F.A.O.No.2492 of 1996. -1- In the High Court of Punjab & Haryana at Chandigarh. F.A.O.No.2492 of 1996. Date of decision:26-5-2008 Gurvinder Singh. ...Appellant. Versus Jagdish Ram and others. ...Respondents. ... Coram: Hon'ble Mr. Justice K. C. Puri. ... Present; Mr. C.S.Pasricha, Advocate for the appellant. Mr.Vikas Bali Advocate for respondent No.2. Mr.Ravinder Arora Advocate for respondent No.3. ... K. C. Puri, J. Gurvinder Singh claimant filed a claim petition, claiming compensation of Rs. five lacs for the injuries suffered by him in the vehicular accident. The brief facts of the case are that on 20.12.1992,at about 6.30 PM, Gurvinder Singh, claimant was driving tractor-trolley No.PBV-684 and was going from village Khanna to village Gagra Chaharam, Tehsil Samrala, District Ludhiana. When he reached near F.A.O.No.2492 of 1996. -2- Kalal Majra, tanker No.HR-29-A-0193 driven by respondent No.1, Jagdish Ram, came from the opposite side i.e. Samrala side at a rash speed and was being driven in negligent manner. On noticing that the offending tanker was being driven in a rash and negligent manner, Gurvinder Singh, claimant took the vehicle on the kacha portion of the road on his correct side and the offending tanker, on coming to its wrong side of the road, struck against the tractor-trolley. With the impact, the tractor trolley broke into pieces and Gurvinder Singh fell on the ground and received multiple grievous injuries. It is further pleaded by the claimant that the accident took place due to rash and negligent act of respondent No.1, Jagdish Ram. The claimant received multiple grievous injuries which resulted in his permanent disability. His one foot was amputated above the ankle. He was admitted in CMC Hospital on 20.12.1992 after the accident, from where he was discharged on 14.1.1993. He prayed for compensation with future interest at the rate of 15% per annum from the date of claim petition till realization. The offending vehicle was insured with National Insurance Company Limited, Gill Road, Millerganj, Ludhiana. Karam Singh filed separate claim petition, seeking compensation of Rs.two lacs for the damage caused to his tractor No.PBV-684 in the above said accident. The claim petitions were resisted by respondent No.3, F.A.O.No.2492 of 1996. -3- National, Insurance Company. In the written statement, it was pleaded that the claimant himself was responsible for the accident. It also pleaded that the claim petitions were bad for non-joinder of necessary party i.e. Insurance Company of tractor No.PBV-684. It denied the other averments made by both the claimants. Respondent Nos.1 and 2 were served through proclamation but none appeared and were proceeded against ex parte. From the pleadings of the parties, the following issues were framed in claim petition titled Gurvinder Singh Versus Jagdish Ram and others:- 1. Whether the claimant received injuries due to rash and negligent driving of vehicle No.HR-20-A-0193 by its driver Jagdish Ram, respondent No.1 ?OPP. 2. Whether the driver of the offending vehicle as well as driver of the tractor were not having valid licences?OPR3. 3. To what amount of compensation, the claimant is entitled and from whom? OPP. 4. Whether the claim petition is bad for non-joinder of necessary parties ?OPR3. 5. Relief. The following issues were framed by the learned Tribunal in claim petition No.26 of 31.3.1993 filed by Karam Singh, claimant:- 1. Whether tractor No.PBV-684 was damaged due to the F.A.O.No.2492 of 1996. -4- accident caused by the driver of the vehicle No.HR-29-A- 0193 by driving the same in a rash and negligent manner ? OPP. 2. Whether the driver of the offending vehicle as well as driver of the tractor were not having valid licence ?OPR3. 3. To what amount of compensation, the claimant is entitled and from whom?OPP. 4. Whether the claim petition is bad for non-joiner of necessary parties ?OPR3. 5. Relief. After holding that the accident had taken place due to rash and negligent driving of tanker, claimant Gurvinder Singh was held entitled to a compensation of Rs.1,50,000/-. Karam Singh claimant was held entitled to the amount of Rs.10,000/- on account of loss caused to his tractor in question. Since the driver of the offending vehicle was not holding a valid driving licence, so respondent Nos.1 and 2 i.e. driver and the owner of the offending vehicle were directed to pay the said amount of compensation. The Insurance Company was absolved of its liability to pay the amount of compensation. Feeling aggrieved with the award of learned Motor Accident Claims Tribunal, Ludhiana dated 26.3.1996, Gurvinder Singh claimant filed F.A.O.No.2492 of 1996. Anil Ghai, owner of the offending Tanker filed cross objections No.30-CII of 1997. Karam F.A.O.No.2492 of 1996. -5- Singh, claimant filed FAO No.2345 of 1996. Anil Ghai, respondent