Roshan Lal vs Jaipur Udhyog Ltd. And Ors.
1995 Latest Caselaw 629 Del

JUDGMENT

C.M. Nayar, J.

(1) The present appeal is directed against the award dated April 30,1981 passed by Mr. H.P. Bagchi, Judge, Motor Accident Claims Tribunal (1), Delhi.

(2) The appellants-Roshan Lal and Sardari Lal filed two petitions under Section 110-A of the Motor Vehicles Act against the respondents for recovery of compensation for the injuries sustained by them in a motor vehicle accident, alleged to have taken place on February 22, 1971 at about 7.35 p.m. on the road going from Rajpur Road towards Malka Ganj, Delhi. 11 is alleged that the accident took place on account of rash and negligent driving of car No. Dlk 8890 on the part of Mohan Singh, Respondent No. 3. The said car was stated to have been owned by respondent No.1 M/s. Jaipur Udyog Ltd. and Suresh Chand Singal, respondent No. 2 in this appeal. The vehicle was insured with respondent No. 4, Universal Fire and General Insurance Co. Ltd. The appellant-Roshan Lal in Suit No. 353/71 preferred a claim for the sum of Rs. 2 lakhs.

(3) The relevant facts are that the appellant-Roshan Lal was driving Lambretta scooter No. DLX9449 from Rajindera Market towards his residence with Sardari Lal sitting on the pillion seat. They were going at normal pace on the correct side on Chauburja Road going from Rajpur Road towards Malka Ganj via Pahari when the offending car No. DLK8890 driven by Mohan Singh, respondent No. 3 came from the opposite side from upward side to downward side towards Municipal Corporation office and first knocked down the three wheeler Scooter No. DLK3966 and thereafter dashed into two wheeler scooter driven by appellant Roshan Lal with Sardari Lal as pillion rider, which resulted in injuries to both of them as well as damage to the scooter. It was alleged that the above mentioned accident was caused by the rash and negligent driving of respondent No. 3 who was driving at an excessive speed. The said respondent, it was alleged, was driving the vehicle in the course of his employment with respondent No. 1 and respondent No. 2 as per the allegations made in the petition before the Tribunal. The appellant suffered extreme pain and agony as a result of the injuries suffered by him in the accident. He was still under treatment at the time of filing the petition and could hardly move a little and could not attend his duties. He was doing mainly the work of supply of different items to Government Departments and this work needed constant and regular follow-up, which was being done by the appellant and in view of his confinement his work suffered a lot and adversely affected his income. The leg of the appellant had become short by 3/8 inch and he was held to be suffering from a permanent disability. The scooter was damaged in the accident and a sum of Rs. 1500.00 had to be spent for effecting necessary repairs. The appellant, it was contended, further suffered monetary loss to the extent of Rs. 50,000.00 as a result of this accident, in view of the loss of income in his business. He was also entitled to claim compensation for pain and sufferings, for loss of health, for expenses on the treatment, for loss in business, for permanent disability etc. Sardari Lal who was pillion rider raised his claim for award of compensation for Rs. 80,000.00 on account of the loss he suffered as a result of injuries.

(4) Respondents 2 and 3 filed their written statement and denied the allegations of the appellant. Respondent No.1 denied the ownership in respect of the offending vehicle, as it was contended that the aforesaid vehicle had been sold by M/s Jaipur Udhyog Ltd. to respondent No. 2 Suresh Chand Singal on December 28, 1970 and on that basis no liability could be fastened on the Insurance company, who was the insurer of the vehicle when it was registered in the name of respondent No. 1.

(5) The following issues were framed:

1. Whether accident was caused by rash and negligent driving of the vehicle in question ? 2. To what amount on account of damages are the petitioners entitled and from whom? 3. Whether the Insurance Company is not liable for preliminary objection No. 1 as given in the written statement ? 4. Whether respondent No. I was driving the car in question during the course of employment of respondent No. 2 ? 5. Relief and against whom ?

