The New India Assurance Co. Ltd. vs Sh.Dalbir Singh & Ors.
2008 Latest Caselaw 1303 Del

*      HIGH COURT OF DELHI : NEW DELHI

      MAC App. No.391 of 2008 & CM Nos.9813

                         & 9815/2008

%            Judgment reserved on: 1st August, 2008

             Judgment delivered on: 11th August, 2008


The New India Assurance Co.Ltd.
1st Floor, Deen Dayal Upadhyay Building
Jhandewala Extn. New Delhi.             ....Appellant

             Through: Mr.Mohan Babu Aggarwal, Adv.

                            Versus

1.Sh.Dalbir Singh
S/o Shri Gopi Ram
R/o Village Samey Pur,
Post Ujjwa, Delhi.

2.Sh.Girwar Singh,
S/o Shri Chottu Ram
R/o Village & PO Dariyapur,
District Jhajjar, Haryana.

3.Sh.Girwar Singh
R/o 17/6, Mathura Road,
Faridabad, Haryana.                    ...Respondents.

                    Through: Nemo

Coram:
HON'BLE MR. JUSTICE V.B. GUPTA

1. Whether the Reporters of local papers may
   be allowed to see the judgment?                    Yes


MAC App.No.391 of 2008                          Page 1 of 12
 2. To be referred to Reporter or not?                 Yes

3. Whether the judgment should be reported
   in the Digest?                                     Yes

V.B.Gupta, J.

The present appeal under section 173 of the

Motor Vehicles Act, 1988 (for short as the "Act") has

been filed by the Appellant/Insurance Company against

the judgment and order dated 04.02.08 passed by Sh.

Suresh Chand Rajan, Judge, Motor Accidents Claims

Tribunal (for short as the "Tribunal"), Delhi.

2. Brief facts of the case are that on 05.01.02 at

about 11.00p.m. Dalbir Singh, Respondent no.1, aged

33 years, was going to his house on his scooter, one

truck bearing registration no. HR-38-E-8698 being

driven by Girwar Singh, Respondent no.2 came at a

fast speed and in a rash and negligent manner and hit

the scooter of the Respondent no.1. Due to impact,

Respondent no.1 fell on the road and sustained

injuries.

3. The Respondent no.1 filed the petition under

section 166 & 140 of the Act claiming compensation of

Rs.25,00,000/- against the Respondent no. 2 & 3 herein

being the driver as well as owner of the offending

vehicle and the Appellant herein, as the offending

vehicle was insured with them.

4. Upon the petition being filed, summons were sent

to the Respondents. The Respondent no.2 who was

driver as well as the owner of the offending vehicle, in

its written statement denied the factum of the accident

as well as involvement of offending vehicle in any

accident.

5. Appellant/Insurance Company in its written

statement pleaded that driver of the offending vehicle

was not holding a valid and effective driving licence at

the time of accident.

6. Vide impugned judgment, the Tribunal awarded

compensation of Rs. 13,10,650/- along with the interest

@ 7% per annum from the date of the filing of the

petition till its realization.

7. It has been contended by the Ld. Counsel for the

Appellant that the Tribunal perused only the copy of

the alleged licence, which was taken into custody by

the Police at the time of accident. The tribunal

reached at wrong conclusion that licence was valid

while during investigation by investigator and in its

report and evidence produced before the Tribunal, it

was found that the driver of the offending vehicle was

not in possession of a valid driving licence and the

driving licence in question was issued in the name of

some Hussain s/o Baralam and not in the name of

Girwar i.e. Respondent no.2 and the date of the same

was 23.03.03.

8. Even the RTO concerned admitted the fact that

the licence in question is not in the name of the

Respondent no.2 i.e. Girwar but this aspect has not at

all been considered by the Tribunal and neither the

Appellant was not given any right of recovery etc.

Thus, there is clear violation of insurance policy by the

driver and owner of the offending vehicle and so the

Insurance Company has no liability of any kind for

payment to the Respondent no.1/claimant.

9. The impugned order is also unsustainable being

arbitrary, and based on no evidence and without

consideration and appreciation of the evidence on the

record of the case. The compensation of

Rs.13,10,650/- along with the interest @ 7% seems to

be higher side while, as per the present market

scenario and as per RBI guidelines, the interest of 4 %

is just and proper in the facts and circumstances of the

case.

10. Appellant in its written statement filed before the

Tribunal has taken certain preliminary objections.

11. Objection no. 1(a) states that;

"The driver of the alleged vehicle who is alleged to be on the wheels at the time of accident was not

possessing an effective Driving Licence for the type of vehicle alleged to have been involved in the accident. The breach of Driving Licence clause on the part of the insured was deliberate."

12. The Trial Court on the pleading of the parties

framed three issues and issue no.3 reads as under;

"Whether Respondent no.1 was not holding a valid and effective driving licence to drive the said truck at the time of accident in question, if so, to what effect?"

