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2006 DIGILAW 253 (MP)

AKHILESH GUPTA v. ARVIND KUMAR

2006-02-15

K.K.LAHOTI, S.S.DWIVEDI

body2006
S. S. DWIVEDI, J. ( 1 ) APPELLANT-CLAIMANT has preferred this appeal under section 173 of motor Vehicles Act, 1988 (hereinafter referred to as 'm. V. Act' for brevity), feeling aggrieved by the quantum of compensation amount awarded by the Second Additional motor Accidents Claims Tribunal, Damoh in Motor Claim Case No. 278 of 1997 dated 24. 7. 1999 whereby the Claims Tribunal has awarded rs. 1,02,000 as compensation amount in favour of the appellant for the grievous injuries sustained by him in a motor accident. ( 2 ) BRIEF facts of the case which are necessary for disposal of this appeal are that on 16. 1. 1989 the appellant-claimant was travelling in a car bearing No. CIK 43 along with 5-6 passengers, he was going to Jabalpur from Sagar. The aforesaid car was driven by K. V. Vishwakarma who also died in this accident. The said car had been dashed by bus No. CPV 2590 going to Gadagkota to Damoh. The aforesaid bus was driven by respondent No. 2 rashly and negligently. The owner of the aforesaid bus was respondent No. 1, later on it was transferred to respondent No. 7. The concerned bus was insured with respondent No. 3. The concerned car in which the appellant was travelling was owned by respondent no. 4 and insured with respondent No. 6. In this accident the appellant had sustained grievous injuries on his femur bone of both legs, serious injury on head due to which the appellant remained in coma for 10 days and fracture and dislocation in the mandible bone by which the appellant could not speak for two months, compound fracture in left hand, fracture in collar bone, fracture in tibia and fibula bone in the right leg. The appellant-claimant was immediately admitted in Jabalpur Medical College for treatment; for the aforesaid injury and thereafter referred to Nagpur and he was treated by Dr. G. M. Tawry, neurosurgeon at Nagpur for nearabout 2 months. Because of these injuries the appellant had suffered 50 per cent to 60 per cent permanent disablement on his right leg which became short by 1", causing great difficulty in walking. On these allegations, appellant-claimant had filed the claim petition under section 166 of the M. V. Act against the respondents before the Claims Tribunal at damoh. After hearing both the parties the learned Member of Claims Tribunal vide impugned award dated 24. 7. On these allegations, appellant-claimant had filed the claim petition under section 166 of the M. V. Act against the respondents before the Claims Tribunal at damoh. After hearing both the parties the learned Member of Claims Tribunal vide impugned award dated 24. 7. 1999 awarded the compensation amount of Rs. 1,02,000 only against the respondent Nos. 1, 2 and 7 and exonerated the insurance company of the bus, i. e. , respondent No. 3 and also held that there is no contributory negligence on the part of the driver of the concerned car in which the appellant was travelling and dismissed the claim petition against the respondent Nos. 4 and 6. Feeling aggrieved by the aforesaid findings of the Claims tribunal with regard to inadequacy of the compensation amount as well as the findings with regard to the exoneration of the insurance company, i. e. , respondent No. 3; the appellant-claimant has preferred this appeal. ( 3 ) RESPONDENT Nos. 1 and 2 remained absent after due service of notice of this appeal. Learned counsel for the respondent nos. 3 and 6 has supported the impugned award passed by the trial court and prayed for the dismissal of this appeal. ( 4 ) ARGUMENTS heard, record perused. ( 5 ) LEARNED counsel for the appellant submits that the Claims Tribunal has erred in holding that driver of the concerned bus, respondent No. 2, was not having valid licence to drive concerned vehicle, therefore, the insurance company is not liable to satisfy the award. While neither this plea has been taken in written statement submitted by respondent No. 3 nor any evidence has been led by respondent No. 3 before the trial court, therefore, the aforesaid finding of the trial court is erroneous and the insurance company, respondent No. 3, is also liable to satisfy the award. Similarly, it is also submitted by the appellant that the appellant-claimant had suffered many grievous injuries in this accident and also sustained permanent disablement, therefore, compensation amount deserves to be enhanced. ( 6 ) THE first point for determination before us is as to whether the insurance company of the concerned bus, respondent no. 3, is also liable for the payment of the compensation. ( 6 ) THE first point for determination before us is as to whether the insurance company of the concerned bus, respondent no. 3, is also liable for the payment of the compensation. ( 7 ) ON perusal of the written statement submitted by the respondent No. 3 it is apparent that the insurance company has not taken any plea with regard to holding valid driving licence of the bus driver, i. e. , respondent No. 2 that he was driving concerned bus without having valid licence. No issue had been framed by the trial court with regard to the driving licence of the bus driver. Moreover, it is settled principle of law that the burden of proof for the fact that the driver of the concerned offending vehicle was having no valid licence is on the insurance company itself. ( 8 ) THE Apex Court in case of Narcinva v. Kamat v. Alfredo Antonio Doe Martins, 1985 ACJ 397 (SC), held thus: "that the respondent driver was under no obligation to furnish evidence so as to enable the insurance company to wriggle out of its liability under the contract of insurance. The onus is always on the insurance company to prove that the driver had no valid driving licence to escape liability of payment of compensation. " ( 9 ) THIS court in Sham