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2008 DIGILAW 554 (HP)

UNITED INDIA INSURANCE CO. LTD. v. MEHAR DIN

2008-11-07

SANJAY KAROL

body2008
JUDGMENT : Sanjay Karol, J. 1. United India Insurance Co. Ltd., appellant herein has assailed the impugned award dated 7.5.2004 passed by Motor Accidents Claims Tribunal, Una, H.P. in M.A.C. Petition No. 15 of 2002 titled as Hazara Bibi v. Illam Din awarding compensation of Rs. 5,44,000 to the claimant who suffered 100 per cent permanent disability in the accident in question. 2. Hazara Bibi, the respondent No. 1 herein filed a claim petition u/s 166 of the Motor Vehicles Act (hereinafter referred to as 'the Act') claiming compensation for the injuries sustained by her in an accident which took place on 5.5.1997 at about 2.30 p.m. at Saluri, Police Station, Amb, District Una, H.P. The claimant was engaged for the purpose of bringing the bride and the dowry articles to her in-laws house as per the custom and as such was travelling in truck No. HP 19-2865. Illam Din, the driver drove the vehicle at a high speed and in a rash and negligent manner which caused the accident. The claimant who was given first aid at the local level was finally referred to and given medical treatment at Government Medical College, Chandigarh. She remained admitted in the hospital from 6.5.1997 up to 6.6.1997. Due to the injuries sustained by her she became bedridden as she suffered 100 per cent disability and without support could not even sit and had to take liquid diet. Even for ablutions she required an attendant which is a lifelong affair. Compensation of Rs. 50,000 towards medical treatment and Rs. 20,00,000 as a loss of income was claimed. 3. The driver chose not to contest the petition and owners, respondent Nos. 3 and 4 herein, filed a joint reply admitting the occurrence of the accident but clarified that the claimant was not a member of the marriage party. 4. The insurance company filed its reply taking various defences, including the one that the claimant was a gratuitous passenger and at the time of accident the driver was not possessing an effective and valid driving licence, therefore, the insurance company was not liable to indemnify the insured. 5.On the basis of the pleadings of the parties, the Tribunal framed the following issues: (1) Whether respondent No. 1 was driving the truck bearing No. HP 19-2865 on 5.5.1997 near village Saluri rashly and negligently resulting in injuries to petitioner as alleged? 5.On the basis of the pleadings of the parties, the Tribunal framed the following issues: (1) Whether respondent No. 1 was driving the truck bearing No. HP 19-2865 on 5.5.1997 near village Saluri rashly and negligently resulting in injuries to petitioner as alleged? OPP (2) If the issue No. 1 is proved whether petitioner is entitled for compensation, if so, to what amount? OPP (3) Whether the respondent No. 1 was not holding valid and effective driving licence to drive the truck as alleged? OPR 4 (4) Whether truck in question is being plied without valid R.C., fitness certificate and route permit as well as against terms and conditions of the insurance policy? OPR 4 (5) Whether passengers were being carried in truck No. HP 19-2865 for hire and reward in violation of the terms and conditions of the insurance policy? OPR 4 (6) Relief. 6. Appreciating the material on record, the Tribunal found that the accident had occurred due to rash and negligent driving of the vehicle by its driver Illam Din. The disability of the claimant (90 per cent) was assessed by the Board qua whole body including all the four limbs and she could not move without support. The disability certificate, Exh. PW2/A and the admission and discharge slip, Exh. PW1/A and Exh. PW6/A prove the same. Considering the age of the claimant to be 30 years and her income to be Rs. 2,000 per month by applying the multiplier of 16, compensation under the head of loss of income was determined to be Rs. 3,84,000. In addition thereto, Rs. 30,000 was awarded towards medical expenses, Rs. 50,000 on account of pain and suffering, Rs. 20,000 for loss of amenities of life, Rs. 10,000 on account of future expectation of life, Rs. 50,000 as expenses of the attendant and thus, a total sum of Rs. 5,44,000 was awarded as compensation to the claimant. 7. The Tribunal found the driver to have possessed an effective and valid driving licence and the claimant to have travelled, not as a gratuitous passenger but as a representative of the owner of the goods. 8. The scope of the appeal, filed by the insurance company is narrow. Mr. Behl, learned Counsel for the appellant has made the following submissions: (1) The Tribunal misdirected itself in holding that the driver possessed a valid and effective driving licence. 8. The scope of the appeal, filed by the insurance company is narrow. Mr. Behl, learned Counsel for the appellant has made the following submissions: (1) The Tribunal misdirected itself in holding that the driver possessed a valid and effective driving licence. (2) The version of the owner and the claimant that she was not a member of the marriage party and was employed to take care and load the goods was unbelievable in view of the first version of the occurrence of the accident as reported in the F.I.R., Exh. PW3/A. (3) In any event, keeping in view the provisions of Section 147 of the Act, the extent of liability of the insurer is restricted only to the extent payable under the Workmen's Compensation Act, 1923. 