Arjun Singh vs Mr. Swaran Singh And Others
2022 Latest Caselaw 2334 UK

                  IN HIGH COURT OF UTTARAKHAND
                            AT NAINITAL
                      Appeal From Order No.361 of 2014

       Arjun Singh                                                           .....Appellant
                                              Vs.

     1. Mr. Swaran Singh and others                                         .....Respondents

Advocate: Mr. Azmeen Sheikh, Advocate holding brief of Mr. Lalit Sharma, Advocate for the
          appellant.
          Mr. Mohd. Azim, Advocate for respondent no.1.
          Mr. K.K. Sah, Advocate for respondent no.3.

Hon'ble Sharad Kumar Sharma, J.

This is owner's appeal from order which has been preferred under Section 173 of the Motor Vehicle Act 1988 thereby challenging the impugned award of 06.03.2014, as it has been passed by the learned Motor Accident Claim Tribunal/IIIrd Additional District Judge, Rudrapur, Udham Singh Nagar, in Motor Accident Claim Petition No.145 of 2010 Swaran Singh vs. Arjun Singh and others. As a consequence thereto, the learned Motor Accident Claim Tribunal has rendered an award of Rs.1,91,450/-which was determined to be payable to the claimants alongwith the interest payable on it at the rate of 9% from the date of the filing of the claim petition.

2. Few basic facts as involved in the appeal, are that on 23.03.2009, when the injured was standing near village Tukdi crossing, near the house of one Malkeet Singh, a tractor coming from opposite direction, that is from village Bichwa, bearing Registration No.UK-06/L-3693, is said to have dashed against the present applicant, which hit him from the side resulting into fracture of his pectoral girdle, as well as in the vertebral column, has also got fractured. Apart from it, his liver and lungs were also got ruptured in the accident. Owing to the injuries, suffered by him due to the accident, which has chanced at 07:00 p.m. on 23.02.2009, the claimant herein was initially referred for treatment to the Community Health Center, Khatima, for the initial First Aid, but owing to the nature of grievous injuries suffered by him, he was then referred for further treatment to Sushila Tiwari Hospital, but when the recovery rate from the

injuries was too slow, he was further referred to undertake his treatment at Futella Hospital in Rudrapur, District Udham Singh Nagar; from where he was yet again further referred to take his treatment at Sai Hospital, Bareilly and then he was once again referred to Gangashil Advance Medical Research Institute, Bareilly. He submits that owing to the aforesaid treatment, which he had undergone at the various hospitals referred above, coupled with the nature of injuries suffered by him, he suffered a permanent disability and in the treatment as undertaken by him in the four hospitals, he had spent an amount of approximately Rs.4,00,000/- in his treatment.

3. The claimant submitted, that since on the date of the ill fated accident on 23.02.2009, he was of 28 years of age and at the relevant point of time, he was working as a driver with the Uttarakhand Transport Corporation and was posted at Haldwani Depot. The income, which was then accruing to him, as pleaded in his claim petition was Rs.10,000 per month, but owing to the nature of employment in which he was engaged, as a driver in the Uttarakhand Transport Corporation, coupled with the nature of injuries suffered by him in the accident of 23.02.2009; since he has been determined as to be a permanent disabled person, he has been rendered absolutely unsuited for his future employment, with the Uttarakhand Transport Corporation, as a driver. Though not relevant but in relation to the said accident of 23.02.2009 an FIR too is said to have been registered on 15.03.2009. The registration of the FIR and the investigation, which was carried thereafter in pursuance to it though, it may not have any relevant bearing so far as the determination of compensation under the Motor Accident Claim proceedings initiated under Section 140 to be read with Section 166 of the Motor Vehicle Act, is concerned but obviously it did reflected the seriousness of the accident.

4. As far as the opposite party no.1, and opposite party no.2 to the claim petition, who were the owner and driver of the offending vehicle respectively i.e. the tractor bearing Registration No.UK-06/L-3693, they have filed a joint written statement, wherein it was contended by them in the pleadings, which has been raised in the claim petition qua para 1, 3 and 18 are related to the factum of accident, which stand admitted, but despite of it, in their defence taken before the Motor Accident Claim Tribunal in their written

statement, they had submitted that in fact the accident was chanced on account of the negligence of the claimant Swaran Singh, himself because as per the pleadings raised in the written statement i.e. Paper No.22 Ka, it was submitted, that rather the claimant who was travelling on a motorcycle, he was rash and negligent in driving the motorcycle and on account of the fact, that he was about to meet with an accident with an ongoing bull cart in order to save the said probable accident, he dashed against the tractor, which has resulted into the sufferance as detailed above.

