Mohinder Pal Gautam v. Radha Krishan & Ors.

Shri Neeraj Khanna, Advocate for respondent No.3 HEMANT GUPTA, J. The claimant is in appeal aggrieved against the Award rendered by the Motor Accident Claims Tribunal, Chandigarh, dated 13.12.1995 awarding a sum of Rs.1,57,825/- to him on account of injuries suffered by him in a motor vehicle accident. On 2.8.1992, the appellant employed as a Postman in the office of Senior Superintendent of Post Office, Chandigarh, was hit by Scooter No. CHM 2922 driven rashly and negligently by respondent No.2. The appellant claimed Rs.10 lacs as compensation on account of injuries received and Rs.95,000/- for medical expenses. FAO No. 2902 of 1996 [2] Respondent No.1 was the driver of the offending vehicle at the relevant time. Respondent No.2 was impleaded as owner of the scooter which was stated to be insured with respondent No.3. Though respondent No.1 denied the manner of the accident and stated that he has purchased scooter from respondent No.2 on 30.07.1992. Respondent No.2 took a defence that scooter was sold to respondent No.1 on 30.07.1992 and the said vehicle was insured with respondent No.3. The learned Tribunal on the basis of evidence led by the parties returned a finding that the claimant can neither see nor hear. He jumbles up the matters. Such finding has been returned on the basis of statement of PW1 Dr. M.K. Tiwari, Neuro Surgeon, Government Medical College, Chandigarh, who has deposed to the following effect:- “ The patient suffered injuries on his head and brain. There was a laceration in the left occipital region about 5 cm in length, in addition to this, he had an extra dural haemotoma (clot outside the brain (fronto-parietal region). The patient was operated for both extra dural haemotoma and contusion front to parietal region. The amount of clot was 60 ML. He was operated on

4.8.92. The patient has lost complete vision and his intelligence quotient is 74. The patient has lost hearing in left ear andhe has minimum paraesis (weakness) of left side 4/5. Record further shows that the bone has been replaced during operation. The patient was discharged on 15.8.92 and thereafter the patient was coming for follow up treatment. He last attended on

12.8.93. The patient has suffered 100% permanent disability. The photo copy of disability certificate is Ex. PW1/A”. The Tribunal has returned a finding that the world is not the same for him; he is a different man himself; his incapacity is a consistent reminder to him of his handicaps; it is recurring reminder to him; he will not be able to come out of it throughout his life but awarded only Rs.10,000/- as FAO No. 2902 of 1996 [3] compensation for pain and suffering. The Tribunal found that the appellant was drawing Rs.2045/- per month as salary and on account of loss of salary, compensation of Rs.21025/- was allowed. On account of permanent disability and loss of eye-sight and hearing faculties and the fact that the memory of the appellant has turned very weak, the Tribunal awarded compensation of Rs.1,21,800/- by assessing annual dependency to Rs.8700/-and multiplier of 14. Another sum of Rs.5000/- was allowed to him as medical expenses. In respect of liability of respondents No.2 and 3, it was found that the vehicle was insured vide policy Exhibit R-3 which was valid on the date of accident. The Tribunal also held that respondent No. 2 was the owner of the said vehicle on the basis of Registration Certificate Exhibit R-

