Himachal Pradesh High Court
National Insurance Co. Ltd. vs Vidya Devi And Ors. on 29 July, 1997
Equivalent citations: 1998ACJ162
Author: M. Srinivasan
Bench: M. Srinivasan
JUDGMENT A.L. Vaidya, J.
1. The present claimant-respondent Nos. 1 to 7 preferred a petition under Sections 110-A and 92-A of the Motor Vehicles Act, 1939 for the grant of compensation against the present appellant, insurance company and respondent Nos. 8 and 9, who were the owner and driver respectively of the vehicle involved in the accident.
2. Dev Raj deceased was alleged to be travelling in a tractor bearing registration No. HPK 5036 on 23.9.1987. The tractor was owned by respondent No. 8 and it was being driven by respondent No. 9 at the time of accident. It was alleged that due to the rash and negligent driving of the tractor by the driver the accident took place on 23.9.1987, wherein this deceased Dev Raj suffered injuries and as a consequence whereof he died on the next day. The claimants claimed Rs. 4,00,000/- as compensation.
3. The petition was contested by the insurance company and other respondents also.
4. The Claims Tribunal, after the trial, passed the following award in favour of the claimants on 31.10.1988:
I, accordingly, proceed to make an award of Rs. 72,000/- (Rupees seventy-two thousand only) in favour of the petitioners and against the respondents jointly and severally which includes an amount of Rs. 15,000/- under Section 92-A of the Motor Vehicles Act. Out of this amount of compensation, minor respondent Nos. 4 to 7, namely, Suman Kumar, Thalu Ram, Kaka and Asha shall be entitled to Rs. 10,000/- each. Vidya Devi, the widow shall be entitled to Rs. 20,000/-. The parents Atma Ram and Thokri Devi shall be entitled to Rs. 6,000/- each. The compensation in respect of the minors shall be deposited in the Government securities bearing maximum interest. The amount of compensation awarded to the minors shall not be withdrawn by the guardian except for the welfare of the minors and with the leave of the Tribunal. The minors shall be entitled to draw their undisbursed amount after attaining the majority. If the amount of compensation in respect of the minors is not withdrawn till the period of maturity of the Government securities, it shall be automatically reinvested till withdrawn in accordance with the award. The respondents shall also pay costs of this petition assessed at Rs. 500/-. If the amount of compensation is not paid within one month from today, the respondents shall be liable to pay interest at the rate of 12 per cent per annum from the date of award till the realisation of the amount in full....
5. The aforesaid award was made by the Tribunal after giving findings on the following issues which arose out of the pleadings of the parties:
(1) Whether the accident in question occurred due to rash and negligent driving of driver of tractor in question, as alleged? OPP (2) Whether deceased was a labourer engaged by the respondent No. 1, as alleged? If so, its effect? OPR (3) In case issue No. 1 is decided in the affirmative, to what compensation, from whom and in what proportion the petitioners are entitled to? OPP (4) Whether driver Romesh Chand was not holding valid driving licence at the material time? OPR-3 (5) Whether insurance company is not liable for payment of any compensation because of non-registration of trolley, as alleged in their reply dated 7.5.1988? OPR-3 (6) Relief.
6. Issue Nos. 1 to 3 were held in the affirmative while issue Nos. 4 and 5 in the negative.
7. The insurance company has assailed the aforesaid award before this Court on various grounds.
8. Learned counsel for the appellant has confined his arguments on issue Nos. 2, 4 and 5 alone. According to learned Counsel, the findings of the Tribunal on the aforesaid issues were contrary to the evidence on record, more so, contrary to the stipulations made in the insurance policy Exh. R1, on record.
9. The first submission put forth on behalf of the appellant has been that vide Exh. R1, which is the insurance policy of the tractor under reference, it has been stipulated that this policy would cover the risk of one driver and one labourer alone and in the present case there is no evidence that the deceased was travelling in the tractor in question as a labourer of the owner. Therefore, the risk does not stand covered by the policy.
10. At this stage the evidence on record, along with the pleadings of the parties, can safely be referred.
11. Para 24 of the claim petition in this behalf can safely be referred which runs as under:
Cause of the accident with brief descriptionThat on 23.9.1987, the deceased Dev Raj was travelling in the tractor-trolley No. HPK 5036, the driver Ramesh Chand was driving the tractor-trolley in a haphazard manner. The deceased boarded the tractor-trolley for going to a nearby place. The driver on the way started driving the tractor-trolley at a very high speed and in a negligent manner. Even at the curve, the vehicle was not slowed down. That due to the jumping of the trolley owing to the high speed of the tractor, the deceased fell down and got injuries on his person and then he was taken to the Civil hospital, Dharamsala, where he died due to the injuries mentioned in the post-mortem report. The above said injuries were caused due to the rash and negligent driving of the driver of the tractor-trolley No. HPK 5036. The petitioners were totally dependent upon the deceased and, as such, have suffered loss of income. The cause of death is only due to the above injuries.
