IN THE HIGH COURT OF HIMACHAL PRADESH, SHIMLA CMPMO No. 140 of 2002 alongwith FAO No.104 of 2003 Date of decision: 8.12.2010 CMPMO No.140 of 2002 Radha Parivahan …. Petitioner Versus Rajinder Kumar and ors, ….. Respondents FAO No.104 of 2003 Rajinder Kumar …. Petitioner Versus Radha Parivahan and ors. ….. Respondents Coram: The Hon’ble Mr. Justice Deepak Gupta, J. Whether approved for reporting? No CMPMO No.140 of 2002. For the petitioner: Mr.Ajay Sharma, Advocate. For the respondents: Mr.V.S.Rathore, Advocate for the respondent No.1. FAO No.104 of 2003 For the appellant: Mr.V.S.Rathore, Advocate. For the respondents: Mr.Ajay Sharma for the respondent No.1. _____________________________________________ 2 Deepak Gupta, J.(Oral) 1. The aforesaid petition and appeal are being disposed of by a common judgment since they arise out of one award passed by the learned Motor Accident Claims Tribunal (I), Kangra at Dharamshala whereby he awarded compensation of Rs.6750/- alongwith interest in favour of the claimant and held that the owner and the driver of the vehicle alone are liable to pay the amount and exonerated the Insurance Company of its liability to pay the compensation on the ground that the driving licence of the petitioner did not possess a valid driving licence. 2. Briefly stated the facts of the case are that Rajinder Kumar (hereinafter referred to as the ‘claimant’) was travelling in bus No.HP-40-2175 which met with an accident on 21.8.1998. The claimant was taken to the hospital where it was found that his teeth had broken. He underwent treatment at various places. Thereafter, he filed a Claim Petition before the learned MACT (I), Kangra at Dharamshala which has been disposed of by the impugned order. Aggrieved by the quantum of compensation, the 3 claimant has filed FAO No.104 of 2003. The owner of the vehicle is aggrieved by the order exonerating the Insurance Company and has filed CMPMO No.140 of 2002 since an appeal is not maintainable as the award passed was less than Rs.10,000/-. 3. First, coming to the quantum of compensation. The petitioner examined PW/1 Dr.Mrs.P.Singh who stated that on 21.8.1998, she had examined the claimant and found five injuries on his person out of which two injuries were found grievous. She has proved on record the MLC Ext.PA and found that some teeth were missing from the jaw of the petitioner. PW/2 Dr.Chain Singh examined the claimant at Darang. He has proved on record the summary of treatment, Ext.PB which shows that the claimant was kept in hospital only for a few hours but thereafter, it was found that he had a fracture of mandible. The doctor clearly stated that the injured was referred to PGI, Chandigarh and AIIMS, New Delhi for further treatment. 4. PW/6 Dr.N.K.Behal also examined the petitioner at Civil Hospital, Kangra. According to him, when he examined the petitioner, he found that on the right 4 side of the lower jaw, one incisor and one canine, the first pre molar, second pre molar, first molar and second molar and third molar were missing and their sockets had also filled in. He also found that there were no teeth in the upper jaw of the claimant and according to him, such an injury could have been caused in the accident. However, his statement does not tally completely with the MLC and it appears that the teeth removed from the upper jaw would be for some other reason. 5. Be that as it may, from the MLC and the statement of the three doctors, it is more than apparent that the petitioner suffered fracture to the mandible and lost his lower incisor and canine in the accident. Even if the MLC which was prepared at the first instance is taken into consideration, the lower incisor and canine were missing and there was a fracture of the mandible. This could have also led to removal of the other teeth. 6. There is also material on record to show that the claimant was treated at the All India Institute of Medical Sciences, New Delhi on 27.8.1998 within one week of the accident. Again the diagnosis was 5 fracture of the mandible and the petitioner was given follow up dental treatment. Ext.PB is the summary of the treatment of the petitioner at AIIMS, New Delhi. Though the petitioner states that he was treated at PGI, Chandigarh but there is no supporting document in this behalf. 