5. But their case of the negligent driving was completely attributed to the claimant himself owing to his rash and negligent driving on the motorcycle which was a fact, which was not established, before the court below and apart from that it was also a fact, which stood established by records that the tractor at the relevant point of time was insured with the Insurance Company i.e. United India Insurance Company Limited, Branch Khatima, who were impleaded as opposite party no.3 to the claim petition.

6. The opposite party no.3 that is the Insurance Company had filed an independent written statement being Paper No.28 Ka and had submitted, that though the vehicle had a valid registration and Insurance Cover, Permit and Fitness Certificate, but they denied their liability to cater the demand raised in the claim petition, it was on the pretext that on an occurrence of an accident on 23.09.2009, in fact no information was parted to the Insurance Company at the first available opportunity, which was mandated as per the provisions contained under Section 156(6) of the Motor Vehicle Act, coupled with the fact that the entire accident and the claim, which was raised therein by the claimant ought not to be shifted upon to the shoulder by the Insurance Company, owing to the fact that the entire proceedings drawn by the claim petition, the liability has to be fastened upon the owner of the vehicle owing to the principles enunciated under Section 64(v) b of the Insurance Act.

7. Consequent to the proceedings drawn before the Motor Accident Claim Tribunal and on the exchange of pleadings and while dealing with the rival contentions, the learned Motor Accident Claim Tribunal, vide its order of 06.05.2014, had framed the following issues:-

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8. In support of his respective contentions the claimant apart from filing his affidavit in examination-in-chief as Paper No.30 Kha, has also appeared in the witness box and recorded his statement as P.W.1 (Swaran Singh) and has also produced Mr. Surya Pratap Singh as P.W.2, Mr. Shivcharan Agnihotri as P.W.3, Mr. Chandra Pal as P.W.4 and Manoj Kumar as P.W.5. Apart from adducing the oral evidence of the aforesaid witnesses, who recorded their statement, supporting the claimant's case, the claimant by way of documentary evidences, which was submitted by them, that had placed on record Paper No.22 i.e. the copy of the First Information Report, which was registered before the police. Apart from it, they have also filed on record the Registration document of his two wheeler, the Insurance Policy, the Driving Licence, the Injury Report, the original documents relating to the expenditures, which has been incurred by the claimant in undertaking his treatment in the aforesaid hospitals, the details of which has already been given above. He further in support of his claim had placed on record Paper No.11Ga/1 to 11Ga/176, wherein he has placed on record the original medical certificates and other original medical treatment related documents to substantiate his claim pertaining to the amount, which was spent by the claimant for the purposes of undertaking his treatment for the injuries suffered as a consequence of the accident of 23.02.2009.

9. In the proceedings which were held before the learned Motor Accident Claim Tribunal, the opposite party has not adduced any oral evidence as such, except for the fact that the owner of the vehicle i.e. the appellant herein has submitted that the driving license of opposite party no.2 Kripal Singh, which was placed on record as Paper No.25Ga/1, the Insurance Cover Note of offending vehicle, the Performa of the Package Policy of the vehicle and the certified copy of the driving license issued in Form 54 alongwith the report i.e. Paper No.28Ga/2.

10. The matter proceeded on its merits and the only consideration, which was required to be made by the Motor Accident Claim Tribunal, while determining the quantum of compensation and for the purposes of fixation of liability, the learned Motor Accident Claim Tribunal after appreciating the evidences which were recorded before the court below, particularly in view of the statement recorded in Paper No.30 Kha, the learned Motor Accident Claim Tribunal has recorded its finding in para 15 of the impugned judgment, that in fact, the result of the accident was on account of rash and negligent driving of the tractor, by its driver i.e. opposite party no.2-Kripal Singh due to which the claimant Swaran Singh has suffered the grievous injures.

11. While deciding the issue with regards to the fixation of validity of the document and the effectiveness of the driving license, which the opposite party no.2, was supposed to have on the date of the accident, the issue no.3 and 4 was determined by the learned Motor Accident Claim Tribunal and while recording its finding apart from the fact, that other documents were held to be validly surviving in favour of the owner of the vehicle; except for the fact that since on the date of the accident the offending vehicle i.e. tractor in question was being utilised for the purposes of carrying sand, which was loaded on it at the time of accident and since it was being plied on a public road. In that eventuality, the description of the vehicle, which was being utilised for a commercial activity, would be treated as to be a "transport vehicle" and as such the driving license, which was held by opposite party no.2, since it was issued for the purposes of light motor vehicle only it cannot be read with for the purposes of entitling opposite party no.2, to validate his driving of a transport vehicle i.e. the offending tractor because of the inference drawn while deciding

issue no.4, to the effect, that on the date of accident, since the tractor in question was being used for transportation of sand and was being plied on the public pathway, since the vehicle would be treated as to be a "commercial transport" vehicle and the driver of the vehicle was not having a commercial driving license of a transport vehicle, hence merely because of the fact that the driving license, which was produced by opposite party no.2, since was a driving licence pertaining to light motor vehicle, the learned Motor Accident Claim Tribunal, approximately has arrived to a conclusion, that the driver of the offending vehicle on the date of the accident, he was not having a valid driving license as such, the liability of payment of the compensation could not have been fastened upon the Insurance Company, because the vehicle was being driven in contravention to the terms of the Insurance Policy, which was subsisting in favour of the vehicle in question.

