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2017 DIGILAW 2772 (PNJ)

United India Insurance Co. Ltd. v. Hardev Singh

2017-11-17

SUDHIR MITTAL

body2017
JUDGMENT Mr. Sudhir Mittal, J.:- This common judgment shall dispose of FAO Nos. 3, 4, 746 and 949of 1999, as all of them arise out of the same accident and the same award of theMotor Accident Claims Tribunal, Sirsa (hereinafter referred to as “the Tribunal”). 2. The bare facts of this case are that on 15.02.1993 Scooter bearingRegistration No. HR-20/1513 was being driven by claimant–Gurcharan Singh andclaimant–Hardev Singh was riding pillion. They were proceeding from Nagrana toKariwala. A jeep bearing Registration No. RJ-13-C/0016 came from opposite sideand was being driven in a rash and negligent manner. It struck against the scooterand as a result of this accident both Gurcharan Signh and Hardev Singh receivedinjuries. Hardev Singh became unconscious and he was taken to the hospital byGurcharan Singh. The parties shall be referred to in accordance with the Memo ofParties filed in FAO No. 3 of 1999. 3. Two claim petitions were filed one each by Gurcharan Singh andHardev Singh claiming compensation for injuries sustained on account of theaccident. Both these petitions have been decided together by the impugned award.Gurcharan Singh has been granted compensation of Rs.20,000/- whereas HardevSingh has been granted compensation of Rs.1,50,138.95. The claimants have alsobeen held entitled to interest @ 6% per annum from the date of filing of claimpetition till the date of realization. “Owner”, driver and the Insurance Companyhave been held liable to pay the amount of compensation jointly and severally. 4. Since two separate claim petitions had been preferred, the InsuranceCompany has filed two separate appeals challenging its liability to pay thecompensation. Two other appeals have been filed by the Cooperative BankDamdama, Tehsil Rania, District Sirsa, “owner” of the vehicle, also challenging theliability foisted upon it. 5. It is not in dispute that Atma Ram–respondent No. 3 was the registeredowner of the offending vehicle. He sold it to Ram Partap–respondent No. 4 whofurther sold it to Shamsher Singh–respondent No. 5. In the month of November1992, said Shamsher Singh hired it out to Cooperative Bank, Sirsa, who took thevehicle for recovery purposes of Cooperative Bank, Damdama–respondent No. 6.Cooperative Bank, Sirsa is not party in these proceedings. 6. It was pleaded before the Tribunal that the accident was caused due torash and negligent driving of the driver of the offending vehicle. In the month of November1992, said Shamsher Singh hired it out to Cooperative Bank, Sirsa, who took thevehicle for recovery purposes of Cooperative Bank, Damdama–respondent No. 6.Cooperative Bank, Sirsa is not party in these proceedings. 6. It was pleaded before the Tribunal that the accident was caused due torash and negligent driving of the driver of the offending vehicle. On the basis of theevidence on record, the Tribunal has returned a finding of fact that the driver of theoffending vehicle caused the accident on account of his rash and negligent driving.The said finding is not under challenge in these appeals and is thus affirmed. 7. The dispute for decision is as to who is liable to pay the compensationin the prevailing fact situation. It is not in dispute that the Insurance Company hasalready paid the amount of compensation determined by the Tribunal and if at all itsucceeds it would get the right to recover the amount of compensation paid from the”owner”. 8. Learned counsel for the Insurance Company has argued that as per thefinding of the Tribunal, the vehicle was under control of Cooperative Bank–respondent No. 6 on the date of the accident. It is an admitted fact that ShamsherSingh had hired out the vehicle to the said respondent. In view of these admittedfacts the arguments raised are that - (i) The Insurance Company can not be held liable because contractof Insurance is a contract of indemnity and there is no privity ofcontract between the insurance company and respondent No. 6, hence,there is no question of any liability. (ii) Since the offending vehicle was registered and insured as aprivate vehicle, it could not have be3en hired out by the owner; therewas thus a breach of the terms of the certificate of insurance and on thisaccount also the Insurance Company is absolved of its liability. 9. On the other hand it has been submitted that “owner” refers to a personwho is in possession of the vehicle on the date of the accident; further, statutorily, acertificate of insurance is transferred to the purchaser of a vehicle of a motor vehicleand as a result thereof there exists a privity of contract between the InsuranceCompany and the person to whom the vehicle has been sold. Reliance has beenplaced upon Division Bench judgment of this Court in United India Insurance Co.Ltd. vs. Sharanjit Kaur and others, 2005(1) PLR 34 and a judgment of the Hon’bleSupreme Court in HDFC Bank Ltd. vs. Kumari Reshma and others, [2014(5) Law Herald (SC) 4033 : 2015(1) Law Herald (P&H) 277 (SC) : 2014 LawHerald.Org 2183] : 2015(1) RCR(Civil) 1. 