IN THE HIGH COURT OF HIMACHAL PRADESH, SHIMLA FAO No.203 of 2001 Judgement reserved on: 2.1.2008 Date of decision: 25.2.2008 Sagar Dass ….. Appellant Vs. New India Assurance Co.Ltd. & Ors …. Respondents. Coram The Hon’ble Mr. Justice Kuldip Singh, Judge. Whether approved for reporting?1 No For the Appellant : Mr. G.D.Verma, Sr. Advocate with Mr. Romesh Verma, Advocate. For the Respondents : Mr. Sanjeev Sood, vice Mr. K.D. Sood, Advocate, for respondent No.1. Mr. Raj Negi, vice Mr. B.C. Negi, Advocate, for respondent No.2 Mr. M.L. Chauhan, Addl. Advocate General, for respondents No.3 to 5. Kuldip Singh, Judge. The owner of bus No.HP-06-0978 has filed this appeal against award dated 31.3.2001 passed by learned Motor Accident Claims Tribunal, Kinnaur at Rampur Bushahr, H.P. in M.A.C. Case No.4 of 1998, awarding Rs.1,36,000/- compensation to respondents No.3 to 5 on account of death of Chhote Lal due to injuries sustained by him in an accident involving bus No.HP-06-0978. Whether the reporters of the local papers may be allowed to see the Judgment?Yes …2… 2. The facts in brief are that bus No.HP-06-0978 owned by appellant was being driven by respondent No.2 on 8.11.1995 at about 2 P.M. at bus stand, Rampur. The respondent No.2 rashly and negligently reversed the bus, the rear portion of the bus struck against lamp-post and traffic post and the roof of the bus had given way and had fallen on Chhote Lal and others. Chhote Lal suffered spinal injuries leading to paraplegia of both legs. He was admitted in Referral Hospital on 8.11,1995 and was discharged on 2.1.1996. It has been alleged that due to poverty Chhote Lal could not arrange further treatment and he ultimately died on 14.6.1997 due to injuries sustained by him in the accident. The bus at the time of accident was insured with respondent No.1. The deceased was 40 years of age at the time of accident and was earning Rs.2100/- per month as a semi skilled labourer. The respondent No.3 is the widow and respondents No.4 and 5 are the children of Chhote Lal. The respondents No.3 to 5 filed petition claiming Rs.5,00,000/- compensation on account of death of Chhote Lal. 3. The appellant contested the petition. He admitted the ownership of the bus and also the fact that respondent No.2 was driving the bus at the time of accident. He denied that the accident took place due to rash and negligent driving on the part of respondent No.2. The factum of death of Chhote Lal has also been admitted by him but cause of death of Chhote Lal was denied for want of knowledge. He has shown ignorance regarding the age, income and occupation of Chhote Lal. The relationship of claimants with Chhote Lal has also been denied. He has submitted that he employed a duly …3… licensed driver to drive the bus. The bus was covered by comprehensive insurance policy of respondent No.1 at the time of the accident. The compensation if any, is payable by the Insurance company. The respondent No.2 driver contested the petition by filing reply. He denied the involvement of the bus in the accident. The respondent No.1, New India Assurance Company also contested the claim petition by filing reply and in the reply took preliminary objections of resjudicata, lack of material particulars, lack of cause of action, the vehicle in question was not having valid registration, route permit. The driver of the bus was not possessing valid driving licence at the time of the accident. There was breach of the terms and conditions of the policy and therefore, insurance company is not liable to pay any compensation. On merits, it has been submitted that income of the deceased has been exaggerated. In the earlier petition Chhote Lal was given no fault liability amount of Rs.25,000/- . The accident was an act of God and due to negligence on the part of deceased Chhote Lal. The learned Tribunal ultimately allowed the petition as noticed above, hence appeal by the owner of the bus. 4. I have heard Mr. G.D. Verma, learned Senior Advocate for the appellant, Mr. Sanjeev Sood, for respondent No.1, Mr. Raj Negi for respondent No.2 and Mr. M.L. Chauhan learned Addl. Advocate General for respondents No.3 to 5 and gone through the record. On behalf of the appellant, it has been submitted that the learned Tribunal has drawn wrong inference from the material on record. The evidence led by the claimants is not legal evidence. It has not been proved that deceased died due to the injuries sustained …4… by him in the accident. No medical officer has been produced to establish that the deceased had died on account of injuries sustained by