Chhabda Bus Service Sendhwa vs Rang Pancham and Others

P.C. Pathak, J.—This it an appeal u/s 110-D of the Motor Vehicles Act by the owner of the offending vehicle against the award of Rs. 20,000/- as compensation to the claimant-respondent No. 1. The respondent-Insurance Company has filed the cross-objection under Order 41 Rule 22 of the Code of Civil Procedure.

On 11-10-1980 at about 7-30 A.M. bus MPN 7123 while it was driven by respondent No. 2 Jagdish, violently dashed against respondent No. 1 as a result of which he sustained fractures of both the legs and injuries on other parts of the body. Despite adequate treatment the fractures could not heal up properly and therefore, he is permanently disabled. He claimed Rs. 31,000/- as compensation pecuniary and non-pecuniary both. Respondent No. 2 driver remained ex-parte. The appellant/owner submitted that the bus was at the relevant time driven by Jamin alias Mohd. Ishaq and not by respondent No. 2. It also denied that there was rash and negligent driving. According to it, the claimant himself dashed against the bus.

The Insurance Company denied knowledge as to who was driving the vehicle. It was also pleaded that respondent No. 2 had no licence to drive the vehicle.

The Claims Tribunal held that the bus was driven by respondent No. 2 rashly and negligently and dashed against the claimant, which resulted in serious injuries. Therefore compensation of Rs. 20,000/- with interest at the rate of 12% per annum from 6-4-1981 till realisation and in the event of deposit of the amount on 2-7-1983 interest at the rate of 6% per annum was awarded. Aggrieved by the said award, the owner of the vehicle has come up in appeal while the Insurance Company lodged the cross-objection.

The first question to be decided is whether the award of Rs. 20,000/- is excessive. Dr. Yashwant Kumar Sharma (PW 3) and Dr. Anil Kumar Sinha (PW 4) proved the injuries on Rang Pancham. On X-Ray the left femur bone had multiple fractures. Dr. Sharma also found injuries on right eye, left toe and other places. Even though adequate treatment was given, the ankle joints of both the legs have became rigid. During treatment to effect union of the fractured bones, plates with nails were fitted. Considering all these and the comparable cases, the Tribunal awarded Rs. 20,000/- which, in my opinion, are not excessive at all.

The next argument advanced on behalf of the Insurance Company is that there is no proof of the fact that respondent No. 2 Jagdish had a driving licence. In the absence of such a proof by the owner, the liability cannot be fastened on the Insurance Company. It was also argued that the liability of the Insurance Company is not beyond Rs. 5,000/-. On behalf of the owner, it was argued that the burden to prove that the driver had no licence lay on the Insurance Company.

So far as the extent of Insurance Company''s liability is concerned, I find from the Insurance Policy (Ex. D-2) that the vehicle was insured comprehensively under Ex. D-2. Therefore, the Insurance Company cannot disown its liability to make good the entire compensation.

The next question for determination is whether in the absence of proof by the owner that the driver had licence, the liability cannot be fastened on the Insurance Company. Clause 5 of the policy provides that the vehicle should be driven by the owner or by any other person provided he is in the insured''s employment and is driven on his order or with his permission provided that the person driving holds a valid driving licence at the time of accident or had held a permanent driving licence and is not disqualified from holding or obtaining such a licence. In Bishan Devi v. Sirbaksh Singh : [1980]1SCR300 it was held that u/s 96(2)(b)(ii) of the Motor Vehicles Act the insurer can defend a claim for compensation on the ground that the vehicle was driven by a person who was not duly licensed. In that case, apart from making the averment in the written statement the insurer did not take any steps to establish that the vehicle was driven by a person who was not properly licensed. The two stray suggestions put to the witnesses were not sufficient to show that the driver had no licence to drive the truck. The Supreme Court in these circumstances held that it is the duty of the insurer to have substantiated his plea. In Shankarrao v. Babulal 1980 MPLJ 563 it was held that in the absence of evidence, there is a presumption that the vehicle was being driven by a licence and on master''s business. Yet in another case National Insurance Co. v. Thakurdas 1982 MPWN 91 this Court held that the plea that the driver was not having a valid licence is to be proved by the Insurance Company.

Learned counsel for the Insurance Company relied on Dhanrainmal v. Kanakmal and Anr. 1978 (2) MPWN 39. The decision was rendered before the decision of the Supreme Court (supra). This apart, from a persual of the cross-objection, I do not find any ground raised by the Insurance Company disowning its liability on the ground that the owner failed to prove that the driver had a valid licence or that he drove the vehicle on his business. As against this, the cross-objection is confined to determine of its liability to the sum of Rs. 5,000/- only and not for the whole amount. It is implicit in the plea raised in the cross objection that the Insurance Company never disputed its liability except for the quantum. On this count also, the Insurance Company cannot be allowed to urge altogether a new ground at the time of hearing.

In the light of the foregoing discussion, there is no merit in the appeal filed by the owner and the cross-objection filed by the Insurance Company. Therefore, both are dismissed. There shall be no order as to costs.