HIGH COURT OF CHHATTISGARH. BILASPUR D.B.: HON'BLE SHRI RAJEEV GUPTA. C.J. & HON'BLE SHRI SUNIL KUMAR SINHA. J. ^ M.A. No. 258 of 2003 National Insurance Company Limited 1 Vs. Ram Gulal Gandharv & Others And (Connected M.A. No. 484 of 2003) T- ORDER HON'BLE SHRI JUSTICE RAJEEV GUPTA 3 ^^r^-f For consideration Sd/- Sunil Kumar Sinha Judge Sd/- Chief Justice Post for Order: /^/12/2010 Sd/- Sunil Kumar Sinha Judge % HIGH COURT OF CHHATTISGARH AT BH-ASPUR D.B.: HON'BLE SHRI RAJEEV GUPTA. C.J. & HON'BLE SHRI SUNIL KUMAR SINHA. J. APPELLANT \. RESPONDENTS M.A. No.258/2003 National Insurance Company Limited, Branch No.2,Through Divisional Manager, Divisional Office, G.E. Road, Raipur, Tahsil and District Raipur (Chhattisgarh) Versus Ram Gulal Gandharv, S/o D.R.Gandharv, aged 46 years, R/oSahaspur (Rajim) Hall Mukam -Lok Nirman Vibhag, Sthal Sahayak, Gariyanband, Tahsil and DistrictRaipur (Chhattisgarh) Bhagelu Ram, S/o Inderman, aged 30 years, R/o Village Basin, Police Station - Rajim, Tahsil and District Raipur Pramod Dubey, S/o Gajanand Dubey, aged 35 years, R/o Bahamnapara Raipur, Tahsil and District Raipur (C.G.) And; M.A. No.484/2003 APPELLANT Ramgulal Gandharva, S/o D.R. Gandharva, aged about 46 years, R/o Sahaspur (Rajim) At present Public Works Department, Place Assistant, Gariyaband, District Raipur (C.G.) "'^ ''^SKW^^^ M.A. Nos. 258/2003 & 484/2003 RESPONDENTS Versus Bhagelu Ram, S/o Indermal, aged about 30 years, Village Basin, Thana Rajim, District Raipur (C.G.) Pramod Dubey, S/o Gajanand Dubey, aged about 35 years, R/o Brahamanpara, Raipur (C.G.) The Natjonal Insurance Company Limited, Divisional Manager, Divisional Office, G.E.Road, Raipur (C.G.) IVIISCELLANEOUS APPEALS UNDER SECTION 173 OF THE MOTOR VEHICLESACT Appearance: Mr. Sanjeev Kumar Verma, Advocate for the claimant. Mr. Shree KumarAgrawal, Senior Advocate with Mr. Anand Gupta, Advocate for the Insurance Company. ORDER (/5-'.12.2010) The following order of the Court was delivered by Sunil Kumar Sinha.J: c (1) These appeals have been filed against the award dated 18.01.2003 passed in Claim Case No.58/2002 by the Ninth Additional Motor Accident Claims Tribunal (FTC), Raipur. M.A. No.484/2003 has been filed by the claimant for enhancement of compensation, whereas, M.A. No.258/2003 has been filed by the Insurance Company for its exoneration. (2) The facts briefly stated are as under: Claimant Ramgulal Gandharva filed a claim petition under Section 166 of the Motor Vehicles Act, claiming compensation of Rs.4,50,000/- forthe injuries sustained by him in the motor accident on 06.11.1999,when the passenger bus, in which, he was -k.i..,,',. '- ':.::^" •^- M.A. Nos. 258/2003 & 484/2003 travelling met with an accident on account of rash and negligent driving ofthe said bus by its driver. The claimant was working as a Field Officer in Public Works Department (PWD). He pleaded that he sustained fractures on his left clavicle bone and two ribs of the rightside. The claimant also filed a Disability Certificate (Ex.P/6). According to the claimant, he suffered 15% permanent disability on account of the above injuries sustained by him. The insurer, amongst the others, also took the plea that the driver of the bus was having no valid license to drive the said vehicle on the date ofthe accident. The Tribunal held that it was not a case of permanent disability. It further held that the claimant had sustained facture on his left clavicle bone and was entitled to receive a total sum of Rs.15,000/- as compensation. The Tribunal, thus, awarded a sum of Rs. 15000 as compensation to the claimant. The Tribunal also awarded interest @ 8% per annum from the date of registration of the claim case till realization. The plea raised by the Insurance Company regarding not holding the valid license by the driver was rejected by the Tribunal. (3) Mr. Shree Kumar Agrawal, learned Senior Advocate appearing on behalf of the InsuranceCompany argued that there is evidence to the effect that the driver was holding a fake driving license, therefore, the Insurance Company was not liable to pay compensation to the claimant. (4) On the other hand, Mr. Sanjeev Kumar Verma, learned counsel appearing on behalf of the claimant argued that the photocopy of the license is on record. The license was in a format and the driver was given employment on the basis ofthe said license and the owner has taken due care about all this, therefore, even if the license was ultimately found to te.