Bishna Ram vs Gurbachan Singh and Others

J.M. Tandon, J.—On June 27, 1968, at about 11 a.m. a bus came from Phillaur side and halted at the bus stop of village, Urapar. Shortly thereafter, two trucks also came from that side at a fast speed. One of the trucks bearing No. PNQ 1542 was driven by Nirmal Singh, respondent. The other truck passed by the right side of the halted bus while truck No. PNQ 1542 tried to pass the bus from the wrong side, that is, the left side of the bus. While doing so, truck No. PNQ 1542 ran over Amarjit Singh, deceased, aged about 11 years who had come out of the shop of Gurdial Singh, general merchant, which was situated close by. After running over Amarjit Singh, the offending truck struck against the wall of the shop of Gurdial Singh and then stopped. The wall of Gurdial Singh''s shop was also damaged. Amarjit Singh was removed to the civil dispensary of village Urapar and after a few minutes of his reaching there he succumbed to the injuries.

Gurbachan Singh, respondent, father of the deceased, filed an application claiming Rs. 25,000 as compensation against Nirmal Singh, respondent-driver, Bishna Ram, appellant-owner of the truck, and the New India Assurance Company with which the truck was insured.

Bishna Ram, appellant, did not put in his written statement nor did he lead evidence except that he tendered an insurance policy marked " A ". Nirmal Singh, respondent, denied that he was driving the offending truck or the alleged accident took place. He, however, admitted that truck No. PNQ 1542 belonged to Bishna Ram. The New India Assurance Company, in its separate written statement denied, that the truck was insured with it or it was involved in the alleged accident.

Gurbachan Singh, respondent, in support of his claim petition produced evidence whereas Nirmal Singh, Bishna Ram and the New India Assurance Company Ltd. led no evidence except to tender the insurance policy marked " A ". The Motor Accidents Claims Tribunal held that truck No. PNQ 1542 was involved in the accident and it took place due to the rash and negligent driving on the part of Nirmal Singh, the driver. The compensation was assessed at Rs. 12,000. Regarding the liability of the insurance company to pay, it was found that the insurance policy marked " A " had been issued with respect to truck No. PNQ 1542 but in the name of Gurbakhsh Singh, who during its tenure, transferred it to Bishna Ram, and the latter had not got it insured in his own name from the insurance company. The New India Assurance Company was, therefore, not liable to pay compensation. The compensation awarded was thus directed to be paid by Nirmal Singh, driver, and Bishna Ram, appellant, being owner of the truck. It is against this order of the Tribunal dated December 29, 1972, that the present appeal has been filed by Bishna Ram.

The learned counsel for the appellant has challenged the award of the Tribunal on two grounds, (1) the New India Assurance Company has been wrongly held not liable to pay the compensation ; and (2) the compensation assessed is excessive.