9. Per contra, Ms. Radhika Gautam, learned Counsel for the respondents has supported the award for the reasons set out therein. But, however, has fairly accepted the insurer's liability to the extent payable under Workmen's Compensation Act, 1923. 10. In view of the admitted position as also the provision of Section 147 of the Act, it is evident that the liability of the insurer is restricted to the amount payable under the Workmen's Compensation Act. 11. Having perused the record, I am not inclined to accept the submission made by Mr. Behl that the driver was not possessed of an effective and valid driving licence at the time of the accident. The Tribunal has extensively discussed the evidence and I am in agreement with the findings returned. Karam Din, owner, RW 1 has categorically deposed that he employed Illam Din as a driver and had seen his licence at the time of his employment. There is no cross-examination on this point at all. Hira Singh Gusain, Licensing Clerk, D.T.O., Dehradun, RW 2, has deposed that driving licence No. 36430/DD/1994 (old No. S-2448/RKS/ 1989) dated 7.1.89 was issued in the name of Arun Saklani. In cross-examination, he admitted that neither he had issued the licence nor had he brought the documents with regard to the said licence. He is not even aware of the D.T.O. posted at the time of the renewal of the licence or the stamp used by the D.T.O. while renewing the licence. Therefore, his testimony cannot be believed. In cross-examination, he admitted that neither he had issued the licence nor had he brought the documents with regard to the said licence. He is not even aware of the D.T.O. posted at the time of the renewal of the licence or the stamp used by the D.T.O. while renewing the licence. Therefore, his testimony cannot be believed. In fact, except for the said statement there is nothing on record to prove that the driving licence, mark 'A', allegedly belonging to the driver Illam Din was bearing the same number of licence issued by the D.T.O., Dehradun, in the name of Arun Saklani. The driving licence of Illam Din is not on record. Even the insurance company did not issue any notice asking for the same. Reliance was sought only on the driving licence mark 'A', allegedly collected during the investigation of the criminal case. The Tribunal has rightly held that the photocopy of the said document mark 'A' which does not fully disclose the parentage cannot be said to be that of the driver in question and relied upon. 12. This Court in New India Assurance Co. Ltd. Vs. Satya Parkash Thakur and Others, , has held that where the owner had proved that he had engaged a person possessing a valid licence to drive the vehicle, the onus to prove that another person not holding a valid driving licence was driving the vehicle with the knowledge of the owner or on account of some carelessness on the owner's part that the person not holding the licence came to drive the vehicle, was heavy on the insurer. In the present case, no such burden was discharged. 13. Keeping in view the ratio of law laid down by the Apex Court in National Insurance Co. Ltd. Vs. Swaran Singh and Others, from the material on record it can be safely concluded that the owner had been able to prove the precaution taken by him of checking the licence of the driver and it cannot be said that insurance company has been able to prove the burden that the insured was guilty of negligence and failed to exercise reasonable care in the matter of fulfilling the condition of the policy regarding use of vehicle by duly licensed driver or one who was not disqualified to drive at the relevant time. 14. 14. That the claimant was not a gratuitous passenger is evident from the record. Karam Din, RW 1 has categorically deposed that his truck was hired by one Niaz Din for bringing the dowry articles and he had sent the claimant Hazara Bibi along with the other two persons as labourer. They were deputed to load and unload the dowry articles for which labour charges were also paid. He has denied the suggestion that truck was carrying the marriage party or any other person except Hazara Bibi who was injured in the accident. He denied the suggestion that no person was engaged by him as labourer for bringing the dowry articles and clarified that he had charged Niaz Din for bringing the dowry articles. 15. Sudarshan Kumar, Head Constable, Police Station, Amb, PW 3, has proved on record the F.I.R., Exh. PW3/A. He did not investigate the matter. Except for proving on record the F.I.R. the outcome of the investigation and/or the trial, if any, has not been placed on record. Complainant Rukam Din on whose instance the F.I.R. was registered has also not been examined by the insurance company. Therefore, the contents of the F.I.R. disclosing the fact that the vehicle was carrying a marriage party and as a result of the accident various persons sustained injuries cannot be conclusively relied upon. The statement of RW 1 is clear, unambiguous and categorical. It is totally reliable and believable. 