FAO No. 539 of 1994 1 IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH FAO No. 539 of 1994 Date of decision 5 .5.2010. M/s National Insurance Company Ltd. ...... Appellant. versus Satyawan and others ...... Respondents. Present : Mr. R.M.Suri, Advocate for the appellant. Mr. D.S.Bali, Senior Advocate with Ms. Neha Mann, Advocate for the respondent No. 3. Mr. Himanshu Raj, AAG, Harayna for State. FAO No. 1471 of 1994 Shiv Dutt Harnal and others. ...... Appellants. versus Shri Satyawan and others ...... Respondents. Present : Mr. Mr. D.S.Bali, Senior Advocate with Ms. Neha Mann, Advocate for the appellants. Mr. R.M.Suri, Advocate for the respondent No. 3. Mr. Himanshu Raj, AAG, Harayna for State. FAO No. 539 of 1994 2 CORAM : HON'BLE MR.JUSTICE K.C.PURI. K.C.PURI. J. By this common order I intend to dispose of FAO No.539 of 1994 titled as M/s National Insurance Company Ltd. versus Satyawan and others and FAO No. 1471 of 1994 titled as Shiv Dutt Harnal and others. versus Shri Satyawan and others as these appeals arise out of the same award and accident. FAO No.539 of 1994 has been directed by the appellant-M/s National Insurance Company Ltd. against the award dated 14.9.1993 passed by learned Motor Accident Claims Tribunal, Karnal for setting aside the same and the appellant be absolved from the liability whereas another FAO No. 1471 of 1994 has been directed by the claimants for enhancement of the compensation amount. The facts are being taken from FAO No.539 of 1994. Briefly stated as law was set in motion that on April 7, 1990 when Shiv Dutt, claimant was traveling in Haryana Roadways Bus No. HYE-1430 from Ambala to Delhit. The bus reached at Karna Lake, Karnal at 1.00 P.M., which was being driven by its driver at a fast speed and in a rash and negligent manner. Due to hectic speed it struck against a person and then went in the pits and dashed with a tree. The applicant received multiple injuries. He was taken to Civil Hospital, Karnal from the scene of occurrence. On the statement of Ved Parkash, PW-2, First Information Report was recorded at police station Sadar, Karnal against Satyawan, Driver of bus No. HYE 1430. FAO No. 539 of 1994 3 Satyawan, driver of Haryana Roadways (owner) and National Insurance Company Limited, insurer of bus No. HYE 1430 have been arrayed as respondents No. 1 to 3 respectively. Respondent No. 2 owner has pleaded that on the fateful day when the bus reached at Karna Lake (place of occurrence) one person came running in front of the bus, the driver of the bus applied brakes, as a result of which it struck against a tree and turned turtle. According to the respondent No. 2 six persons received injuries in this occurrence. It has also been pleaded that the bus was being driven with all precautions. Following issues were framed :- i) Whether the accident dated 07.04.1990 near Karna Lake resulting into the injuries to the claimant Shiv Dutt took place due to rash and negligent driving of bus No. HYE 1430 by its driver-respondent No. 1 Satyawan, if so its effect? OPR ii) Whether the claimant is entitled to any compensation on account of his own injuries, if so how much and from whom?OPP iii) Whether the claim application is not maintainable being time barred?OPR iv)Whether the petition is bad for non-joinder of necessary parties? OPR v) Whether the claim application is not maintainable? OPR vi) Whether the claimant is estopped by his own act and FAO No. 539 of 1994 4 conduct from filing the claim petition? OPR vii) Whether the bus in question was being driven by a driver who was not holding a valid driving licence at the time of accident? OPR viii)Relief. The parties have led their respective evidence on the aforesaid issues. The Tribunal, after appraisal of the evidence and after hearing learned counsel for the parties, awarded Rs.1,14,500/- as compensation with costs and interest @ 12% per annum from the date of filing the petition till its realization. The respondents No.1 to 3 were held liable to pay the compensation amount jointly and severally. Feeling dis-satisfied with the aforesaid award, appellant- M/s National Insurance Company Ltd. has filed the instant appeal for setting aside the award whereas the claimants have filed the appeal for enhancement of the compensation amount. I have heard the learned counsel for the parties and have gone thorough the records of the case. The only ground taken by the Insurance Company to absolve its liability is that, as per impugned policy Ex.R-4, the offending bus No. HYE-1430, was not insured with the appellant company. An application under Order 41 Rule 27 of the Code of Civil Procedure (in short – CPC) has been filed for allowing the appellant- Insurance Company to produce the document Annexure A, vide which request for getting insurance of 174 vehicles as mentioned therein was FAO No. 539 of 1994 5 made. It is submitted that Sr.No.110 of Annexure A Bus No. HRZ-4033 has been mentioned and at Sr.No.1 to 4 has been requested not to insure, on the strength of same, it is argued that bus in question was not insured. I have carefully considered the said submission. So far as the production of Annexure A by way of additional evidence is concerned, that document does not help the appellant in any manner. Bus No.1430 has been mentioned at page