him in the accident. The claimants have not proved income and age of the deceased. Chhote Lal filed claim petition earlier and therefore, subsequent claim petition filed by respondents No.3 to 5 is not maintainable. The relationship of respondents No.3 to 5 with the deceased has not been proved. The vehicle was insured with respondent No.1 but the learned Tribunal has wrongly exonerated the insurance company. The driver of the bus at the time of accident having valid licence and was competent to drive the vehicle in question. The learned counsel representing the insurance company as well as respondents No.3 to 5 have supported the impugned award. CMP No.265 of 2002 5. This is an application under Order 41 Rule 27 read with Section 151 CPC filed by the appellant for leading additional evidence to produce file of MAC No.79/2 of 96 titled Chhote Lal vs. Sagar Dass decided on 2.1.1998 and in the alternative requisitioning of that file. The appellant has also prayed to produce Gram Panchayat and Vikas Adhikari Chanju and Gram Panchayat Nachar along with birth as well as original Pariwar Register of the said Panchayat for the period 1968 onwards. It has been submitted that earlier Chhote Lal filed MAC No.79/2 of 1996 titled as Chhote Lal vs. Sagar Dass. He appeared and made statement on 9.4.1997 wherein he disclosed the name of his wife as Prem Kali. Now the present petition has been filed by Bhanumati and her children. The appellant wants to produce …5… (i) the application dated 15.2.2002 addressed to District Panchayat Officer, Shimla and Vikas Adhikari Gram Panchayat, Chanju, (ii) certificate dated 20.3.2002 and (iii) certificate dated 21.3.2002. Respondent No.1 has filed reply to this application but has not contested the application. The additional evidence is permissible within the ambit of Order 41 Rule 27 CPC. There is no averment in the application that the appellant was not earlier aware of the documents which he now wants to produce by way of additional evidence. It has not been stated in the application why the additional evidence now sought to be led was not adduced before the learned Tribunal. PW-2 Bhanumati appeared in the witness box but she was not cross-examined by appellant regarding relationship of claimants with the deceased. RW-2 Sagar Dass also appeared in the witness box and he has not stated a word regarding the relationship of the claimants with the deceased. The appellant has failed to make out a case for additional evidence. In the application it has been prayed that file of MAC No.79/2 of 96 may be ordered to be produced or in the alternative it may be requisitioned. A prayer has also been made for production of Gram Panchayat and Vikas Adhikari, Chanju and Gram Panchayat Nachar along with birth as well as original Pariwar Register of the said Panchayat for the period of 1968 onwards. The simple production of file MAC 79/2 of 96 will not prove the contents of the file. There is no prayer in the application that the appellant may be permitted to prove Annexures Ex.PX, Ex.PX-1 and Ex.PX-II. The appellant has failed to make out any case …6… for leading additional evidence. There is no merit in the application and is accordingly dismissed. 6. PW-1 Dr. Jagdish Gupta, Medical Officer, Referral Hospital, Rampur has stated that he examined Chhote Lal who was indoor patient in referral hospital at Rampur. He was admitted on 8.11.1995. On 15.11.1995 he was referred to Indira Gandhi Medical College (IGMC), Shimla by Dr. Chauhan. This witness was not cross-examined. PW-2 Bhanumati has stated that Chhote Lal was her husband. On 8.11.1995 her husband came to Rampur and was standing in the police post at bus stand, bus bearing No.HP-06-0938 came there. The driver reversed the bus and struck against police post and roof fell on the back of her husband. He suffered injuries on his head, back, and on other parts of the body. He was removed to hospital. An FIR Ex.PW-2/A was registered. He remained in the hospital from 8.11.1995 to 15.11.1995. He was referred to IGMC, Shimla. Her husband could not move due to injuries sustained by him and his lower portion became paraplegic. At the time of accident the age of her husband was 40 years and he was working as mason. He was earning Rs.120/- per day. He had no improvement despite treatment. The claimants were dependant on her husband. The claimants had no funds for treatment of her husband and therefore, they had gone to their relations at Khidki, Chopal. Her husband filed a claim petition in which Rs.25,000/- compensation was awarded which was spent on