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Punjab-Haryana High Court

The New India Assurance Company Limited vs Gian Chand And Others on 24 December, 2009

Author: A.N.Jindal

Bench: A.N.Jindal

F.A.O.No.266 of 2005(O&M)                    1

      IN THE HIGH COURT OF PUNJAB AND HARYANA
                    AT CHANDIGARH

                         F.A.O.No.266 of 2005(O&M)
                         Date of Decision 24.12.2009

The New India Assurance Company Limited
                                                   ...... Appellant

                         VERSUS

Gian Chand and others
                                                   ...... Respondents

CORAM:- HON'BLE MR. JUSTICE A.N.JINDAL

Present:    Mr.Suman Jain and Mr.Manmohan Singh, Advocates,
            for the appellant.

            Mr.Mahipal Singh, Advocate,
            for Mr.Ashish Kapoor, Advocate,
            for respondent No.1.

            Mr.Amit Jaiswal, Advocate,
            for the respondents-claimants.

            Mr.Ashok Singla, Advocate,
            for respondent No.3.

                         *****

A.N.JINDAL, J(ORAL):

This appeal, preferred by the appellant-New India Assurance Company (herein referred as 'the appellant') is directed against the common award dated 13.10.2004, passed in two connected claim petition Nos.127 of 2002 and 32 of 2002/2004 by Motor Accident Claims Tribunal, Ambala (herein referred as 'the Tribunal'), awarding compensation (in both the claim petitions )to the tune of Rs.4,93,000/- alongwith interest @ 9% per annum in favour of the claimants and against appellant and respondents No.2 and 3-driver and owner.

The question as raised by the insurance company in this appeal is whether respondent No.2 was not holding a valid and effective driving licence and, if so, if the appellant-insurance company was liable ?

Facts, as culled out from claim petition No. 32 of 2002, are that on 07.08.2002, Poonam Devi @ Babli (since deceased) while sitting on the F.A.O.No.266 of 2005(O&M) 2 carrier of the bicycle of Shiv Kumar was preceding to Ambala Cantt. At about 7:15 p.m., after crossing the railway over-bridge Jandli on G.T.Road, when they reached near T-point, in the meantime, respondent No.2, while driving his maruti car bearing registration No.DL-03-8668 rashly and negligently, came from the side of Delhi and hit the car against the bicycle, resultantly, Poonam Devi fell down and succumbed to the injuries at the spot. As an aftermath of the accident, Gian Chand husband of the deceased filed a claim petition No.127 of 2002 whereas a separate claim petition was preferred by Ravi and Rajeev sons of the deceased Poonam Devi. Both the claim petitions were contested by the respondents. Respondents No.1 and 2 (now respondents No.2 and 3) driver and owner of the offending vehicle, in their joint written statement, while denying all the allegations, submitted that the car was being driven on the extreme left side of the road at a normal speed and respondent No.2 was not rash or negligent at all. Respondent No.3-appellant further added that respondent No.2 was not holding a valid driving licence at the time of accident.

On the pleadings of the parties, the Tribunal vide order dated 18.11.2003, framed the following issues:-

1. Whether the accident in question was caused because of rash and negligent driving of Maruti Car bearing registration No.DL-3CR-8668, by respondent No.1? OPP

2. If issue No.1 is proved, whether the petitioner is entitled to any compensation. If so, to what amount and from whom ? OPP

3. Whether the offending vehicle was being driven in violation of the terms and conditions of the Insurance Policy ? OPR

4. Relief.

Both the parties led evidence. Ultimately, both the claim petitions were partly accepted in the aforesaid terms.

The appellant has challenged the legality of the judgment delivered in case Gian Chand versus Vijay and others solely on the ground that since respondent No.2 was held to be not holding effective and driving licence at the time of accident, therefore, the Tribunal instead of holding the liability of Insurance company would have fastened the liability to pay compensation upon respondents No.2 and 3.

Having heard the rival contentions, it is noticed that respondents No.2 and 3 were proceeded against exparte before the trial Court. The appellant in order to prove that respondent No.2 was not holding a valid driving licence examined Ramesh Singh, Assistant Ahlmad of the Court of Sh.N.K.Singhal, JMIC, Ambala City, who testified from the record of the case titled as State versus Vijay Kumar in FIR No.303/2002 under Sections 279/304-A of Indian Penal Code, that there was no such licence of Vijay Kumar on the file of criminal case. RW2 Vikash Sharma, Clerk of SDM Office, Ambala City, while testifying that the driving licence register dated 16.02.1990 does not contain the entry regarding the issuance of driving licence bearing No.9060 and Vijay Kumar son of Munna Lal was not issued any driving licence on 16.02.1990. Further the statements of the witnesses Ramesh Singh (RW1) and Vikash Sharma (RW2) also show that respondent No.2 was not holding a valid driving licence. However, the findings returned by the Tribunal are counter to the observations made regarding issue No.3. Since the Tribunal had reached the conclusion that the Insurance Company had discharged the onus by leading evidence to the effect that the licence Ex.R1 as brought on record was not genuine then primary liability though was of the insurance company yet the right to recover should have been given to it from respondents No.1 and 2 (now respondents No.2 and 3). Since respondent No.2-driver withdrew himself from contesting the petition during the trial and did not produce the original driving licence, therefore, his conduct also needs to be condemned.

The appellant-Insurance Company has challenged the quantum of compensation on the plea that no amount, which the deceased has been contributing towards herself, has been deducted and also applied the multiplier over the entire income. In this regard, it may be observed that the Tribunal had awarded compensation to the tune of Rs.4,93,000/- alongwith interest @ 9% per annum, out of which a sum of Rs.1,23,250/- was to be awarded to respondent No.1 (claimant) and the remaining amount was to be awarded in claim petition No.32 of 24.12.2002, decided on 13.10.2004 titled as Ravi and another versus Vijay and others. The insurance company has not preferred any appeal against the said award. Thus, it appears that the compensation awarded to the claimants in claim petition No.32 of 24.12.2002, has not been challenged as having become final. Now the F.A.O.No.266 of 2005(O&M) 4 appellant is estopped from challenging the said award on the said point in the present case. Even otherwise, the Tribunal appears to have rightly appreciated all the aspects of the case. The deceased was 48 years old house wife, therefore, she was not only serving for herself but was a whole time worker for the family. Besides cooking food, she had multiple duties to perform. Therefore, the Tribunal was right in not deducting any amount out of Rs.3,000/- which was assessed as her notional monthly income and applying the multiplier of 13 in the instant case.

Since the vehicle of respondent No.3 was insured with the appellant, therefore, the brevity of the contract was between the appellant and respondent No.3. As such, the appellant preliminary would be liable to pay compensation to the claimants. However, it could recover the said amount of Rs.123250/- alongwith interest (as paid to the claimants) from the respondents No.2 and 3- driver and owner, respectively.

In view of the discussion made above, this appeal is partly accepted. The appellant would be liable to pay the amount of compensation to the respondent-claimant Gian Chand and in case the same is paid, then it would be at liberty to recover the same from respondents No.2 and 3. However, no order as to costs.

(A.N.Jindal) Judge 24.12.2009 mamta-II