FAO No. 273 of 1990 1 IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH FAO No. 273 of 1990 Date of decision 5.2.2010. Parveen Kumar ...... Appellant. versus Mohinder Pal and others ...... Respondents. Present : Mr. G.S.Bawa, Advocate for the appellant. Mr. R.C. Gupta, Advocate for Insurance Company. K.C.PURI. J. This is an appeal preferred by the appellant for enhancement of the compensation amount awarded by the Motor Accident Claims Tribunal, Sirsa vide Award dated 3.2.1990. The brief facts relevant for the disposal of the present claim petition are that on 19.12.1988 at about 6.30 A.M., truck No. HNN 1518 and tractor No. HNN 2662, which occurred on 19.12.1988 at about 6.30 p.m. Near Arowansh Chowk on Dabwali Road, Sirsa. It is alleged that the accident had been caused by Mohinder Singh – respondent No.1 while driving truck in question in a rash and negligent manner on account of which Smt. Birma Devi received injuries and died, whereas Moman Ram, Kewal Jhandu and Manphul and Parveen Kumar-claimants, received FAO No. 273 of 1990 2 injuries. Parveen Kumar aged 25 years (claimant in claim petition No. 34 of 1989) employed in Animal Husbandry Gass Plant, Sirsa claimed that he was earning Rs.1500/- per month and laid claim for Rs.3,00,000/- on account of injuries received in the accident aforesaid. In the written statements, the respondent Mohinder Singh, driver and the Insurance company of the truck i.e. New India Assurance Company, have taken almost identical pleas in so far as they denied the responsibility of the truck driver for the accident and alleged that it was the result of rash and negligent driving of the tractor trolly. It is admitted that the truck in question was insured with the New India Assurance Company. However, the income of Birma Devi and the fact that the claimant (in claim petition No.14) were her LRs have been denied. They have also denied their liability on account of the claim arising out of the injuries to the other claimants. The insurance Company also pleaded that the policy was not a valid one because the insurance had been made after the accident. It was also alleged by it that the claimants were passengers in the tractor trolly and thus, were not third party. It was also denied that the driver of the truck in question had a valid driving licence. Respondents Tilak Raj and Jagdish pleaded that they were not owners of the truck in question. Respondent Sunil Kumar son of Guranditta was proceeded ex parte. Mohinder Kumar, driver and owner of the tractor No. HNN 2662 and Jagdish co-owner of the tractor filed a joint written statement alleging that the tractor driver was not negligent. The United India FAO No. 273 of 1990 3 Insurance Company (respondent No.6 in claim petition No.34) with which the tractor in question had been insured also took up similar pleas and denied its liability to pay the amount of compensation. Following issues were framed in claim petition on 7.12.1989:- 1. Whether the accident involving injuries to Parveen Kumar claimant was the result of rash and negligent driving of truck No. HNN 1518 or of tractor No. HNN 2662 OPP. 2. To what amount of compensation, the claimant is entitled and against whom? OPP 3. Relief. The Tribunal in this case has granted amount of Rs.22,500, the details of which is as under :- 1. Medical Expenses Rs. 1000/- 2. Better diet Rs. 900/- 3. Loss on account of without pay or half pay, Rs.5206/- and Rs.15,000/- on account of pain and suffering and by rounding of Rs.22,500/- has been granted. According to the finding of tribunal claimants remained on half pay salary for 117 days. The amount of Rs.15,000/- granted in respect of pain and sufferings is on lower side. The feelings of a person, who remained confined to his bed for more than six months due to accident can be well imagined. Keeping in view the disability of Parveen Kumar, the amount in respect of pain and suffering, future loss of income, loss of pleasure of life FAO No. 273 of 1990 4 etc. stands enhanced to Rs.70,000/- instead of Rs.15,000/- So, the claimants Parveen Kumar is held entitled to claim Rs.55,000/- more in addition to the amount awarded by the Tribunal along with interest @ 7% per annum from the date of appeal till realization. The New India Assurance Company (hereinafter mentioned as - Insurance Company) has been absolved of its liability on the ground that the driving licence has not been proved by the driver. Counsel for the respondent has placed on record, the photostat copy of the driving licence Ex.RX but the Tribunal has discarded the same on the ground that the same has not been proved in accordance with law. The Tribunal has lost sight of the fact that to prove that the driver of the offending vehicle was not holding a valid driving licence is always upon the Insurance Company and not upon the driver. The driver has produced photostat copy of the driving licence. The Insurance Company was well within its rights to prove the fact that photostat copy produced by the driver was not issued by the competent authority. So, the insurance company has failed to discharge the onus upon it that drive of the offending vehicle was not holding a valid driving licence. So, the finding of the Tribunal absolving New India Assurance Company does not sustain the test of legal scrutiny and finding of the Tribunal to the effect that driver was not holding a driving licence stands set aside and it is held that Insurance Company has failed to prove the fact that driver of the vehicle was not holding a valid driving licence. Consequently, it is held that New India Assurance Company of truck No.HNN-1518 shall pay the awarded amount along with its owner and FAO No. 273 of 1990 5 driver jointly and severally. So, the appeal stands disposed of in the terms mentioned above. A copy of this judgment be sent to the trial Court for strict compliance. ( K.C.PURI ) JUDGE February 05, 2010 sv