HIGH COURT OF HIMACHAL PRADESH AT SHIMLA FAO No.: 48 of 2005 Reserved on: 1.6.2010 Decided on: 24.6.2010 Hardev Singh ………Appellant. Versus Vijay Kumar and others ………Respondents. Coram: The Hon’ble Mr.Justice V.K. Ahuja, Judge. Whether approved for reporting? Yes. For the appellant: Mr.Rakesh Bharti, Advocate. For respondent No.1: Mr.Anuj Nag, 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 passed by the learned Motor Accident Claims Tribunal, Kangra at Dharamshala, dated 1.10.2004, whereby the claim petition filed by the petitioner was allowed and the insurer/respondent No.4 was directed to pay the compensation but the said respondent was held entitled to recover the amount from the owner of the vehicle i.e. the present appellant. _______ 1.Whether reporters of Local papers may be allowed to see the judgment? Yes. - 2 - 2. Briefly stated the facts of the case are that the petitioner filed a claim petition under Section 166 of the Act alleging therein that he alongwith other persons hired a Van bearing No.HP-01-3409 for Rs.90/- for going to the house of his relatives. When the said Van reached at Purana Mataur at about 7.30 p.m., the driver of the said Van could not control it and hit the same with a small bridge, while driving the same rashly or negligently. The matter was reported to the police. The petitioner suffered fracture and other injuries and remained admitted in the Hospital and it was alleged that he has become paralytic due to the injury and as such he had claimed compensation to the extent of Rs.5.00 lacs having suffered permanent disability. 3. Respondent No.1/appellant, the owner of the vehicle, pleaded that the vehicle was not being driven by Prem Singh, respondent No.2, but it was being driven by respondent No.3 Desh Raj. The allegations in regard to the accident or suffering of injuries and the income of the deceased were also denied by the said respondent. The Insurance Company i.e. respondent No.4 pleaded that the vehicle was being driven by Prem Singh, who was not holding a valid and effective driving license and as such the Insurance Company was not liable. 4. On the pleadings of the parties, the following issues were settled by the learned Tribunal: - 3 - 1. Whether petitioner on 31.12.2001 at 7.30 P.M. while traveling on Van NO.HP-01-3409, suffered injuries, due to its accident caused by rash and negligent driving of respondent No.2, as alleged? OPP 2. If issue No.1 proved, to what amount of compensation, the petitioner is entitled and from which of the respondents? OP parties. 3. Whether respondent NO.2 was not holding valid and effective driving license at the time of accident? OPR-3 4. Whether the vehicle in question was not having valid route permit or other documents and was being plied in violation of terms and conditions of insurance policy? OPR-3 5. Whether respondent No.2A Des Raj was driving vehicle at the time of accident? OPR-1 6. Relief. 5. The parties led their evidence and the learned Tribunal, vide its impugned award, held that the vehicle was being driven by Prem Singh respondent No.2 and not by respondent No.3 Desh Raj, as pleaded by the owner, who was not holding a valid and effective driving license and as such the Insurance Company was not liable and the owner was liable to pay the amount. However, the Insurance Company was directed to deposit the amount and the same could be recovered by it from the owner i.e. the appellant. 6. I have heard the learned counsel for the parties and have gone through the record of the case. 7. The submissions made by the learned counsel for the appellant were that the vehicle in question was being driven by Desh Raj, respondent No.3, and not by respondent No.2 Prem Singh and respondent No.2 had been wrongly named in the FIR and as such since the vehicle was - 4 - being driven by respondent No.3, who was having a valid and effective driving license, therefore, the appellant/owner was not liable to pay the compensation. 8. On the other hand, the learned counsel for the Insurance Company/respondent No.4 has submitted that the driver i.e. Prem Singh respondent No.2 was not having valid and effective driving license and as such the learned Tribunal rightly fastened the liability upon the owner i.e. the appellant and the right to recover the amount was given to respondent No.4. However, no cross appeal has been filed by respondent NO.4 against the findings that the payment was to be made by the owner of the vehicle and not by the Insurance Company. 9. The first question which arises for consideration is as to whether there is substance in the findings recorded by the learned Tribunal that the vehicle was being driven by Prem Singh respondent No.2 and not by Desh Raj, respondent No.3, as pleaded by the owner. A perusal of the impugned award shows that the learned Tribunal has referred to the assertions made in the petition in which it was clearly pleaded by the petitioner/claimant that respondent No.2 Prem Singh was driving the Van in question. However, the owner took another plea and tried to establish that the vehicle was being driven by respondent No.3 Desh Raj. 10. Coming to the evidence, the petitioner has been examined as PW-5, who clearly stated that the vehicle was being driven by Prem Singh. He also clarified that the - 5 - owner was the brother-in-law of Prem Singh i.e. the driver and it appears to be the