12. There is nothing in the aforesaid para of the claim petition whereby the claimants pleaded that the deceased was travelling in the tractor as a labourer employed by the owner of the tractor. The claim petition is absolutely silent in this behalf. However, while setting out the occupation of the deceased, it is expressly mentioned that he was a skilled mason. There is no reference in the petition as to any other occupation of the deceased.
13. The owner and the driver filed a common reply. They pleaded that the claimants were only entitled to claim compensation under the Workmen's Compensation Act and their reply to para 24 above was as under:
8. In reply to para 24 of the petition: At the relevant date and time the deceased went in connection with the operation work in the tractor, he was in employment as a labourer, to allege that he was a skilled mason is incorrect. The speed of the vehicle was normal, the deceased in fact was extremely careless in spite of that he was warned that he be careful while sitting in the tractor. He was taking positions at such places in the tractor that he fell down and sustained injuries. The injuries that he suffered were as a result of his own negligent acts. There were no jumps while it was being driven. The tractor was being driven without any trolley.
14. Respondent No. 3 did not allege anything in the reply pertaining to the deceased being labourer of the owner as such type of allegation was not made in the claim petition.
15. On 28.3.1988 the owner and the driver of the tractor were examined by the Tribunal under Order X, Rule 1, Civil Procedure Code, before framing of the issues. Owner Jondu Ram in this behalf stated that on that day when the accident took place he had not engaged the deceased as a labourer. However, he added that before this he had been coming to work as a labourer in the tractor. He also stated that he did not know as to under whose permission the deceased boarded the tractor.
16. Driver Ramesh Chand, in his statement made under Order X, Rule 1, Civil Procedure Code, stated that on the day of accident he was driving tractor No. HPK 5036. He very specifically stated that on that date he was having learner's licence. He further added that Dev Raj deceased boarded the trolley of the tractor and he did so without his permission and while the tractor was in motion. On that date, according to him, he was taking the tractor for ploughing purposes. Again he stated that Dev Raj deceased was not engaged as a labourer. He also added that Tilak Raj Chaudhary and Sidhu Ram Haiijan were boarding the tractor on that day as labourers.
17. During trial of the claim petition the owner of the tractor was examined as RW 3. He did not state even a single word at that particular time that the deceased was travelling in the tractor as a labourer engaged by him or that he was engaged with his permission by the driver.
18. The driver of the tractor was examined as RW 1 during the trial of the petition. He has stated on oath that the deceased (Dev Raj) at that time was sitting in a shop and he agreed to work as a labourer with him. Thereafter, he came from the shop and sat on the tractor. There is one witness Ghasitoo Ram, RW 2, who stated that he, along with Dev Raj, was sitting in the tractor. This witness during cross-examination stated that it was correct that Dev Raj at that time was going in the tractor as a labourer.
19. It may be very specifically mentioned here that first of all the claimants did not make any allegation in the claim petition itself that the deceased was going in the tractor as a labourer of the owner of the tractor. The pleadings of the claimants did not contain that the deceased had been employed as a labourer by the driver. The claimants examined as many as four witnesses including one of them. All of them deposed that the deceased was doing the work of mason. PW 4 was the only person, who deposed that the deceased was doing other work also. But none of the witnesses said that the deceased was working as a labourer under the owner of the tractor at the time of accident.
20. The driver and the owner, in their statements recorded before the framing of issues, were unanimous by stating that the deceased was not engaged as a labourer on the day of accident. The owner, when examined on oath during the trial of the claim petition, did not whisper even a single sentence in this regard. He kept silent. The driver stated that he engaged the deceased as a labourer, though earlier he has not stated so.
21. Taking into consideration the aforesaid evidence, which is reflected from the record, it cannot be said on any ground whatsoever that the claimants have been successful in proving issue No. 2 through legally competent evidence. Learned Tribunal's finding in this behalf appeared to have been based upon material which is not at all found in the record and is required to be interfered with and set aside.
22. The second submission put forth on behalf of the appellant has been that as per the stipulation in Exh. Rl the risk of the driver and a labourer was covered in case the person driving the vehicle held a valid licence to drive that vehicle or has held a permanent driving licence (other than learner's licence); and was not disqualified from holding or obtaining such a licence.
23. The driver when examined under Order X, Rule 1, Civil Procedure Code, in very clear terms, stated that on the day of accident he was having learner's licence.
24. This driver when examined as RW 1 during the trial of the petition had stated that his driving licence was issued from the office of SDO (Civil), Dehra, which was a valid licence. He also stated that the insurance and R.C. of the vehicle were lying in the court of Judicial Magistrate 1st Class, where the criminal case was pending. The owner when examined as RW 3 stated that it was correct that R.C, insurance and licence of the driver had been taken by the police, for the return of which he had preferred an application and he got back those documents. He also stated that when he kept Ramesh as a driver, at that time the driving licence was with him.
25. From the aforesaid evidence it has been inferred by the Tribunal that the driver was having a valid licence at the time of accident. This finding, again, is contrary to the facts and law in this behalf.
