IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH FAO No.428 of 2004 (O&M) Date of decision:17.01.2011 New India Assurance Company Limited ....Appellant versus Chet Singh and others ..Respondents II. FAO No.278 of 2004 (O&M) Chet Singh ....Appellant versus Basant and others ..Respondents CORAM: HON’BLE MR. JUSTICE K. KANNAN ---- Present: Mr. Ravinder Arora, Advocate, for the appellant in FAO No.428 of 2004. Mr.Deepak Suri, Advocate, for the appellant in FAO No.278 of 2004 and for respondent No.1 in FAO No.428 of 2004. Mr. D.D. Bansal, Advocate, for the driver. ---- 1. Whether reporters of local papers may be allowed to see the judgment ? Yes. 2. To be referred to the reporters or not ? Yes. 3. Whether the judgment should be reported in the digest ? Yes. ---- K.Kannan, J.(Oral) 1. Both the appeals arise out of the same accident that was alleged to have involved a Tata sumo bearing registration No.HR-08-B- 5459. The appeal by the Insurance Company in FAO No.428 of 2004 is FAO No.428 of 2004 (O&M) - 2 - on the issue of liability and the involvement of the vehicle, while the appeal in FAO No.278 of 2004 is for enhancement of claim for compensation which was assessed by the Tribunal at Rs.7,54,534/- with interest at 9% per annum. 2. This case was heard by me and reserved for judgment on 08.09.2010. While making the judgment ready, I found that there was still some missing links relating to the alleged involvement of the vehicle and I had reopened the case suo moto and passed an order on 23.09.2010, directing notice be sent to the driver, who was said to have involved the vehicle in the accident. The claimant as well as the hospital authority of Government Hospital, Churu produced OP admission register relating to the alleged admission of the claimant soon after the accident on the intervening night between 17/18 of September, 1999. 3. Accordingly, on notices being sent, I had examined on oath the driver, the claimant and the hospital personnel. Since the witnesses were brought before the Court in response to the notice and in exercise of power available to the Court under Section 165 of the Evidence Act, there was no scope for affording to any of the parties a right of cross- examination. As far as the witness Sumer Sihag, who was a Grade-II assistant nurse in the Churu hospital, he had brought the OP Admission register to show that Chet Singh had been admitted on the intervening night of 17/18 of September, 1999 and he had been later transported to the hospital at Delhi. The claimant himself sought to elicit through the evidence that Dr.O.P.Dhawan had checked him at the hospital and he had sent the injured with a referral card to the hospital at Delhi and that FAO No.428 of 2004 (O&M) - 3 - referral card was handed over to the patient himself. As far as the evidence of the claimant himself was concerned, I had put him through a searching examination with reference to how he was travelling in the said vehicle and how the accident had taken place. He had stated in his evidence that he had hired the vehicle i.e. car bearing registration No.HR-08-B-5459 as a taxi and he along with other passengers were returning together from Makrana (Rajasthan) to Bathinda (Punjab). It was his contention that he had gone along with others to purchase some granites and he had loaded all the goods in 4 trucks and the car was following them. He had made the reference about the car only as a taxi. He also gave evidence to the effect that one Maninder Singh and Pawan Kumar had accompanied him to the hospital at Churu and from Churu, they had gone to Hisar and the hospital authorities at Hisar referred him to Delhi. He admitted the fact that he did not immediately register a complaint with the police about the involvement of the vehicle and he had no knowledge if there were records maintained at the hospital at Churu to evidence the fact that it was an injury suffered through a motor accident. I have seen the hospital records of Churu and it does not specifically use the expression as 'an injury in a motor accident'. It merely contains a reference to his admission and immediate discharge within a few hours for better clinical management elsewhere. He was also cogent in his evidence about where he was sitting and how the accident had taken place. I have no doubt in my mind that he was speaking the truth when he referred to the involvement of the vehicle. FAO No.428 of 2004 (O&M) - 4 - 4. The driver himself had a lot to explain because he had originally given evidence in Court to the effect that no accident had taken place. I thought it necessary to summon the driver only after I found from the records that the owner of the vehicle had made non- damage claim from the Insurance Company for its involvement in an accident. Before the Tribunal, he was completely denying that his vehicle was ever involved in any accident. Evidently, he was trying to conceal the fact and the Insurance Company was also interested in supporting such a defence for it meant complete exclusion of liability for the insurer. On being recalled in Court, he admitted that the vehicle was involved in an accident on the intervening night between 17/18.09.1999 when a support rod (axle) of the truck broke and the vehicle had capsized. The vehicle, according to him, remained there till 5 PM the next day. He admitted that there were 4 to 5 persons travelling along with him in the vehicle, but he did not know whether anyone was injured in the accident and whether any person had to be taken to the hospital. He also admitted that the passengers in the car were persons, who had purchased some goods at Rajasthan and they had transported the goods in other trucks which were going ahead of the car. He also stated that he did not inform the Insurance Company about the accident but the owner had informed the accident to the Insurance Company. He admitted that he had filed a written statement before the Tribunal in response to the claim petition and it was specifically confronted to him that he had denied the accident itself but he had no explanation to give except to state that his signature had been taken on the statement and he did not FAO No.428 of 2004 (O&M) - 5 - know what the statement contained. I find the denial of accident in the written statement to be false, having regard to the admission made by him now before me that his vehicle had been involved in the accident at the relevant time. 5. If the vehicle had been involved in the accident, the only issue would be the quantum of compensation and the personal liability to satisfy the claim. While determining the compensation, the Tribunal awarded Rs.3,84,034/- as going towards medical expenses, Rs.85,500/- for attendant charges, Rs.10,000/- towards special diet and Rs.50,000/- for the disability that had occasioned to him for fracture, dislocation of C4, C5 of the vertebrae which caused to him 75% permanent disability, the Tribunal had also awarded for a man, who was 64 years, a loss of earning power at Rs.2,25,000/-. An overall compensation that had been determined including even a loss of earning capacity for a person, who was 64 years was adequate and just and I find no reason to subject it to any reappraisal for enhancement. The claim for enhancement is, under the circumstances, dismissed. 6. As regards the liability, I find the vehicle had been used at the relevant time as for hire. The policy of insurance expressly excludes the use of the vehicle for hire or reward or for organized racing etc. and that it could be used only for social domestic and pleasure purposes and insured's own business. It had also permitted for use in carrying passengers in the vehicle except employees other than driver not exceeding 6 in number come under the purview of the Workmen's Compensation Act. If the vehicle had been used for transporting FAO No.428 of 2004 (O&M) - 6 - passengers on hire, it evidently means that the insured had been guilty of commission of breach of terms of policy. It is comprehensive policy and its terms of policy expressly provide that it is passenger carrying vehicle and the liability is also for death or injury to passenger in the vehicle. However, since the passengers were in the capacity as hirers of the vehicle, the liability of the Insurance Company shall be only to satisfy the claim and recover the same against the owner/insured for violation of terms of policy which I have brought as above. The appeal by the Insurance Company is, therefore, allowed to the extent of making it liable only to satisfy the claim but will have a right of recovery against the owner/insured. 7. The appeals are disposed as above. (K.KANNAN) JUDGE 17.01.2011 sanjeev