X-Objection No.44-CII of 2000 & FAO No.2212 of 1999 (O&M) -1- IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH X-Objection No.44-CII of 2000 & FAO No.2212 of 1999 (O&M) DATE OF DECISION: February 24, 2011 HARINDER PAL SINGH AND OTHERS ...APPELLANTS VERSUS PRITAM SINGH AND OTHERS ...RESPONDENTS CORAM: HON'BLE MR. JUSTICE K.KANNAN. 1. Whether reporters of local papers may be allowed to see the judgement? No 2. To be referred to the reporters or not? Yes 3. Whether the judgement should be reported in the digest? Yes ---- PRESENT: MR. P.S. BATTA, ADVOCATE FOR THE APPELLANTS. NONE FOR RESPONDENT NO.1, 3 TO 6. MR. VISHAL CHAUDHARY, ADVOCATE FOR THE RESPONDENT NO.2. K.KANNAN, J.(ORAL) 1. The appeal is by the owner who had been saddled with liability to satisfy the claim on the ground that driver did not have a valid driving licence. During the course of appeal, a document had been filed by the driver to show that he held a valid driving licence and the the issue of genuineness was put to trial again by this Court by calling for report from the Motor Accident Claims Tribunal. The report is that the driving licence is not genuine, but it has come alongwith the evidence of the owner who had employed him and the prior employer of the driver. The first employer had stated that he had employed him for about few years and he was good at driving. The owner-insured had given evidence to the effect that he had X-Objection No.44-CII of 2000 & FAO No.2212 of 1999 (O&M) -2- known that the driver was under the employment of the prior employer and he had carried driving tests and also seen the driving licence which he thought was genuine. The Tribunal rejected this evidence as unworthy of acceptance by saying that his evidence did not evoke confidence. The Tribunal did not, however, go as far as to say about what the owner had stated in his evidence, namely, his bona fides that he took the licence produced before him as genuine. This, in my view, is crucial and satisfies the test that the Hon'ble Supreme Court has laid down in National Insurance Company Ltd. vs. Swaran Singh in 2004(3) SCC 297. In the manner in which Section 149 is drafted, the violation that should be complained of by the insurer to a breach of terms of policy. If the policy expects that the driver shall be duly licenced and the owner satisfies himself, prima facie, that he holds a licence and that he had put him to test on seeing whether he drove the vehicles skillfully, his own subjective satisfaction will govern the issue of bona fides. I have no doubt in my mind that with the evidence which was available, the Tribunal could not have stated that the owner's evidence could not be accepted. Above all, I would find even a finding of the Tribunal regarding the bona fides was exceeding its brief. The Tribunal had no more duty than to see whether the driving licence was genuine or not. The report ought to have been made under reference only to return a finding whether the licence was genuine or not. If it found that it was genuine, it should ultimately be a matter for an adjudication by this Court where the Tribunal had a bona fide belief that the driver had a valid driving licence and whether such belief was such as to entitle him to secure an indemnity from the insurer. I hold that evidence of X-Objection No.44-CII of 2000 & FAO No.2212 of 1999 (O&M) -3- the owner was sufficient for such a cause. Further the point urged in the appeal is that the Tribunal, at the first instance, did not take note of the evidence that accident itself had taken place when the bus in which the claimant was travelling was overtaking a truck and stopped abruptly at a place where there was no bus stop and that took the driver of the truck by surprise and a collision at the back of the bus was resultant to the alleged conduct of the bus driver in overtaking the truck and stopping it immediately in front of the truck. This part of evidence which the driver of the truck had led had not been controverted by the driver of the bus. On the other hand, the driver did not adduce any evidence before the Tribunal. I will take the responsibility for the accident as equally between the driver of the truck and the bus and apportion the same at 50:50 for the compensation determined. Therefore, the appellant driver will be responsible only to 50% and consequently the liability of the insurance company for the truck will also be 50% of the award. The remaining 50% shall be borne by the owner and the driver of the bus who were arrayed in appeal as respondents No.3 to 5. The right of enforcement is possible for the claimant against all or any of them. The award is modified and the appeal is allowed to the above extent. 2. Any amount deposited by the appellant shall be permitted to be withdrawn by the appellant, if it has not already been done. 3. There is an issue of quantum for amputation of the leg. While the appellant would contend that the compensation is high, the claimants have come in x-appeal for enhancement. I have examined the various heads which the Tribunal has provided. I have tried to standardize the assessment of compensation for injuries and also particularly with reference for X-Objection No.44-CII of 2000 & FAO No.2212 of 1999 (O&M) -4- amputation in the judgement of this Court in Madan Lal Papneja vs. State of Haryana and others in FAO No.422 of 1993 dated 12.11.2010. The alterations which I would make would be to take the income of the claimant at `1500/- which the Tribunal has taken and apply 60% value of the same as resultant loss of earning capacity and adopt a multiplier of 13 relatable to the age of 46. On the issue of pain & suffering, again I would make a slight modification from `10,000/- to `25,000/-. The remaining shall be retained. The over-all compensation will be `4,89,400/-. The additional amount shall attract interest @ 6% from the date of petition till the date of payment. 4. The payment of additional amount shall be distributed between the State on the one hand as owner of the bus and the insurance company as insurer for the truck. 5. The appeal is allowed with the modification mentioned above and the x-objection is allowed to the above extent indicated above. February 24, 2011 (K.KANNAN) Gulati JUDGE