Rattan Lal and Others vs Naseem Jan and Others

Dharam Chand Chaudhary, J.—This judgment shall dispose of both the appeals, arising out of the same accident, no doubt, against separate awards whereby the compensation has been awarded against the appellants, respondents 1, 1(A) and 1(B)-insured before the learned Motor Accidents Claims Tribunal below. It is seen that vide impugned award dated 26.12.2009 passed by learned Motor Accident Claims Tribunal-II, Una in claim petition No. 49 of 2006 under challenge in this appeal, a sum of Rs. 80,000/- along with interest at the rate of 9% per annum from the date of filing of the petition till realization has been awarded as compensation to respondent No. 1-claimant, who received grievous injuries on his person in the accident in question.

In FAO No. 239 of 2008, vide impugned award dated 31st December, 2007, passed by Motor Accident Claims Tribunal-II, Bilaspur, in claim petition No. 70 of 2004, a sum of Rs. 4,14,000/- has been awarded as compensation to Smt. Naseem Jan, respondent No. 1-claimant, mother of deceased Abdul Quyoom @ Quyom Basir, who lost his life in the accident.

The appellants being insured and respondent No. 2 herein being driver of the vehicle involved in the accident have been held liable to pay the compensation. The appellants-insured and driver have been found to have breached the terms and conditions of the insurance policy and as such saddled with the liability to pay the compensation, no doubt, there is a direction to the insurer respondent No. 3 to first deposit the compensation so awarded and thereafter to recover the same from the appellants-insured and driver of the offending vehicle.

The legality and validity of the awards impugned in these appeals has been assailed on the grounds inter alia that no evidence qua rashness and negligence driving on the part of the respondent-driver, namely Gian Chand is established on record and as such the findings to the contrary recorded by the Tribunals below are based on surmises and conjectures. The evidence available on record rather has not been appreciated in its right perspective. All the issues arising out of the pleadings of the parties have not been properly framed. The liability to pay the compensation by the appellants-insured is wrongly fastened upon them. The findings that respondent-driver Gian Chand was not holding a valid and effective driving licence and that the injured Sugriv Singh (respondent-claimant in FAO No. 91/10) and deceased Abdul Quyoom (son of respondent No. 1-claimant Naseem Jan in FAO No. 239/08) were traveling in the capacity of gratuitous passenger have not been supported by cogent and reliable evidence.

The facts leading in filing of these appeals in a nut shell are that Tractor bearing registration No. HP-24-0904 belonging to Bhadi Ram, predecessor-in-interest of the appellants-insured met with an accident on 19.3.2004 at Brahampukhar, District Bilaspur around 3.30 p.m. Injured-claimant Sugriv Singh and deceased Abdul Quyoom were working as Labourer in the aforesaid tractor for loading and unloading the agriculture produce. On the fateful day, the tractor was on its way from Both side and being driven by its driver in a rash and negligent manner. When reached at Brahampukhar, its trolley got detached and as a result thereof the same turtles on the road. While injured claimant Sugriv Singh received grievous injuries in the accident, deceased Abdul Quyoom succumbed to injuries on the way to the hospital. Injured Sugriv Singh had claimed a sum of Rs. 3,00,000/- in lump sum as compensation on account of injuries, he received on his person whereas claimant-respondent Naseem Jan, mother of the deceased Abdul Quyoom Rs. 10,00,000/- on account of loss of income and love and affection she suffered on account of untimely death of her son.

The appellants-insured in reply to the claim petition did not dispute the accident of the tractor, however, submitted that its driver was not driving the same in a rash and negligent manner. It is admitted that injured claimant Sugriv Singh and deceased Abdul Quyoom were engaged as labourers in the tractor trolley for loading and unloading the agriculture produce. The averments in the petition qua the expenditure incurred upon by the injured claimant for his treatment are not disputed and rather submitted that he spent Rs. 30,000/- on account of his treatment. The loss of income allegedly caused to the injured-claimant and also on account of death of deceased Abdul Quyoom, has also not been disputed.

