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2008 DIGILAW 775 (DEL)

NEW INDIA ASSURANCE CO. LTD. v. DALBIR SINGH

2008-08-11

VIDYA BHUSHAN GUPTA

body2008
JUDGMENT : V.B. Gupta, J. 1. The present appeal u/s 173 of Motor Vehicles Act, 1988 (for short 'the Act') has been filed by appellant insurance company against the judgment and order dated 4.2.2008 passed by Mr. Suresh Chand Rajan, Judge, Motor Accidents Claims Tribunal (for short 'the Tribunal'), Delhi. 2. Brief facts of the case are that on 5.1.2002 at about 11 p.m. Dalbir Singh, respondent No. 1, aged 33 years, was going to his house on his scooter, one truck bearing registration No. HR 38-E 8698 being driven by Girwar Singh, respondent No. 2 came at a fast speed and in a rash and negligent manner hit the scooter of respondent No. 1. Due to impact, respondent No. 1 fell on the road and sustained injuries. 3. The respondent No. 1 filed the petition under Sections 166 and 140 of the Act claiming compensation of Rs. 25,00,000 against the respondent Nos. 2 and 3 herein being the driver as well as owner of the offending vehicle and the appellant herein, as the offending vehicle was insured with them. 4. Upon the petition being filed, summons were sent to the respondents. The respondent No. 2 who was driver as well as the owner of the offending vehicle in its written statement denied the factum of the accident as well as involvement of offending vehicle in any accident. 5. Appellant insurance company in its written statement pleaded that driver of the offending vehicle was not holding a valid and effective driving licence at the time of accident. 6. Vide impugned judgment, Tribunal awarded compensation of Rs. 13,10,650 along with interest at the rate of 7 per cent per annum from the date of filing of claim petition till its realization. 7. It has been contended by the learned Counsel for the appellant that the Tribunal perused only the copy of the alleged licence, which was taken into custody by the police at the time of accident. 13,10,650 along with interest at the rate of 7 per cent per annum from the date of filing of claim petition till its realization. 7. It has been contended by the learned Counsel for the appellant that the Tribunal perused only the copy of the alleged licence, which was taken into custody by the police at the time of accident. The Tribunal reached at wrong conclusion that licence was valid while during investigation by investigator and in its report and evidence produced before the Tribunal, it was found that the driver of the offending vehicle was not in possession of a valid driving licence and the driving licence in question was issued in the name of some Hussain s/o Baralam and not in the name of Girwar, i.e., respondent No. 2 and the date of the same was 23.3.2003. 8. Even the R.T.O. concerned admitted the fact that the licence in question is not in the name of the respondent No. 2, i.e., Girwar but this aspect has not at all been considered by the Tribunal and the appellant was not given any right of recovery, etc. Thus, there is clear violation of insurance policy by the driver and owner of the offending vehicle and so the insurance company has no liability of any kind for payment to the respondent No. 1-claimant. 9. The impugned order is also unsustainable being arbitrary and based on no evidence and without consideration and appreciation of the evidence on the record of the case. Compensation of Rs. 13,10,650 along with interest at the rate of 7 per cent seems to be on the higher side while, as per the present market scenario and as per RBI guidelines, the interest of 4 per cent is just and proper in the facts and circumstances of the case. 10. Appellant in its written statement filed before the Tribunal has taken certain preliminary objections. 11. Objection No. 1 (a) states that: The driver of the alleged vehicle who is alleged to be on the wheels at the time of accident was not possessing an effective driving licence for the type of vehicle alleged to have been involved in the accident. The breach of driving licence clause on the part of the insured was deliberate. 12. Objection No. 1 (a) states that: The driver of the alleged vehicle who is alleged to be on the wheels at the time of accident was not possessing an effective driving licence for the type of vehicle alleged to have been involved in the accident. The breach of driving licence clause on the part of the insured was deliberate. 12. The trial court on the pleading of the parties framed three issues and issue No. 3 reads as under: Whether the respondent No. 1 was not holding a valid and effective driving licence to drive the said truck at the time of accident in question, if so, to what effect? 