New India Assurance Company Limited, Sector 17, Chandigarh v. Paramjit Singh

Paramjit Singh son of Ram Singh aged 33 years resident of village Hiyatpur, P.S. Nurpur Bedi, Tehsil Anandpur Sahib, Distt. Ropar through his wife Smt. Bandna Rani wife of Paramjit Singh Versus ......Appellant Bikram Singh son of Balbir Singh and others ......Respondents Present: Mr. Inderjit Sharma, Advocate for Mr. Pradeep Bedi, Advocate for the appellant. Mr. Vinod Gupta, Advocate for the insurance company. CORAM:HON'BLE MR. JUSTICE K. KANNAN

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. -.-

1. The appeal by the insurance company is on the issue of FAO No.241 of 2005 -2- liability since the claim petition had been filed under Section 163-A of the Motor Vehicles Act for an injured person who claimed that his annual income was more than Rs.40,000/-. The injured himself has filed an appeal in FAO No.1689 of 2005 seeking for enhancement of compensation.

2. At the trial, it was contended that the driver did not have a valid driving licence. The claimant injured was riding as a pillion rider in a scooter. The Tribunal found on production of proof through the driving licence that it was valid and the insurance company had not established that he did not have a valid driving licence. The accident was said to have taken place when the driver of the scooter attempted to avoid hitting a cow which crossed the road dashed against it, fell down and the injured who was sitting as a pillion rider suffered grievous injuries. He had serious head injuries for which he had been operated twice and he had become totally deaf. The doctor who had treated him had certified that he has 100% loss of hearing and assessed his disability at 100%. In appeal the case has been admitted on the issue of the maintainability of the petition under Section 163-A of the Motor Vehicles Act when the income was more than Rs.40,000/- per annum. I have no difficulty in accepting the contention that the petition cannot be maintained under Section 163-A of the Motor Vehicles Act in terms of the judgment in Deepal Girishbhai Soni Vs. United India Insurance Company Limited 2004 ACJ 934. However, I would still hold that the petition cannot fail for the injured person, who was not himself the driver of the vehicle. He was a pillion rider FAO No.241 of 2005 -3- and if the driver of the vehicle had not been able to save himself from a cow, which was crossing the road, it should only be taken that the driver was being rash and negligent and make the respondents liable on the only plea of negligence in driving and find the petition as maintainable under Section 166 of the Motor Vehicles Act. The Courts cannot be without power to entertain the petition if a claim that is not possible to be sustained under one section to it, could be seen to be sustainable through yet another section. The Court shall apply the appropriate section and grant the relief. It is not as if there was no proof of negligence. On the other hand, in the manner in which the accident had taken place, the things speak for themselves that the driver had been negligent.

3. It is also contended by the learned counsel appearing for the insurance company that the claimant was pillion rider and that there had been no insurance cover for the pillion rider. No such plea had been taken at the Tribunal nor even urged in the grounds of appeal. A plea of restriction of liability or non-liability must be brought forth through pleadings and the parties must be directed to address appropriate evidence on the same. It cannot be on a mere inference that a pillion rider cannot always be entitled to a cover. If it had been merely an Act Policy, then such a cover may not exist. For any Package Policy of insurance, the risk to a pillion rider will also be covered. In the absence of any specific pleadings, therefore, I shall not allow the insurance company to take such a plea.

4. As regards the quantum of compensation that is payable, the Tribunal had provided for the medical expense to the tune of FAO No.241 of 2005 -4- Rs.1,82,699/-. Even apart from his 100% disability of hearing, he had also lost vision in one eye. The Tribunal awarded a compensation of Rs.3 lacs without adverting to each one of the heads of claims. Even apart from medical expenses, the claimant had proved expenses for transportation through P-204 to P-267. The Tribunal rejected the evidentiary value of the document produced on the ground that no witness had been examined to prove the same. In summary proceedings, if documents are produced and a person says that he has incurred the expenses and produced and produced his vouchers for the same, the evidence of the witness, who speaks from personal knowledge for the expenditure incurred himself, would itself be sufficient to uphold the claim. I uphold the expenses for transportation and provide to the claimant Rs.25,000/- towards the same. It was also contended on behalf of the claimant on account of his loss of partial vision and a complete loss of hearing, he requires attendant and he is unable to move, walk or eat. The claimant's wife has given evidence on his behalf. He requires constant attention and has to be looked after. It was contended that a servant is being employed on a salary of Rs.1200/- per month. I would take Rs.1200/- as salary to be paid per year and having regard to the fact his aged 33 years, I would provide for Rs.1,00,000/- towards expenses for attendant. It was brought out in evidence that he had undergone surgery twice and Dr. Arora who had been a member of doctor examining him for his disability has stated that he was having 100% of disability of hearing and with such a disability, he cannot understand sound and there is no chance of FAO No.241 of 2005 -5- improvement of disability. A 100% loss of impairment of hearing would cause 100% loss of earning capacity as well. It was stated that he was earning Rs.10,000/- as a contractor. His status as a contractor was not itself denied. With no proof of payment of income tax, I would take the loss of income to be Rs.5,000/-. Annual loss of income, I would take to be Rs.60,000/- and taking the disability as 100%, I would provide for a multiplier of 16 and take the compensation payable as Rs.9,60,000/-. He has undergone long spells of treatment and had been hospitalized for more than six months. I would provide for pain and suffering at Rs.1,00,000/-. In all the amount that will become payable, would be Rs.11,85,000/-. The Tribunal has awarded a compensation of Rs.3 lacs and the compensation in excess of what has already been awarded by the Tribunal shall bear interest @6% from the date of the petition till the date of payment.

5. The appeal filed by the claimant for enhancement is allowed and the appeal filed the insurance company is dismissed. October 07, 2010 Pankaj* (K.KANNAN) JUDGE