National Insurance Company Ltd v. Savraj Singh & Ors.

Present: Mr. L.M. Suri, Senior Advocate with Mr. Neeraj Khanna, Advocate for the appellant. Mr. D.D. Bansal, Advocate for the respondent-claimants in FAO No.949 of 2004. None for the respondents in FAO No.951 of 2004.

3. FAO No.2331 of 2004 Savraj Singh son of Kheta Singh and others ......Appellants Versus Jaspal Singh alias Jaga Singh s/o Pipal Singh and others ......Respondents Present: Mr. D.D. Bansal, Advocate for the appellant. Mr. L.M. Suri, Senior Advocate with Mr. Neeraj Khanna, Advocate for the insurance company. CORAM:HON'BLE MR. JUSTICE K. KANNAN F.A.O No.949 of 2004 -2-

1. Whether Reporters of local papers may be allowed to see the judgment ?

2. To be referred to the Reporters or not ? 3. Whether the judgment should be reported in the Digest? K. KANNAN J.(ORAL) -.-

1. All the three appeals arise out of the same accident. The accident resulted in injuries to two persons. FAO Nos.949 and 2331 of 2004 address the issue of compensation for a person, who claimed that she has suffered injuries but died during the pendency of proceedings and the petition was pursued by her legal representatives. FAO No.951 of 2004 arises out of an award for compensation for injuries by yet another person who was a passenger of the bus.

2. The accident resulted out of a collision between two buses and the claimants were passengers in the insured's bus . The subject matter of appeal in FAO No.949 of 2004 and FAO No.2331 of 2004 refers to the fact that the deceased-claimant had suffered fracture of the tibia and fibula in the accident that took place on 31.12.1998. She had fairly a long treatment and after initially being discharged on

11.02.1999, she was readmitted into the hospital and an amputation was done on 16.03.1999. He was again discharged on 23.03.1999. A doctor, who had examined her, gave evidence to the effect that she ultimately died on 04.02.2000 due to brain hemorrhage. The death was said to have occurred at the time when the deceased-claimant was waiting for treatment at the hospital with the doctor. The medical evidence was that the brain hemorrhage was independent of the injuries which she had suffered. The Tribunal did not, therefore, find a nexus between the injury suffered by the claimant to the F.A.O No.949 of 2004 -3- ultimate death and awarded compensation to the legal representatives for the injuries suffered by her.

3. The survival of cause of action of injured victim shall be only for the expenses caused to the estate or the loss to estate that had occurred during the life time of the injured claimant. It cannot take into the account personal damage to a deceased-claimant by virtue of the provision of Section 306 of the Indian Succession Act that limits the extent of claim arising out of personal injuries. The Tribunal, while awarding the compensation of Rs.1,18,730/- included Rs.53,730/- towards medical bills, Rs.25,000/- towards pain and suffering, Rs.10,000/- towards special diet and Rs.5,000/- towards conveyance and again another Rs.25,000/- towards no fault liability. The claim relating to no fault liability could be for permanent disability and if interim, could be adjusted against the final award at the end of the trial. The amount of Rs.25,000/- cannot be in addition to what the Tribunal determines under various heads. If it were to be taken, therefore, as an amount for disability, it is again personal to the deceased and cannot survive to the legal representatives. The same principle will also apply with reference to compensation for pain and suffering, which has been determined as Rs.10,000/-. I will find the legal representatives entitled only to the expenses incurred by the deceased towards medicines to the tune of Rs.53,730/-, Rs.10,000/- towards special diet and Rs.5,000/- towards conveyance, which comes to a total of Rs.68730/-. It is also contended that the deceased claimant was actually engaged in weaving and dairying and that she was earning about Rs.3,000/- per month. The claimant gave evidence to the effect that he was himself an asthmatic and he was not earning F.A.O No.949 of 2004 -4- and it was only on the mother's earning that was sustaining himself and others. There was not even a suggestion made to the witnesses that she was not making any earning. She had been under treatment from 31.12.1998 till she died on 04.02.2000. I would take the loss to be in the manner set forth by the claimants that she would have earned Rs.39,000/-. The amount in aggregate will be Rs.1,07,730/-. The compensation, which is awarded for Rs.1,18,730/- shall stand modified and the claimants shall be entitled to Rs.1,07,730/- with the interest as determined by the Tribunal.

4. The case still survives for consideration of the insurance company's rights against the insured in view of the specific defence taken that the driver of the insured's vehicle was not having valid driving licence. The Court had called for a report for the licensing authority with reference to the licence No.45771 dated 15.12.1997. The report was that the licence had not been issued in the name of Jaspal Singh. The Tribunal had a doubt whether the No.45771 was wrong and whether it ought to have only to licence No.48771. The Tribunal, however, did not even pursue the reasoning to its logical end but had dropped it mid-way saying that the insurance company shall still be liable for the claim even if it was a fake driving licence. The validity of licence is definitely of significance for on that would depend whether there had been a breach of terms of policy and whether the insurance company should be provided with the recovery rights. The report was secured on the licence number given by the Court itself and there ought not to have been scope for entertaining a doubt whether the report correctly gave the details for the particular licence number, which the driving licence of the driver should have F.A.O No.949 of 2004 -5- revealed. In this case the driver has not come into the witness box to explain the discrepancy. If the details of the driving licence were obtained by the Court itself referring to the licence number, there was simply no justification for the Tribunal to make the insurer liable without providing it a right of indemnity against the insured.

5. The award passed in both the cases for injuries shall be to make the insurer liable but further with a right of recovery against the owner insured. All the appeals are disposed of entitling the insurer to satisfy the respective amounts as determined by the Tribunal, as modified by this Court with a right of recovery against the insured. While claimants in FAO No.2331 of 2004 shall come by a lesser amount than what is determined by the Tribunal, the award passed in the claim for injuries which is the subject matter of appeal in FAO No.951 of 2001 shall have the benefit of the same amount as determined by the Tribunal. The appeals are disposed of as above. October 28, 2010 Pankaj* (K. KANNAN) JUDGE