No.2, who is the owner of the offending Tanker, also filed Cross Objections No.16-CII of 1997 in FAO No.2345 of 1996. Anil Ghai, owner also filed separate FAO No.2783 of 1996 for setting aside the impugned award. Since all these appeals and the cross objections hae arisen from the same award of the learned Tribunal and same questions of fact and law are involved in the same, all these cases are being disposed of by this common judgment. I have heard arguments addressed by Mr. C.S.Pasricha Advocate for the claimants, Mr. Vikas Bali Advocate for respondent No.2 and Ravinder Arora, Advocate for respondent No.3 and have carefully gone through the record of the case. Learned counsel for claimant Gurvinder Singh has submitted that the amount of compensation granted to claimant Gurvinder Singh is on the lower side. Claimant Gurvinder Singh has suffered permanent disability to the extent of 70% and amputation of right leg below knee was done on 21.21.2992. The skin grafting of the wound was done on 6.1.1993. The claimant remained admitted in the hospital from 20.12.1992 to 14.1.1993. The claimant was to report for follow up treatment. The claimant had to engage the services of a driver on the tractor for cultivating his 32 acres of land. In reply to the above noted submissions, the learned counsel for the owner of the offending vehicle has submitted that the F.A.O.No.2492 of 1996. -6- amount of compensation as assessed is already on the higher side and no ground for enhancement of compensation is made out. I have carefully considered the said submissions and have carefully gone through the record of the case. The learned Tribunal has granted an amount of Rs.1,50,000/- to claimant Gurvinder Singh on account of the injuries sustained by him in the motor vehicle accident. The Tribunal has allowed an amount of Rs.50,000/- on account of pain and sufferings etc. by relying upon authority reported as New India Assurance Company Company Limited Versus Charan Kaur, 1986 ACJ 243 (P&H). That amount based upon the said authority has been correctly assessed. The Tribunal while relying upon the statement of PW-7 Samual Mal, awarded Rs.14,810/- on account of expenses as indoor patient, Rs.1,754/- expenses on medicines and Rs.3,600/- on fare of taxi and transportation charges, the total of which comes to Rs.20,164/-. No interference for enhancement of the amount of compensation on medical expenses and fair charges is made out. The learned Tribunal awarded Rs.80,000/- on account of loss of future earnings while taking Rs.5,000/- as loss per year and by applying a multiplier of 16. The multiplier part is also correctly assessed but I am of the considered view that keeping in view the disability of claimant Gurvinder Singh, the yearly dependency of F.A.O.No.2492 of 1996. -7- Rs.5,000/- is on the lower side. Gurvinder Singh suffered 70% disability out of which 60% is permanent and 10% is on account of discharging sinus at the stumb. His right leg has been amputated. So, the yearly loss is assessed at Rs.8,000/-. Therefore, the claimant is held entitled to claim Rs.1,28,000/- on account of loss of future earnings. In this way, Gurvinder Singh claimant is held entitled to claim a total compensation of Rs.1,98,000/-. From the perusal of the file, it is revealed that an amount of Rs.1,50,000/- has been deposited by the owner of the offending vehicle. If the said amount is lying deposited in the High Court, the same be sent to the Tribunal for disbursement to Gurvinder Singh claimant. Gurvinder Singh claimant is further held entitled to claim interest at the rate of 9% per annum on the enhanced amount of compensation of Rs.48,000/- from the date of application till realization. So far as the appeal preferred by Karam Singh claimant for enhancement of amount on account of damage caused to his tractor is concerned, the learned Tribunal has held that the tractor in question has out lived its life as it was very old tractor. So, in these circumstances, no case for enhancement of compensation in respect of damage to the tractor is made out. Anil Ghai, has preferred cross objection No.30-CII of 1997 in FAO No.2492 of 1996 filed by Gurvinder Singh and cross F.A.O.No.2492 of 1996. -8- objections No.16-CII of 1997 in FAO No.2345 of 1996 filed by Karam Singh. Anil Ghai has also filed separate FAO No.2783 of 1996. The prayer in all these cross objections and the appeal is three fold. Firstly, the Insurance Company has simply proved the factum that the driver of tanker in question was not holding any valid driving licence and that the Insurance Company has not proved the fact that the owner had the knowledge and as such, liability, if any, is that of the Insurance Company of the tanker. To fortify his submission, the owner of the tanker has relied upon authority reported as National Insurance