Kunwar v. Kamal singh, 2001 ACJ 981 (MP), held: " (4) The insurance company pleaded that the owner of the offending vehicle committed breach of the condition of the policy that the driver of the vehicle had no valid licence at the time of accident, therefore, it was not liable to pay compensation. As the insurance company is claiming exoneration on the ground of breach of the condition of the policy, the burden is squarely on it to prove that breach has been committed by the insured and if breach was not proved by leading evidence, the insurance company would fail. In this case, the insurance company did not examine any witness nor produced any document which could prove that the driver had no valid licence. . . " ( 10 ) THE insurance company had never issued any notice to the owner or driver of the bus or made any effort for the production of the driving licence of the driver, respondent No. 2. . . " ( 10 ) THE insurance company had never issued any notice to the owner or driver of the bus or made any effort for the production of the driving licence of the driver, respondent No. 2. Therefore, the burden had not been discharged by the insurance company that concerned bus driver was not having valid licence at the time of the accident. ( 11 ) THEREFORE, on this point the finding of the trial court appears to be erroneous that the appellant-claimant has failed to prove that the driver of the offending vehicle bus No. CPV 2590, respondent No. 2, was having a valid licence at the time of accident. Therefore, as stated hereinabove we hold that the insurance company, the respondent No. 3, cannot escape from its liability to pay the compensation amount to the appellant-claimant on the ground that the driver was not having valid driving licence. ( 12 ) THE next question arises before us is as to what will be the just and reasonable compensation amount which may be awarded to the appellant-claimant for the grievous injuries sustained by him in this accident. ( 13 ) ON this count appellant-claimant akhilesh Gupta, AW 1, specifically stated that in this accident he sustained grievous injuries on his head, face, collar bone, right hand and on both legs. He also sustained compound fracture in the right leg. Thereby his right leg has been shortened by 1" which caused permanent disability in the working of the right leg. The aforesaid statement has got further support by the statement of Mahendra Kumar, AW 4, brother of the claimant; Rajendra, NAW 1 ; dr. Asif N. Daud who treated the appellant and also certified that the injuries on the head will effect the memory of the appellant. This has been further supported by the statement of Dr. G. M. Tawry, AW 2, who also treated the appellant for the aforesaid injury from 18. 1. 1989 to 12. 9. 1989. Appellant has also filed documentary evidence of his continuous treatment which are exhs. P11 to P139; disablement certificate issued by the concerned doctors is Exh. P87 which proves 45 per cent disablement in the working of the left wrist joint and right leg. 1. 1989 to 12. 9. 1989. Appellant has also filed documentary evidence of his continuous treatment which are exhs. P11 to P139; disablement certificate issued by the concerned doctors is Exh. P87 which proves 45 per cent disablement in the working of the left wrist joint and right leg. ( 14 ) THEREFORE, on the basis of the aforesaid oral and documentary evidence produced by the claimant, the compensation amount which has been awarded by the claims Tribunal of Rs. 1,02,000 appears to be on lower side. ( 15 ) LOOKING to the nature of the injury we are of the opinion that for the shortness of right leg by 1", the appellant is entitled to get the compensation amount of rs. 1,00,000 (rupees one lakh) and for the injury on the left wrist joint which has been mentioned in Exh. P7 certificate, appellant is entitled to get Rs. 25,000. For the pain and suffering due to these injuries, the appellant is entitled to get compensation amount of Rs. 25,000. As per statement of the appellant, he had also faced three operations during his treatment, for the reimbursement of expenses for these operations, he is entitled to get Rs. 25,000 as operation and treatment expenses. He also suffered loss of earning for two years for this purpose, he is entitled to get lump sum compensation amount of Rs. 60,000 and for the travelling expenses from Jabalpur to Nagpur, he is entitled to get the expenses of travelling at Rs. 1,000. Therefore, total compensation amount will come to rs. 2,36,000 which appears to be just and reasonable compensation amount, which the appellant is entitled to get jointly and severally from the respondent Nos. 1, 2 and 3. ( 16 ) THE finding with regard to the contributory negligence negatived by Claims tribunal, has not been assailed before us by either of the parties, therefore, finding on this aspects that this accident occurred only due to rash and negligent driving of the offending vehicle by the respondent no. 2 is confirmed. ( 17 ) CONSEQUENTLY, the appeal filed by the appellant is partly allowed and it is held that the appellant is entitled to get the compensation amount of Rs. 2,36,000 from the respondent Nos. 1, 2 and 3 jointly and severally, accordingly compensation is enhanced. 2 is confirmed. ( 17 ) CONSEQUENTLY, the appeal filed by the appellant is partly allowed and it is held that the appellant is entitled to get the compensation amount of Rs. 2,36,000 from the respondent Nos. 1, 2 and 3 jointly and severally, accordingly compensation is enhanced. On this enhanced amount of compensation the appellant shall be entitled to get interest at the rate of 6 per cent per annum from the date of filing of this claim application, i. e. , from 8. 7. 1989 till realisation. ( 18 ) APPELLANT shall be entitled for the costs from the respondent Nos. 1, 2 and 3. Counsel's fee of Rs. 1,000, if certified. Appeal partly allowed. .