The insurer i.e. 3rd respondent in reply to the petition has raised several preliminary objections, however, mainly that the driver of the tractor involved in the accident was not having valid and effective driving licence to drive the same at the time of accident and that the injured were travelling in the capacity of gratuitous passenger. Also that the tractor was being plied without Registration Certificate and Fitness Certificate and the appellants-insured thereby breached the terms and conditions of the insurance policy. On merits, there is denial simplicitor or denial for want of knowledge to most of the averments in the claim petitions filed by the injured-claimant Sugriv Singh and Naseem Jan, the mother of deceased Abdul Quyoom.

Learned Motor Accident Claims Tribunal has framed the following issues in the claim petition filed by injured Sugriv Singh:-

1) Whether the petitioner sustained injuries in motor accident on 19.3.2004 because of the negligent and rash driving of respondent No. 1 while driving the tractor No. HP24-0904 at Braham Pukhar, District Bilaspur as alleged? OPP

2) If issue No. 1 is proved in affirmative, as to what amount of compensation the petitioner is entitled to and from whom? OPP

3) Whether the driver of the tractor No. HP-24-0904 was not holding any valid and effective driving licence at the time of accident, if so, its effect thereto? OPR-3

4) Whether the aforesaid tractor was being plied without any valid R.C., fitness certificate and in violation of the terms and conditions of the policy as alleged? OPR-3

5) Relief.

Similarly, in the claim petition filed by Naseem Jan, mother of deceased Abdul Quyoom, also, the following issues are framed:-

1) Whether the deceased Shri Abdul Quyoom alias Quyoom Basir had died to rash and negligent driving of respondent No. 2, driver of Tractor No. HP24-0904, as alleged? OPP

2) If issue No. 1 supra is proved, to what amount of compensation the petitioner is entitled to and from which of the respondents? OPP

3) Whether respondent No. 2, driver of the tractor No. HP-24-0904 had in possession of a valid and effective driving licence at the time of accident, if so, its effect? OPR-3

4) Whether the deceased Abdul Quyoom alias Quyoom Basir was travelling in the Tractor, in question, as an unauthorized passenger i.e. gratuitous passenger, if so, its effect? OPR-3

5) Whether the vehicle, in question, was being plied without valid registration, fitness certificate and valid route permit as alleged? OPR-3

6) Relief.

The parties were to put to trial and after holding the full trial and learned Tribunals below after hearing the parties on both sides, awarded the compensation to injured claimants Sugriv Singh and to Smt. Naseem Jaan, mother of deceased Abdul Quyoom as pointed out in this judgment at the outset.

Learned counsel appearing on behalf of the appellants-insured during the course of arguments mainly emphasized on the issue of rash and negligent driving and the breach of contract of insurance. In this context, learned counsel has canvassed that respondent-driver Gian Chand, was holding valid and effective driving licence and as regards, Shri Sugriv Singh, claimant-respondent and deceased Abdul Quyoom, they were employed as labourers for the purpose of loading and unloading of the agriculture produce in the Tractor Trolley and as such there is no breach of the contract of insurance.

I am afraid no such view of the matter can be taken as the evidence available on record does not substantiate such contentions for the reason that the driving licences Ex. PW-1/C on the record of claim petition filed by injured Sugriv Singh and Ex. RW-2/F in the claim petition filed by Smt. Naseem Jan reveal that the same have not been proved to be issued by the Office of Regional Transport Officer, Agra and that of District Transport Office, Patiala, respectively, as claimed.

