The National Insurance Company Ltd. vs Jaspal Singh and Others <BR> Jaspal Singh Vs Rajoo alias Rajroop Singh and Others

K.C. Puri, J.—Vide this judgment, I intend to dispose of two FAOs, i.e. FAO No. 420 of 1996 titled as The National Insurance Company Ltd. v. Jaspal Singh and others praying for absolving of its liability to pay any compensation amount whereas FAO No. 770 titled as Jaspal Singh v. Rajoo alias Rajroop Singh and others preferred by claimant-appellant for enhancement of the compensation amount.

The facts recapitulated from the record is that on 10.11.1992 claimant was coming on his motor-cycle No. HR-05-A-6150 and reached near Civil Hospital, Assandh, a Canter bearing registration No. HR-05-A-0780 came from the side of village Jaisinghpura rashly and negligently and struck with the motor cycle and as a result, he fell down on the road and received injuries on various parts of his body. He was taken to Primary Health Centre, Assandh and then to General Hospital, Karnal. He remained admitted for many days in the hospital and spent a lot of amount on his treatment, special diet and transportation. The case against the driver of the offending vehicle was got registered. The petitioner suffered physical, mental agony and financially.

On notice, respondent Nos. 1 to 3 filed a joint written statement and alleged that the driver of the Canter was not driving the offending vehicle rashly and negligently, as alleged.

Respondent No. 2 was ordered to be proceeded against ex-parte on 7.1.1994.

Respondent No. 4-National Insurance Company submitted that no accident had ever taken place with the Canter in question and that the driver of the Canter in question was neither rash nor negligent in his driving. According to the Insurance Company, the driver of the motor-cycle was coming at a fast speed and could not control the vehicle and so hit against the Canter by coming on the wrong side of the road. The Insurance Company also took up the plea that the driver of the offending vehicle was not possessing any valid driving licence on the date of accident.

Following issues were framed:

Whether the accident in question took place due to rash or negligent driving of Canter No. HR-05-A-0780 by respondent Rajoo /OPP.

If issue No. 1 is proved, whether the petitioner is entitled to get any compensation, if so, how much and from which of the respondents?OPP.

Whether the insurance Company is not liable to pay any compensation in view of Preliminary Objections taken in the written statement ?OPR.

Relief.

The parties have led their respective evidence. On the basis thereof, the learned Motor Accident Claims Tribunal granted compensation to the tune of Rs. 75,000/- to the claimant along with interest @ 12% p.a., from the date of filing of the claim petition till actual payment. The respondents were held liable to make the payment jointly and severally.

Feeling dis-satisfied with the aforesaid award, the claimant- appellant preferred FAO No. 770 of 1996 for enhancement of compensation whereas The National Insurance Company Ltd. preferred FAO No. 420 of 1996 for absolving him from lability.

I have heard the learned Counsel for the parties and have gone thorough the records of the case.

First of all, I shall take FAO No. 420 of 1996 preferred by National Insurance Company, vide which prayer has been made for absolving the Insurance Company of the liability on the ground that driver of the offending vehicle was not holding a valid driving licence.

Counsel for the Insurance Company has submitted that in view of authority M/s New India Assurance Co. Ltd v. Surinder Paul and Ors. 1990 1 PLR 318, it was for the driver to produce the licence and in the absence of valid licence, the Insurance Company cannot be held liable.

So far as the authority, Surinder Paul and others'' case (supra) is concerned, that authority is distinguishable to the facts of the present case as the licence has been produced in the present case. The Tribunal relying upon authority Narcinva V. Kamat and Anr. v. Alfredo Antonio Deo Martins and Ors. 1985 A.C.J. 397 held that onus lies on the Insurance Company to prove that driver was not holding a valid driving licence. That finding based upon the authority laid down by Hon''ble Supreme Court are correct. The onus is always upon the Insurance Company to prove that driver was not holding a valid driving licence. The Insurance Company has failed in the present case to discharge that onus. Consequently, the appeal preferred by the Insurance Company is without any substance and the same stands dismissed.

Now reverting to the FAO No. 770 of 1996 preferred by the claimant for enhancement of compensation.

Learned Counsel for the appellant has relied upon authority Major Bhupinder Singh Grewal v. Punjab Roadways Pathankot and Ors. 2009 (1) PLR 164 and on the strength of the same, it has been argued that amount of Rs. 75,000/- granted by the Tribunal is on the lower side. The claimant suffered 50% permanent disability. Rs. 45,000/- has been granted in respect of expenses of medicines. The claimant remained admitted in civil hospital, Karnal for a period of 13/4 months. His right leg was operated upon for five times. Dr. G.S. Arora (PW-3) has stated that there was a fracture of supracondilar region fracture of the femur right and there was fracture of the base of 5th matacorpal bone right.

Dr. Ved Pal (PW-6) has proved the fact that Jaspal Singh remained admitted for some days. So, the amount of Rs. 30,000/- granted in respect of physical and mental agony in addition to the financial loss is on lower side. The prayer has been made for enhancement of such amount.

On the other hand, learned Counsel for the Insurance Company has submitted that although Rs. 45,000/- has been granted in respect of treatment but there is no corresponding bills produced on the file and the bills produced are of much lower value. Even the amount, granted by the Tribunal, should not have been granted. Authority Major Bhupinder Singh Grewal''s case (supra) is distinguishable to the facts of the present case as in that case, the claimant was a Major in the army. His right of promotion was curtailed due to injuries and also his retirement age was advanced by six years from 58 to 52 years. There is no such circumstance in the case in hand. The amount awarded in this respect is in the year 1995. In the year 1992-93, when the amount of Rs. 75,000/- was a substantial amount. So, no ground for enhancement is made out.

I have heard both the sides and have gone through the records of the case.

The Tribunal has granted Rs. 45,000/- in respect of treatment after considering the testimonies of Dr. G.S.Arora (PW-3), Dr. Wazir Singh (PW-5), Dr. V.P. Gupta (PW-6). So, the amount awarded by the Tribunal has been rightly granted.

There was 50% permanent disability and claimant suffered fracture of superacondilar region of the femur right and there was fracture of the base of 5th matacorpal bone right. The claimant has stated that he remained under treatment for 13/4 months. So, the amount of Rs. 30,000/- granted regarding mental pains and suffering, financial losses is on lower side. The said amount should be atleast Rs. 50,000/- on these heads.

So, keeping in view the above discussion, the appeal preferred by the claimant stands partly accepted. The claimant is entitled for Rs. 20,000/- more in addition to the amount awarded by the Tribunal along with interest @ 7% per annum from the date of appeal till payment. The liability to pay the same shall be same as that held by the Tribunal.

So, both the appeals stand disposed of in terms mentioned above.

A copy of this judgment be sent to the trial Court for strict compliance.