Kailashchandra vs Ashik and Others

Mody, J.—Being aggrieved by the award dated 31.1.2004 passed by the Third Additional Member, Motor Accidents Claims Tribunal, Mandsaur in Claim Case No. 4 of 2003 whereby the claim petition filed by the appellant was allowed and sum of Rs. 17,810 was awarded to the appellant as compensation for the injuries sustained by the appellant, the present appeal has been filed. Short facts of the case are that the appellant filed a claim petition alleging that on 3.3.2003 appellant was going along with his friend on a motorbike. At that time a bus bearing registration No. CIU 2828 which was being driven by respondent No. 1 rashly and negligently dashed the appellant from behind, with the result the appellant sustained grievous injury and also fracture in both the legs. The offending vehicle was owned by respondent No. 2 and insured by respondent No. 3. It was claimed by the appellant that the claim petition be allowed and compensation be awarded.

The claim petition was contested by the respondent Nos. 1 and 2 wherein the allegations made in the claim petition were denied and it was alleged that in case it is found that the appellant has sustained injuries the respondent No. 3 is liable to pay compensation. The claim petition was also contested by the respondent No. 3 on various grounds including the ground that the respondent No. 1 was not having a valid driving licence. After framing of issues and recording of evidence the learned Tribunal allowed the claim petition and awarded a sum of Rs. 17,810, break-up of which is as follows:

Loss of income

Rs.

4,000

Pain and suffering

Rs.

8,000

Special diet

Rs.

1,000

Attendant

Rs.

1,000

Medical expenses

Rs.

3,810

Total

Rs.

17,810

The learned counsel for the appellant submits that the learned Tribunal has awarded a meagre amount on various heads and on number of heads no amount has been awarded. It is submitted that appellant sustained fracture. It is submitted that the appellant was hospitalised from 3.3.2003 to 28.3.2003. It is submitted that the appellant sustained permanent disability to the extent of 19 per cent.

Learned counsel for the respondent No. 3 submits that since the respondent No. 1 was not possessing valid licence at the time of accident, therefore, the respondent No. 3 is not liable to pay the compensation. It is submitted that the respondent No. 2 at the time of employing the respondent No. 1 has not taken the driving test and has also not checked the original licence. It is submitted that later on it was discovered that the renewed licence which the respondent No. 1 was possessing was a forged one. Learned counsel has relied on a decision of Himachal Pradesh High Court in the case of Sansar Bus v. National Insurance Co. Ltd., 2011 ACJ 805 (HP) , wherein it was held that in a case where no evidence is on record that the owner has seen and examined the driving licence produced by driver, taken a driving test and only later on it was discovered that he was not possessing valid driving licence, the Tribunal rightly exonerated the insurance company and held the owner liable to pay the compensation. It is submitted that in the facts and circumstances of the case, the learned Tribunal has committed an error in holding respondent No. 3 liable to pay the compensation, hence the appeal deserves to be dismissed and the cross-objection of the respondent No. 3 be allowed.

Mr. Asif Warsi, learned counsel for respondent No. 2, submits that since the offending vehicle was insured and respondent No. 1 was possessing the driving licence, therefore, the learned Tribunal committed no error in holding that the respondent No. 3 is liable for payment of compensation. Learned counsel has placed reliance on a decision of this High Court in the case of Rajmal Vs. Sanjay and Others, , wherein this court held that in a case where the evidence shows that the owner had taken due care at the time of employing driver and the licence does not appear to be forged on the face of it, it cannot be held that owner had permitted driver to drive vehicle in spite of his knowledge that licence of driver was forged and he has deliberately caused breach of policy condition.

From the perusal of the record it appears that to prove the case the appellant has examined himself as AW 1, Bhagwati Prasad, AW 2 and Dr. P.K. Upadhyay, AW 3. While respondent No. 3 has examined District Transport Officer, Kanahyalal Rathore, as NAW 1, Vinod Kumar, Branch Manager, NAW 2 and respondent No. 2 has examined Babulal, NAW 3.

From the perusal of statement of Babulal, NAW 3, examined on behalf of respondent No. 2, it is evident that the precaution was taken by the respondent No. 2 while employing the respondent No. 1 as driver. Respondent No. 1 was possessing a driving licence which was duly renewed. It is not the case of respondent No. 3 that the renewed licence was a forged one. It is not expected from the respondent No. 2 that while examining the respondent No. 1''s renewed licence the respondent No. 2 should have asked the respondent No. 1 to produce the original licence on the basis of which the renewed licence has been prepared.

In the matter of United India Insurance Company Ltd. Vs. Lehru and Others, it was held that in a case where the driving licence was found to be fake, liability of insurance company towards third party cannot be avoided and the insurance company on proof that owner of vehicle was aware of fact that licence was fake, can inquire about it (sic) by the insurance company.

In the facts and circumstances of the case, this court is of the view that the learned Tribunal committed no error in holding the respondents liable to pay compensation. Hence, cross-objection filed by the respondent No. 3 stands dismissed.

So far as the amount of compensation is concerned, looking to the injury sustained by the appellant, it appears that the amount awarded to the appellant is on a lower side and deserves to be enhanced. Hence, the appellant is entitled for the following amount:

Loss of income

Rs.

5,000

Pain and suffering

Rs.

10,000

Special diet

Rs.

5,000

Attendant''s expenses

Rs.

5,000

Medical expenses

Rs.

5,000

Injury

Rs.

10,000

Transportation

Rs.

5,000

Total

Rs.

45,000

Thus, appellant is entitled for total sum of Rs. 45,000, instead of Rs. 17,810. The enhanced amount of Rs. 27,190 shall carry interest at the rate of 8 per cent per annum from the date of application. With the aforesaid modification, the appeal stands disposed of. No order as to costs.