^- l^ '^ss^' L M.A. Nos.258/2003 & 484/2003 be fake, the Insurance Company cannot escape from its liability. Apart from the above, he also argued that the compensation awarded is very low, which may be suitably enhanced. (5) We have heard learned counsel for the parties at length and have also perused the records of the claim case. (6) So far as the question of fake license is concerned, that itself would not be a ground for exonerating the Insurance Company in absence of proof that the insured was guilty of negligence and he failed to exercise reasonable care in the matter of fulfilling the condition of the policy regarding the use of vehicle by a duly licensed driver or one who was not disqualified to drive at the relevant time. The burden of proving such fact lies on the Insurance Company. Mere absence, fake or invalid driving license or.any disqualification of the driver are not in themselves the defences available to the insurer either against the insured or the third parties. This has been laid down in the matter of National Insurance Companv Ltd.-Vs.-Swaran Sinah and others. (2004) 3 SCC 297. (7) In the present case, the copy of the driving license has been filed as Ex.D/5. The license is shown to be issued in form No.6 under the relevant rules. It also carries the seal etc of the licensing authority at the places required under the format. The copy of the said license, at the first instance, does not appear to be fake. If the aforesaid license was produced by the driver before the insured and the insured on the basis of production of such license kept the driver in employment and later on, it was found that the license was fake, it cannot be said that the insured was negligent and he failed to exercise reasonable care in the matter of k-- M.A. Nos. 258/2003 & 484/2003 fulfilling the condition of the policy regarding the use of vehicle by a duly licensed driver or one who was not disqualified to drive at the relevant time. (8) In the above facts and circumstances, when the license was in a format and the driver was given employment on the basis of the said license and there is nothing on record to show that the insured was not vigilant, it cannot be said that the Insurance Company has discharged its burden to prove that the insured was guilty of negligence or the insured failed to exercise reasonable care in the matter of fulfilling the condition of the policy regarding the use of vehicle by a duly licensed driveror one who was not disqualified to drive at the relevant time. Therefore, the arguments advanced by Mr. Agrawal cannot be accepted. (9) So far as enhancement of compensation is concerned, we have gone through the material produced before the Claims Tribunal. The Tribunal has rightly held that the claimant could not establish that he suffered permanent disability on account of the said accident. However, we find that according to Ex.P/4 (injury report filed before the Criminal Court), the claimant had sustained fracture on his left clavicle bone.We further find that the clalrhant was hospitalized for few days and he had to take leave from his office. The Tribunal has taken the view that no amount was deducted from the salary of the claimant on account of the leave taken by him, therefore, there was no monetary loss to the claimant and thus, the Tribunal has awarded Rs.15,000/- for the said fracture proved to be sustained by the claimant. ^ 6 M.A. Nos. 258/2003 & 484/2003 (10) It is a matter of common sense that on account of such fracture, as sustained by the claimant, one has to undergo long treatment and a considerable amount is spent on such treatment. The Tribunal has not awarded the amounts in different heads and a lump sum amount of Rs. 15.000/- inclusive of the possible heads like expenditure incurred in treatment, pain and sufferings etc. has been awarded to the claimant. On the proved facts on record, we are of the opinion that the said amount is on the lower side, which require suitable enhancement. After going through the entire material on record, we are of the view that a further award of Rs.10,000/-, inclusive of interest component, would make the compensation just and proper in this matter. Therefore, we allow the appeal filed by the claimant and direct that the claimant is entitled to receiv^ a further sum of Rs.10,000/-, inclusive of interest component from respondent No.S/lnsurance Company as the enhanced amount of compensation for the injuries sustained by him in the motor accident on 06.11.1999. (11) The National Insurance Company Ltd./respondent No.3 is granted 3 months time to deposit the above amount of Rs.10,000/- before the concerned Claims Tribunal. (12) In the result, M.A. No.258/2003 is dismissed and M.A. No.484/2003 is allowed to the extent indicated above. (13) No order as to cost(s). Sd/- . Chiief Justice Sd/- Sunil Kumar Sinha Judge