2. However, the Tribunal found that the driving licence Exhibit RX cannot be read into evidence as the application for permission to lead additional evidence was dismissed on 17.05.1994. The revision against the said order was also dismissed by this Court, therefore, the driving licence Exhibit RX cannot be read into evidence. It also found that Exhibit R-1 is the driving licence proved by RW1 Parminder Bhatti. The Tribunal recorded a finding that Exhibit R-1 was a learner licence and issued in the name of someone else and after relying upon the statement of RW1 Parminder Bhatti, the insurer was absolved of the liability. Respondent No.2 filed a review petition, inter alia, for the reason that registration certificate Exhibit R-2 records Radha Krishan as owner of the offending vehicle and the Registration certificate Exhibit R-2 has been misread. Learned counsel for respondent No.1 Radha Krishan has made a statement that he has no objection if the Award is reviewed. The FAO No. 2902 of 1996 [4] learned Tribunal dismissed the application on 9.5.1996, inter alia, for the reason that registration certificate Exhibit R-2 is the only evidence that transfer of vehicle from respondent No.2 to respondent No.1 was made but it is nowhere mentioned as to when such change was effected. Therefore, the Tribunal returned a finding that respondent No.2 Raghu Nath Tyagi will continue to be the owner and jointly liable with Radha Krishan respondent No.1. The said order is subject matter of challenge at the instance of the transferor-respondent No.2 in Civil Revision No. 2297 of 1996 titled Raghu Nath Tyagi vs. Mohinder Pal Gautam. Coming to the liability of the insurance company, two points are required to be examined. Firstly, whether the offending vehicle was transferred to Radha Krishan before the date of accident; and secondly, whether Radha Krishan was holding a valid driving licence on the date of accident. Respondent Nos. 1 and 2 have pleaded in their respective written statements that the offending vehicle was transferred on 30.07.1992. The Registration Certificate has been tendered in evidence as Exhibit R-2. The said certificate shows transfer of the offending vehicle in the name of Radha Krishan respondent No.1 herein. Neither respondent No.1 nor respondent No.2 i.e., the transferor and the transferee, dispute the transaction of sale on 30.07.1992. In view of the said fact, the transfer of the offending vehicle prior to the date of accident i.e. 02.08.1992, is beyond any dispute. There is no evidence to the contrary either led by the insurance company or the claimant. Thus, the finding recorded by the learned Tribunal that the transfer of the offending vehicle prior to the date of accident is not FAO No. 2902 of 1996 [5] proved cannot be sustained in law. Coming to the next question whether the driver was holding a valid driving licence, it transpires from the statement of RW1 Parminder Bhatti that in respect of application No.030110, learner licence was issued in the name of Gurbax Singh s/o Mehar Singh. There is a categoric statement by RW1 Parminder Bhatti that learner licence in the name of Radha Krishan s/o Devi Ditta was not issued by the Licencing Authority, Chandigarh and is fictitious one. Even if the driving licence Exhibit RX is taken into consideration, it is issued on 26.11.1992 i.e., after the date of accident. Therefore, Radha Krishan is not proved to be possessed of valid driving licence on the date of accident. Mr. Neeraj Khanna, learned counsel for the insurance company, has argued that the driving licence Exhibit RX cannot be permitted to be lead in evidence as the revision against the order declining additional evidence has been dismissed, therefore, respondents No.1 and 2 cannot be permitted to prove the driving licence Exhibit RX in evidence. The said argument need not be examined any further for the reason that even if Exhibit RX is taken on record that Radha Krishan was holding the driving licence, the same cannot be taken into consideration as it has been issued after the accident. But in view of the judgment of the Supreme Court in New India Assurance Co., Shimla vs. Kamla and others, (2001) 4 SCC 342 and United India Insurance Co. Ltd., vs. Lehru and others, (2003) 3 SCC 338 the insurance company is liable to pay the compensation but is entitled to recover the same from respondent No.1. As per medical report, the appellant has suffered serious FAO No. 2902 of 1996 [6] disability in respect of his eye-sight, hearing faculties and loss of memory. Therefore, award of compensation of Rs.10,000/- on account of pain and suffering undergone by the appellant is absolutely inadequate. The appellant can neither hear nor see the world. For such pain and suffering, the appellant cannot be compensated by any amount of money. But the Tribunal can only award some monetary compensation for such pain and suffering. Keeping in view that the accident occurred in the year 1992, I deem it appropriate to award Rs.2,00,000/- on account of pain and suffering undergone by the appellant. In respect of compensation on account of permanent disability, future loss of income, loss of married life and loss of personal enjoyment, compensation awarded by the Tribunal is Rs.1,21,800/- by assessing annual dependency at Rs.8700/-. Such amount of annual dependency is also too meager. The appellant was drawing Rs.2045/- per month as salary. By excluding his personal expenses of Rs.545/- per month, the monthly dependency comes to Rs.1500/-. The claimant was only 35 years of age at the time of accident. In such circumstances and in view of the decision in Smt. Sarla Verma and others vs. Delhi Transport Corporation and another, AIR 2009 SC 3104, multiplier should have been 16. By applying the multiplier of 18, the compensation comes to Rs.1500 x 12 x 16 = Rs. 2,88,000/-. The kind of injuries suffered by the claimant would have led to medical expenses. The grant of Rs.5000/- as compensation on account of medical expenses is also meager. Therefore, the same is increased to Rs.37,000/-. Therefore, the claimant is entitled to Rs.5,25,000/- along with FAO No. 2902 of 1996 [7] interest at the rate of 9% per annum from the date of filing of claim application till payment. Since the compensation payable is to third party and the offending vehicle was insured with respondent No.3 – insurance company, the insurance company shall pay compensation to the claimant but it shall be entitled to recover the same from the owner i.e., respondent No.1 Radha Krishan. July 14, 2010 ( HEMANT GUPTA ) JUDGE