The respondent-insurer in order to belie the genuineness and authenticity of the driving licence RW-1/C has examined RW-3 Shri J.P. Aggarwal. This witness has produced the record and on the basis thereof stated that the licence Ex. RW-1/C has not been issued in the name of respondent-driver Gian Chand by their office on 22.1.2000. Nothing has come on record from his cross-examination conducted on behalf of the respondent-insurer that the statement he made is false or that the driving licence is genuine. No other and further evidence has been produced to show that the licence is genuine and issued to respondent-driver Gian Chand by the competent authority. The licence on the face of it initially was issued for the period w.e.f. 24.1.2003 to 23.12.2006, however, on 22.1.2000. Not only this, from its number given in the very first column it has been issued in the year 2002. This licence is therefore fake and fictitious and learned Tribunal below has rightly discarded the same.

The respondent-insurance company, in order to prove that the driving licence Ex. RW-2/F is fake has examined RW-5 Shri Jagtar Singh from the office of DTO, Patiala. He has produced the record and stated that as per record no such licence was issued to the respondent-driver Gian Chand and rather the licence bearing No. G35701, has been issued in favour of one Shri Jeet S. Son of Shri Kant Nair C/o 56 APO Patiala for driving motorcycle and motor car. In this claim petition also, the appellants-insured have failed to produce any other and further evidence to show that the driving licence Ex. RW-2/F was genuine and not fake.

On the other hand, it is the licence Ex. RW-2/F, which was taken into possession by the police at the time of accident of the tractor from Shri Gian Chand, its driver. Meaning thereby that he was holding a driving licence, which was not genuine at the time of accident. Otherwise also, no one can have two driving license at a time, being barred u/s 6 of the Motor Vehicles Act. This Court is thus convinced that learned Tribunal below has not committed any illegality and irregularity in holding that both driving licenses were fake and fictitious. The breach of contract of insurance on this score, therefore, is writ-large on the face of record.

This Court is also satisfied with the findings that injured Sugriv Singh and deceased Abdul Quyoom were the occupants of the tractor, however, travelling gratuitously as the appellants-insured have miserably failed to prove that they were engaged as labourer for loading and unloading purposes, even no evidence qua payment of wages to them is forthcoming. Therefore, mere assertion in reply to the claim petition and also in the statement of insured-appellant Rattan Lal while in the witness-box as RW-1 cannot be believed as gospel truth to arrive at a conclusion that claimant Sugriv Singh and deceased Abdul Quyoom were not travelling gratuitously in the ill-fated tractor, but in the capacity of labourer. On this score also, the Tribunals below have not committed any illegality and irregularity while holding that the insured have violated the terms and conditions of the insurance policy.

Although, an effort has also been made to persuade this Court to form an opinion that the accident did not occur on account of rash and negligent driving on the part of the driver of the tractor, however, unsuccessfully for the reason that from the statements of injured claimant Sugriv Singh, who has stepped into the witness-box as PW-4 and PW-2 Roop Lal in claim petition filed by Smt. Naseem Jan, who admittedly were travelling in the ill-fated tractor at the time of accident that the cause of the accident was none-else, but rash and negligent driving on the part of the driver of the tractor. Not only this, but said Shri Gian Chand has also been booked in a case u/s 279, 304-A IPC and being tried by learned Judicial Magistrate 1st Class, Bilaspur as is evident from the evidence having come on record from the testimony of Shri Yashpal, RW-2, Criminal Ahlmad in the Court of Judicial Magistrate, Bilaspur and the copy of Challan Ex. RW-2/A. The appellants-insured, therefore, failed to convince this court on this score also and as such have rightly been saddled with the liability to pay the compensation as assessed and awarded by learned Tribunals below in the claim petitions.

Even on the quantum of compensation also no interference by this court is warranted for the reason that in reply to the claim petitions no case to this effect is found to have been made out and rather there is no denial to the loss of income caused to the injured claimant Sugriv Singh on account of injuries he received in the accident and to Smt. Naseem Jan, on account of untimely death of her son Abdul Quyoom. Even in cross-examination of the injured claimant and Smt. Naseem Jan, nothing has been suggested on behalf of the appellants-insured that the loss claimed is on higher side, exaggerated and excessive.