26. As pointed out earlier, there is an admission on behalf of the driver himself wherein he deposed that at the time of accident he was only having a learner's licence. This admission may not be conclusive but could be explained by the maker thereof. However, in the present case the only explanation which could be rendered against this admission was the alleged driving licence held by the driver. According to the owner, the driving licence was taken into possession by the police during investigation of the case, from the court. The driver also stated that he had a valid licence which was issued by the SDO (Civil), Dehra. It is really very strange to note that neither that original driving licence, alleged to have been taken back by the owner, has been produced nor any record from the office of SDO (Civil), Dehra, pertaining to the issuance of licence in favour of the driver has been brought on the record of this case for the reasons known to the driver who was the maker of the admission.
27. The observations made in Bharat Singh v. Bhagirathi AIR 1966 SC 405, are very much relevant which are reproduced hereunder:
19. Admissions have to be clear if they are to be used against the person making them. Admissions are substantive evidence by themselves, in view of Sections 17 and 21 of the Indian Evidence Act, though they are not conclusive proof of the matters admitted. We are of opinion that the admissions duly proved are admissible evidence irrespective of whether the party making them appeared in the witness-box or not and whether that party when appearing as witness was confronted with those statements in case it made a statement contrary to those admissions. The purpose of contradicting the witness under Section 145 of the Evidence Act is very much different from the purpose of proving the admission. Admission is substantive evidence of the fact admitted while a previous statement used to contradict a witness does not become substantive evidence and merely serves the purpose of throwing doubt on the veracity of the witness. What weight is to be attached to an admission made by a party is a matter different from its use as admissible evidence.
28. In Nagubai Animal v. B. Shama Rao AIR 1956 SC 593, it has been held that an admission is not conclusive as to the truth of the matters stated therein. It is only a piece of evidence, the weight to be attached to which must depend on the circumstances under which it is made. It can be shown to be erroneous or untrue, so long as the person to whom it was made has not acted upon it to his detriment, when it might become conclusive by way of estoppel.
29. In the present case the driver of the tractor in a very clear term admitted that he was having a learner's licence on the day of accident. He was at liberty to show this admission to be untrue or erroneous which he could do by placing on record the alleged driving licence held by him at that particular time. As it has not been so done, the driver, as such, cannot come out of his admission.
30. Thus, on the basis of the evidence on record, it is crystal clear that the driver was holding a learner's licence at that particular time and the liability of the insurance company, as per stipulated condition, could not be attracted in the present case.
31. New India Assurance Co. Ltd. v. Mandar Madhav Tambe 1996 ACJ 253 (SC), can safely be referred at this stage wherein it has been held that a valid, driving licence, as contemplated by the Motor Vehicles Act, would be one which is issued in accordance with the provision of Chapter II of the Motor Vehicles Act 1939, after a driving test has been held. It has also been observed that a person who holds only a learner's licence is one who has not taken the driving test successfully.
32. Taking into consideration the above facts, the finding of the Tribunal under additional issue No. 4 is illegal, erroneous, without any legal evidence and again the same requires to be set aside and interfered with.
33. The third submission put forth on behalf of the appellant may not be relevant for the disposal of the present appeal in view of the fact that the findings of the Tribunal on issues Nos. 2 and 4 have already been set aside.
34. No other point has been stressed.
35. In view of the foregoing reasons, the present appeal succeeds and, accordingly, it is accepted. As a consequence of the acceptance of the appeal, the award of the Tribunal fixing the joint and several liability of the appellant for payment of the compensation awarded is set aside insofar as it relates to the appellant herein while the award against the driver and the owner, as made by the Tribunal, is maintained. The appeal stands accordingly disposed of. Parties are left to bear their own costs.
Cross-objection No. 119 of 1989
36. The cross-objections preferred by the claimants in the present appeal are not legally maintainable. This view has been expressed by a Division Bench of Madras High Court in United India Insurance Co. Ltd. v. M.R. Subramanian 1996 ACJ 1260 (Madras), wherein it has been held that where the appeal filed by the insurance company is confined only to its liability, which is really directed against the owner of the vehicle who is co-respondent in appeal, the cross-objection filed by the claimant for enhancement of compensation is not maintainable.
37. Similar view has been taken by a Division Bench of this Court in National Insurance Co. Ltd. v. Rukmani Devi, F.A.O. (MVA) No. 88 of 1988, decided on 4.9.1996. Hence the cross-objections preferred by the claimants are dismissed, being not legally maintainable. No costs.
38. Before parting with the case, it is necessary to point out that the Tribunal has not chosen to give a proper ranking to the witnesses examined in the case. Two persons have been shown as RW 2, namely, Ghasitu Ram and Devinder Grover. We are distressed to note that a member of the Higher Judicial Services of the rank of District Judge has not taken care to maintain record properly during the trial of a case. Even if the mistake had been committed by a member of the staff of the court, he should have rectified the same. We hope that such mistakes will not recur either in that court or in other courts.