10. Section 2(30) of the Motor Vehicles Act. 1988 (hereinafter referred toas the Act) and Section 157 thereof are being reproduced below:- “2(30). “owner” means a person in whose name a motor vehiclestands registered, and where such person is a minor, the guardian ofsuch minor, and in relation to a motor vehicle which is the subject of ahire-purchase agreement, or an agreement of lease or an agreement ofhypothecation, the person in possession of the vehicle under thatagreement.” 157. Transfer of certificate of insurance. – (1) Where a person inwhose favour the certificate of insurance has been issued inaccordance with the provisions of this Chapter transfer to anotherperson the ownership of the another vehicle in respect of which suchinsurance was taken together with the policy of insurance relatingthereto, the certificate of insurance and the policy described in thecertificate shall be deemed to have been transferred in favour of theperson to whom the motor vehicle is transferred with effect from thedate of its transfer. [Explanation.—For the removal of doubts, it is hereby declared thatsuch deemed transfer shall include transfer of rights and liabilities ofthe said certificate of insurance and policy of insurance.] (2) The transferee shall apply within fourteen days from the date oftransfer in the prescribed form to the insurer for making necessarychanges in regard to the fact of transfer in the certificate of insuranceand the policy described in the certificate in his favour and the insurershall make the necessary changes in the certificate and the policy ofinsurance in regard to the transfer of insurance. 11. In this case also the offending vehicle has been sold a number of times. 12. Applying the ratio of the above judgment, and in view of the provisionsof Section 157 of the Act, there is a deemed transfer of the certificate of insurance infavour of Shamsher Singh - respondent No. 5 on the date of the accident. 11. In this case also the offending vehicle has been sold a number of times. 12. Applying the ratio of the above judgment, and in view of the provisionsof Section 157 of the Act, there is a deemed transfer of the certificate of insurance infavour of Shamsher Singh - respondent No. 5 on the date of the accident. ShamsherSingh was, however, not “owner” as he had further hired out the vehicle to theCooperative Bank–respondent No. 6 and the said respondent was in possession ofthe vehicle on the date of the accident. Thus, the “owner” was respondent No. 6 andthe liability to pay compensation is the “owner” and driver of the vehicle being thetortfeasors. This principle has been incorporated in Section 158 of the Act.Respondent No. 6 would be entitled to recover this amount from respondent No. 5 interms of agreement dated 12.11.1992. 13. The Insurance Company would be absolved of its liability as it did nothave any privity of contract with the Cooperative Bank–respondent No. 6 and alsobecause the offending vehicle was being used in breach of the terms of thecertificate of insurance. A perusal of the award shows that breach of the terms ofthe certificate of insurance was specifically pleaded before the Tribunal and noevidence to the contrary has been produced either by Shamsher Singh–respondentNo. 5 or the Cooperative Bank–respondent No. 6. 14. Mr. Rajesh Sethi, Advocate appearing for both the claimants furthersubmits that although no appeal or cross objections have been filed by either of theclaimants, the Appellate Court has power to enhance the amount of compensationgranted to the claimants on the principle that a Tribunal or a Court is duty boundunder the provisions of the Act to grant “just” compensation. In this regardreference has been made Nagappa vs. Gurdayal Singh and others, 2003(1) RCR(Civil) 258, Sanobanu Nazirbhai Mirza and others vs. AhmedabadMunicipal Transport Service, [2013(6) Law Herald (SC) 4584 : 2014(1) Law Herald (P&H) 177 (SC)] : 2013(4) RCR(Civil) 732and Ibrahim vs. Raju,2011(4) RCR(Civil) 863. 15. A perusal of these judgments shows that reliance has been placed uponSection 158(4)&(6), Section 166 and Section 168 of the Act, to hold that theTribunal/Court is duty bound to award just compensation irrespective of thepleadings regarding quantum of compensation. There is no restriction on theTribunal to grant compensation more than that claimed. Infact, compensation, underusual heads even if not claimed, can be granted. There is no restriction on theTribunal to grant compensation more than that claimed. Infact, compensation, underusual heads even if not claimed, can be granted. There can be no quarrel with thisproposition of law but the said judgment can not come to the rescue of the claimantsin this case because no appeal has been preferred by them at all against theimpugned award. In all the cases, upon which reliance has been placed theappellants before the Hon’ble Supreme Court were the claimants themselves. 