No.3. However, the portion in which first letter of the vehicles are mentioned including the serial number is in torn condition. So, carbon copy Annexure A, will not help the Insurance Company in any manner. However, photostat certified copy has also been placed on the file of Annexure A and upon perusal of the same it is revealed that at Sr.No.91 Bus No.HYE-1424 has been mentioned and upto Serial No.100, the bus numbers have been mentioned and word `do' has been mentioned. There are at Sr.No.101 HRZ-155 to 1417 has been mentioned. At Sr.No.102 bus No.1418 has been mentioned and the letters HYE -377 seems to have been mentioned. Against entry Nos.103 to 107 word ` do ' is mentioned. The bus in question has been mentioned at serial No.106. So, if word `do' is taken into consideration the bus number would be HYE-1432 and not HR-1432. The Insurance policy has been placed on the file and along with the policy, a list of 170 buses has been attached and at Sr.No.106 HYE- 1430 has been mentioned. So, it makes the things crystal clear that bus No.HYE-1430 has been insured with the National Insurance Company- FAO No. 539 of 1994 6 the appellant. The above said dispute has been raised for the first time in the appeal and not before the Tribunal. The appellants could very well prove by producing the relevant record before the Tribunal that bus No.HRZ-1430 is also owned by Haryana Roadways. So, the application under Order 41 Rule 27 CPC is without any merit and the same stands dismissed. It is not out of place to mention here that Haryana Roadways used to get insurance of the buses from the National Insurance Company. Had the Haryana Roadways been owner of Bus No.HRZ-1430, in that case the same would have been insured by the Haryana Roadways. So, it so seems that due to tearing out of the Annexure A sought to be produced by way of additional evidence, the confusion has been created in the minds of authorities of the Insurance Company. That impression seems to be ill-founded. So, I have no hesitation in holding that bus in question was duly insured with the appellant-Insurance Company and the appeal preferred by National Insurance Company is without any merit and the same stands dismissed. Now rebutting to the appeal preferred by the claimants for enhancement. The Tribunal has granted an amount of Rs.1,14,500/- to the claimant, details of which is given as under :- 1.Treatment taken by the appellant, medical vouchers : :- Rs.35,000/- 2. Loss of earning :- Rs.39,472/- FAO No. 539 of 1994 7 3. Pain and suffering :- Rs.25,000/- 4. Permanent disability :- Rs.15,000/- and by rounding off the amount awarded comes to Rs.1,14,500/- From the perusal of the file, it is revealed that the matter was settled in the Lok Adalat where the Insurance Company agreed for enhancement of compensation to the extent of Rs.2,25,000/- instead of Rs.1,14,500/-. The Insurance Company has further made statement before the Lok Adalat that in the instant case an amount of Rs.2,25,000/- shall be deposited with the Motor Accident Claims Tribunal within two months from the date of order dated 13.1.1999. However, later on Insurance Company filed an application to recall the order on the ground that offending vehicle was not insured. So, the matter has been put up before this Court for decision on merits, after recalling the said order. The claimant has moved an application under Order 41 Rule 27 CPC with the allegation that claimant Shiv Dutt remained under treatment of Dr.N.D.Aggarwal, Patiala from March 1990 to 6.1.1992 and he further remained under treatment of Dr. Harish from Patiala from 14.1.1992 to 14.11.1992 he remained indoor patient at Rajindera Hospital from 20.11.1992 to 18.1.1993 and outdoor patient from 19.1.1993 to 9.9.1993 and also remained indoor patient in Rajindera Hospital from 4.10.1993 to 4.11.1994. The Tribunal has observed that claimant was examined firstly at Civil Hospital, Karnal and thereafter he was shifted to Civil FAO No. 539 of 1994 8 Hospital, Ambala city where he remained hospitalized from 8.4.1990 to 25.6.1990 i.e. for 78 days. He was operated upon by Dr.Ashok Sarwal. Patient last remained under treatment from 26.6.1990 to 3.12.1990 as out door patient. He was again admitted in hospital on 4.12.1990 for bone debridement. Plaster of paris was applied. Both the legs of claimant were fractured. It has been further observed by the trial Court that lastly he was examined by the Medical Officer on 3.3.1993. So, in these circumstances, the amount of Rs.1,14,500/- is on lower side. No amount has been granted by the Tribunal for future expenses on the medicines. The amount granted in respect of permanent disability is only Rs.15,000/- and it should be on higher side. I am of the view that amount of Rs.2,25,000/- assessed by the Lok Adalat was correctly assessed. So, the amount of compensation stands enhanced to Rs.2,25,000/- instead of Rs.1,14,500/-. The enhanced amount of Rs.1,10,500/- shall carry interest @ 7% per annum from the date of appeal till payment. The payment thereof shall be made in the same terms as directed by the Tribunal. So, the appeal preferred by the claimants stands partly accepted to the above extent. A copy of this judgment be sent to the trial Court for strict compliance. ( K.C.PURI ) JUDGE May 05 , 2010 sv