeking permission to amend the written statements and cause amendments in its cross-objections to the effect that it had a limited liability up to Rs. 50,000/-. The reason pleaded for such a cause is due to the brooding presence of the ratio of this Court in Ajit Singh v. Sham Lal, (1984) 86 Pun LR 314: (AIR 1984 Punj & Har 223), which has laid down as follows:--
"Where the statutory provision in the question merely indicates the requirement about the policy and does not prohibit covering of greater risk by the insurer, it is the policy of the insurance company which could show the extent of the risk that the insurer had sought to cover. Where the insurance company, for whatever reasons, failed to bring on the record the policy of insurance, it cannot be heard to say that it had agreed to indemnify the insured only to the extent indicated in the statutory provision in question. In this regard, reference may be made to Shyamlal v. New India Ass. Co. Ltd., 1979 Acc CJ 208 (Madh Pra), United India Fire Gen. Ins. Co. Ltd: v. Pallamparty Indiramma, 1982 Acc CJ 521: (AIR 1982 Andh Pra 267), and Jugal Kishore v. Rai Singh, 1982 Acc CJ 503 (Delhi)."
10. Obviously the insured and the insurer are at loggerheads in this regard. The mandate of the Division Bench is clear. For whatever be the reasons which cause failure of the Insurance Company co bring on record the insurance policy, it cannot now be overlooked that the insurance policy has all the same been brought on the record and once it is on record and admitted in evidence, its terms cannot be lightly ignored. All what it says is that there is a subsisting contract between the insurer and the insured that the former has agreed to indemnify the latter to the extent indicated in the policy, i.e., for Rs. 50,000/-. Thus, in the peculiar circumstances of this case, even if the amendment of the written statement is not allowed and the Cross-Objections are not allowed to be amended. It is the case of the insured himself that there is an indemnity in his favour to the extent of Rs. 50,000/-. Negatively put, he owns the liability over and above Rs. 50,000/-. The rigour of the ratio of Ajit Singh's case, (AIR 1984 Punj & Har 223) (supra) cools down on the peculiar facts of this case and thus there is no difficulty in apportioning the compensation.
11. For what has been said above, an award is passed in favour of the claimant appellant in the sum of Rs. 80,000/-. He shall have interest thereon at the rate of 12 percent per annum from the date of the application till the date of the payment. That is a statutory discretion and has been exercised despite opposition by the learned counsel for the respondents on the plea that there is no claim for interest in the petition and there is no ground in the appeal that the interest at the rate of 6 per cent per annum awarded by the Tribunal was less. Section 110-CC of the Motor Vehicles Act; 1939 empowers the Court to grant interest at the rate it considers proper. And there could not be a more appropriate case than the instant one to award the interest at the rate of 12 per cent per annum. Out of the sum awarded, the liability of the Insurance Company shall be Rs. 50,000/- and the remaining Rs. 30,000/- of the driver and the owner of the offending truck jointly and severally. The appeal is thus allowed to the extent afore-indicated. The appellant shall have his costs in this appeal. Counsel fee Rs. 500/-.
12. Cross-Objections Nos. 13-CII and 32CIII of 1982 and Civil Misc. Applications Nos. 5l6-CII and 517-CII of 1986, stand disposed of in the light of the decision in the appeal.
13. Order accordingly.