13. On this issue, the finding given by the Tribunal is that: As far as the issue No. 3 is concerned, the R3 examined one Narender Kumar as R3W1 from District Transport Office, Gurgaon proving the issue No. 3. However, on the perusal of his statement he has given self-contradictory statement regarding possessing of driving licence by Rl. He deposed on oath that Girwar Singh s/o Chotu Ram, r/o village Basai, Distt. Gurgaon was holding a driving licence issued on 1.9.2000 which was valid till 31.8.2003 and he has further deposed that it was valid for HTV. He again deposed that duplicate licence was issued on 8.9.1998 and it was valid up to 24.7.2000. So he has no valid driving licence after 25.7.2000 to 31.8.2000 and he proved the relevant record of the register which is Exh. R3W1/A and this witness has not been cross-examined. However, as per criminal case record, I also perused the certified copy of the seizure memo of the driving licence in which the driving licence of Girwar Singh s/o Chotu Ram containing licence No. 1051/91 issued on 1.9.2000 valid till 31.8.2003 was taken into police custody on 13.5.2002 and I also perused its copy and concerned licence was taken into custody and it was valid up to 31.8.2003 and the accident had taken place on 5.1.2002 so this licence was valid for HTV. So in consideration of documents and Exh. R3W1/A, it is clear that at the time of the accident the Rl was holding a valid and effective driving licence. Hence, issue No. 1 is decided accordingly in favour of the petitioner and against the respondents and issue No. 3 is also disposed of accordingly. 14. So in consideration of documents and Exh. R3W1/A, it is clear that at the time of the accident the Rl was holding a valid and effective driving licence. Hence, issue No. 1 is decided accordingly in favour of the petitioner and against the respondents and issue No. 3 is also disposed of accordingly. 14. In the present case, admittedly as per the statement of the appellant's own witness, namely, Narinder Kumar (R3W1) the licence was issued to Girwar Singh s/o Chotu Ram, from 1.9.2000 which was valid till 31.8.2003 and it was valid for HTV. The duplicate licence was issued on 8.9.1998 and it was valid up to 24.7.2000. However, he had no valid driving licence from 25.7.2000 to 31.8.2000. 15. The accident in the present case took place on 5.1.2002 and thus, respondent No. 2 had a valid driving licence at the time of accident. Therefore, I do not find any force in contentions of learned Counsel for the appellant with regard to the fact that respondent No. 2 was not holding a valid and effective driving licence. 16. It was well established by various documents before the Claims Tribunal that the accident took place due to fault of the driver of the offending vehicle and in the cross-examination also no material has come which could discredit the case of the respondent No. 1. 17. As regard the contention of learned Counsel for appellant regarding excessive compensation, Tribunal awarded the following amount of compensation: Compensation on account of pain and suffering Rs. 50,000 Compensation on account of medicines, medical treatment Rs. 1,31,450 Compensation on account of conveyance and special diet Rs. 50,000 Compensation on account of permanent disability and loss of income Rs. 9,79,200 Compensation on account of physical Disfigurement Rs. 50,000 Compensation on account of loss of enjoyment and amenity of life Rs. 50,000 Total Rs. 13,10,650 18. It has come on record that respondent No. 1 is 33 years old and was getting the salary of Rs. 8,000 per month at the time of accident and his salary certificate is Exh. PW1/16. To prove this, respondent No. 1 examined three witnesses, namely, Anoop Singh, brother of Abhay Singh who was the employer of respondent No. 1; Rambir as PW 3 and Vinod Kumar as PW 4. By their testimonies it is proved that the respondent No. 1 was getting a salary of Rs. 8,000 per month. PW1/16. To prove this, respondent No. 1 examined three witnesses, namely, Anoop Singh, brother of Abhay Singh who was the employer of respondent No. 1; Rambir as PW 3 and Vinod Kumar as PW 4. By their testimonies it is proved that the respondent No. 1 was getting a salary of Rs. 8,000 per month. This fact has not been rebutted by the appellant. 19. Respondent No. 1 has deposed that he was working as a professional bus driver and was having HTV licence and his driving licence is Exh. PW1/15 and was working under the employment of Abhay Singh, village Samay Pur, at Post Ujjwa, Delhi and driving the bus under DTC. He further deposed that now he is not able to ply the bus due to amputation of his leg and has lost his job. 20. It is evident from the record that respondent No. 1 had suffered permanent disability. He has produced the disability certificate, Exh. PW1/14, according to which right below knee there is amputation and respondent No. 1 is physically handicapped and has 60 per cent permanent disability to his right lower limb. With this type of permanent disability where there is amputation of right leg below knee, there is no question that respondent No. 1 who was a professional bus driver would ever be able to drive a bus. 21. Thus, the Tribunal, rightly taking permanent disability to be 60 per cent, has awarded the loss of income as Rs. 9,79,200. After taking into consideration the monthly loss of income at Rs. 4,800 being 60 per cent of the monthly income and keeping in view the fact that the age of respondent No. 1 was 33 years at the time of accident, the Tribunal rightly applied the multiplier of 17. 22. Thus, I do not find any infirmity or illegality in the impugned judgment passed by the Tribunal. 23. The compensation awarded by the Tribunal is just, fair and equitable. 24. Accordingly, present appeal filed by the appellant is hereby dismissed. 25. Since, the appeal is not maintainable, the application for condonation of delay and the application for stay also stands dismissed. 26. No order as to costs. 27. Trial court record be sent back.