7. From the aforesaid evidence, it is more than apparent that the petitioner suffered a fracture of the jaw. He was treated first at the local hospital; then taken to the Civil Hospital at Dharamshala and thereafter, referred to the AIIMS, New Delhi where he underwent further treatment. In this view of the matter, the award of Rs.6750/- passed by the learned MACT is totally unreasonable and extremely on the lower side. Even if the plaintiff went alone to Delhi, he would have spent a few thousands for travelling to Delhi alone. 8. No doubt, the petitioner other than examining the medical evidence has not led any cogent evidence to show what disability he has suffered but the fact remains that he has suffered a fracture of the jaw and at least lost three of his teeth during the accident and may be this caused further loss to him. 6 9. As far back as 1986, this Court in HRTC Vs. Neema alias Seema and another, 1986 (15), ILR, 142 had awarded a lump-sum compensation of Rs.40,000/- in the case of a young girl who had lost four incisors of the upper jaw. True it is, in that case, the Court was more conscious about the fact that the matrimonial prospects of the young girl may be marred but we are here dealing with a case where the accident took place ten years later. There has been inflation and value of money has gone down during this period. This Court is not oblivious to the fact that the injury, in question, is not going to cause any pecuniary damage to the petitioner but he must have spent a large amount on his treatment at various places. From the documents on record, it is apparent that he could not work for at least one month and must have spent a large amount on his treatment. For the rest of his life, he will have to be dependent upon artificial teeth. His face has also been dis-figured. 10. Keeping in view all the aforesaid factors, in my opinion, an award of Rs.50,000/- would be justified in the facts and circumstances of the case. 7 11. Coming to the issue as to whether the Insurance Company could have been exonerated, the learned MACT relied upon the judgment of the Apex Court in New India Assurance Co. Shimla Vs. Kamla & ors. 2001 (4) SCC 342 wherein the Apex Court held that renewal of a fake licence will not clothe it with legal validity. There can be no dispute with regard to this aspect. However, the material on record shows that the owner of the vehicle in CMPMO No.140 of 2002 was unaware of the fact that the original driving licence allegedly granted to the petitioner from Dehradun was fake. This is apparent from the fact that thereafter this licence was renewed at Palampur in District Kangra at least on two occasions. The owner had no reason to believe that such licence was fake. 12. The Apex Court in 2004 (1), ACJ, 1, National Insurance Co.Ltd, Vs. Swaran Singh and others has clearly held that the Insurance Company in order to avoid its liability must prove that there has been some breach on the part of the owner of the vehicle. There is nothing on record to show that there has been any breach on the part of the owner of the vehicle. 8 13. In this case, as pointed out above, the driving licence had been issued from Dehradun which was fake. However, this licence was renewed at Palampur. The owner stepped into the witness box and stated that he had checked the licence, Ext.RA before handing the vehicle to the petitioner. Therefore, the owner had done all what was possible for him to do. 14. This Court in New India Assurance Co. Vs. Sher Singh & others, Latest HLJ 2005 (HP) 1144 has held that in case there is no evidence to show that the insured knew or had any occasion to know or even to suspect that the licence held by the driver of the vehicle was fake, it cannot be said that the insured is guilty of breach of conditions contained in the policy. In view of the aforesaid law, the Insurance Company could not have been exonerated to pay the compensation. 15. As a result of the aforesaid discussion, both, the appeal and the petition, are allowed. The compensation payable to the claimant is enhanced from Rs.6750/- to Rs.50,000/-. The claimant shall also be entitled to interest @ 9% per annum from the date of filing of the petition till date of deposit/payment of 9 the aforesaid amount. The owner, driver and the Insurance Company are held jointly and severally liable to pay the compensation. Since the vehicle was insured with the Insurance Company, it shall be the liability of the Insurance Company to satisfy the award. No order as to costs. December 8, 2010 ( Deepak Gupta ) (m) Judge