Delhi High Court

Century Transport Of India vs National Insurance Co.Ltd. on 19 November, 2008

Author: V.B.Gupta

*      HIGH COURT OF DELHI : NEW DELHI

     MAC App. No.2/2008 & CM No.115/2008 &

                     MAC App. No.71/2008

%            Judgment reserved on: 21st October, 2008

             Judgment delivered on:19th November, 2008


1. MAC App. No.2/2008 & CM No.115/2008

Century Transport of India
Having its Principal Office at
4/1, D.B. Gupta Road, Paharganj,
New Delhi-110055                           ....Appellant

             Through: Mr. Ashwani K. Dhatwal, Adv.

                                Versus

1. National Insurance Co. Ltd.,
   Division-II, Deen Dayal Upadhyay
   Bhawan, 7E, Hjandewalan,
   New Delhi-110055

2. Shri Kallu Chaudhary
   S/o. Sh. Gallu Chaudhary,
   R/o. R-51, Jawahar Park,
   New Seemapuri, Ghaziabad,
   U.P.

3. Master Saurabh Jain,
   Through his natural guardian,
   And next friend Sh. Nitin Kumar
   Kaveria, R/o. 150, Kuchha Ghasiran,
   Chandni Chowk, New Delhi-110006 ...Respondents.

             Through: Mr. Pradeep Gaur, Adv. for R-1.

MAC App. Nos.2/2008 & 71/2008                   Page 1 of 18
                            Mr. Pankaj Pareksh, Adv. for R-2.
                           Mr. Madhurendra Kumar, Adv. for
                           R-3.

2.MAC App. No.71/2008

   Master Saurabh Jain,
   Through his natural guardian,
   And next friend Sh. Nitin Kumar
   Kaveria, R/o. 150, Kuchha Ghasiran,
   Chandni Chowk, New Delhi-110006 ....Appellant


             Through: Mr. Madhurendra Kumar, Adv.

                                Versus

1. Shri Kallu Chaudhary
   S/o. Sh. Gallu Chaudhary,
   R/o. R-51, Jawahar Park,
   New Seemapuri, Ghaziabad,
   U.P.

2. Century Transport of India
   Having its Principal Office at
   4/1, D.B. Gupta Road, Paharganj,
   New Delhi-110055

3. National Insurance Co. Ltd.,
   Division-II, Deen Dayal Upadhyay
   Bhawan, 7E, Jhandewalan,
   New Delhi-110055                 ...Respondents.

             Through: Mr. Pankaj Pareksh, Adv. for R-1.
                      Mr. Ashwani K. Dhatwal, Adv. for
                      R-2.
                      Mr. Pradeep Gaur, Adv. for R-3.




MAC App. Nos.2/2008 & 71/2008                       Page 2 of 18
 Coram:
HON'BLE MR. JUSTICE V.B. GUPTA

1. Whether the Reporters of local papers may
   be allowed to see the judgment?                   Yes
2. To be referred to Reporter or not?                Yes

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

V.B.Gupta, J.

By this common judgment, the above two appeals

are being disposed of.

2. Brief facts of this case are that on 11th January,

2002 at about 7.30 a.m., Master Saurabh Jain, received

injuries in the accident, while alighting from a

rickshaw near Khalsa Hindu Hotel on Church Mission

Road, Delhi. He was to catch his school bus and in the

meanwhile, a truck bearing No.DL-1LD-6173 came

from Fatehpuri Masjid side and hit the injured. The

truck was being driven by respondent-Kallu Chaudhary

at a very high speed and in a rash and negligent

manner.

3. Appellant/Century Transport of India is the owner

of this truck, which is insured with National Insurance

Company.

4. Vide impugned judgment dated 12th September,

2007, the Tribunal awarded a compensation of

Rs.2,15,000/- along with 7% p.a. interest from the date

of filing of the petition till realization, to the injured

and the Insurance Company was directed to make the

payment of compensation and was given recovery

rights qua the appellant and the driver.

5. Aggrieved with the impugned judgment, the

appellant/owner of the offending truck has filed the

present appeal.

6. Appeal MAC App. No.71/2008 has been filed by

the injured-Master Saurabh Jain for enhancement.

7. It has been contended by learned counsel for the

appellant in MAC App No. 2/2008 that the Tribunal has

erred in granting the recovery rights to the Insurance

Company.

8. The Tribunal wrongly interpreted the testimony of

R1W1 to the effect that after getting the licence, it

remained with respondent no.2 and he never handed

over it to any other person. This statement does not

take to mean under any imagination, that the appellant

never took the competency test of the respondent no.2

or checked the driving licence at the time of

appointment of respondent no.2, as a driver.

9. The Tribunal also failed to appreciate the

testimony of Sh. Vijay Kumar Sinha (DTO) as R3W2

who was examined by respondent Insurance Company,

that the said driving licence was renewed from their

office and the original driving licence was issued by

DTO, Godda, Jharkand.

