Punjab-Haryana High Court
Ram Singh vs Ashok Kumar And Others on 21 May, 2012
Author: K.C.Puri
Bench: K.C.Puri
FAO No. 196 of 2004 1
IN THE HIGH COURT OF PUNJAB AND HARYANA
AT CHANDIGARH
FAO No. 196 of 2004 (O&M)
Date of decision 21.05. 2012.
Ram Singh
...... Appellant.
versus
Ashok Kumar and others
...... Respondents.
FAO No. 197 of 2004
Ram Singh
...... Appellant.
versus
Saurav Sharma and others
...... Respondents.
Present : Ms. H.S.Deol, Advocate for the appellant, in both appeals.
Mr. Aseem Aggarwal, Advocate for respondent No.1, in both
appeals.
Mr. Binderjit Singh, Advocate for respondent No.2, in both
appeals.
Mr. D.P.Gupta, Advocate for respondent No.3, in both
appeals.
FAO No. 754 of 2004
Ashok Kumar
...... Appellant.
versus
Darshan Singh and others
FAO No. 196 of 2004 2
...... Respondents.
FAO No. 755 of 2004
Saurav Sharma
...... Appellant.
versus
Darshan Singh and others
...... Respondents.
CORAM :- HON'BLE MR.JUSTICE K.C.PURI.
1. Whether Reporters of Local Newspapers may be allowed to yes
see the judgment?
2. To be referred to the Reporters or not? yes
3. Whether the judgment should be reported in the Digest? yes
Present : Ms. Aseem Aggarwal, Advocate for the appellant in both
appeals.
Mr. Binderjit Singh,, Advocate for respondent No.1 in both
appeals.
Mr. H.S.Deol, Advocate for respondent No.2, in both appeals.
Mr. D.P.Gupta, Advocate for respondent No.3, in both
appeals.
K.C.PURI, J.
By this common order, I intend to dispose of FAO No. 196 of 2004 titled as Ram Singh versus Ashok Kumar, FAO No. 197 of 2004 titled as Ram Singh versus Saurav Sharma, FAO No. 754 of 2004 titled as Ashok Kumar versus Darshan Singh and FAO No. 755 of 2004 titled as Saurav Sharma versus Darshan Singh as these are arisen out of the same Award and incident. For convenience, facts are being taken from FAO No. 196 of 2004 3 FAO No. 196 of 2004.
2. Claimants have directed the present claim petitions under Section 166 of the Motor Vehicles Act, 1988 for grant of compensation.
3. The facts in brief are that on 26.4.1999 Ashok Kumar claimant was working in Markfed Branch Office, Sultanpur Lodhi at a monthly salary Rs.7500/- per month, was sitting on the pillion of the scooter bearing registration No. PB-09C-2065 being driven by Saurav Sharma his son and at about 6.30p.m. when they reached one kilometer ahead of Dadwindi Petrol Pump a cargo truck bearing registration No. PB-03-E-6918 being driven by respondent No.1 Darshan Singh in a rash and negligent manner came from the side of Kapurthala. The truck was brought by the driver thereof to the wrong side of the road and the same struck against the scooter aforesaid, while overtaking the car going ahead of it. Due to this impact, the petitioner as well as Saurav Sharma, his son sustained multiple injuries, on their person. Darshan Singh driver of the truck stopped the same at the place of accident for some time but ran away in his truck after seeing the deteriorating condition of the petitioner and his son. The scooter was being driven on the correct side of the road. The FIR was lodged by the injured with the police. Ashok Kumar sustained multiple injuries on his person. Claimants claimed Rs.10,00,000/- and Rs.5,00,000/- respectively as compensation
4. On put to notice, respondent No. 1 and 2 appeared and filed written statement and pleaded that the driven of scooter PB-09C-2065 was not having a valid and effective driving licence at the time of the alleged FAO No. 196 of 2004 4 accident. It was stated that the offending vehicle did not touch the scooter in question. On the other hand, it was stated that the driver of the scooter was driving the same in a rash and negligent manner and while overtaking an other scooter going ahead of him, lost control over the same and fell down on the road as a result whereof, both the rider and the pillion rider sustained injuries. The remaining averments were denied.
5. Respondent No.3 Insurance company also denied its responsibility to pay compensation to the claimant and pleaded that respondent No.1 was not holding a valid and effective driving licence at that time.
6. From the pleadings of parties, the following issues were framed:-
1. Whether the petitioner received injuries in the accident allegedly caused by respondent no.1 by driving the offending vehicle rashly and negligently ? OPP
2. Whether the petitioner is entitled to the compensation, if so, to what extent and from whom ? OPP
3. Whether respondent no.1 was having a valid driving licence ? OPP
4. Relief.
7. The parties have led their respective evidence on the aforesaid issues. In the light of the same, the learned Motor Accident Claims Tribunal, Kapurthala vide award dated 9.10.2003 accepted the claim petition of Ashok Kumar and awarded compensation amounting to Rs.3,25,779/- along with interest @ 9% per annum from the date of filing the petition till realization and to Saurav Sharma claimant amounting to Rs.54,453/- along with interest @ 9% per annum from the date of filing the FAO No. 196 of 2004 5 petition till realization.
