HIGH COURT OF HIMACHAL PRADESH AT SHIMLA FAO No.: 146 of 2006 Reserved on: 19.5.2010 Decided on: 15.6.2010 Ishan Bus Service ………Appellant. Versus Kumari Shailja and others ………Respondents. Coram: The Hon’ble Mr.Justice V.K. Ahuja, Judge. Whether approved for reporting? No. For the appellant: Mr.Anuj Nag, Advocate. For respondent No.1: Mr.K.C. Shankhyan, Advocate. For respondent No.4: Mr.Sanjeev Kuthiala, Advocate. V.K. Ahuja, J.: This is an appeal filed by the appellant under Section 173 of the Motor Vehicles Act (hereinafter referred to as the Act) against the award of the court of the learned Motor Accidents Claims Tribunal(I), Kangra at Dharamshala, dated 1.11.2004, vide which the petition filed by the claimant (respondent No.1 herein) for compensation under Section 166 of the Act was allowed and she was granted compensation amounting to Rs.3,09,361/-. 2. Briefly stated that the facts of the case are that respondent No.1 (hereinafter also referred to as the claimant/petitioner) filed a petition under Section 166 of the Act alleging that she was returning after attending ______________________________________ 1.Whether reporters of Local papers may be allowed to see the judgment? Yes. - 2 - the College on November 16, 1998 by bus bearing NO.HP-4- 1046. She boarded the bus at Dhaliyara, which was going to Una and at a place known as Pukka Paroh Bus Stand, she asked the Conductor of the bus, namely respondent No.3, to stop the bus as she wanted to alight from the bus. The bus was stopped and she started alighting from the bus through the front door and was still in the process of alighting, the Conductor of the bus suddenly blew the whistle and the driver, namely, respondent No.2, started the bus rashly and negligently without seeing that the petitioner was still alighting from the bus. The petitioner fell down and sustained serious injuries resulting in permanent disability. The petitioner alleged that the accident had taken place due to the rash or negligent driving of respondent No.2 and respondent No.3 was also negligent in blowing the whistle for moving the bus. The petitioner was taken to a private doctor at Bharwain, then to Una and then to a Nursing Home at Hoshiarpur where she was operated and screw plates were applied to her legs. The petitioner alleged that she suffered permanent injury, was aged 21 years and was a student of B.A. Ist Year, but had to discontinue her studies due to the disability suffered by her. Therefore, she filed the claim petition claiming a sum of Rs.10.00 lacs as compensation. 3. Respondent No.2/driver of the bus denied that the accident took place due to his negligence. He pleaded that the accident took place due to the fault of the petitioner, who, all of a sudden, opened the door of - 3 - the bus and tried to get down and, therefore, suffered injuries. 4. Respondent No.4/Insurance Company pleaded that the driver was not holding a valid and effective driving license and as such there was a violation of the terms and conditions of the Insurance Policy and therefore, the Insurance Company is not liable. 5. On the pleadings of the parties, the following issues were framed by the learned Tribunal: 1. Whether the petitioner when was in the process of alighting from the bus when it was started by respondent No.1 on whistling of respondent No.3 and consequently were rash and negligent due to which fell down, suffered injuries? OPP 2. If issue No.1 is proved in favour of the petitioner then what amount of compensation from whom she is entitled? OPP 3. Whether the respondent No.2 was not holding effective and valid driving license at the time of accident? OPR-4 4. Whether the petition is collusive? OPR-4 5. Relief. 6. The parties led their evidence and the learned Tribunal, vide its impugned award, held that the petitioner was entitled to a sum of Rs.3,09,361/-, which shall be payable by respondent No.4/Insurance Company. However, the Insurance Company was given liberty to recover this amount from the owner and the driver of the bus. 7. I have heard the learned counsel for the parties and have gone through the record of the case. 8. The submissions made by the learned counsel for the appellant were that the onus was upon the Insurance - 4 - Company to prove that the driving license of the driver was fake in which they have failed and as such the appellant/owner is not liable. 