10. Insurance Company never examined or

summoned any officer from the District Transport

Office, Godda to prove the allegation that the original

licence bearing No.1877/94/Godda, was never issued

by the concerned transport authority. Thus, non-

examination of any officer from the original licence

issuing authority, negativities the presumption that the

concerned authority has not issued the said licence.

11. The Tribunal also wrongly relied upon a

photocopy of investigation report prepared by the

official of Insurance Company which was never proved

at the time of evidence.

12. On the other hand, it is contended by the learned

counsel for the respondent no.1-Insurance company

that, the driver of the offending vehicle was not

holding a valid and effective driving licence at the time

of accident and the renewal of fake licence does not

make the same is a valid one.

13. It is further contended that the insurance

company summoned officials from both authorities, but

the driver did not show the licence to anyone and

therefore, this is a willful breach on his part.

14. Learned counsel for respondent/Insurance

Company has relied upon the decision of the Apex

Court in National Insurance Co. Ltd. v. Laxmi

Narain Dhut, 2007 (2) LRC 412 (SC) in support of

its contentions.

15. Respondent no.2 i.e. Kallu Chaudhary in his

counter affidavit took the plea that RTO Godda, issued

a driving licence bearing no.1877/94/Godda and on

15.07.96, after taking his driving test, the endorsement

was made in the licence by the concerned authorities,

thereby authorizing him to drive the heavy motor

vehicle. He has further stated that the said licence

was subsequently renewed from District Transport

Authority Girdih, Jharkand.

16. Another plea taken by him is that, he was

employed by the appellant in the year 1997 and at the

time of appointment, appellant took his proper driving

test and also checked his credentials including, but not

limited to the valid driving licence possessed by him at

that time. At the time of appointment, the appellant

also took copy of his residential proof as well as a copy

of valid driving licence from him.

17. Chapter XI of the Act, providing compulsory

insurance of vehicles against third party risks is a

social welfare legislation to extend relief by

compensation to victims of accidents caused by use of

motor vehicles. The provisions of compulsory

insurance coverage of all vehicles are with this

paramount object and the provisions of the Act have to

be so interpreted as to effectuate the said object.

18. Section 149 of the Act provides as follows;

"149. Duty of insurers to satisfy judgments and awards against persons insured in respect of third party risks.-

          (1)       x                  x              x


          (2)     No sum shall be payable by an

insurer under sub-section (1)in respect of any judgment or award unless, before the commencement of the proceedings in which the judgment or award is given the insurer had notice through the Court, or as the case may be, the Claims Tribunal of the bringing of the proceedings, or in respect of such judgment or award so long

as execution is stayed thereon pending an appeal; and an insurer to whom notice of the bringing of any such proceedings is so given shall be entitled to be made a party thereto and to defend the action on any of the following grounds, namely:

                (a)        x    x     x      x


                   (i)     x    x     x      x

(ii) a condition excluding driving by a named person or persons or by any person who is not duly licensed, or by any person who has been disqualified for holding or obtaining a driving licence during the period of disqualifications;

(iii) x x x x

19. In a plethora of cases, the Apex Court and various

High Courts have held that, if there is a condition in

the insurance policy that only a licensed driver is to

drive the vehicle, the insurance company would not be

liable in case there is a breach.

20. Appellant has not appeared in the witness box to

describe as to how he had employed the respondent

No.2 nor any evidence in regard to the employment of

respondent no.2 has been placed on record.

21. Respondent no.2 in his cross- examination stated

that, after getting this licence, it remained with him.

He never handed over it to any other person nor he

had shown to any other person.

22. Since, appellant has not appeared in the witness

box, there is no evidence to disclose the circumstances

under which, the appellant employed the services of

the driver or whether he was satisfied with the driving

abilities of the driver or not.

23. Regarding renewal of the licence, respondent

no.2 in his testimony has testified that on the date of

accident, he was having a valid driving licence. He has

proved the photocopy of the same as Ex.R1W1/1. He

also testified that this driving licence was issued

against his previous driving licence bearing no.336/97.

24. Respondent no.1 has examined Sh.K.G.Malhotra

as R3W1, who testified that driving licence of driver

Kallu Chaudhary, bearing no. 1894 was sent for

verification and as per verification, no such licence was

issued by transport authority Godda.

25. R3W2, Sh.Vijay Kumar Sinha, District Transport

Officer from Girdh, Jharkand, produced the summoned

records before the Tribunal. This witness stated that

licence was renewed from their office and also testified

that particulars of original licence were mentioned at

the relevant page of registrar which is Ex.R3W2/A.

26. After considering the testimony of both witnesses,

it is clear that the licence no.1877/94/Godda was not

issued by District Transport Authority.

27. Respondent no.2 has failed to rebut the testimony

of both witnesses and the plea taken by him in his

counter affidavit is altogether a new plea, which was

never taken in the written statement filed by him.

28. The renewal of the licence makes the licence valid

only if the original licence was valid. Section 15 of the

Act only empowers any licensing authority to "renew a

driving licence issued under the provisions of this Act

with effect from the date of its expiry." No licensing

authority has the power to renew a fake licence and,

therefore, a renewal if at all made cannot transform a

fake licence as genuine. Same principles have been

enumerated in National Insurance Co. Ltd. v. Laxmi

Narain Dhut (Supra) that;

"where originally the licence was a false one, renewal cannot cure the inherent fatality".

