Oriental Fire and General Insurance Company Ltd. vs Surinder Kumar and Others

M.R. Sharma, J.—Truck No. PNU-2540 belongs to the firm M/s. Hari Chand Harbans Lal. It was insured with the Oriental Fire & General Insurance Company Limited (hereinafter called the Insurance Company). On March 13, 1966, at about 11 a.m. it was being reversed by Prabhu Dayal, who was engaged as a cleaner, when it ran over the foot of a 7 year''s old boy, namely, Surinder Kumar, who sustained injuries as a result of which the 4th toe of his left foot had to be amputated and he suffered permanent disability. The learned Tribunal awarded him damages to the tune of Rs. 20,350/- out of which Rs. 350/- comprised damages for treatment.

The Insurance Company has come up in appeal before me.

Mr. Gandhi, the learned Counsel for the Appellants has drawn my attention to the statement of Harbans Lal a partner of the firm-who has stated that he never allowed Mr. Prabhu Dayal to drive the truck. I may, however, add that Mr. Harbans Lal as a partner 6f the firm is interested in saving his own. skin and no reliance can be placed on this statement made by him. It is a matter of common knowledge that truck owners engage drivers and cleaners to look after the truck and to ply them on their behalf. Even if a cleaner is not in possession of a valid driving licence when he drives the truck for parking it aside, for taking it for repairs or for giving some relief to its driver, he is deemed to act within the course of his employment, and his employer is vicariously responsible for his acts. Mr. Gandhi has relied upon Sitaram Motilal Kalal v. Santanuprasad Jaishankar Bhatt and Ors. 1966 A.C.J. 89 , for the proposition that a cleaner does not act in the course of employment. That authority is however, distinguishable because in that case the taxi had been given over to another person who plied it for his own benefit by engaging a driver and a cleaner. In these circumstances it was held that the original owner had not engaged the cleaner. On the other hand, the learned Counsel for the Respondents has relied upon Khidni and Ors. v. Dayal Singh and Ors. 1969 A.CJ. 144 , in which the owner of the vehicle was held vicariously liable for the default committed by the cleaner engaged by him. I am in repectful agreement with this view.

Mr. Gandhi has also argued that the learned Tribunal was duty-bound to give reasons for coming to the figure of Rs. 20,000/- which he awarded to Respondent Surinder Kumar as damages for the injuries sustained by him. I agree that it would have been proper for the learned Tribunal to advance some reasons for arriving at a figure like this but the facts in this case speak for themselves. Surinder Kumar Respondent was a young lad of 7 years when he sustained the injuries as a result of which the 4th toe of his left foot had to be amputated and he suffered a permanent disability. Such a disability is likely to stand as a hinderatice to his progress in life. Admittedly he could not join the Armed Forces after sustaining such an injury. In the material field also his chances are likely to become less bright. When both these circumstances are taken into consideration the award of Rs. 20,000/- as damages on this count does not appear to be excessive. This consideration apart, in New India Assurance Company Ltd., Bombay v. Molia Devi and Ors. 1969 A.C.J. 164 , it was laid down that it was not open to the Insurance Company to challenge the quantum of damages if the same are awarded within the limits for which a vehicle is insured. I am in respectful agreement with this view also.

The third point raised is that since the cleaner had no driving licence the Insurance Company was not liable to pay damages. The learned Tribunal did not attach much importance to this point because such a condition had to be incorporated in the policy itself. The original policy was not produced and a copy of the same was rightly returned and not taken into consideration. The Insurance Company is a statutory; person. Section 19, of the, Evidence Act allows a Court to raise a presumption for the genuess of the certified copies if the same are so certified by an officer of the Central Government or of a State Government. No presumption as to genuineness of certified copies can be raised if such copies are certified by an officer of the company.

For the reasons mentioned above, I find no merit in this appeal which is dismissed with costs.