13. On this issue, the finding given by the Tribunal is

that;

"As far as the issue no.3 is concerned the R-3 examined one Sh. Narender Kumar as R3W1 from District Transport Office, Gurgaon proving the issue no.3, however, on perusal of his statement he has given self contradictory statement regarding possession of the driving licence by R-1. He deposed on oath that Girwar Singh, S/o Chotu Ram, R/o Village Basai, Distt. Gurgaon was having a driving licence issued on 01.09.2000 which was valid till 31.08.2003 and he has further deposed that it was valid for HTV. He again deposed that duplicate licence was issued on 08.09.98 and it was valid up to 24.08.2000. So he has no valid

driving licence after 25.07.2000 to 31.08.2000 and he proved the relevant record of the register which is Ex.R3W1/A and this witness has not been cross- examined. However, as per the criminal case record I also perused the certified copy of the seizure memo of the driving licence in which the driving licence of Girwar Singh, S/o Chotu Ram containing licence no. 1051/91 issued on 01.09.2000 valid till 31.08.2003 was taken into police custody on 13.05.2002 and I also perused its copy and concern licence was taken into custody and it was valid up to 31.08.2003 and the accident was taken place on 05.01.2002 so this licence was valid for HTV. So in consideration of documents and Ex.R3W1/A, it is clear that at the time of accident the R-1 was holding a valid and effective driving licence.

             Hence,     issue   no.1     is  decided
             accordingly     in    favour    of  the
             petitioner     and       against    the

Respondents and issue no. 3 is also disposed off accordingly."

14. In the present case, admittedly as per statement

of the Appellant own witness, namely, Sh.Narinder

Kumar (R3W1) the licence was issued to Girwar Singh,

S/o Chotu Ram, from 01.09.2000 which was valid till

31.08.2003 and it was valid for HTV. The duplicate

licence was issued on 08.09.98 and it was valid up to

24.07.2000. He had no valid driving licence from

25.07.2000 to 31.08.2000.

15. The accident in the present case took place on

05.01.02 and thus, Respondent no.2, had a valid

driving licence at the time of accident. Therefore, I, do

not find any force in contentions of Learned Counsel

for the Appellant with regard to the fact that

Respondent No.2 was not holding a valid and effective

driving licence.

16. It was well established by various documents

before the Tribunal that the accident took place due to

the fault of the driver of the offending vehicle and in

the cross-examination also no material has come which

could discredit the case of the Respondent no.1.

17. As regards to the contentions of Ld. Counsel for

Appellant regarding excessive compensation, the

Tribunal awarded the following amount of

compensation:-

Compensation on account of pain and sufferings : Rs.50,000/-

Compensation on account of medicines, medical treatment : Rs.1,31,450/-

Compensation on account of conveyance and special diet : Rs.50,000/-

Compensation on account of permanent disability and loss of income : Rs.9,79,200/-

Compensation on account of physical disfigurement : Rs.50,000/-

Compensation on account of loss of enjoyment and amenity of life : Rs. 50,000/-

Total : Rs.13,10,650/-

18. It has come on record that Respondent No.1 is 33

years old and was getting the salary of Rs.8,000/- per

month at the time of accident and his salary certificate

is Ex.PW1/16. To prove this, Respondent no.1,

examined three witnesses namely Anoop Singh brother

of Abhay Singh who was the employer of Respondent

No.1, Rambir as PW3 and Vinod Kumar as PW4. By

their testimonies it is proved that the Respondent no.1

was getting a salary of Rs. 8,000/- per month. This fact

has not been rebutted by the Appellant.

19. Respondent no.1 has deposed that he was

working as a professional bus driver and was having

HTV licence and his driving licence is Ex.PW1/15 and

was working under the employment of Sh. Abhay

Singh, Village Samay Pur, Post Ujjwa, Delhi and

driving the bus under DTC. He further deposed that

now he cannot able to ply the bus due to the

amputation of his leg and have lost his job.

20. It is evident from the record that Respondent no.1

had suffered permanent disability. He has produced

the disability certificate Ex.PW1/14, according to

which right below the knee there is amputation and

Respondent No.1 is physically handicapped and has

60% permanent disability to his right lower limb.

With this type of permanent disability where there is

amputation of right leg below the knee, there is no

question that Respondent No.1 who was a professional

bus driver would ever be able to drive a bus.

21. Thus, the Tribunal, rightly taking the permanent

disability to be 60%, has awarded the loss of income as

Rs.9,79,200/-. After taking into consideration the

monthly loss of income at Rs.4,800 p.m. being 60% of

the monthly income, and keeping in view the fact that

the age of Respondent No.1 was 33 years at the time of

accident, the Tribunal rightly applied a multiplier of

17.

22. Thus, I do not find any infirmity or illegality in

the impugned judgment passed by the Tribunal.

23. The compensation awarded by the Tribunal is

just, fair and equitable.

24. Accordingly, the present appeal filed by the

appellant is, hereby, dismissed.

25. Since, the appeal is not maintainable, the

application for condonation of delay and the

application for stay also stands dismissed.

26. No order as to costs.

27. Trial Court record be sent back.

August 11, 2008                              V.B.GUPTA, J.
Bisht