12. The issue of determination of adequacy of compensation, before the learned Motor Accident Claim Tribunal, was with regards to the quantification of compensation, which was to be determined to be made payable to the claimant. But owing to the statements which was recorded by P.W.1, who in his cross examination has submitted that as he was working in a Government Hospital, Nanakmatta and he had the knowledge about the amount of expenditure, which was incurred by the claimant while undertaking his treatment in Sushila Tiwari Hospital. He quantified the expenditure incurred therein as to be about Rs.12,000/- an odd amount, coupled with the fact that while enumerating the statement which was recorded by Mr. Surya Pratap, the record keeper of Sushila Tiwari Hospital, who too had admitted the fact, that the claimant was admitted in the hospital on 24.02.2009 and he was relieved on 25.02.2009, in order to enable him to undertake his further advance treatment in other hospital and the said fact of the injured being admitted in the hospital and discharged on 25.02.2009, stood established by the records issued by Dr. Ashutosh Sayana, a Surgeon who submitted the papers on record fortifying the fact about the expenditure incurred by the claimant in his treatment. Apart from it, the other oral testimony of P.W.3 Shivcharan Agnihotri, who was the record keeper of Futella Hospital, P.W.4 Chandra Pal, the Administrative Officer of Sai Hospital, Bareilly as well as the statement of P.W.5 Mr. Manoj Kumar, the

Medical Record Keeper of Gangashil Advance Medical Research Institute, Bareilly all supported the claim of the respondent claimant.

13. Considering the overall oral evidences, as well as documentary evidences, which was placed on record, the learned Motor Accident Claim, has rather consolidated the amount of expenditure which was incurred by the claimant, which was admittedly proved by the evidence, which were proved by the oral testimony of the employees of the various hospitals, in which the claimant had undertaken his treatment, hence the learned Motor Accident Claim Tribunal, has arrived at a rightful conclusion, that the claimant has incurred an expenditure of about Rs.1,66,448/- in undertaking of his treatment and apart from it while adding expenditure, which he has incurred towards the medicine, the total quantification of the compensation was arrived at by the Tribunal was assessed as to be Rs.1,91,450/-

14. Since the factum of accident, since the factum of expenditure incurred by the claimant were proved by the oral testimony and the documents which were placed on record, owing to the expenditures, which were incurred into by the claimant, in taking his treatment in the various hospitals, in which he has taken his treatment coupled with the fact that disability certificate, which was issued by the competent medical practitioner, who were attending upon him, the learned Motor Accident Claim Tribunal rightly so based on the assessment of the compensation, which was established by evidence of oral testimony of the employees of the hospital, as well as documentary evidence, the quantification of the compensation payable to the tune of Rs.1,91,450/- cannot be faulted of in any manner whatsoever, particularly when the Insurance Company has succeeded to establish the fact that on the date of the accident, since the driver of the offending vehicle was not having a valid license of driving a "transport vehicle" and rather he was the holder of the license of the light motor vehicle license, which will not cover plying of the tractor carrying sand, on a public road, hence the liability of payment of compensation as determined by the learned Motor Accident Claim Tribunal, in its award of 06.03.2014, cannot be faulted of and in view of the terms of policy, since the driver of the vehicle was not having a valid driving license to drive a transport vehicle, the compensation as determined has been particularly and rightly held

to be made payable by the appellant herein i.e. the owner of the offending vehicle.

15. Consequently, this Court is of the view that if the judgment and award impugned dated 06.03.2014, is scrutinized in its totality, it is based on a sound reasoning and on a rightful appreciation of evidence and the stand taken by the opposite parties in their written statement and on an appreciation of evidence with regards to the quantification of expenditure incurred by the claimant. Owing to the aforesaid fact that since there happens to be no apparent anomaly in the award of 06.03.2014, this Court is not inclined to interfere in the impugned award as rendered by the learned Motor Accident Claim Tribunal. Consequently, the appeal from order lacks merits and the same is accordingly, dismissed.

16. The Registry is directed to remit back the statutory amount of Rs.25,000/- as deposited by the appellant at the time of filing of the appeal from order before this Court, to the learned Motor Accident Claim Tribunal, which in turn would be remitted to the claimant as a consequence of today's judgment.

(Sharad Kumar Sharma, J.) 28.07.2022 Arti