16. The statement of RW 1 stands duly supported by claimant Hazara Bibi, PW 4 who has deposed that on the day of the accident the owner of the truck Karam Din had employed her as a labourer for bringing the dowry articles. She has denied the suggestion that 35-40 persons were travelling as a marriage party and 2-3 persons sustained injuries in the accident. She has clarified that about 5-7 persons were travelling in the truck at the time of the occurrence of the accident. 17. The insurance company could have placed on record the outcome of the investigation from which it could have been inferred that defence taken by the owner was false, incorrect or concocted. 18. Importantly, it is not the case where other persons are also seeking claims against the owner or insurance company. Except for the instant claimant, no person has come forward claiming compensation. 18. Importantly, it is not the case where other persons are also seeking claims against the owner or insurance company. Except for the instant claimant, no person has come forward claiming compensation. Therefore, in my view, the F.I.R. cannot be relied upon to prove the contrary. 19. The fact that the vehicle in question was insured is evident from the insurance cover, Exh. RX and policy Clause IMT 17 which indemnifies the insured against the legal liability under the Workmen's Compensation Act, 1923, or at common law in respect of personal injury to any paid driver or person employed in loading/or unloading (restricted to seven in number) whilst engaged in the services of the insured in such occupation. 20. It is true that no record of employment or logbook, etc. hiring of the vehicle was produced by the insurer but it is equally true that the same was not sought for. In fact, the insurance company was only concentrating on its major defence that the driver was not holding a valid and effective driving licence. This is evident from the nature of the cross-examination and the evidence led by the insurer. Therefore, in my view, it cannot be held that the claimant was a gratuitous passenger or a member of the marriage party. The testimony of the appearing witnesses is clear, consistent and unshaken. 21. Considering the provisions of Section 147 of the Act, it is evident that the insurer is liable to pay the compensation to the owner of the goods or his authorised representative being carried in a goods carriage when the said vehicle met with an accident and such person suffered bodily injury. 22. The liability with regard to a gratuitous passenger travelling in goods carriage cannot be fastened on the insurer is well settled. National Insurance Co. Ltd. Vs. Anjana Shyam and Others, and United India Insurance Co. Ltd. Vs. Hira Lal and Others and Smt. Dropti and Another, But however in the present case the claimant is not a gratuitous passenger. 23. That liability of the insurer would be restricted only to the extent payable under the Workmen's Compensation Act, 1923 is not disputed by Ms. Radhika, the learned Counsel for the respondents. She has fairly brought to my notice the provisions of Section 147 of the Act and also the judgment of the Apex Court in National Insurance Co. Ltd. Vs. That liability of the insurer would be restricted only to the extent payable under the Workmen's Compensation Act, 1923 is not disputed by Ms. Radhika, the learned Counsel for the respondents. She has fairly brought to my notice the provisions of Section 147 of the Act and also the judgment of the Apex Court in National Insurance Co. Ltd. Vs. Prembai Patel and Others, 24. Mr. Behl has brought to my notice judgment delivered by the High Court of Karnataka in The Oriental Insurance Company Limited Vs. Thukarama Adappa and Others, After considering the development of the case-law by the Apex Court on the issue, as reported in Smt. Mallawwa Etc. Vs. The Oriental Insurance Co. Ltd. and Others, ; National Insurance Co. Ltd. Vs. Ajit Kumar and Others, ; National Insurance Co. Ltd. Vs. Baljit Kaur and Others, ; National Insurance Co. Ltd. Vs. V. Chinnamma and Others, ; New India Assurance Co. Ltd. Vs. Asha Rani and Others, ; New India Assurance Company Vs. Shri Satpal Singh and Others, ; Oriental Insurance Company Ltd. Vs. Devireddy Konda Reddy and Others etc. etc. and Jogi Subbamma and Others etc. etc., ; and Ramesh Kumar Vs. National Insurance Co. Ltd. and Others, , the court held that the insurance company is statutorily liable to pay compensation to the employee of the insured to the extent of the liability payable under the Workmen's Compensation Act, 1923. I, therefore, hold that the insurer shall be liable only to the extent of the amount determinable under the Workmen's Compensation Act, 1923. However, the entire awarded amount along with awarded interest shall be disbursed to the claimant and the insurance company would be entitled to recover the excess amount from the owner. 25. For the aforesaid reasons, the appeal is partly allowed.