It will not be necessary to refer to the issues framed in Suit No. 351 of 1971 as the claim of Sardari Lal in that suit was rejected and no appeal has been filed against the Order in this Court.

(6) The Tribunal disposed of issue No. I and came to the conclusion that "on a proper evaluation of oral as well as documentary evidence consisting of photographs and site plan it stands fully proved that the car in question was corning at a fast and reckless speed and swerved to its right i.e. wrong side of the road and first hit the three wheeler scooter and thereafter the petitioner's two wheeler scooter which was going on its proper left hand side of the road..... There is always a presumption of rashness and negligence on the part of the driver whose vehicles caused accident after coming to the wrong side unless and until that presumption stands rebutted. In this case, the presumption of rashness and negligence on the part of car driver/respondent No. 3 does not stand rebutted because he has taken up the plea of total denial which plea stands falsified from the overwhelming evidence led by the petitioner and the site plan and photographs placed and proved on record." The Tribunal assessed the material on record and arrived at the above said finding.

(7) There has been no appearance on behalf of respondents 1 to 3. The learned Counsel for respondent No. 4 has only confined his argument that the Insurance Company is not liable as the vehicle was transferred in favor of respondent No. 2 much before the accident. There is also no infirmity and illegality in the judgment of the Tribunal with regard to negligence which is based on evidence on record. The same is, accordingly, affirmed.

(8) The appellant was aged 37 years of age at the time of accident. He suffered compound fracture on right leg with cut wounds and compound commuted fracture of upper end of the right Tibia. The said injuries were proved by medical evidence. The appellant further proved on record the Disability Certificate Ex. PW11/1 wherein it is stated that he has been permanently disabled and his leg has become short as a result of the accident. The appellant as PW13 has stated that after the treatment in the hospital, the plaster continued for nine months and he remained under treatment of Dr. Sita Gupta and Dr. Vijay Thapar in Irwin Hospital and was also under the private treatment. Statement of PW2 Dr. Sita Gupta, Associate Professor, Maulana Azad Medical College proved that the appellant suffered the injuries, as referred to above and was operated upon and he was discharged on February 24, 1971. At the time of discharge from hospital, the appellant was having plaster on his leg from groin to toe. Normally, this witness has contended, it takes minimum three months of such fracture to unite. This was, therefore, held to be major injuries sustained by the appellant in addition to other abrasions and bruises on his body. He was coming and visiting the hospital for quite a while and it was held that he remained under treatment for about one year .and his leg was shortened by half a inch as a result of the accident. The learned Judge accepted this evidence and awarded a sum of Rs.5,000.00 for pain and suffering and Rs. 3,000.00 for permanent disability which was held to the extent of 50 per cent. The total amount which was awarded in favor of the appellant under different heads can be stated as under : (i) For pain and suffering Rs. 5,000.00 (ii) For permanent partial disability Rs. 3,000.00 (iii) For past pecuniary loss Rs. 5,000.00 (iv) Medical treatment Rs. 1,000.00 (v) Towards conveyance Rs. 300.00 Rs. 14300.00

The deduction of 10 per cent was made on the amount of general damages for lump sum payment and the ultimate award was assessed in the figure of Rs.13,500.00 which was held to be just and reasonable compensation, as payable to the appellant.

(9) The learned Counsel for the appellant has vehemently assailed the award, particularly in view of the permanent disability having been inflicted on the appellant and on the basis of medical evidence produced on record. The lump sum figure of Rs. 2 lakhs was claimed by the appellant.

(10) The damages in respect of separate heads were not precisely stated. However, the following amounts were claimed: 1. Medical treatment Rs 7000.00 2. Loss of income Rs. 16,935.00 3. Conveyance Rs. 2,000.00 4. Future conveyance at the rate of Rs. 1,600.00 p.m.