medicines. On account of injuries sustained by her husband in the accident he died on 14.6.1997. The accident took place due to rash and negligent driving on the part of …7… the driver of the bus. She has two children. In cross-examination on behalf of owner of the bus nothing favourable was extracted. The claimants tendered in evidence death certificate Ex.PA, birth certificates, Ex.PB, Ex.PC. 7. RW-1 Santokh Singh, Administrative officer, New India Assurance Company, Divisional Office, Shimla has stated that bus No.HP-06-0978 was insured with Shimla Branch from 19.4.1995 to 18.4.1996. Later on the insurance company came to know that Chhote Lal was injured in the accident which took place on 8.11.1995. The driving licence of the driver was got verified vide report Ex.RW-1/A. The insurance policy of the bus is Ex.RW-1/B. As per policy the licence should have been of HTV but it was found to be of light vehicle. The driver was not holding a valid driving licence at the time of accident, therefore, insurance company is not liable to pay any compensation. RW-2 Sagar Dass owner of the bus has stated that he was owner of bus No.HP-06-0978 having capacity 29+1+1 = 31. The respondent No.2 was the driver of the bus and his driving licence is Ex.RW- 2/A which is a valid licence. In cross- examination he has stated that on the date of accident on 8.11.1995 the respondent No.2 was holding MGV licence only. RW-3 Gian Singh, Licence Clerk, RLA Bhabanagar has stated that Devinder Singh was granted licence to drive light motor vehicle by RLA Nichar on 15.7.1993 This licence was endorsed for medium goods vehicles on 22.2.1995 and was not endorsed for heavy goods vehicle by R.L.A. Nichar. RW-2/A is the copy of driving licence of Devinder Singh. On 8.11.1995 respondent No.2 was not in possession of …8… licence to drive heavy transport vehicle as per the record of R.L.A. Nichar. Report Ex. RW-1/A is signed by Ravinder Pal Bhardwaj the then R.L.A. and is initialed by him as well. In the RC of the vehicle it has been recorded that this vehicle was medium goods vehicle. The respondent No.2 was granted licence to drive heavy goods vehicle w.e.f. 17.6.1996 8. PW-2 Bhanumati in her statement has specifically stated that accident took place due to rash and negligent driving on the part of the driver of the bus. FIR Ex.PW-2/A was recorded immediately after the accident at the instance of Daulat Bahadur who also sustained injuries in the accident. The FIR Ex.PW-2/A establishes the involvement of bus No.HP-06-0938 in the accident. It has been mentioned in the FIR that the accident took place due to the negligence of driver Devinder Singh. The driver of the bus has not appeared in the witness box to rebut the evidence led by the claimants. The learned Tribunal has rightly held that accident took place due to rash and negligent driving of bus driver Devinder Singh. 9. The learned counsel for the appellant has stated that it has not been proved on record that deceased Chhote Lal has died due to the injuries sustained by him in the accident. PW-1 Dr. Jagdish Gupta has stated that Chhote Lal was admitted in the Referral Hospital, Rampur on 8.11.1995 and was referred on 15.11.1995 to IGMC Shimla by Dr. Chauhan. This witness has not been cross-examined. PW-2 Bhanumati wife of Chhote Lal has stated that her husband sustained injuries in the accident and he was treated at Rampur and then at IGMC, Shimla. Chhote Lal sustained …9… injuries in the accident and become paraplegic and ultimately died on 14.6.1997 due to injuries sustained by him in the accident. She could not bear the expenses of the treatment. Ex.PD is the disability certificate of Chhote Lal showing 45% permanent loss of functions of both lower limbs. The death certificate of Chhote Lal is Ex.PA. The owner and driver of the bus have led no evidence to rebut the evidence led by the claimants that Chhote Lal has died due to injuries sustained by him in the accident. On the basis of material on record the only inference deducible from the evidence is that Chhote Lal died due to injuries sustained by him in the accident involving bus No.HP- 06-0978 . 