IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH Cross Objection No.17-CII of 2000 in/and FAO No.1768 of 1999 (O&M) Date of decision:21.09.2010 National Insurance Company Limited ....Appellant versus Goma Devi and others ...Respondents II. FAO No.264 of 2000 (O&M) Rohtash ....Appellant versus Jay Kishan and others ...Respondents Present: Mr. Kohal Dev, Advoate, for Mr. N.K.Khosla, Advocate, for the appellant in FAO No.1768 of 1999 and for respondent No.3 in FAO No.264 of 2000. Mr. Manish Jain, Advocate, for the appellant in FAO No.264 of 2000. ---- 1. Whether reporters of local papers may be allowed to see the judgment ? 2. To be referred to the reporters or not ? 3. Whether the judgment should be reported in the digest ? ---- K.Kannan, J.(Oral) 1. The appeal by the Insurance Company in FAO No.1768 of 1999 is on the issue of liability that the driver did not have a valid driving licence. The accident arose out of a collision between the insured's truck and a motorcycle. The motorcyclist claimed damages Cross Objection No.17-CII of 2000 in/and FAO No.1768 of 1999 (O&M) - 2 - made on a composite plea for damages to his property namely the motorcycle and the personal injuries suffered by him. Another claim was at the instance of the pillion rider in the motorcycle. The pillion rider, who was the aunt of the motorcyclist, was reported to have suffered serious injuries in her leg that resulted in a fracture and treatment in the hospital. The doctor found that there had been a shortening of limb by one inch and had certified the disability to be permanent and the extent of disability to be 30%. The Insurance Company is in appeal against liability cast on it rejecting its defence. The motorcyclist has filed an independent appeal and the pillion rider herself has filed the cross appeal in the appeal filed by the insurer. 2. As regards the liability on the plea by the insurer that the driver of the truck did not have a valid driving licence, the evidence was adduced to the effect that the licence that was said to have been issued on 14.07.1980 by the RTA, Hyderabad, was not in the name of the driver of the truck Jai Kishan, but stood in the name of one K. Bishvanath. There had been subsequent renewals of the licence from Hansi and Hisar and the owner of the vehicle Ramesh Kumar gave evidence to the effect that he had seen the licence and he had done everything possible to verify about the validity of the licence and he was under the belief that it was genuine. The issue of licence being fake merely answers one part of the story and if the insured had been led under a belief that it was genuine that should satisfy the dispute so far as an inter se dispute between the insurer and the insured of concerned. In terms of the judgment of the Hon'ble Supreme Court in National Insurance Company Versus Cross Objection No.17-CII of 2000 in/and FAO No.1768 of 1999 (O&M) - 3 - Swaran Singh (2004) 3 SCC 297, the insured shall be entitled to full indemnity, notwithstanding the fact that the licence was proved to be fake, for, it shall be the belief of the owner that shall be the guiding factor to see whether the insurer could disown liability or not. The appeal by the Insurance Company is, therefore, dismissed. 3. The cross appeal by the pillion rider seeks for enhancement. The produced documentary evidence to the effect that she had incurred an expenditure of Rs.9,415/- towards medical expenses. She had contended however that she had spent Rs.30,000/-, but the Tribunal admitted her plea only to the extent of the bills which were produced before the Court. I cannot take an exception for the same. It was also in evidence that she had remained admitted in the hospital from 09.04.1997 to 19.04.1997 and subsequently she was again operated and remained in the hospital at Bhiwani for an operation from 17.10.1997 to 29.10.1997. The doctor also gave evidence to the effect that she would require another operation that may cost her Rs.1,000/-. For the period of hospitalization of about 24 days namely, for the initial spell of 11 days at Hisar and 13 days of hospitalization at Bhiwani, the Tribunal awarded Rs.10,000/- towards transportation charges, special diet and medical expenses. They have been on actuals and I cannot find fault with such an assessment. The Tribunal, however, while ascertaining the compensation for permanent disability by a shortening of the limb awarded Rs.30,000/- for 30% disability as a gross sum. Instead I would provide for Rs.10,000/- towards pain and suffering for her hospitalization and the sufferance which she herself gone through. Apart Cross Objection No.17-CII of 2000 in/and FAO No.1768 of 1999 (O&M) - 4 - from giving evidence to the effect that there had been a shortening of limb and her disability was permanent, I have not the particulars to assess how this particular disability had caused any loss of material benefit to her. In non-pecuniary terms, compensation is invariably awarded for loss of amenities of life and shortening of expectation of life by the injury. The Tribunal had awarded Rs.30,000/- for the disability and loss of future enjoyment and would also include the pain and suffering as a component as well as loss of future income on account of shortening of limb. The loss of income is to be assessed by how the disability had impacted her in her activity and how that had caused a resultant loss of income. I have not the benefit of such information before me. The only modification that would allow for in this case is to provide for an additional sum of Rs.10,000/-, which I have allowed for pain and suffering. The award of the Tribunal shall stand confirmed in all other respects. The additional sum of Rs.10,000/- will bear interest at 6% from the date of the petition till the date of the payment. 4. In a claim by the motorcyclist for injuries suffered by him and for damage to the property, the Tribunal has found that the claimant had been hospitalized for six days and he had only simple injuries. For six days of hospitalization, the Tribunal awarded Rs.6,000/-. I am of the view that for simple injuries resulting in no disability, the assessment made by the Tribunal was correct. There was also a claim for damage to the property at Rs.7,533/- and the bills had been produced before the Court and even a witness who carried out the repairs was also examined in this case. The bills of Rs.7,533/- were rejected on the ground that Cross Objection No.17-CII of 2000 in/and FAO No.1768 of 1999 (O&M) - 5 - there was no proof of ownership of the vehicle. The claimant, who was a milk vendor, had stated that he had not the registration certificate for the vehicle but the production of the bills by him and the evidence of the witness that the amount had been charged on the claimant ought to have been taken as sufficient for the Tribunal to admit the claim for the expenses incurred by him. I would accord to him therefore the expenses incurred by him on evidence brought through the bills for Rs.7,533/-. The appeal of the claimant will stand allowed to provide for the expenses for the damage to the property at Rs.7,533/-. There is no plea before me that there was any restriction of liability for damage to the property. If the restriction of liability is not specifically pleaded, I cannot assume that under the terms of the policy, the liability is restricted. 5. The appeal in FAO No.1768 of 1999 by the insured is dismissed and the cross appeal is allowed in part. The appeal in FAO No.264 of 2000 is allowed in part by making a modification for the quantum of compensation as indicated above. The claimant shall be at liberty to enforce the award in the manner known to law. (K.KANNAN) JUDGE 21.09.2010 sanjeev