8. Feeling dissatisfied with the aforesaid Award dated 9.10.2003, owner of offending vehicle has directed FAO No.196 of 2004 and 197 of 2004 for dismissal of the claim petitions whereas FAO No.754 of 2004 and 755 of 2004 have been directed by the claimants for enhancement of compensation in respect of injuries sustained by them in motor vehicular accident.
9. I have heard learned counsel for the parties and have gone through the records of the case with their able assistance. FAO Nos. 196 and 197 of 2004
10. These two appeals have been preferred by Ram Singh owner of the offending vehicle i.e. PB-03-E-6918.
11. Learned counsel for the appellants has submitted that the appellant has been held liable on the ground that Darshan Singh driver of the offending vehicle was not holding a valid driving licence. It is submitted that onus lies heavily on the Insurance Company to prove the said issue. The Insurance Company has examined the clerk of the office of District Transport Officer to prove the fact that driving licence in favour of Darshan Singh was fake. That evidence is not sufficient to prove that Darshan Singh was having a fake driving licence. Even if it is assumed that licence of Darshan Singh was fake in that case also the appellant is not liable. The owner of the vehicle can be held liable only in case the Insurance Company proved that there is a gross violation of the terms of the policy. The Insurance Company is not only required to prove that licence FAO No. 196 of 2004 6 was fake but has to prove the fact that the owner of the offending vehicle has the knowledge that the licence was fake. The Hon'ble Apex Court in authority United India Insurance Co. Ltd. vs. Lehru and others AIR 2003 Supreme Court 1292 has held that the owner hiring the driver is not supposed to get verification from the licence authority. Ram Singh has appeared as RW-4 and has stated that he has employed Darshan Singh as driver and he inquired about the driving licence from Darshan Singh before giving him employment. Darshan Singh has shown him the driving licence. So, in these circumstances, the appellant cannot be said to have violated the terms of the policy. The finding of the Tribunal that appellant has violated the terms of the policy is liable to be set aside. The recovery rights given to the Insurance Company are not available to the Insurance Company as the appellant is not negligent in any manner and has not violated the terms of the policy.
12. In reply to the above noted submission, the counsel for the Insurance Company has supported the Award of the Tribunal. It is contended that Darshan Singh was resident of Bathinda. The statement made by Ram Singh that he took the trial of Darshan Singh before his employment cannot be accepted. It is contended that the appellant has clearly violated the terms of the policy. Ram Singh even having the knowledge that Darshan Singh was having fake licence has assigned him the duty of driver. So, the Tribunal has rightly held that Insurance Company is entitled to recover the amount from the owner.
13. I have given my thoughtful consideration to the rival FAO No. 196 of 2004 7 submissions made by counsel for both the parties and have gone through the records of the case.
14. So far as the fact that Darshan Singh was not having valid licence, is concerned that has not been seriously contested. Otherwise also, the Insurance Company has discharged the onus by examining the clerk of the office of District Transport Officer to show that the licence produced by Darshan Singh is fake one and has not been issued by the said office. It is not disputed during the course of arguments that Darshan Singh was having any other driving licence. So, the finding of the Tribunal to the effect that the driving licence of Darshan Singh was fake does not call for any interference and the same stands affirmed.
15. However, the next contention raised by the appellant is that the owner/appellant has taken the test of Darshan Singh before employing him and as such there is no violation of the terms of the policy is concerned that submission is also meritless. Darshan Singh was resident of Bathinda and the licence which has been relied upon by him has been issued by District Transport Officer, Faridkot. No doubt a citizen can get the licence from any where in India but once it came to the notice of the owner that licence is of other District without any reasoning in that case he should have verified about the licence. The statement made by the appellant that he took test before employing Darshan Singh simply seems to have been made in order to avoid his liability. The appellant cannot have the benefit of authority United India Insurance Co. Ltd. vs. Lehru and others' case (supra) as he has not been able to convince the Court that he has satisfied FAO No. 196 of 2004 8 himself from the fact that Darshan Singh was having a valid driving licence. Otherwise also, in authority United India Insurance Co. Ltd. vs. Lehru and others' case (supra) in the later part of the judgment, it has been held that where the licence is fake in that case, at the initial stage, the Insurance Company has to pay the compensation amount and thereafter is entitled to recover the same from owner. The Hon'ble Apex Court visualize various conditions which could be possible. Example has been given that a vehicle has been given to a licensed driver but during the course of plying the vehicle if some one steal the vehicle and unauthorized person driving the vehicle, in that case there is no violation at the hands of owner of the vehicle, there is no such situation in the present case.
