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2019 DIGILAW 3210 (PNJ)

Gurmeet Chand v. Jagtar Singh And Others

2019-11-28

H.S.MADAAN

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JUDGMENT H.S. Madaan, J. - On account of suffering injuries in a motor vehicular accident, which took place on 16.10.2002 at about 1:10 p.m. in the area of village Singriwala, P.S. Sadar Hoshiarpur, statedly on account of rash and negligent driving of Gypsy bearing registration No.HR-3A-3485 (hereinafter referred to as the offending vehicle) by respondent No.2 - Dasjinder Singh, petitioner/claimant Jagtar Singh aged about 32 years had brought a claim petition under Section 166 of the Motor Vehicles Act, 1988 against respondents i.e. Gurmeet Chand - owner, Dasjinder Singh - driver and National Insurance Limited - insurer of the offending vehicle, claim compensation. 2. On being put to notice, all the three respondents put in appearance and filed written statements contesting the claim petition praying for its dismissal. 3. Issues on merits were framed and the parties were afforded adequate opportunities to lead evidence. 4. On conclusion of trial, after hearing arguments learned Motor Accidents Claims Tribunal, Hoshiarpur (hereinafter referred to as the Tribunal) vide award dated 27.7.2005 allowed the claim petition and awarded compensation of Rs.2,36,860/- in favour of the claimant and against respondents No.1 to 3 with the observations that respondent - insurance company shall be liable to make payment of the amount of compensation to the claimant, however, it could recover the same from respondent No.1. The respondents were afforded two months time to make the payment of the amount of compensation awarded to the claimant and if the payment was not made within such period, then the claimant would be entitled to get interest at the rate of 6% per annum from the date of institution of the claim petition. 5. Such award left the respondent No.1 - owner of the offending vehicle aggrieved and he has knocked at the door of this Court praying that the appeal be accepted, the award under challenge be set aside. Respondent No.1 - claimant has put in appearance through counsel and filed cross-objections seeking enhancement of compensation. Respondent No.3 - insurance company also appeared through counsel. 6. I have heard learned counsel for the parties besides going through the record. 7. First coming to FAO-885-2006 filed by owner. 8. It may be mentioned here that the Tribunal had struck issue No.2 with regard to the fact that whether the respondent No.2 was not holding a valid driving licence at the time of accident. 6. I have heard learned counsel for the parties besides going through the record. 7. First coming to FAO-885-2006 filed by owner. 8. It may be mentioned here that the Tribunal had struck issue No.2 with regard to the fact that whether the respondent No.2 was not holding a valid driving licence at the time of accident. Such issue has been disposed of with the following observations: 15. I have weighed the rival contentions of ld. counsel for the parties. Mere assertions of the respondent No.1 that he made inquiry about the validity of the licence of respondent No.2 is itself is not sufficient to hold that the driving licence held by respondent No.2 was valid and genuine. Driving licence copy of which was furnished by respondents Nos.1 and 2 was got verified from the concerned Regional Transport Office, Raipur (Chhattisgarh) by deputing a Local Commissioner Sh.Rohit Sharma, Advocate, who even recorded the statement of Rajesh Kumar Bhargav, Licencing Clerk which clearly reflects that the driving licence bearing No.R/7715 dated 17.11.2000 was not issued by the abovesaid office. Rather, the same stands in the name of Rajesh Singh son of Balram Thakur r/o Maya Para Raipur. So, when the driving licence hold by respondent No.2 has been held to be forged and fabricated or fake one, the owner cannot escape from his liability. Statement made by Gurmeet Chand with regard to the conducting of the inquiry from the office of D.T.O. Amritsar cannot be prevail upon evidence brought on record by respondent No.3, by getting deputing Sh.Rohit Sharma as Local Commissioner. It is also clear from letter dated 17.9.2003 issued by the Licencing Authority, Raipur that Driving Licence No.R/7715/MP in the name of Daljinder Singh was not issued from his office. So, in such circumstances, it is observed that licence held by respondent No.2 Daljinder Singh at the time of accident is forged, fake and fictitious one and was not valid one. This issue is decided in favour of respondent No.3 - Insurance Company. 9. However, considering the facts and circumstances of the case it comes out that the Tribunal has committed an error in granting recovery rights to the insurance company. This issue is decided in favour of respondent No.3 - Insurance Company. 9. However, considering the facts and circumstances of the case it comes out that the Tribunal has committed an error in granting recovery rights to the insurance company. Respondent No.1 - Gurmeet Chand, owner of the offending vehicle getting his statement recorded as RW2 had categorically stated that he is owner of the gypsy in question and he had employed respondent No.2 - Dasjinder Singh as driver after verifying the licence from DTO Office, Amritsar and that before employing him as driver, he had taken trialof the driver; his licence was duly renewed from the office of DTO, Amritsar and a new copy of the same issued to him; he had employed him as driver-cum-gunman in the year 1999; he was driving the vehicle at a very slow speed and on its correct side of the road. 10. Learned counsel for the appellant has referred to various judgments in support of his contention that unless the insured is found to be grossly negligent while employing a driver, the insurance company cannot come up with a plea that terms and conditions of the insurance policy had been violated. 