Co. Ltd. v. Swaran Singh and others, JT 2004(1) SC 109. The second submission of the learned counsel for the owner of the tanker is that the amount of compensation as assessed in respect of Gurvinder Singh for his injuries as also damage to the tractor was on higher side. Thirdly, it was contended that from the evidence on the file, it is proved that it is a case of contributory negligence as two vehicles are involved and the entire liability regarding injuries to Gurvinder Singh and damage to the tractor cannot be fastened upon him. The learned counsel for the Insurance Company has supported the judgment of the Tribunal and has submitted that Anil Ghai remained ex parte before the Tribunal and as such he cannot have any benefit of authority reported in Swaran Singh's case (supra). F.A.O.No.2492 of 1996. -9- The counsel for the claimants has submitted that the amount of compensation in respect of injuries to Gurvinder Singh and damage to the tractor is on the lower side. It is further submitted that the owner of tanker has not appeared before the Tribunal and as such he cannot raise any argument regarding contributory negligence. I have considered the submissions made by both sides and have gone through the record of the case. So far as amount of compensation in respect of injuries to Gurvinder Singh and damage to the tractor is concerned, that part has been dealt with in the fore-going paras of the judgment and in view of findings above, the amount of compensation in respect of Gurvinder Singh has been enhanced to Rs.1,98,000/- and Gurvinder Singh claimant has been held entitled to claim enhanced compensation Rs.48,000/- along with interest at the rate of 9% per annum from the date of application till realization. So far as second submission regarding contributory negligence made by the counsel for Anil Ghai, owner of the tanker is concerned, that submission cannot be accepted as Anil Ghai has failed to set up any such case before the Tribunal. In every accident, it cannot be inferred that it is a case of contributory negligence. Each case has to be decided on its own facts. Anil Ghai has not set up the case of contributory negligence and has not dared to appear before the Tribunal and as such his plea of contributory negligence is rejected. F.A.O.No.2492 of 1996. -10- So far as the reliance of Anil Ghai on authority reported in Swaran Singh' case (supra) is concerned, that authority does not help him. Had he appeared before the Tribunal and taken up any such plea before the Tribunal only then he could have argued that Insurance Company has to prove the fact that driving licence was fake. From the evidence on the file, it is proved that the driving licence of driver of the tanker was fake one. So, the learned Tribunal has rightly held that the owner and the driver of the tanker are liable to pay the amount of compensation. Lastly, the counsel for Anil Ghai has submitted that in case any amount of compensation is enhanced, in that case, in view of authority in Swaran Singh's case (supra), the Insurance Company shall indemnify the claimants and only thereafter it can recover the amount from the owner of the vehicle. The said submission carries weight and has to be accepted. In Swaran Singh's case (supra), it has been held that where there is a valid insurance policy and the claim relates to third party regarding injuries or death, in that case, even if the driving licence is fake, the Insurance Company is to make the payment of the amount to the claimants but it can recover the same from the insurer/owner of the vehicle. So, in view of the above discussion, the appeal preferred by F.A.O.No.2492 of 1996. -11- Gurvinder Singh for enhancement of compensation stands partly accepted. Gurvinder Singh is held entitled to claim Rs.48,000/- more in addition to the amount awarded by the learned Tribunal along with interest at the rate of 9% per annum from the date of application till realization. National Insurance Company Limited, respondent No.3 is directed to make the payment of said amount and after the payment of the said amount, the National Insurance Company Limited shall be entitled to recover the same from the remaining respondents at the same rate of interest as awarded in favour of Gurvinder Singh till payment to it. FAO No.2345 of 1996 preferred by Karam Singh for enhancement of compensation stands dismissed. FAO No.2783 of 1996 filed by Anil Ghai also stands dismissed. Cross objections No.30-CII of 1997 filed in FAO No.2492 of 1996 also stand dismissed. Cross Objection Nos.16-CII of 1997 filed in FAO No.2345 of 1996 also stand dismissed. A copy of this judgment be placed in the connected appeals. In view of peculiar and circumstances of the case, the F.A.O.No.2492 of 1996. -12- parties are left to bear their own costs. May 26th , 2008. ( K. C. Puri ) Jaggi Judge