The position of law is well settled that the claim for damages has to be assessed separately as pecuniary damages and special damages. The concept is widely accepted. The latest judgment of the Supreme Court in Mr. R.D. Hattangadi v. M/s Pest Control (India) Pvt. Ltd & Others, clearly states the same. Paragraph 9 may be reproduced as follows : "BROADLY speaking while fixing an amount of compensation payable to a victim of an accident, the damages have to be assessed separately as pecuniary damages and special damages. Pecuniary damages are those which the victim has actually incurred and which is capable of being calculated in terms of money; whereas non-pecuniary damages are those which are incapable of being assessed by arithmetical calculations. In order to appreciate two concepts pecuniary damages may include expenses incurred by the claimant: (i) medical attendance; (ii) loss of earning of profit up to the date of trial; (iii) other material loss. So far non-pecuniary damages are concerned, they may include (i) damages for mental and physical shock, pain suffering, already suffered or likely to be suffered in future; (ii) damages to compensate for the loss of amenities of life which may include a variety of matters i.e. on account of injury the claimant may not be able to walk, run or sit; (iii) damages for the loss of expectation of life, i.e. on account of injury the normal longevity of the person concerned is shortened; (iv) inconvenience, hardship, discomfort, disappointment, frustration and mental stress in life."

The damages awarded by the Tribunal in the case, accordingly, fall in two categories as referred to above i.e. for non pecuniary loss which will result in award of damages for pain and suffering and loss of amenity and will constitute a conventional sum which is taken to be the sum which society deems fair. The observations from Halsbury's Laws of England are referred to in paragraph 14 of the judgment in Mr. R.D. Hattangadi's case and the same reads as follows : "14.In Halsbury's Laws of England, 4th Edition, Vol. 12 regarding non pecuniary loss at page 446 it has been said : "Non-pecuniary loss: the pattern. Damages awarded for pain and suffering and loss of amenity constitute a conventional sum which is taken to be the sum which society deems fair, fairness being interpreted by the Courts in the light of previous decisions. Thus there has been evolved a set of conventional principles providing a provisional guide to be comparative severity of different injuries, and indicating a bricket of damages into which a particular injury will currently fall. The particular circumstances of the plaintiff, including his age and any unusual deprivation he may suffer, is reflected in the actual amount of the award. The fall in the value of money leads to a continuing reassessment of these awards and to periodic reassessments of damages at certain key points in the pattern where the disability is readily identifiable and not subject to large variations in individual cases."

(11) The appellant in the present case was 37 years of age when he met with the unfortunate accident, which caused permanent disability apart from fractures. The treatment required hospitalisation and it continued for over a year. The claim made in respect of medical treatment, repairs to a vehicle and loss of income as well as for conveyance seem to have been wrongly denied by the Tribunal. There is no doubt that compensation in such cases involves some guess work and hypothetical consideration but the same has to be linked to the injuries and disability caused. In the facts and circumstances of the present case, I feel that there was no justification for the Tribunal in not fully granting the following claims; 1. Medical Treatment Rs. 7,000 .00 (RS.1000.00 awarded) 2. Loss of income Rs.16,935.00 (Rs. 5000.00 awarded) 3. Conveyance Rs. 2,000.00 (Only Rs. 300.00 was granted)

The Tribunal has then awarded a meagre amount of Rs. 5,000.00 for pain and suffering and Rs. 3,000.00 for permanent disability. The learned Counsel for the appellant has argued that a sum of Rs. 50,000.00 should have been awarded on this score as the leg of the petitioner is shortened and he has become permanently disabled. The loss of future earnings has not been considered by the Tribunal and the appellant has only been awarded a sum of Rs. 5000.00 for past pecuniary loss. There is certainly some physical handicap which has been inflicted on the appellant and. that may adversely affect his earning capacity in the future as well.

(12) In view of the facts and circumstances of the present case, I am inclined to award the following amounts under different heads to the appellant: 1. Expenses already incurred on the treatment till the date of filing the petition Rs. 7,000.00 2. Loss of income for the period the appellant was not able to attend to his business Rs. 16,935.00 3. Conveyance expenses etc. Rs. 2,000.00 4. Pain and suffering suffered by the appellant including loss of enjoyment and amenities of life due to permanent disability Rs. 25,000.00 Rs. 50,935 .00

The appellant is, therefore, held entitled to the total claim in the sum of Rs. 50,935.00 . He shall further be entitled to interest at the rate of 15 per cent per annum from the date of petition till realisation. The amount, which has already been disbursed to the appellant, shall be taken into consideration for computing the amount, which is now held payable.