reason for taking this plea by the owner to save his brother-in-law Prem Singh, driver and to fasten the responsibility upon Desh Raj, who was holding a valid license. The petitioner further stated specifically that he was personally knowing Prem Singh, who was driving the vehicle at the relevant time and was drunk also. 11. RW-4 Desh Raj has appeared in the witness box and proclaimed that he was the driver of the vehicle in question and was driving the vehicle at the relevant time. The owner appeared in the witness box as RW-2 and stated that the vehicle was being driven by Desh Raj. He admits that criminal case is pending against Prem Singh in regard to the accident. He also admits that the FIR was registered against Prem Singh. He never made any complaint or filed any application that the FIR has been wrongly registered against Prem Singh though the vehicle was being driven by Desh Raj. The said Desh Raj examined as RW-4 claimed that he was driving the vehicle and not Prem Singh, as discussed above, but he admits that Prem Singh was also sitting alongwith him. He also proclaimed that he was having a valid driving license. He denied his knowledge in case any criminal case was registered against respondent NO.2 Prem Singh and the said case is still pending in the Court. He denied his knowledge in case Prem Singh was bailed out by the police in the said criminal case. He denied his knowledge about the case having been registered qua the accident. He has also not volunteered to add that - 6 - he made any complaint in this regard or appeared before the police that since he was driving the vehicle in question, no case should be registered against Prem Singh. He admits that he was not enquired by the police regarding this accident. He also admits that he did not inform the police that he was driving the aforesaid vehicle on that day. In case he was driving the aforesaid vehicle on that day, he should have volunteered before the police and should have faced the criminal trial. 12. The learned counsel for the appellant/owner has placed much reliance upon the statement of the RW-1 Medical Officer Dinesh Mehta, who issued MLC in respect of Desh Raj, wherein it has been mentioned that the occupation of Desh Raj is driver. However, the occupation of said Desh Raj has been mentioned as driver by the Medical Officer, who was not present at the spot and might have recorded his occupation as claimed by the injured. However, it does not lead to the inference that the Medical Officer’s statement can be relied upon to hold that the vehicle was being driven by Desh Raj, since he is not an eye witness. He recorded what was told to him by the injured. However, the fact remains that the petitioner has claimed that there were four persons in the vehicle including Desh Raj, which explains the injuries suffered by said Desh Raj. 13. The learned Tribunal, on the basis of the evidence, had come to a right conclusion that attempts have been made to save Prem Singh, who was related to the owner, - 7 - and these findings of fact do not call for any interference by this Court. 14. As far as the amount of compensation awarded by the learned Tribunal is concerned, the petitioner had suffered 75% disability. He alleged his income as Rs.150/- per day from masonry work and Rs.500/-, per month, from agricultural work. He alleged his age as 38 years and keeping in view the permanent disability certificate Ext.PW-4/A, the permanent disability was assessed at 75%. Therefore, keeping in view the permanent disability and the age of the petitioner, the learned Tribunal had granted a sum of Rs.4,09,003.50P. as compensation and the details have been worked out under various heads. I do not find any reason to hold that the amount awarded was excessive. A person who dies in an accident is no more in the world to bear the day to day suffering, but in the case of permanent disability, the person suffers throughout the life. Therefore, the amount of compensation awarded has to be keeping in view the injuries, the disability and for number of years he has to undergo this pain and the compensation should be granted reasonably to compensate for the loss suffered by him. Therefore, in the present case, amount of compensation cannot be termed as excessive in any manner. 15. The learned Tribunal has already held that the license in question of respondent No.2 Prem Singh was not valid one since there was no endorsement to drive the same for transport vehicle, which findings were based upon a decision of this Court in New India Assurance Co.Ltd., - 8 - Shimla versus Suraj Parkash and others, AIR 2000 Himachal Pradesh 91, and no case law, to the contrary, was cited. Accordingly, it was held that the owner was liable to pay the amount but the responsibility was fastened upon the Insurance Company in view of the law laid down in National Insurance Co.Ltd. vs. Swaran Singh, AIR 2004 Supreme Court 1531. No appeal has been preferred by the Insurance Company against the award passed by the learned Tribunal and as such the Insurance Company is liable to pay the amount and is entitled to recover the same from the owner. 16. In view of the above discussion, I accordingly hold that there is no merit in the appeal filed by the appellant, which is dismissed accordingly. However, the parties are left to bear their own costs. June 24, 2010 (V.K. Ahuja), (TILAK) Judge.