11. The first authority referred to was United India Insurance Company Ltd. Versus Lehru and Ors, (2003) 2 RCR(Civil) 278 by the Apex Court wherein while dealing with the liability of insurer in a claim petition when driving licence of the driver of the vehicle was found to be fake, it was observed that breach of contract by owner of insured vehicle must be established by the insurance company to avoid its liability with regard to third party claim. The Insurance Company can recover from the owner only if it is proved that the vehicle was knowingly and intentionally handed over to a driver not holding any valid licence to drive such vehicle and if the licence held by the driver seems to be valid on the face of it, the owner is not expected to make a roving inquiry to find out its validity and that without proving knowledge and intention of the owner, breach of conditions of policy cannot be attributed to the insured. 12. The second authority referred to by learned counsel for the appellant was National Insurance Co. 12. The second authority referred to by learned counsel for the appellant was National Insurance Co. Ltd. Versus Swaran Singh and others, (2004) ACJ 1 wherein answering a question, whether insurance company in order to avoid its liability towards insured has to prove that the insured was guilty of negligence and failed to exercise reasonable care in the matter of fulfilling conditions of the policy regarding driving of vehicle by a duly licensed driver or one who was not disqualified to drive at the relevant time, in affirmative, it has been observed that mere absence, fake or invalid licence or disqualification of the driver for driving, are not in themselves defences available to the insurance company. 13. Learned counsel for the appellant has also pressed into service Pepsu Road Transport Corporation Versus National Insurance Company, (2013) 4 RCR(Civil) 273 , wherein it was observed that when an accident is caused by a driver, who possessed a fake driving licence, the insurance company is liable to pay compensation and not the owner of the vehicle. 14. On the other hand, learned counsel for the respondent No.3 - insurance company has argued that once the licence possessed by the driver was found to be fake, the subsequent renewal would not make it valid and the owner insured has failed to explain as to what care and caution was taken by him to ascertain that the licence possessed by the driver was valid, therefore the terms and conditions of the insurance policy that the insured vehicle should be driven by a proper driver were violated absolving the insurance company liable to pay compensation. Therefore, the recovery rights were rightly granted to the insurance company by the Tribunal. 15. After hearing the learned counsel for the parties, going through the judgments referred to by learned counsel for the appellant and perusing the record, I find that the Tribunal was not justified in granting recovery rights to the insurance company. 16. The onus of proving the issue No.2 whether the respondent No.2 was not holding a valid driving licence at the time of accident was on the insurance company. The insurance company to discharge the onus had examined Jagtar Singh, Clerk RTO Office, Raipur, who had brought the summoned record with regard to the driving licence in question and has stated that licence possessed by respondent No.2 driver had not been issued by their office. The insurance company to discharge the onus had examined Jagtar Singh, Clerk RTO Office, Raipur, who had brought the summoned record with regard to the driving licence in question and has stated that licence possessed by respondent No.2 driver had not been issued by their office. May it be so. It points out that licence possessed by respondent No.2 was fake. But then the crucial evidence that respondent No.1 - owner of the vehicle had knowingly and intentionally handed over the vehicle to respondent No.2 not holding any valid licence to drive such vehicle is missing. The licence possessed by respondent No.2 on the face of it seems to be valid and the owner could not have any suspicion regarding the same since it was renewed from time to time by various offices of the licensing authority. Therefore, it cannot be taken to be breach of the terms and conditions of the insurance policy relieving the insurance company of any liability to pay compensation. Rather the liability of insurance company is there and it is not entitled to get any recovery rights from the insured. 17. Therefore, FAO-885-2006 filed by the owner is accepted. The impugned award is modified. Resultantly, the liability to pay the compensation amount is declared to be joint and several of all the three respondents and the liberty granted to the insurance company to recover this amount from the insured is hereby withdrawn. 18. Now coming to XOBJC-61-CII-2006 filed by the claimant/respondent No.1. 