The argument of the learned counsel for the appellant is that, irrespective of the fact that the offending truck was insured in the name of Gurbakhsh Singh, who transferred it in the name of Bishna Ram, during the period the insurance policy was in force and further that Bishna Ram did not get it insured in his own name, the insurance company was still liable to pay the compensation, because, under the terms of the policy, the insurance company had undertaken to indemnify the driver of the truck who may have been driving it with the permission of the insured. Reliance has been placed on New India Assurance Co. Ltd. Vs. Moti Ram and Others , wherein it was held that in view of the extended clause in the policy the company was liable to indemnify the driver even though -the vehicle had been transferred prior to the accident. The mere fact that the vehicle had been transferred did not necessarily mean that the vehicle did not actually remain under the control of the insured for the purpose of being plied for hire. There was no allegation that the vehicle was being driven without the permission of the insured. The mere transfer of ownership of the vehicle did not really affect the matter. The* contention of the learned counsel for the appellant has no force. The ratio of New India Assurance Co. Ltd. Vs. Moti Ram and Others is not applicable to the facts of the case under consideration. In New India Assurance Co. Ltd. Vs. Moti Ram and Others it had been specifically averred by the claimant that Moti Ram and Desa Singh were the owners of the offending truck which was being driven by Hari Singh, driver, who was their employee and the truck was insured with New India Assurance Company. Desa Singh stated that he had sold the truck to Parkash Chand, son of Moti Ram, long before the accident and was, therefore, not liable. Parkash Chand was consequently impleaded as a party and he admitted the transfer of the truck in his favour. The Tribunal awarded compensation to the claimant against all the respondents including New India Assurance Company. The New India Assurance Company filed an appeal and the main contention raised was that since the ownership of the truck had been transferred by Desa Singh to Parkash Chand before the accident, the insurance policy was no longer in force and, since it was a contract of indemnity personally in favour of Desa Singh, the company''s liability could not have been assigned in favour of the transferee and in this way the company was not liable to pay the compensation. The Division Bench held that apart from the undertaking to indemnify the person named in the insurance policy, that is, Desa Singh, the company had further undertaken to indemnify the driver of the truck. The insurance policy was admittedly current at the time of the accident. The insurance company had undertaken to indemnify any driver who was driving the vehicle on the insured''s order or with his permission. Hari Singh was the driver of the truck who had been held responsible for the accident and liable to pay the compensation awarded. The transfer of the truck by Desa Singh to Parkash Chand did not necessarily mean that the truck did not actually remain under the control of Desa Singh for the purpose of being plied for hire nor was there any suggestion that Hari Singh, the driver of the truck at the time of the accident, was not driving it under his direction or with his permission. No plea that Hari Singh was not driving the truck of Desa Singh was ever raised nor any hint of it given in the course of the trial. The mere transfer of the ownership of the truck, therefore, did not really affect the matter. As there was nothing to show that the driver of the truck, Hari Singh, was not driving it with the permission of Desa Singh, the insurance company was liable to pay the compensation awarded. It is evident that in New India Assurance Co. Ltd. Vs. Moti Ram and Others , it was specifically averred that Hari Singh, driver, was the employee of Desa Singh (and Moti Ram). This averment was not controverted by any of the respondents, including the insurance company. A presumption was thus raised that Hari Singh was driving the truck at the time of the accident under the control and with the permission of Desa Singh. In the absence of any evidence whatsoever to rebut this presumption, the insurance company was made liable to pay the compensation as it was liable to indemnify Hari Singh, driver. Now, coming to the present case, no averment was made by Gurbachan Singh, claimant-respondent, that Nirmal Singh, driver, was the employee of Gurbakhsh Singh at the time of the accident. The fact of the matter is that the name of Gurbakhsh Singh is conspiciously absent in the claim petition. In this situation, there was no occasion for the insurance company to allege that Nirmal Singh was not an employee of New India Assurance Co. Ltd. Vs. Moti Ram and Others cannot be applied to the instant case unless a finding is given that Nirmal Singh, driver, was driving the truck under the control or with the permission of Gurbakhsh Singh when the accident took place. It is clear that in view of the averments made by the parties, no presumption can be raised that Nirmal Singh was in the employment of Gurbakhsh Singh at the time of the accident or he was driving it with his permission. No evidence whatsoever, has been led to prove this fact. Bishna Ram, appellant, therefore, cannot derive any benefit from the rule laid down in New India Assurance Co. Ltd. Vs. Moti Ram and Others

The learned counsel for the appellant has contended that the compensation of Rs. 12,000 awarded to Gurbachan Singh, respondent, is excessive. The argument is that in the claim petition, the deceased was stated to be a student and aged 11 years. His income was given as nil. Gurbachan Singh, claimant-respondent, in his statement said that the deceased worked as a carpenter and mason and earned Rs. 4 or 4.50 per day. The Tribunal, relying on the statement of Gurbachan Singh, assessed the income of the deceased at Rs. 125 per month and his contribution to the claimant at Rs. 75 per month. It is on this basis that the Tribunal awarded Rs. 12,000 as compensation to the claimant. In view of the averment made in the claim petition that the income of the deceased was "nil" and he was aged 11 years only, the Tribunal erred in placing reliance on the statement of Gurbachan Singh in assessing the income of the deceased at Rs. 125 per month. Keeping in view of the age of the deceased, the compensation assessed could not be more than Rs. 5,000 or Rs. 6,000. In my opinion, the contention of the learned counsel for the appellant must prevail. In view of the averment made by the claimant in his claim-petition that the deceased was aged 11 years and a student and that his income was " nil ", the Tribunal erred in assessing his income, at Rs. 125 per month at the time of the accident. In Madhya Pradesh State Road Transport Corporation Vs. Yasin and Others, a boy aged 12 years died in a motor accident and the compensation awarded was Rs. 5,000. In S.D. Joshi and Others Vs. Union of India (UOI), the Tribunal awarded Rs. 4,000 as compensation on account of the death of a boy aged 11 years and in appeal it was raised to Rs. 5,000, In Joginder Kaur Vs. The Punjab State and Others Rs. 5,000 was awarded as compensation on account of the death of a boy aged 9 years. The learned counsel for Gurbachan Singh, respondent, has not been able to cite any authority to the contrary. Under these circumstances, it will be fair and equitable to assess the compensation at Rs. 6,000 in the instant case. The award of the Tribunal is liable to be modified to that extent.

In the result, the appeal of Bishna Ram against the New India Assurance Company fails and is dismissed. The compensation awarded to Gurbachan Singh, respondent, is reduced from Rs. 12,000 to Rs. 6,000. The compensation awarded shall be payable by Bishna Ram, appellant, and Nirmal Singh, respondent. The appeal stands disposed of accordingly. No order as to costs.