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2011 DIGILAW 1637 (RAJ)

Deepak Kumar v. Nigam Singh

2011-08-08

N.K.MODY

body2011
Hon'ble MODY, J.—This order shall also govern disposal of M.A.No.1939/2008, M.A.No.1946/2008 and M.A.No.2436/2008 as in all the appeals the award under challenge is dated 11.4.2008 passed by MACT, Dewas. In M.A.No.2435/2008 appellant injured is Deepak, whose Claim Case No.1930/2008 and by the award learned Tribunal has assessed the compensation of Rs.5,75,932/- out of which 30% has been deducted on account of contributory negligence and the amount, which is payable is Rs.4,03,152/-. Cross appeal filed by respondent No.2 is M.A.No.1939/2008. In M.A.No.2436/2008 Deepak has challenged the findings regarding contributory negligence in Claim Case No.192/2008 of which cross appeal filed by the respondent No.2 Insurance Company is M.A.No.1946/2008. In this case award is in a death case for a sum of Rs.3,42,568/- on account of death of Vikram Singh, wherein appellant has been held liable for payment of 30% of the awarded amount. 2. Short facts giving rise to these appeals are that on 21.12.2003 at about 7.30 PM appellant Deepak was going on his motor bike bearing registration No.MP-13-BA-0999. One Phool Singh was the pillion rider on the said motor bike. The other motor bike, which was coming from the opposite direction bearing registration No.MP-09-JA-6262, which was owned and driven by Nigam Singh and Vikram Singh was the pillion rider. The vehicle, which was owned by Nigam Singh was insured with respondent No.2. In the claim petition filed by Deepak appellant herein alleged that because of rash and negligent driving of motor bike, which was being driven by Nigam Singh the accident took place in which Vikram Singh, who was the pillion rider on the motor bike, which was driven by Nigam Singh, died and Deepak, who was driving motor bike bearing registration No.MP-13-BA-0999, sustained grievous injuries. It was alleged that appellant sustained fracture of left wrist, left hand, left ankle, left clavicle, lower jaw and also lost five teeth and other parts of the body were dislocated and also the lever was damaged. Appellant was hospitalized. It was alleged that since the accident occurred because of rash and negligent driving of Nigam Singh and the vehicle was also owned by Nigam Singh, which was insured with respondent No.2, therefore, claim petition be allowed and compensation be awarded. 3. Appellant was hospitalized. It was alleged that since the accident occurred because of rash and negligent driving of Nigam Singh and the vehicle was also owned by Nigam Singh, which was insured with respondent No.2, therefore, claim petition be allowed and compensation be awarded. 3. The other claim petition was filed by legal representatives of deceased Vikram Singh alleging that because of rash and negligent driving of Nigam Singh accident occurred in which Vikram Singh died, therefore, claim petition be allowed and compensation be awarded. 4. The claim petitions were contested by respondent No.2 on the ground that the offending vehicle, which was being driven by Deepak was uninsured and the vehicle, which was insured with respondent No.2 was owned and driven by Nigam Singh for which he was not possessing valid license. It was alleged that since accident occurred due to rash and negligent driving of Deepak, therefore, Insurance Company is not liable for payment of compensation. It was prayed that both claim petitions be dismissed. After framing of issues and recording of evidence learned Tribunal allowed the claim petition filed by appellant Deepak and assessed the compensation at Rs.5,75,932/- and after deducting 30% towards contributory negligence awarded compensation of Rs.4,03,152/-. So far as claim petition filed by the legal representatives of deceased Vikram Singh is concerned, learned Tribunal allowed the claim petition and awarded compensation of Rs.3,42,568/- on account of death and held the appellant Deepak liable for compensation to the extent of 30% as he was also held liable for the accident to the extent of 30%. Being aggrieved by the findings recorded against appellant Deepak, two appeals have been filed, wherein findings of contributory negligence is challenged and it is also challenged that the amount awarded is on lower side. In other two appeals filed by the Insurance Company the liability is challenged. 5. Shri R.D.Bapat, learned counsel for appellant, argued at length and submits that looking to the injuries sustained in which appellant sustained number of fractures and hospitalized in number of hospitals for a period of six months, compensation awarded by the learned tribunal is grossly inadequate. It is submitted that learned Tribunal assessed a sum of Rs.5,75,932/-, break up of which is as under :- Rs. 2,70,932/- Towards medical expenses. Rs. 1,00,000/- Towards pain and suffering. Rs. 1,00,000/- Towards permanent disability. Rs. 5,000/- Towards damage to the vehicle. Rs. It is submitted that learned Tribunal assessed a sum of Rs.5,75,932/-, break up of which is as under :- Rs. 2,70,932/- Towards medical expenses. Rs. 1,00,000/- Towards pain and suffering. Rs. 1,00,000/- Towards permanent disability. Rs. 5,000/- Towards damage to the vehicle. Rs. 1,00,000/- Towards loss of future income. Rs. 5,75,932/- Total 6. Learned counsel submits that on number of heads no amount has been awarded. Learned counsel submits that