9. On the other hand, the learned counsel for respondent No.4/Insurance Company had submitted that they had fully proved that the driving license of the driver was fake one and there is nothing on the record to show that any due care and caution had been taken by the appellant before employing respondent No.2 as a driver. Once it was proved that the driving license was fake one, the Insurance Company was not liable. However, it was submitted that in view of the order passed by the learned Tribunal, they were entitled to recover the amount in question from the owner and the driver of the bus. 10. On appraisal of the record of the case, it is clear that only general allegations were made that the compensation amount is highly excessive and no specific grounds were taken or urged before this Court to substantiate the general allegations made that the amount awarded by the learned Tribunal was excessive. However, I have gone through the award in question, a perusal of which shows that the petitioner had placed on record the cash memos Exts.P-1 to P-27 and as such she was held entitled to Rs.21,261/- on account of purchase of medicines and Rs.1100/- for attendant charges. She was a student at the relevant time and was not earning anything and her notional income was taken at Rs.75/- per day. She suffered 40% permanent disability and as such the earning capacity of - 5 - the petitioner was assessed at Rs.10,800/- and applying the multiplier of 15, a sum of Rs.1,62,000/- was awarded on account of loss of future income. The petitioner was also awarded a sum of Rs.50,000/- under the head of pain and suffering and she was also awarded a sum of Rs.50,000/- since her marriage prospects had been affected due to the permanent injury suffered by her. Thus, the total amount of compensation awarded is quite reasonable keeping in view the facts of the case. Nothing was pointed out that the amount awarded under any of the heads is excessive and calls for an interference by this Court. Thus, in so far as the amount of compensation is concerned, it calls for no interference for which no submissions were also made. 11. Coming to the question of liability of the appellant/owner, respondent No.2 (driver of the bus) appeared in the witness box as RW-1 and stated that he was having a driving license but there is nothing that the original was shown to the court, though it is mentioned that he had brought the original, but there is nothing that the license was seen and returned by the Court. However, a photocopy RW-1/A was tendered in evidence. Respondent No.4/Insurance Company had examined one official from Maharashtra, who came with the record and proved that the license in question has not been issued by their office in favour of respondent No.2. The onus was upon the Insurance Company, which had discharged the same fully and as such it has to be held that the driving license of the driver was fake one. Neither any plea was taken nor it was - 6 - substantiated that the owner had taken due care at the time of employing the driver. Even the owner of the bus has not stepped in the witness box to claim that he had seen the license of the driver and it was valid one. Therefore, neither this plea was taken nor it was substantiated and, therefore, it has to be held that the driving license was fake one. Once it is held that the driving license was fake one and there was as such breach of the conditions of the Insurance Policy, therefore, the Insurance Company was not liable to pay the amount. 12. The learned counsel for respondent No.4 submits that the Insurance Company cannot be held liable in view of the latest law laid down by the Apex Court in New India Assurance Company Limited versus Roshanben Rahemansha Fakir and another, (2008) 8 Supreme Court Case 253. From the perusal of the said decision, it is clear that the insurer was held to be not liable, but in exercise of jurisdiction under Article 142 of the Constitution of India, the Apex Court directed the insurer to satisfy the award in favour of the claimants and to recover the same from the owner. However, it has been held in a decision by this Court in United India Insurance Company Ltd. versus Abdul Hamid and others, Latest HLJ 2010 (HP) 187, that no such direction can be given by this Court exercising its powers which are not vested in it under Article 142 of the Constitution of India. Therefore, prima facie, it is clear that no such direction can be given by the court and since the Insurance Company has not filed any appeal as against - 7 - such directions whereby the Insurance Company has been directed to satisfy the award, no relief can be granted in favour of respondent No.4/Insurance Company. 13. In view of the above discussion, it is clear that, in the facts and circumstances of the case, the appellant was held liable to pay the amount in question alongwith respondent No.2 in the claim which may be preferred by the Insurance Company to recover the amount and as such the directions issued by the court, in view of the law then prevalent and the fact that no appeal was preferred by respondent No.4 against such an award passed by the learned Tribunal, the findings recorded by the learned Tribunal do not call for an interference by this Court. Thus, the said findings are liable to be affirmed and the same are affirmed accordingly. Consequently, the appeal filed by the appellant is dismissed with costs including lawyer’s fee assessed at Rs.5,000/- payable to respondent No.1/claimant. June 15, 2010. (V.K. Ahuja), (TILAK) Judge.