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Judgment
V.B. Gupta, J.—By this common judgment, the above two appeals are being disposed of.
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.
Appellant/Century Transport of India is the owner of this truck, which is insured with National Insurance Company.
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.
Aggrieved with the impugned judgment, the appellant/owner of the offending truck has filed the present appeal.
Appeal MAC App. No. 71/2008 has been filed by the injured-Master Saurabh Jain for enhancement.
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.
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.
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.
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.
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.
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.
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.
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.
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.
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.
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.
Section 149 of the Act provides as follows;
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
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.
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.
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.
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.
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.
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.
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.
After considering the testimony of both witnesses, it is clear that the licence No. 1877/94/Godda was not issued by District Transport Authority.
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.
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.
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.
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
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.
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.
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.
Since, in the connected matter arguments were heard, there was no reason to adjourn this matter.
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.
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.
During cross examination, he admitted that percentage of disability was not in respect of whole body.
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.
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.
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.
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.
Thus, in the facts of the case, the Tribunal has rightly awarded Rs. 15,000/- on these accounts.
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.
Regarding compensation for future treatment, appellant has not placed any document in this regard. In the absence of any documentary evidence, the Tribunal was right in not awarding any compensation on this count.
Lastly, the appellant has not claimed any compensation on account of marriage prospects, even then the Tribunal has awarded the sum of Rs. 20,000/- on this count.
Thus, the compensation awarded by learned Tribunal to the injured in this case is just, fair and equitable and I do not find any infirmity in the impugned judgment.
Under these circumstances, both the appeals are hereby dismissed.
No order as to costs.
Trial court record be sent back.
Copy of judgment be placed in MAC App. No. 71/2008.