appellant has examined six doctors to prove the injuries sustained by the appellant. The disability sustained by the appellant was to the extent of 60%. It is submitted that Dr. Joseph Ibrahim, who is Dentist, has given certificate P/353 according to which the loss of working capacity of the mouth is to the extent of 80%. It is submitted that Dr. Kucheria, who has given the certificate Ex.P/172 according to which there is dis-figuration. It is submitted that in the facts and circumstances of the case amount awarded is grossly inadequate, which deserves to be enhanced. So far as contributory negligence is concerned, learned counsel submits that criminal case was registered against appellant as well as against Nigam Singh. It is submitted that in the said accident Nigam Singh did not sustain any injury. It is submitted that spot map was prepared by the Police, which is Ex.P/4, which shows that accident occurred on left side of the road and appellant sustained injuries on left part of the body, which indicates that accident occurred because of rash and negligent driving of Nigam Singh. It is submitted that no investigation was got done by the respondent No.2 to find out that in what circumstances the accident occurred. It is submitted that no evidence was adduced by respondent No.2. It is submitted that in a claim petition filed by Shantabai and others, who are the legal representatives of deceased Vikram Singh in which Nigam Singh has admitted that accident occurred because of his rash and negligent driving, which shows that accident occurred because of rash and negligent driving of Nigam Singh. It is submitted that Vikram Singh was the pillion rider on the motor bike, which was driven by Nigam Singh, who did not sustain injuries, while the appellant sustained all the injuries on left side of the body, which indicates that accident occurred due to rash and negligent driving of Nigam Singh. 7. It is submitted that Vikram Singh was the pillion rider on the motor bike, which was driven by Nigam Singh, who did not sustain injuries, while the appellant sustained all the injuries on left side of the body, which indicates that accident occurred due to rash and negligent driving of Nigam Singh. 7. Shri P.K.Gupta, learned counsel for respondent No.2, submits that so far as liability of respondent No.2 Insurance Company in the case of deceased Vikram Singh is concerned, since he was the pillion rider and the liability of the pillion rider was not covered under the policy, therefore, respondent No.2 is not liable to pay compensation to the legal representatives of deceased. Learned counsel further submits that since driver of the offending vehicle Nigam Singh respondent No.1 was not possessing the valid driving license as it was admitted by himself, therefore, respondent No.2 is not liable for payment of compensation to the legal representatives of deceased Vikram Singh and also to the appellant Deepak as the offending vehicle was being driven by Nigam Singh in violation of terms of policy. 8. So far as the claim petition filed by Deepak is concerned, learned counsel submits that since the offending vehicle was not insured and Deepak was also liable for accident, therefore, Insurance Company was not liable for payment of compensation. It is submitted that Phool Singh was the best witness, who has to be examined but he was not examined for the best reasons known to them. It is submitted that appeal filed by Deepak be dismissed and the appeals filed by Insurance Company be allowed and the Insurance Company be exonerated from payment of compensation. 9. From perusal of the record it appears that to prove the case appellant Deepak has filed the documents, which are Ex.P/1 to P/574. Ex.P/1 to P/17 are the documents relating to criminal case. Ex.P/1 is the final report of Crime No.994/2004. After investigation Pawan Sharma, S.I., has submitted the report to the Court to the effect that because of rash and negligent driving of Nigam Singh respondent the accident occurred in which Deepak sustained injuries. Ex.P/4 is the spot map, which shows that the accident was not on the middle of the road. Ex.P/1 is the final report of Crime No.994/2004. After investigation Pawan Sharma, S.I., has submitted the report to the Court to the effect that because of rash and negligent driving of Nigam Singh respondent the accident occurred in which Deepak sustained injuries. Ex.P/4 is the spot map, which shows that the accident was not on the middle of the road. Ex.P/7 is the final report, which is also submitted by Pawan Sharma, S.I., wherein it is stated that because of rash and negligent driving of Deepak Sharma, Vikram Singh died and Nigam Singh sustained injuries. This shows that the Investigating Officer was of the view that accident occurred because of rash and negligent driving of Nigam Singh and Deepak Sharma. AW-1 Shantabai, who is wife of deceased Vikram Singh, was examined. Nanak Singh was examined as AW-2, appellant Deepak was examined as AW-3, Dr.Dharmendra Tiwari was examined as AW-3, Dr.Sanjay Kucheria as AW-4, Dr.Joseph Ibrahim as AW-5, Dr.Suresh Thakur as AW-7, Shailendra Kumar Joshi as AW-8, Suresh Kalarton as AW-9, Dr.Abhay Jain as AW-10, Harishkumar Sharma as AW-12, while respondent No.1 Nigam Singh examined himself as NAW-1, Pratipal Singh as NAW-2 and Ashok Kumar Jain as NAW-3. 