29. So, in the absence of any evidence, the Tribunal

was right in holding that the respondent no.2, did not

have any valid driving licence.

30. In view of the above discussion, I do not find any

infirmity or illegality in the impugned judgment of the

Tribunal.

MAC App. No.71/2008

31. It has been pleaded in the grounds of appeal that

compensation of Rs.47,000/- on account of loss of

disability as awarded by the Tribunal is grossly

inadequate. The injuries sustained by the appellant are

permanent in nature to the extent of 25% to right

lower limb and left upper limb.

32. The Tribunal has awarded only Rs. 15,000/-

towards special diet, conveyance and attendant

charges and Rs.40,000/- towards pain and suffering

and loss of amenities of life, which are grossly

inadequate. The Tribunal ought to have considered the

future expenses for plastic surgery operation, in the

facts of the case.

33. This matter was listed on 21st October, 2008. In

the connected matter i.e. MAC App No.2/2008,

arguments were advanced by all the parties, while in

this case adjournment was sought on behalf of the

appellant.

34. Since, in the connected matter arguments were

heard, there was no reason to adjourn this matter.

35. However, counsel for appellant was given liberty

to file written arguments within one week, with

advance copy to the learned counsel for respondents,

but no written arguments have been filed on behalf of

appellant.

36. The disability certificate shows that appellant has

suffered crush injuries on right thigh with skin grafting

done, with crush injuries on right hand with SSG done.

PW3, Dr. Arun Yadav in his examination in chief stated

that;

"I have brought the summoned record i.e. office copy of disability certificate issued to patient Saurabh Jain by the Board of Doctors, H.R. Hospital. I have seen the photocopy of the same on record and the same is Ex.PW3/A which also bears impression of my signature at point-A. The patient has suffered disability of 25% in respect of right lower limb and left upper limb. Although in the disability certificate inadvertently the disability in respect of left upper limb is not mentioned though it was there and it is duly mentioned in the OPD ticket, original of which I have brought and photocopy of the same I am placing on record which is Ex.PW3/B. the disability has

been calculated in respect of left upper limb also on the reverse of this OPD ticket."

37. During cross examination, he admitted that

percentage of disability was not in respect of whole

body.

38. So, from the testimony of PW3 Dr. Arun Yadav, it

is clear that 25% disability is not in respect of the

whole body. Thus, the Tribunal has rightly taken the

disability to the extent of 12.5% and awarded

compensation on this count.

39. The Tribunal has taken the notional income of the

appellant as Rs.25,000/- per annum after considering

future prospects for assessing compensation and after

taking the disability to the extent of 12.5% and has

awarded Rs.47,000/- on this count.

40. The Second Schedule of the Act provides for the

notional income to the extent of Rs.15,000/- per annum

only. So, the Tribunal has already taken income of the

appellant on a higher side and awarded compensation

accordingly. Thus, there is no scope for enhancement

of the compensation on this account.

41. Regarding compensation on account of special

diet etc., the Tribunal held as under;

"Petitioner in his statement on oath on 18.01.05 has testified in context of this head to the effect that a sum of Rs.50,000/- was spent on conveyance and a sum of Rs.40,000/- on special diet. No amount towards attendant charges have been claimed. I am of the considered view that sum of Rs.50,000/- towards conveyance and Rs. 40,000/- towards special diet are at a perpendicularly high side. Injuries sustained by Master Saurabh Jain, as per medical records of St. Stephen Hospital are fracture of S.U.P(Public ramus) (R) C degloving injury of right thigh and left hand. Treatment has been obtained at St. Stephen hospital. Indoor patient-ship period is from 11.01.2002 to 07.02.2002. Petitioner is a resident of Chandni Chowk and St. Stephen hospital is not too far from Chandni Chowk. Master Saurabh Jain was going in a rickshaw to his school at the time he met with the accident. No bills with respect to conveyance have been placed on record. Similarly, no prescription concerning special diet has been brought to my notice.

Keeping in view all the facts and circumstances of the case, including nature of treatment, period of treatment and nature of injuries, distance of hospital from residence etc. I am of the considered view that a consolidated sum of Rs.15,000/- towards the heads of special diet, conveyance and attendant charges will meet the ends of justice and I order accordingly."

42. Thus, in the facts of the case, the Tribunal has

rightly awarded Rs.15,000/- on these accounts.

43. The Tribunal also has awarded a sum of

Rs.40,000/- on account of pain and suffering and loss

of amenities of life. The Second Schedule of the Act

provides Rs.5,000 for pain and sufferings in case of

grievous injuries and Rs.1,000 in case of non-grievous

injuries. Thus, the sum of Rs.40,000/- awarded by the

Tribunal on this count is already on higher side and

there is no justification for increase the same.

44. Regarding compensation for future treatment,

appellant has not placed any document in this regard.