Avtar Singh vs Hazara Singh and Another

S.S. Sodhi, J.—On January 5, 1974, there was an accident between the tonga of the claimant, Hazara Singh, and the car No. PUA 2975 which was being driven by Avtar Singh. The injuries suffered by Hazara Singh in this accident resulted in the amputation of his right leg a little below the knee. The Tribunal awarded him Rs. 5,000 as compensation, holding that the accident had been caused by the rash and negligent driving of Avtar Singh.

The award of the Tribunal stands challenged both by Avtar Singh and the claimant, Hazara Singh. The claim of Avtar Singh being that it was only the insurance company that could be held liable for payment of the amount awarded and no liability could be fastened upon him, while the claimant, Hazara Singh, claimed enhanced compensation. The insurance company on its part filed cross-objections questioning its liability to pay compensation in this case.

It stands established from the evidence on record and there is no challenge to it in appeal that it was Avtar Singh who was driving the car at the time of the accident. Avtar Singh was, therefore, the person primarily liable for payment of compensation in this case. There is thus no question of Avtar Singh being absolved from the liability.

As regards the liability of the insurance company, it would be pertinent to note that the insured here was not Avtar Singh but the firm, Gobind Ram Ram Kishen. There is no material on record to suggest any connection between Avtar Singh and this firm. It is in fact admitted that Avtar Singh was not the insurer of the car. This being the situation, obviously, no liability could be fastened upon the firm, Gobind Ram Ram Kishen. It is now well settled that in a contract of insurance, the privity of contract is strictly between the insurer and the insured and unles liability is first fastened upon the insured, none can possibly fall upon the insurer who had undertaken to indemnify the loss or damage suffered the insured. It would be relevant here to note the judgment of the Full Bench in Oriental Fire and General Insurance Co. Ltd. Vs. Bachan Singh and Others, , where the question arose whether the insurer could be held liable u/s 96 of the M.V. Act, 1939, when the insured himself had been exonerated of such liability. This question was answered in the negative and it was held that the insurer cannot be held liable where the insured himself stands exonerated of liability. This being the legal position, there is no escape from the conclusion that the insurance company was not in any manner liable for any amount awarded as compensation in this case. The liability for the entire compensation payable to the claimant must, therefore, be held to be that of Avtar Singh, the driver of the car,

The next question to consider here relates to the quantum of compensation payable to the claimant, Hazara Singh, for the injuries suffered by him. According to the evidence led in this case, Hazara Singh was a tonga driver aged about 60 years. As has been mentioned above, this accident resulted in the amputation of his right leg, a little below the knee. He now walks but with artificial leg. Undoubtedly, there is a disability which he is now left with. Hazara Singh may continue to work as tonga driver but he would certainly be suffering from a handicap on account of his amputated leg.

Keeping in view the totality of the circumstances of the case, the amount awarded as compensation to the claimant cannot but be held to be grossly inadequate. The claimant in such a case is entitled to compensation for pain and suffering, loss of amenities of life, the disability caused as also his loss of earnings. All things considered, it would be fair and just to award to the claimant here a sum of Rs. 25,000 as compensation under these heads. The compensation awarded to the claimant is accordingly enhanced to this extent. The claimant shall be entitled to this amount along with interest at the rate of 12% per annum from the date of the application to the date of the payment of the amount awarded.

In the result, the appeal filed by the claimant, Hazara Singh, as also the cross-objections filed by the insurance company are hereby accepted whereas the appeal of Avtar Singh is dismissed. The claimant, Hazara Singh, shall be entitled to his costs in both these appeals. Counsel''s fee, Rs. 300.