10. The learned counsel for the appellant has submitted that claimants have not proved their relationship with Chhote Lal and therefore, they are not entitled to any compensation. PW-2 Bhanumati has specifically stated in her statement that she is the widow of Chhote Lal and has two children. She has not been cross- examined on this point. The reply filed by owner of the bus is bare denial. It has been submitted that in the earlier petition filed by Chhote Lal claiming compensation due to injuries sustained by him in the same accident he has given the name of his wife as Prem Kali and now Bhanumati and her children have filed this petition claiming themselves to be the dependants and heirs of Chhote Lal. It is common knowledge that sometimes a person has more then one name and possibility cannot be ruled out that Bhanumati and Prem Kali are two names of same person. In the reply to the claim petition filed by owner of the bus except for bare denial regarding relationship …10… of claimants with Chhote Lal the owner has not taken any specific defence regarding the relationship of claimants with Chhote Lal. RW-2 Sagar Dass in his statement has nowhere stated that Bhanumati is not the widow of Chhote Lal or claimants are not related to Chhote Lal as claimed by them. Ex.PW-2/B is the Sterilization card of Bhanumati. As per this card Bhanumati wife of Chhote Lal was sterilized on 22.10.1991 at Civil Hospital, Chopal. This card was issued much before the accident. There is no reason to disbelieve this card. The cumulative effect of the material on record is that Bhanumati has proved herself to be the widow of Chhote Lal and respondents No.4 and 5 are children of Bhanumati from Chhote Lal. 11. The learned counsel for the appellant has submitted that age and income of the deceased has been wrongly assessed by the learned Tribunal. In disability certificate dated 27.11.1995 the age of deceased Chhote Lal has been mentioned 40 years. PW-2 Bhanumati has also stated that at the time of accident the age of her husband was about 40 years. RW-2 Sagar Dass in his statement has nowhere stated regarding the age and income of the deceased. PW- 2 Bhanumati has stated that her husband was earning Rs.120/- per day. The learned Tribunal has taken the income of deceased at Rs.2000/- per month but in view of conflicting stand regarding the age of the deceased he has applied the multiplier of 8. In my opinion the learned Tribunal has rightly assessed the income of the deceased at Rs.2,000/- per month and dependency of the claimants at Rs.1500/- per month but he has allowed multiplier eight on the lesser side. However, claimants have accepted the award and they have not …11… come in the appeal against the award, therefore, dependency of the claimants as well as multiplier allowed by the learned Tribunal is not on the higher side. 12. The learned counsel for the appellant has submitted that the bus was insured with respondent No.1- New India Assurance Company. RW-2 Sagar Dass has admitted in his statement that at the time of accident the driver was holding MGV licence. The vehicle involved in the accident was not goods vehicle rather it was a bus. The MGV ( Medium Goods Vehicle) has been defined in Section 2 (23) of the Act and the medium passenger motor vehicle is defined in Section 2(24) of the Act. These are two different types of vehicles. As per Section 3 of the Act no person shall drive a motor vehicle in any public place unless he holds an effective driving licence issued to him authorizing him to drive the vehicle. Thus there is a bar of driving of a vehicle at a public place without effective driving licence. RW-3 Gian Singh, Licence Clerk has stated that on 8.11.1995 the respondent No.2 was not in possession of licence to drive heavy transport vehicle as per the record of RLA Nichar. The Tribunal has rightly recorded a finding that respondent No.2 driver was not holding valid and effective driving licence to drive bus No.HP-06-0978 at the time of accident. It has been rightly held that respondent No.1- New India Assurance Company is not liable to indemnify the owner of the bus. 13. It has been lastly contended on behalf of the appellant that Chhote Lal earlier filed claim petition regarding the same accident in which he was awarded Rs.25,000/- on account of no fault …12… liability under Section 140 of the Act, therefore, present petition filed by the claimants is not maintainable. The earlier petition was filed by Chhote Lal on account of injuries sustained by him in the accident. The present petition has been filed by the claimants after the death of Chhote Lal due to injuries sustained by him in the accident. The present petition has been filed by the claimants in their own rights and is not barred by the earlier petition filed by Chhote Lal for the injuries sustained by him in the accident. 14. No other point was urged. 15. The result of the above discussion, there is no merit in the appeal and is accordingly dismissed. February 25, 2008. ( Kuldip Singh ) (Sks) Judge.