10. Undisputedly, Nigam Singh respondent No.1, who was the owner of the offending vehicle bearing registration No.MP-09-JA-6262, which was insured with respondent No.2 Insurance Company was driving the motor bike while possessing no license. Respondent No.1 himself was owner of the vehicle at the relevant time. Section 5 of Motor Vehicles Act lays down that no owner or person in charge of a motor vehicle shall cause or permit any person, who does not satisfy the provisions of Section 3 or Section 4 to drive the vehicle. Section 3 of the act deals with the necessity for driving licence. In the present case the driver himself is owner of the vehicle. In the matter of National Insurance Co.Ltd. vs. Swaran Singh, reported in 2004 ACJ 1 = RLW 2004(2) SC 161, the Hon'ble Apex Court while dealing with the situation when no licence was obtained by a driver, it was held that motor vehicle must be driven by a person having a driving licence. In the matter of National Insurance Co.Ltd. vs. Swaran Singh, reported in 2004 ACJ 1 = RLW 2004(2) SC 161, the Hon'ble Apex Court while dealing with the situation when no licence was obtained by a driver, it was held that motor vehicle must be driven by a person having a driving licence. The owner of a motor vehicle in terms of Section 5 of the Act has a responsibility to see that no vehicle is driven by a person, who does not satisfy the provisions of Section 3 or 4 of the Act. In a case, therefore, where the driver of the vehicle, who is also the owner admittedly did not hold any licence drives the vehicle, the insurer is entitled to succeed in its defence and avoid liability. In the matter of Sardari vs. Sushil Kuamar, reported in 2008 ACJ 1307 , wherein in a accident tractor driver admitted that he had no licence to drive tractor, it was held that claimants are entitled to compensation from driver and owner and it was also held by the Apex Court that Insurance Company was rightly exempted from the liability. 11. In the matter of Jawahar Singh vs. Bala Jain, reported in 2011(3) Supreme 742 = 2011(1) CCR 549 (SC) = 2011(3) RLW 2049 (SC), wherein the motor cycle was driven by minor not having a driving licence, the Apex Court held that MACT has rightly fixed the liability on the owner. However, it was observed that learned MACT rightly saddled the liability for payment of compensation on the Insurance Company and Insurance Company was directed to pay the awarded amount and thereafter recover the same from the owner. In the matter of Kusum Lata vs. Satbir, reported in 2011(2) Supreme 207 = 2011(1) CCR 393 (SC), the Hon'ble Apex Court held that even if the Insurance Company disputes the licence of the driver, it has to pay the compensation, however, recover the same from the owner of the vehicle. 12. So far as the amount of compensation is concerned, it appears that on number of heads no amount is awarded and on number of heads the amount awarded is on lower side. Keeping in view all the facts and circumstances of the case, appellant is entitled for the following amount.:- Rs. 3,00,392/- Towards medical expenses. Rs. 1,00,000/- Towards pain and suffering. Rs. 1,50,000/- Towards permanent disability. Rs. Keeping in view all the facts and circumstances of the case, appellant is entitled for the following amount.:- Rs. 3,00,392/- Towards medical expenses. Rs. 1,00,000/- Towards pain and suffering. Rs. 1,50,000/- Towards permanent disability. Rs. 5,000/- Towards damage to vehicle. Rs. 1,00,000/- Towards loss of income. Rs. 25,000/- Towards transport expenses. Rs. 25,000/- Towards special diet. Rs. 25,000/- Towards expenses incurred on attender. Rs. 6,30,000/- Total 13. Thus, the appellant is entitled for a sum of Rs.6,30,000/-, instead of Rs.5,75,932/- awarded by the learned Tribunal. The enhanced amount of Rs.54,068/- shall carry interest @ 8% per annum from the date of application. 14. So far as contributory negligence is concerned, the appellant was also negligent as the criminal case was registered against the appellant. Appellant was driving the vehicle, which was uninsured and the best and independent witness, who was Phool Singh was not examined, however, keeping in view the injuries sustained by the appellant in the said accident, it appears that learned Tribunal committed error in holding the appellant liable for accident to the extent of 30%, which ought to have been 20%. So far as the liability of the respondent No.2 is concerned, it is true that Nigam Singh respondent No.1 was not having any driving licence but the offending vehicle was duly insured. In the facts and circumstances of the case right to recover ought to have been given to the respondent No.2. Keeping in view the Circular dated 16.11.2009 issued by Insurance Regulatory and Development Authority undisputedly respondent No.2 Insurance Company is liable for damages sustained by the pillion rider. In view of this both the appeals filed by appellant Deepak are allowed in part by holding the appellant liable for accident to the extent of 20% by enhancing the compensation as stated above. So far as findings of contributory negligence in the matter of deceased Vikram Singh is concerned, since Vikram Singh was pillion rider, therefore, driver of both the vehicles were joint tort feasors and the the legal representatives of deceased Vikram Singh are entitled to receive the compensation from any of them. 15. With the aforesaid observations all the appeals stand disposed of. Let copy of this order be placed in the record of connected appeals. No order as to costs.