On the other hand the evidence produced by injured claimant Sugriv Singh demonstrates that he remained hospitalized at Zonal Hospital, Bilaspur and BBMB, Hospital, Nangal for 27 days in two different spells. It has also come on record that on account of the injuries he received in the accident, he had to be operated upon in BBMB Hospital, Nangal. No doubt, he failed to produce any bill/voucher to substantiate his claim with respect to the medical expenses, he incurred upon, however, stated specifically that while a sum of Rs. 5,000/- has been spent by him on account of transportation charges, a sum of Rs. 25,000/- was spent by him on his treatment. As regards, the bill/vouchers, it is clarified that he failed to retain the same. In view of the disability, permanent in nature, no doubt, only to an extent of 2% in respect of right lower limb, it can reasonably be believed that he was prevented from doing his work on account of that and his treatment in the hospital for about two months. The loss of earnings for two months as assessed by learned Tribunal therefore, calls for no interference. The Tribunal below has awarded a further sum of Rs. 50,000/- towards future loss of income keeping in mind the disability in respect of lower limb, the respondent received in the accident in question and rightly so as the insured has failed to otherwise produce by way of cogent and reliable evidence suggesting that this much compensation on this score should have not been awarded. Therefore, the compensation awarded to injured claimant Sugriv Singh also calls for no interference nor any case for the purpose made out from the grounds of appeal.

No doubt, the compensation awarded on account of medical expenses without there being any voucher/bill being without any basis is on higher side, however, keeping in view the evidence as discussed in para supra as well as neither any case nor any evidence to the contrary warranting interference by this Court has been produced on record, no interference in this behalf is also required.

Similarly, in the petition filed by Naseem Jan for compensation on account of loss she sustained due to untimely death of her son Abdul Quyoom aged 20 years, learned Tribunal below has rightly assessed the income of the deceased as Rs. 4,000/- per month as at present even the wages of a labourer in Government establishment also is Rs. 130 per day whereas in private sector the wages of a labourer is even more than Rs. 130 per day. The deceased was bachelor, therefore, learned Tribunal below has rightly deducted 50%, on account of personal expenses in terms of the law laid down by the Apex Court in Smt. Sarla Verma and Others Vs. Delhi Transport Corporation and Another, . The loss of income to claimant-respondent Naseem Jan caused on account of untimely death of her son has thus rightly been assessed 50% of the total monthly income of the deceased. The multiplier for computation of the compensation has been selected taking into consideration her age i.e. 38 years. The multiplier selected in this case no doubt is 16, however, keeping in view the age of the deceased 20 years at the time of death, the same cannot be said to be on higher side. Therefore, the compensation awarded to claimant Naseem Jan also cannot be termed to be on higher side or excessive in the absence of any evidence cogent and reliable produced by the insured-appellants.

In such a situation, the present is a fit case where the compensation already assessed and awarded by learned Tribunal below does not deserve to be enhanced also as the compensation already awarded is just, reasonable and adequate. The grounds raised in the cross-objection also do not make out any case for enhancement of the compensation assessed and awarded by learned Tribunal below. Therefore, the cross-objection also deserves dismissal.

In view of what has been stated hereinabove, it is held that learned Claims Tribunals below have not committed any illegality or irregularity in awarding the compensation to the claimants-respondents and in saddling the appellant-insured with liability to pay the same. No case for any interference by this Court is, therefore, made out as such both the appeals, being devoid of any merit, are hereby dismissed. Similarly, cross-objections for enhancement of compensation filed by the injured claimant Sugriv Singh also fails and accordingly dismissed.

The statutory amount, if any, deposited in the Registry of this Court in these appeals be released to the respondent-insurance company, who has deposited the entire awarded amount before learned Tribunal below. In view of the above, both the appeals and the cross-objections stand dismissed. Pending application(s), if any shall also stand disposed of.