FAO No. 138 of 1989 1 IN THE HIGH COURT OF PUNJAB & HARYANA, CHANDIGARH FAO No. 138 of 1989 Date of decision February 2 , 2011 Hakam Singh ....... Appellant Versus Satpal Singh and others ........Respondents CORAM: HON'BLE MR. JUSTICE K. KANNAN Present:- Mr. Manmohan Singh, Senior Advocate with Mr. M. P. Gupta, Advocate for the appellant. Mr. N. K. Khosla, Advocate for respondent No.3-Insurance Company. **** 1. Whether reporters of local papers may be allowed to see the judgment ? 2. To be referred to the reporters or not? 3. Whether the judgment should be reported in the digest? K. Kannan, J (oral). 1. The appeal is by the owner of the vehicle against whom an award was passed holding that the person that was injured was a gratuitous passenger in a goods vehicle. 2. Learned Senior counsel appearing on behalf of the appellant has three contentions to make. i) the Insurance Company ought to have been made liable since even a passenger in a goods vehicle is entitled to full insurance cover. ii) There was no element of negligence on the part of the driver to make the owner liable. iii) the quantum assessed is high. 3. As regards his contention regarding liability of the FAO No. 138 of 1989 2 insurer for a passenger in a goods vehicle the learned counsel refers to a decision of the Hon'ble Supreme Court in Jugal Kishore and another Vs. Ramlesh Devi and others reported in 2004 Vol. I ACC 353 that held to a query posed before the Court whether an Insurance Company could be liable in case of death or bodily injury caused in a motor accident involving a tractor which was insured only for agricultural purpose and the seating capacity was also shown to be one only but used for different purposes at the time of accident. Citing the decision of the Hon'ble Supreme Court in New India Assurance Co. Ltd. Vs. Asha Rani, III (2002) ACC 753 the Court held that there was no compulsory insurance cover necessary for a passenger but pointing out to a distinction involved in a case for breach of violation of terms of the policy, the Court held that the insurer would become liable for satisfying the claim but for any breach of condition the Insurance Company will have a right of recovery against the owner. I do not find this case to be in any way relevant to this case when the point in issue here is not whether there had been any violation of terms of policy. The point, however is whether an insurance cover exists was required to be taken for a passenger in a goods vehicle. There simply exists no such statutory compulsion. In other words there is no policy of insurance to cover the risk to a passenger in a goods vehicle. This is all the more so, under the scheme of the Motor Vehicles Act, 1939 where it was unexceptional that there could have no passenger in goods vehicle. The amendment of the Motor Vehicles Act, 1988 that provides for some exceptions under Section 147 that would include a owner of the goods to be compulsorily covered for risk when he is travelling with the goods was not available under the 1939 Act. This distinction was also brought out by the decision of the Hon'ble Supreme Court in National Insurance Company Ltd. Vs. Asha Rani 2003 2 SCC 223. The liability cast on the owner was therefore perfectly justified. FAO No. 138 of 1989 3 4. As regards the negligence the contention of the learned Senior counsel is that the evidence of the claimant was that the accident took place by the driver's negligence in talking to his cleaner and he lost his concentration that led the vehicle to be steered out of the road and capsized. Learned Senior counsel would make an argument that a mere talking by a driver with the cleaner cannot amount to negligence. In my view,it is a needless over-simplication of the issue. A driver speaking to a cleaner may not at all times involve the vehicle in an accident but if it does and the vehicle also capsizes, I would take that to be a situation of res ipsa loquitur and hold the driver to be responsible for the accident. The issue of negligence is too evident to be discarded. 5. As regards the quantum, I am loath to interfere on the assessment which is modest for a sum of `40,000/-. The claimant had a fracture of cervical region and he had been put on fraction, the doctor V. K.Khosla has stated that posterior fusion had been done on 19.12.1986. He was an income tax assessee and he was said to have been in the hospital for about a month and six days. While determining the compensation the Tribunal awarded `15,000/- towards costs of medicines, 15,000/- towards loss of earning capacity and `10,000/- for pain and suffering. Learned counsel points out that he was admitted in PGI as “poor free” patient and therefore provisions for hospital charges at `15,000/- was high. A poor patient will not get medicines free from the Pharmasist. Learned counsel points out that loss of earning capacity could not be 15,000/- for the income tax assessment showed is average monthly income to be `2,000/-. According to him, if he had been hospitalized for one month the loss cannot be more than `2,000/- and there was no assessment of permanent disability to determine `15,000/- as loss of earning capacity. If the Tribunal had made an assessment which was slightly high than the case deserved, I would let it rest, for the only reason FAO No. 138 of 1989 4 that because of reappraisal of quantum for `40,000/- does not merit consideration after 23 years after its institution. The appeal is dismissed. (K. KANNAN) JUDGE February 2, 2011 archana