19. Coming to the amount of compensation awarded to the claimant to the tune of Rs.2,36,860/-, I find that keeping in view the facts and circumstances of the case, nature of the injury suffered by him, the amount is on the lower side. At the time of suffering injuries in the accident, the injured was aged about 32 years. He had suffered multiple fractures on his right leg. Resultantly his right leg was amputated below the knee joint. A rod was inserted in his thigh. He was statedly working as a carpenter earlier earning Rs.100/- per day from that avocation. With such type of injury suffered by him, it would indeed be difficult for him to work as a carpenter and at least his efficiency to that work would be greatly reduced. A rod was inserted in his thigh. He was statedly working as a carpenter earlier earning Rs.100/- per day from that avocation. With such type of injury suffered by him, it would indeed be difficult for him to work as a carpenter and at least his efficiency to that work would be greatly reduced. The disability certificate issued to him by Board of doctors Ex.A3 reflects the permanent disability to the extent of 60% due to amputation of right leg below the knee with nailing of right femur. The Tribunal has taken his monthly income to be Rs.2,000/- by working as a casual labourer. Though I find it to be somewhat on lower side. Even if the amount is taken as such, some addition towards future prospects is to be taken into consideration. In that way, the monthly income can be taken as Rs.2,000 + 800/-= 2,800/- (Rs.800/- on account of future prospects considering the age of of injured to be below 40 years. Taking 60% thereof the amount comes out to Rs.1,680/-. The annual disability amount thus comes out to Rs.20,160(1680 x 12). 20. Keeping in view the life expectancy in State of Punjab to be 65 to 70 years and by taking guidance from the multiplier used in death case as given in Smt.Sarla Verma and others Versus Delhi Transport Corporation and Anr., (2009) 3 RCR(Civil) 77 , the multiplier of 15 can be adopted. The total amount is thus worked out to Rs.3,02,400/-(20,160 x 15). Rounded off the said amount, it can be taken to Rs.3,00,000/- on account of loss of earnings to the claimant due to disability. 21. The Tribunal has calculated the amount spent by the claimant on his medical treatment to be Rs.57,630/-. However, several bills and receipts have been ignored giving very unconvincing and flimsy reasoning. The Tribunal has not taken into view the fact that many a times, the record of various amounts spent on purchase of medicines in the form of bills, receipts, cash memos etc. is not kept or at times it gets misplaced or lost. Thus, the compensation under that head is enhanced to Rs.1,00,000/-. 22. With amputation of right leg and rod being inserted, the claimant would be requiring future treatment also. He needs to be compensated for future treatment as well as for getting artificial leg. A sum of Rs.1,00,000/- is awarded to him in that regard. Thus, the compensation under that head is enhanced to Rs.1,00,000/-. 22. With amputation of right leg and rod being inserted, the claimant would be requiring future treatment also. He needs to be compensated for future treatment as well as for getting artificial leg. A sum of Rs.1,00,000/- is awarded to him in that regard. 23. The petitioner/claimant was hospitalized for a considerable time. The Tribunal has noticed that he remained admitted in Joshi Hospital, Jalandhar for a period of 27 days. Even otherwise he might not have been able to work for a long time. The Tribunal has awarded a sum of Rs.1,700/- on account of loss of earning during that period. The amount is on lower side and the same is enhanced to Rs.10,000/-. 24. An amount of Rs.5,000/- awarded under the head pain and suffering is too meagre. In my view considering the number of injuries suffered by the claimant, period of hospitalization, it is very difficult to quantify the pain and suffering undergone by a person suffering injury requiring long hospitalization, surgeries and follow up treatment. Keeping in view the facts and circumstances of the case, I enhanced the said amount to Rs.25,000/-. 25. The Tribunal has not awarded any amount towards transportation charges. Keeping in view the period of hospitalization and nature of injuries and that claimant would have gone to the hospital for follow up treatment also, a sum of Rs.10,000/- is awarded to him on account of transportation. 26. The claimant having suffered injuries did require help of an attendant during the period of his hospitalization and then going to hospital for follow up treatment. A sum of Rs.10,000/- is accordingly awarded to the claimant on that score. 27. The claimant on account of injuries suffered by him would not be able to walk, run or sit as he was prior to the accident. A sum of Rs.10,000/- each is awarded to him under the heads loss of amenities and loss of expectation of life. 28. Thus the total amount of compensation comes out to Rs.5,75,000/- 29. The Tribunal has awarded compensation of Rs.2,36,860/- along with interest as mentioned in the relief clause. The same is enhanced to Rs.5,75,000/-. The manner in which the Tribunal has awarded interest is improper. 28. Thus the total amount of compensation comes out to Rs.5,75,000/- 29. The Tribunal has awarded compensation of Rs.2,36,860/- along with interest as mentioned in the relief clause. The same is enhanced to Rs.5,75,000/-. The manner in which the Tribunal has awarded interest is improper. The claimant would be entitled to get interest @ 7.5% per annum from the date of filing of the claim petition till actual realization of the amount of Rs.5,75,000/- instead of many ifs and buts put by the Tribunal. The liability to pay this amount would be joint and several of all the three respondents. 30. With such modification, the XOBJC-61-CII-2006 filed by the claimant is allowed with costs.