16. The matter, however, does not end here. Section 169 of the Act vestspower of Civil Court in the Tribunal and declares such Tribunal to be a Civil Courtfor the purposes of Section 195 of the Act and Chapter XXVI of the Cr.P.C. 1973.Thus, the provisions of Order 41 Rule 33 CPC are applicable to proceedings underthe Act. Reference in this regard can be made to a Single Bench judgment of theDelhi High Court National Insurance Co. Ltd. vs. Komal and others, 2013(8) RCR(Civil) 375as well as the judgment of Madras High Court in Royal SundaramAlliance Insurance Company Limited vs. T. Selvarani, 2017 ACJ 396 .The saidjudgments, on examination of case law on the subject, hold that Order 41 Rule 33CPC can be invoked to enhance compensation even where no appeal or crossobjections have been filed by the claimants. 17. Having perused the said judgments, I am respectfully in agreement withthem and I choose to follow the same. So far as the claimant Hardev Singh isconcerned, it is not in dispute that he was an agriculturist and earning about Rs.5000/-per month. PW-3 Dr. Ashok Kumar Bishnoi, Orthopaedic Surgeon at CivilHospital, Sirsa has deposed that Hardev Signh had a compound fracture of right legbone which was fixed with external fixtor on 16.02.1993, another operation in theform of skin grafting was done on 05.03.1993 and third operation was performed on18.05.1993, since there was discharge of puss from his wounds, on the thirdoccasion, bone grafting had to be done. He further stated that permanent disabilityof 25% has been suffered by Hardev Singh and he has been rendered incapacitatedto pursue agriculture. The disability certificate has been produced on record as Ex.P8. Medical bills Ex. P-1 to Ex. P-6 and Ex. P-13 to Ex. P-44 have also beenproduced on record which add upto Rs.25,138.95. 18. He further stated that permanent disabilityof 25% has been suffered by Hardev Singh and he has been rendered incapacitatedto pursue agriculture. The disability certificate has been produced on record as Ex.P8. Medical bills Ex. P-1 to Ex. P-6 and Ex. P-13 to Ex. P-44 have also beenproduced on record which add upto Rs.25,138.95. 18. Learned counsel has relied upon Supreme Court judgment in G.Dhanasekar vs. M.D. Metropolitan Transport Corporation Ltd., [2014(1) Law Herald (SC) 903 : 2014(2) Law Herald (P&H) 1659 (SC)] : 2014(1) RCR(Civil) 993to contend that in the case of disability, compensation has to begranted by determining the functional disability incurred and not solely on the basisof percentage of disability determined by a Medical Board. It is his contention thataccording to the evidence on record Hardev Singh has been rendered unfit toperform the functions of an agriculturist and is entitled to be compensatedaccordingly. He has further contended that fixed amount granted by the learnedTribunal on account of permanent disability and loss of earning capacity areinsufficient and invalid. 19. I am inclined to agree with the learned counsel. The evidence onrecord indicate that Hardev Singh has become unfit for agriculture, thus, hisfunctional disability is 100% although permanent disability of right leg is only 25%.The compensation granted by the Tribunal is enhanced by following the judgment ofthe Hon’ble Supreme Court of India in Yadav Kumar vs. The Divisional ManagerNIA Company Ltd., 2010(4) RCR(Civil) 155. Taking Rs.5000/- to be the monthlyincome of Hardev Singh and deducting 1/3rd for personal expenses the annualdependency works out to Rs.39,996/-. Since the age of the claimant is not evidentfrom the record, I choose to apply multiplier of 13 and the dependency, thus, worksout to Rs.5,19,948/-. Apart from that the claimant Hardev Singh is also entitled to asum of Rs.25,138.95 on account of medical expenses. He is further entitled to a sumof Rs.5000/- on account of pain and suffering (in accordance with Schedule II of theAct). Accordingly, the total compensation is assessed as Rs.5,50,086/-. 20. The appeals filed by the Insurance Company are, thus, partially allowed and those filed by the Cooperative Bank, Damdama are dismissed. The InsuranceCompany is directed to pay the enhanced amount of compensation alongwithinterest @ 7.5% per annum within a period of three months from the date of receiptof a certified copy of this judgment. 20. The appeals filed by the Insurance Company are, thus, partially allowed and those filed by the Cooperative Bank, Damdama are dismissed. The InsuranceCompany is directed to pay the enhanced amount of compensation alongwithinterest @ 7.5% per annum within a period of three months from the date of receiptof a certified copy of this judgment. It would, however, be entitled to recover theamount paid by it from the Cooperative Bank, Damdama, Tehsil Rania, DistrictSirsa, who in turn would be entitled to make recovery from Shamsher Singh–respondent No. 5 and Tarsem Singh–respondent No. 7 (driver of the offendingvehicle) in accordance with law.