Vishal & Anr. v. Sunder Singh & Anr.

Present : Mr. Surinder Sheoran, Advocate for the appellant. Mr. Ramesh Goyat, Advocate for the claimants. Mr. N.K.Khosla, Advocate for Insurance Company. K.C.PURI. J. C.M.No.15587 - CII of 2009 Civil Misc. application stands allowed in view of the reasons mentioned in the application. Delay of 162 days in filing the appeal stands condoned. FAO No.3462 of 2009 Vide this judgment, I intend to dispose of two FAOs, i.e. No. 3462 of 2009 preferred by Vishal son of Surinder driver and Daya Wati FAO No. 3462 of 2009 2 wife of Surinder Singh in respect of Award dated 18.9.2008 passed by Shri Sandeep Garg, Motor Accident Claims Tribunal, Hissar and appeal No.77 of 2010 preferred by Sunder Singh alias Surinder Singh claiming compensation on account of injuries sustained by him in the motor vehicular accident. As per facts recapitulated from the record are that claimants Sunder Singh alias Surinder Singh along with his brother-in-law Hanuman Singh was going from Hisar to Siwani. Hanuman Singh had a domestic work at village Chaudhariwas and, therefore, on reaching village Chaudhariwas, Hanuman Singh was dropped from his motor cycle. After dropping Hanuman Singh, petitioner started for Siwani on his Hero Honda SS Motor Cycle bearing registration No.HR-24C-6846 on his left side of the road at a moderate and controllable speed. When he covered a distance of about 20-25 yards from village Chaudhariwas towards Siwani, the offending vehicle i.e. car bearing registration No.HR-20D/0991, driven by Vishal rashly and negligently in a zig. Zag manner at a very high speed, without blowing horn hit the right side of motor cycle. Due to the impact, claimant fell down on the road from the motor cycle and the car turned turtle and fell into a pit on the road side and the right leg of the petitioner was amputated at the spot. The claimant also received serious injuries on his person. Respondent No.1 Vishal ran away from the place of occurrence after causing the accident. The accident was witnessed by Hanuman Singh. The claimant was shifted to Arora Orthopaedic Hospital, Hisar by his brother-in-law Hanuman Singh where he remained admitted from 26.7.2005 to 5.9.2005. During this period, claimant was operated FAO No. 3462 of 2009 3 upon lower portion of the right leg has been severed and the claimant has become permanently disabled person. Respondent Nos.1 and 2 filed joint written statement controverting the stand taken by the claimants. The factum of accident was denied. It was averred that a false case has been registered against respondent No.1. The offending vehicle was insured with United India Insurance Ltd. Respondent -United India Insurance Company filed separate written statement taking preliminary objections that petition has been filed in collusion with respondent Nos.1 and 2 by the claimant, that claimant has no locus standi and cause of action, that claimant is estopped by the act and conduct to file the claim petition, that claim petition is bad for nonjoinder and misjoinder of necessary parties. It is pleaded that respondent No.1 was not holding a valid driving licence. The alleged offending car was being driven in contravention of the terms and conditions of insurance policy. Following issues were framed by the Tribunal :-

1. Whether the petitioner received injuries in the accident which took place on 26.7.2005 at about 11.30 a.m. In the area of village Chaudharyvas-Siwani Road, District Hissar due to rash and negligent driving of car bearing registration No.HR- 20D/0991 by respondent No.1 Vishal ? OPP.

2. If issue No.1 is proved whether the petitioner is entitled to claim compensation, if so, to what amount and from whom?OPP.

3. Whether the petitioner has no cause of action and locus standi to file the present petition ?OPR

4. Whether the petitioner is estopped by his own act and conduct from filing the present petition ?OPR.

5. Whether the petition is bad on account of mis-joinder and non-joinder of necessary parties ?OPR FAO No. 3462 of 2009 4

6. Whether the offending vehicle was not driven by a person holding a valid and effective driving licence at the time of accident ?OPR

