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2003 DIGILAW 1398 (RAJ)

United India Insurance Co. Ltd. v. Bhikh Singh

2003-10-14

PRAKASH TATIA

body2003
JUDGMENT 1. - At the request of learned counsel for the parties, the appeal is heard on merit. 2. Brief facts of the case are that deceased Raju Singh was standing near Nagour road on 9th April, 1996 and a Jeep No. RJ-14-00873 hit Raju Singh resulting into death of Raju Singh. The Jeep was being driven by Mahesh Kumar. The FIR was lodged and case under Sections 279, 337 and 304-A IPC was registered against Mahesh Kumar. The claimant legal representatives of Raju Singh submitted the claim petition seeking claim of Rs. 24,51,000/-. The Non- applicants no. 1 and 2 respondents no. 6 and 7 did not appear before the Motor Accidents Claim Tribunal, therefore, the tribunal proceeded ex-parte against these two respondents. However, the appellant Insurance Company submitted reply to the claim petition. The tribunal framed issues whether Raju Singh died because of the accident caused by Mahesh Kumar by driving the said vehicle rashly and negligently and whether Mahesh Kumar was in employment of vehicle owner Dilip Singh and in case, the issues are decided in favour of the claimant what can be the reasonable compensation. The claimants produced witnesses Kiranpuri, Ghyan Singh, Bhikh Singh, Bebi and Om Singh whereas the Insurance company produced Subash Bohra as witness. The tribunal decided issue no. 1 and 2 in favour of the claimants and held that Mahesh Kumar was in employment of Dilip Singh and he was driving the Jeep, which hit Raju Singh causing death of Raju Singh. While deciding issue no. 3, the tribunal s determined the monthly income of deceased Raju Singh as Rs. 2100/- and after applying multiplier of 18 and deducting ⅓ of the amount, awarded Rs. 3,02,400/- to the claimant on account of loss of earning of deceased Raju Singh. The tribunal further awarded Rs. 50,000/1- in lump sum to the claimants for loss of love and affection of Raju Singh to the claimants. The tribunal to refused to grant any compensation for loss of cloths, shoes, watch and cycle of Raju Singh. The tribunal even refused to allow the expenses, which were borne in the treatment of Raju Singh by the claimants and for which the medical bills Ex. 9 to Ex. 101 were produced by the claimants. In total Rs. 3,52,400/- was awarded to the claimants. 3. The tribunal even refused to allow the expenses, which were borne in the treatment of Raju Singh by the claimants and for which the medical bills Ex. 9 to Ex. 101 were produced by the claimants. In total Rs. 3,52,400/- was awarded to the claimants. 3. The appellant Insurance Company preferred this appeal on the ground that the driver of the jeep was not holding valid licence at the time of accident, therefore, the Insurance Company cannot be held liable for any compensation. 4. Learned counsel for the appellant vehemently submitted that even if it is held that burden of proving the issue of not having driving licence by the driver was upon the insurance company, still the burden stand discharged by the evidence of the witnesses of the appellant Insurance Company because of the reason that witness of the appellant company stated on oath that the driver of the vehicle was not having the valid driving licence at the time of accident. It is also submitted that the claimants have not produced the copy of licence or the licence nor there is any evidence on record to prove that the driver was holding valid driving licence at the time of accident. According to learned counsel for the appellant this is a clear violation of the terms of the policy and the appellant is not liable for the reimbursement of the compensation. 5. Learned counsel for the respondent-claimants submitted that, in fact, the burden was upon the appellant Insurance Company to prove that the drive was not holding the valid driving licence_ Mere word of mouth of a person, who admits that he had no knowledge about the fact, cannot be treated as an statement on fact relevant for consideration by the court of law. Therefore, not only the appellant Insurance Company failed to discharge the burden, but the appellant company even did not intend to prove the defence taken by the appellant company as no efforts were made by the appellant company to prove the fact that the driver was not holding valid licence. 6. I considered the submissions of learned counsel for the parties and perused the record. 