(13) The learned Counsel for the appellant has next contended that the entire liability should be met by respondent No. 4, Universal Fire and General Insurance Company, which is now merged with United India Insurance Company Ltd. respondent No. 4, on the plea that the sale of the offending vehicle by respondent No. 1 to respondent No. 2 has not been proved. The Tribunal has considered the evidence on record and has referred to the same in detail. It will not be necessary for me to go into every aspect but it is clear that the ownership of the car by respondent No. 2 stands duly proved from the oral as well as documentary evidence placed on record. The clerk of Motor Licencing office was produced as PW7, Rattan Lal, who has categorically stated that the vehicle in question was sold by respondent No. 1 to respondent No. 2 on December 28,1970. The claim petition was also filed against both the said respondents, as it seems that the appellant was not sure about the exact ownership. The law is fairly well settled that third party liability of the Insurance Company comes to an end on the transfer of the vehicle by the insured and the insurance company cannot be compelled to indemnify a person with whom it has no contract. The Full Bench of this Court in Anand Sarup Sharma v. P.P. Khurana and Others, 1989 Acj 577 has clearly laid down the law on the point. It was held that "liability of the insurer is founded on the contract of insurance. The contract must be in favor of a person against whom an award or decree has been made. It must be in force on the date of accident. Unless there is a valid contract of insurance making the insurer liable, the question of limiting the right of insurer to the defenses enumerated under Section 96(2) would notarise. To attract the provisions contained in Section 96(2) it will have to be first proved that the insurer against whom the amount is being claimed had insured the person liable under the decree or the award and that the said insurance certificate Was subsisting".

(14) The plea that the vehicle was not transferred in the name of the buyer in the record of the Registering Authority and, therefore, respondent No. 1 must be held to be the owner was also negatived by that Bench. Paragraphs 13 and 14 of the judgment which interpret the provisions of Sections 22 and 31 of the Motor Vehicles Act, 1939 may be reproduced as follows: "WE have carefully examined the above provisions. In our considered opinion these provisions do not have the effect of postponing the transfer of property from seller to the buyer till the transferor and transferee make the requisite report and the vehicle is registered in the name of the transferee. Section 22 simply imposes a statutory obligation. It prohibits the driving of any vehicle by any person unless the vehicle is registered. Non-compliance of these provisions does not have the effect of postponing the transfer of property in the vehicle from seller to buyer. To take a contrary view would result in absurd result. If a buyer after purchase does not use the vehicle he is the owner. But if after one year he uses it he ceases to be the owner. It is not and cannot be the law. Opening words of Section 31 "where the ownership of any motor vehicle registered under the Chapter is transferred" make clear that transfer of ownership has to precede the reports required to be made under Section 31. Section 31 does not prohibit the transfer of a motor vehicle till the reports are made. These provisions only cast an obligation on the transferor and the transferee to report to the Registering Authority concerned regarding the transfer of the vehicle after the transfer has already taken place. These provisions have nothing to do with the ownership of the vehicle as such. They merely provide for regulations of use of motor vehicles in public places. Their non-compliance attracts penalties."

(15) In the present case, the evidence is available on record to show that respondent No. 1 sold the car to respondent No. 2 on December 28, 1970 prior to the date of accident, though the order of transfer was passed subsequently. This, however, will be of no consequence in view of the settled position of law.

(16) For the aforesaid reasons, the finding that respondent No. 4 is not liable is affirmed and it is held that the entire claim is to be met by respondent No. 2.

(17) The appeal is allowed to the extent as indicated above. The Cross Objections filed by respondents 2 and 3 are dismissed. There will be no order as to costs.