7. Whether the vehicle was driven in contravention of terms and conditions of insurance policy ?OPR.

8. Whether the petition has been filed in collusion with the respondent No.1 and 2 ?OPR.

9. Relief. To prove his case claimant appeared as his own witness as PW- 7 and also examined Dr.Kamakshi Singal as (PW-1), Sandeep Kumar, Lab Technician as (PW-2), Vipin Pharmasist as PW-3, Anil Jain, Criminal Ahlmad as PW-4, Dr.Reena Jain, Medical Officer as (PW-5), Dr.Ashok Arora as (PW-6) and Hanuman as (PW-8) and closed his evidence after tendering into evidence documents Ex.P-1 to P-136. On the other hand, respondent examined Y.P.Miglana, Divisional Manager as (RW-1), Atam Parkash as (RW-2) and Balram Bhandu, Branch Manager as (RW-3). Learned Tribunal returned the finding on issue No.1 in favour of the claimants, while deciding issue No.2, the claimant was held entitled to claim Rs.3,15,000/-. Issue Nos.3,4,5 and 8 were taken together and all these issues were decided against the respondents. While deciding issue No.6 and 7, it was held by the Tribunal that respondent No.1-driver was holding a valid driving licence but it was held that there was no valid policy on the date of accident. Consequently, respondent Nos.1, 2 and 3 were held jointly and severally liable to pay the amount and Insurance Company was held not liable to pay the amount. FAO No. 3462 of 2009 5 Feeling dis-satisfied with the above said Award i.e. owner and driver have preferred FAO No.3462 of 2009 whereas FAO No.77 of 2010 has been preferred by Sunder Singh for enhancement of compensation. Counsel for driver and owner has submitted that Tribunal has returned finding that respondent No.1 was holding a valid driving licence. However, it is contended that the finding of the Tribunal that there was no valid policy on the day of occurrence is wrong on the face of it. It is contended that accident has taken place on 26.7.2005. The premium for insurance was also deposited before the Insurance Company on 26.7.2005. The Tribunal has wrongly observed that insurance policy will come into operation from 27.7.2005. In fact, the policy came into operation from mid night of 25-26.7.2005 and as such the liability to pay the amount is that of Insurance Company. I have carefully considered the said submission but do not find any force in that submission. The Tribunal has returned a finding that owner of the offending vehicle could not prove that there was any valid insurance policy as on

26.7.2005. It has been observed by tribunal that the insurance of the offending vehicle lapse prior to 26.7.2005. It has been further observed that there has been no continuity of insurance in the present case. The policy was made effective from 9.40 a.m. on 27.7.2005. the accident has taken place on 26.7.2005 and on that account there was no insurance policy. The Tribunal has relied upon authorities National Insurance Co. Ltd. vs. Smt.Sobina Lakai and other 2007 (3) RCR (Civil) 582, New India Assurance Company Ltd. vs. M.P.Parvathi and others 2005 ACJ FAO No. 3462 of 2009 6 1785, Ram Singh and others vs. Ashok Sharma and others 2004 ACJ 1570 and National Insurance Company Ltd. vs. Ponnaiyan and others 2005 ACJ 1103. On the strength of the same it has been observed that effective time of the commencement of the insurance policy is the time mentioned in the insurance policy. The accident has taken place on 26.7.2005 at 12.30 a.m. It so seems that after the accident the owner in connivance with official of the insurance company managed to get the cover from back date. The Tribunal has observed that the receipts of 26.7.2005 were produced as RW-3/1 to RW3/18 and the last receipt Ex.RW-3/18 is of 13 hours and its No.2143. Receipt No.2144 is on the next morning of 27.7.2005 and receipt No.2145 is also of 27.7.2005 at 12.01 hours. So, the connivance of the owner writ large in view of the finding returned by the Tribunal. So, in view of the above discussion, the appeal preferred by driver and owner is without any substance and the same stands dismissed. Now reverting to the appeal preferred by Sunder Singh claimant is concerned in my view that need partial acceptance. The Tribunal has awarded an amount to claimant as under :-

1. Medicines Rs.75,000/-

2. Loss of future earning Rs.1000x12x15=1,80,000/-

3. Hospitalization Rs.10,000/-.

4. Loss of earning during the period of hospitalization for 3-4 months, conveyance charges, special attendant special diet Rs.10,000/-, FAO No. 3462 of 2009 7

5. pain and suffering and mental agony Rs.40,000/-. In this case, the claimants is aged 20 years. So, the multiplier should have been 18 and in this manner the amount regarding future earning is calculated as under :- 1000 x 12 x 18 = Rs.2,16,000/-. So, Rs.36,000/- stands enhanced. The Tribunal has granted an amount of Rs.40,000/- in respect of pain and suffering and mental agony ie also on lower side. The said amount is enhanced to Rs.64,000/-. In this manner, the total amount enhanced is Rs.60,000/- (Rs.36000 + Rs.24000/-) in respect of Sunder Singh appellant. Claimant- Sunder Singh is also held entitled to interest @ 7% per annum on the enhanced amount from the date of appeal till payment. A copy of this judgment be sent to the trial Court for strict compliance. February 22, 2010 ( K.C.PURI ) JUDGE