6. I considered the submissions of learned counsel for the parties and perused the record. Now it cannot be disputed that the defence was available to the appellant to prove violation of condition of the Insurance Policy to avoid the liability and for this purpose the appellant company was entitled to take defence about the absence of licence with the driver. The as defence of the appellant company was required to be proved by the appellant company only and not by the claimants. The appellant company was conscious of their defence and took a specific plea in reply but plea itself was taken without there being any reason. It is something different to say that the appellant company had no knowledge whether the driver was having valid driving licence or not, but the appellant company took a specific plea that at the time of driving the vehicle, the driver had no valid licence. The plea taken without enquiry, stands proved from the statement of the witness of the appellant, who admitted in cross-examination that he did not enquire from any source whether the driver had driving licence or not. When the witness failed to establish his source of knowledge for which he gave statement then that cannot be said to be an evidence in the eye of law. For proving a fact, even a slightest evidence may be sufficient to shift the onus upon other party, but the statement of the witness produced by the appellant it is clear that his statement about the fact whether diver was holding valid driving licence is no evidence as he himself admitted by implication that he gave evidence without any knowledge about the fact in issue, therefore, the onus did not shift upon the claimants to rebut the fact in issue. It is further relevant to mention here that no specific issue was framed by the tribunal on this point, but the appellant produced the witness only to prove this fact that the driver had no licence at the time of accident. Therefore, it appears that the appellant also had no grievance against non-framing of the issue and in the light of the statement given by the witness of the appellant company they must not be serious in contesting this aspect of the matter. 7. Therefore, it appears that the appellant also had no grievance against non-framing of the issue and in the light of the statement given by the witness of the appellant company they must not be serious in contesting this aspect of the matter. 7. In view of the above, I do not find any force in this appeal as no other point has been pressed by learned counsel for the appellant. 8. The respondent-claimants submitted cross-objection for enhancement of the compensation amount. Learned counsel for the respondents submitted that the denial of the amount of expenses incurred by the claimants for treatment of the deceased Raju Singh by the tribunal is absolutely illegal. The tribunal merely on the ground that in claim petition there is no mention of the amount of expenditure, which was borne by the claimants for treatment and there is no prayer for grant of the said amount, therefore, the amount claimed by the claimant cannot be allowed. 9. The approach of the Motor Accidents Claim Tribunal was absolutely wrong. Since the claimants have placed on record the original medical bills, which they have incurred for the treatment of deceased Raju Singh and there is a clear case of the claimants that Raju Singh was hit by the vehicle on 9th April, 1996, he was taken to the hospital, the doctors tried their best to save Raju Singh, but ultimately, he died after 19 days, therefore, it cannot be believed that during this entire period he was not given treatment. Therefore, the claimants are entitled for reimbursement of the entire amount, which they incurred for treatment of the deceased Raju Singh. The claimants placed on record the medical bills of around more than Rs. 19,000/-. Therefore, it will be appropriate to award Rs. 20,000/- to the claimants against the expenses, which they incurred for the treatment of deceased Raju Singh and claim is required to be enhanced by Rs. 20,000/-. 10. Learned counsel for the respondents submitted that there is sufficient evidence on record, which proves that income of deceased Raju Singh was at least 3,500/- per month, but the tribunal wrongly assessed the income Rs. 2,100/- only. It is true that there are witnesses, who deposed that deceased Raju Singh was earning Rs. 20,000/-. 10. Learned counsel for the respondents submitted that there is sufficient evidence on record, which proves that income of deceased Raju Singh was at least 3,500/- per month, but the tribunal wrongly assessed the income Rs. 2,100/- only. It is true that there are witnesses, who deposed that deceased Raju Singh was earning Rs. 120/- per day as he was skilled labour, but the fact remains is that, It cannot be presumed that deceased was getting the wages for all the 365 days in the year. The assessment made by the tribunal about the Income of the deceased Raju Singh cannot be said to be in lower side by any stretch of imagination. The multiplier applied is of 18, so which is on the higher side looking to the facts of the case, which compensate the future prospects of the income of the deceased. The tribunal also awarded Rs. 52,000/- to the claimants because of loss of love and affection and mental agony to the claimants. In sum and substance, the 1 award amount deserves to be enhanced by Rs. 20,000/-. 11. Hence, the appeal of th4i appellant is dismissed. The cross objection filed by the respondents-claimants is partly allowed and the claim amount is enhanced from Rs. 3,53,400/- to 3,72,400/-. The claimant will be entitled to interest @ 9% over this enhanced amount of Rs. 20.000/- form the date of claim petition.Appeal Dismissed - Cross-Objection Allowed, Amount Enhanced. *******