16. In the aforesaid authority, the Hon'ble Apex Court has further held that if the driver has no valid driving licence, the insurance company cannot be held liable. So, I have no hesitation in holding that Tribunal has rightly held that appellant has violated the terms and conditions of the policy.
17. In authority United India Insurance Co. Ltd. vs. Lehru and others' case (supra) the ultimate result was that Insurance company was directed to pay compensation to the claimants and was held entitled to recover from the owner.
18. In view of the above discussion, FAO Nos. 196 and 197 of 2004 are without any merit and the same stand dismissed. FAO Nos. 754 and 755 of 2004
19. Now reverting to FAO Nos. 754 of 2004 titled as Ashok FAO No. 196 of 2004 9 Kumar vs Ram Singh and 755 of 2004 titled as Saurav Sharma vs. Ram Singh
20. In this case Ashok Kumar is the injured and his claim petition was accepted partly by the Tribunal vide Award dated 9.10.2033 and was allowed a sum of Rs.3,25,779/-. Rs.2,75,779/- as medical expenses, incurred by him in respect of 70% permanent disability including medical expenses and amount spent on purchase of medicines plus Rs.50,000/- on account of mental agony, physical pain, special diet, conveyance, attendant loss of amenities of life etc along interest @ 9% per annum.
22. Learned counsel for the appellant has confined his arguments to the extent that permanent disability suffered by the appellant is to the extent of 70% and a sum of Rs.50,000/- on account of pain and suffering, mental agony, special diet, conveyance, attendant loss of amenities of life etc is on lower side.
23. Counsel for the Insurance Company has supported the Award in respect of amount of compensation. The Tribunal has held that Ashok Kumar was in service and he remained in service and has suffered no loss. The accident in the present case has taken place on 26.4.1999 and as such the amount of compensation has to be assessed in that context. However, the amount of Rs.50,000/- in respect of permanent disability to the extent of 70% is grossly inadequate. The Tribunal itself has held that Ashok Kumar remained admitted in hospital for two months and two days for medical treatment. So, the amount of compensation in respect of mental agony, FAO No. 196 of 2004 10 physical pain, special diet, conveyance, attendant loss of amenities of life etc is enhanced to Rs.2,10,000/-, the details of which is as under :-
1. Amount in respect of 70% permanent disability Rs.1,00,000/- ;
2. Amount in respect of mental pain agony etc. Rs.50,000/- ;
3. Special diet, conveyance, attendant Rs.10,000/- ; and
4. loss of amenities of life Rs.50,000/-
Total Rs.2,10,000/-
24. The amount of Rs.2,75,779/- allowed by the Tribunal in respect of medicines stands maintained. So, claimant Ashok Kumar is held entitled to recover Rs.1,60,000/- in addition to the amount awarded by the learned Tribunal along with interest @ 7.5% per annum from the date of application till realization.
FAO No. 755 of 2004 titled as Saurav Sharma vs. Ram Singh
25. The learned Tribunal has allowed Rs.54,453/- in respect of injuries sustained by Saurav Sharma. The details of the said amount is as under :-
1. Actual expenses on medicines Rs.34,453/- ;
2. In respect of mental agony, physical pain special diet and conveyance etc Rs.20,000/-;
Total Rs.54,453/-
26. Learned counsel for the appellant has submitted that the appellant has suffered head injuries and there was large wound on the head of the claimant Saurav Sharma. There were multiple fracture of right lower FAO No. 196 of 2004 11 leg. There were three operations conducted on the body of the claimant. Ring was inserted. So, the amount of Rs.20,000/- in this regard is on lower side. It is submitted that the appellant remained admitted in KGM Hospital from 26.4.1999 to 10.5.1999. The appellant was student of B.Com. 2nd year and has lost one year.
27. I have considered the said submission made by counsel for the appellant.
28. The statement of Dr. Kulwant Singh is relevant. He has stated that Saurav Sharma claimant remained admitted from 26.4.1999 to 10.5.1999. There were wounds on right thigh and forehead. The patient was suffering from multiple injuries including fracture and badly mutilated right lower leg without distal pulse in right foot. There was multiple compound fracture of the femur bone, the knee bone and tibia.
29. In view of testimony of Dr. Kulwant Singh ( AW-7 ) the amount of Rs.20,000/- in respect of pain and suffering is on lower side. The said amount stands enhanced to Rs.50,000/- from that of Rs.20,000/- .
30. The amount of Rs.54,453/- allowed by the Tribunal in respect of medical treatment stands maintained. So, claimant Saurav Sharma is held entitled to recover Rs.30,000/- in addition to the amount awarded by the Tribunal along with interest @ 7.5% per annum from the date of application till realization.
31. So, in view of the above discussion, all the appeals stands disposed off in the manner indicated above.
FAO No. 196 of 2004 12
32. A copy of this judgment be sent to the trial Court for strict compliance.
( K.C. PURI )
JUDGE
May 21, 2012
sv