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2007 DIGILAW 220 (PNJ)

Zile Singh v. Mukesh Kumar

2007-02-07

VINOD K.SHARMA

body2007
Judgment Vinod K. Sharma, J. 1. This order will dispose of F. A. O. No.1235 of 2000 and cross-objection No.36-CII of 2004 filed against the award passed by the Motor accidents Claims Tribunal, Jind (for short the Tribunal) in M. A. C. T. Case No.53 of 20.10.1997. 2. The claimant-appellant filed a petition under the Motor Vehicles Act, 1988 (for short the Act) seeking compensation to the tune of Rs.10,00,000 (rupees ten lakh) for the injuries suffered by him in the road accident. 3. The case set up by the appellant-claimant was that while driving Haryana roadways bus No. HR 46-0238 he was coming from Delhi on 27.2.1997 and was going to Sangrur with the passengers. When the bus reached near bus stop Brahaman-was, at about 7.40 a. m. , a trola bearing no. HR 46-9882 came from Jind side, i. e. , opposite side which was being driven by respondent Mukesh Kumar in a rash and negligent manner at a very high speed. The appellant in order to avoid the accident slowed down the bus, but the driver of offending trola all of a sudden turned the trola towards its left side and as a result, therefore, right side of the trola hit the bus and the bus was dragged towards the trola. As a result of the collision, the appellant-claimant and the passengers of the bus sustained grievous injuries. The appellant-claimant had suffered multiple injuries and was admitted at C. H. C. , Julana from where he was referred to Civil Hospital, Jind and from there, he was referred to Medical college and Hospital, Rohtak where he was admitted on 28.2.1997. He underwent three operations and due to injuries he became permanently disabled. Subsequently, the appellant was declared to be unfit for further service as driver in Haryana Roadways and on account of this he was compulsorily retired w. e. f.3.6.1997, i. e. , 43 months before his date of superannuation. 4. Claim of the appellant was contested by the respondents on the pleadings of the parties following issues were framed: " (1) Whether the accident in question had taken place due to rash and negligent driving of trola bearing No. HR 46-9882 by respondent No.1 resulting into the causing of injuries to the petitioner, as alleged? OPP (2) Whether the petitioner is entitled to receive any compensation? If so, how much and from whom? OPP (2) Whether the petitioner is entitled to receive any compensation? If so, how much and from whom? OPP (3) Whether the petition is not maintainable in the present form? OPR (4) Whether the petitioner has no cause of action to file present petition? OPR (5) Whether the petitioner has no locus standi to file the present petition? OPR (6) Relief. " After amendment of the petition, the lowing additional issue was also framed: " (2-A) Whether the petitioner has been declared unfit for driving the heavy vehicle by the Medical Board and as a result thereof he has been compulsorily retired from service, as alleged and if so to what effect? OPP" 5. Learned Tribunal on appreciation of evidence decided issue No.1 in favour of the appellant and it was held that the accident had occurred due to rash and negligent driving of trola bearing registration No. HR 46-9882 by the driver which resulted into injuries to the claimant-appellant. 6. On issue No.2, learned Tribunal was pleased to grant following compensation: (1) Compensation for pain and suffering Rs.20,000 (2) Compensation for expenses on medicine and treatment Rs.10,000 (3) Compensation for adverse effect in the income and future career of the petitioner due to 30 per cent permanent disability Rs.45,000 (4) Compensation for expenses on special diet, conveyance and transport Rs.15,000 (5) Compensation for loss of enjoyment of life and love and affection Rs.5,000 (6) Compensation to meet unforeseen expenses in the hospital Rs.5,000 (7) Compensation for premature retirement of the petitioner Rs.20,000 Total Rs.1,20,000 7. The learned Tribunal, further held that the driving licence produced by the driver of the trola was a fake and forged document and accordingly the insurance company was absolved of the liability to pay compensation. It is pertinent to mention here that cross-objections have been filed by the owner of trola against the findings recorded by the Tribunal absolving the liability of the insurance company. 8. Mr. R. K. Malik, the learned counsel appearing on behalf of appellant-claimant challenged the findings of learned Tribunal on issue No.2 primarily on the ground that the compensation of Rs.45,000 on account of permanent disability assessed at 30 per cent cannot be sustained, firstly, for the reason that the service of the petitioner was cut short by 43 months and, therefore, there was a direct loss of income. Even otherwise the assessment for the disability was required to be made as per Second schedule to the Motor Vehicles Act and it was to be calculated by taking into consideration the loss of income of 43 months was to be taken into consideration. In addition thereto, he was entitled to such percentage of compensation which would have been payable in case of permanent total disablement as specified in the Schedule. Thus, according to the learned counsel, there was a direct loss of Rs.1,50,000 (rupees one lakh fifty thousand) as he was only paid pension on account of compulsory retirement in place of complete salary. In addition thereto, he was entitled to compensation by applying a suitable multiplier keeping in view the age of the claimant. Accordingly under this head the appellant was entitled to a sum of Rs.2,77,000. Be that as it may, I feel that total compensation payable to the appellant on account of permanent disability is to be assessed at Rs.3,00,000 (rupees three lakh ). In addition thereto, the appellant would be entitled to other benefits granted by the claims Tribunal. Thus the total compensation payable under issue No.2 comes to rs.3,75,000 (rupees three lakh seventy-five thousand ). The appellant shall also be entitled to interest at the rate of 9 per cent per annum on the enhanced amount from the date of institution of claim petition till realisation. Cross-objection No.36-CII of 2004: 9. By way of this cross-objection, respondent no.2 has challenged the findings of the learned Tribunal vide which the insurance company has been absolved of liability by holding that the driving licence held by respondent No.1 was fake and forged. 10. The contention of learned counsel for the objector was that the driver was appointed after checking the licence, Exh. Rl, placed on record. The contention of the learned counsel was that the findings of the learned Tribunal cannot be sustained in view of the law laid down by the Hon ble supreme Court in the case of National insurance Co. The contention of learned counsel for the objector was that the driver was appointed after checking the licence, Exh. Rl, placed on record. The contention of the learned counsel was that the findings of the learned Tribunal cannot be sustained in view of the law laid down by the Hon ble supreme Court in the case of National insurance Co. Ltd. V/s. Swaran Singh, 2004 acj 1 (SC), wherein in sub-paras (vi) and (vii) of para 102, it has been held as under: " (vi) Even where the insurer is able to prove breach on the part of the insured concerning the policy condition regarding holding of a valid licence by the driver or his qualification to drive during the relevant period, the insurer would not be allowed to avoid its liability towards the insured unless the said breach or breaches of the condition of driving licence is/are so fundamental as are found to have contributed to the cause of the accident. The Tribunals in interpreting the policy conditions would apply the rule of main purpose and the concept of fundamental breach to allow defences available to the insurer under sec. 149 (2) of the Act. (vii) The question, as to whether the owner has taken reasonable care to find out as to whether the driving licence produced by the driver (a fake one or otherwise), does not fulfil the requirements of law or not will have to be determined in each case. " Keeping in view the law laid down by the Hon ble Supreme Court the findings of the learned Tribunal on the point of absolving the insurance company of its liability cannot be sustained. 11 In view of what has been stated above, the appeal as well as the cross-objection are allowed and compensation payable to the appellant is enhanced to rs.3,75,000 (rupees three lakh seventy-five thousand only) along with interest at the rate of 9 per cent per annum on the enhanced compensation from the date of institution of claim petition till realisation. Liability of the respondents shall be joint and several and the insurance company is directed to deposit the compensation payable to the appellant-claimant within two months from the date of receipt of a certified copy of the judgment. Appeal allowed.