1. Natha Singh, appellant, who was injured in an accident which had taken place on June 9, 1968, at 5. 30 A. M. filed his claim petition on July 17, 1968, before the Motor Accidents claims Tribunal, Ropar (hereinafter called the Tribunal), claiming compensation to the tune of Rupees 80,000/-. on the allegations that on June 9, 1968, at about 5. 30 A. M. he has going in a cart to the fields when Gurdial Singh respondent No. 1 driving truck no. PNU-2229 came from Dera Bassi side, at a high speed and struck with the cart with the result, Natha Singh, appellant, was injured and one ox died. It was alleged therein that the act of Gurdial Singh, respondent, was rash and negligent driving of the truck. In his claim application, the appellant arrayed Gurdial Singh, the driver of the truck, Amrit Lal Gupta and Darshan Singh, as the owners of the truck and the National Insurance Company, as the insurer of the truck. However, the claim petition qua Gurdial Singh, was dismissed on Oct. 20, 1971, for non-payment of the process fee. Amrit Lal Gupta, respondent, was served for Dec. 18, 1969, but he failed to attend the Court as he was confined to bed according to the report made on the summons. Subsequently, he died and Shri J. S. Chatha, the then Presiding Officer, of the Tribunal declined to bring his legal representatives on the record by his detailed order dated April 12, 1972. Darshan Singh, the other alleged owner of the truck, was proceeded ex parte as he failed to appear in spite of service. Thus, the claim was contested by the National Insurance Company alone which filed its written statement dated August 17, 1971. In one of the additional pleas taken in the written statement, it was pleaded that the replying respondent (the insurance company) takes over the defence of the claim in the name of the insured to contest the case as they have reserved this right under the policy of insurance. On the pleadings of the parties, the learned Tribunal framed the following issues on Nov. 17, 19711 :
1. Was the accident due to any negligent act on the part of the driver of the vehicle involved?
2. What should be the quantum of compensation due, if any, and from whom to whom?
3. Whether the application is time-barred?
On issue No. 3, it was found that the application was clearly within time. Issue No. 1 was also found in favour of the claimant holding that the accident had resulted due to the rash and negligent act on the part of Gurdial Singh, the driver of the truck. On the question of quantum of compensation, the learned Tribunal found that a sum of Rs.10,000/- would meet the ends of justice. In spite of this finding, the claim petition was dismissed on the ground that since the claimant failed to bring the legal representatives of the deceased Amrit Lal Gupta, the owner of the truck, on the record, and his application was dismissed vide order dated April 12, 1972 being inordinately delayed, no order under S. 96 of the Motor Vehicles Act, 1939 (hereinafter called the Act), could be passed against the insurance company because the very insured had not appeared in the Court and his legal representatives were not brought on the record. However, as regards Darshan Singh, respondent, it was found that there was no documentary evidence on the record to show that the truck, in question, belonged to him. Feeling aggrieved against the same the claimant has come up in appeal to this Court.
2. The learned counsel for the appellant, contended that admittedly Amrit Lal Gupta, was arrayed as a respondent in the claim petition filed by him and he was also served therein. Subsequently, though the application for bringing his legal representatives on the record was made, yet the same was dismissed on April 12, 1972. According to the learned counsel, in view of the written statement filed on behalf of the insurance company and the plea taken in para 3 of the additional pleas, it was not necessary for him to implead the legal representatives of Amrit Lal Gupta, deceased, in his place. He has also referred to the order of the Tribunal, recorded while Kartar Singh, A. W. 1, was being examined. When this witness was being cross-examined by the learned counsel for the insurance company, it was objected to by the claimant and on his objection, the Tribunal passed the following order :
'The counsel for the petitioner had objected to the cross-examination by the Insurance Company as it could not contest the case on merits. However, in para 3 of the Addl. objection, the Insurance Company has taken over the defence of the insured and in that capacity, it is allowed to cross-examine the witness.'
In support of his contention, the learned counsel placed reliance on New India Assurance Company Ltd., New Delhi v. Norati Devi, AIR 1978 Punj & Har 113. On the other hand, the learned counsel for the insurance company submitted that the law of abatement is applicable to these proceedings and since the claimant failed to bring the legal representatives of Amrit Lal Gupta, deceased, on the record, within the time prescribed, the claim petition would be deemed to have abated and no award could be given against the insurance company in the absence of the owner of the truck who was insured and to whom a certificate of insurance was issued. In support of his contention, the learned counsel relied, on Oriental Fire and General Insurance Co. Ltd., New Delhi v. Raja Ram Gupta, (1974) 76 Pun LR 118, Alwar Motor Association (Private) Ltd., Alwar v. Hazari Lal, (1964) 66 Pun LR 804 and Nand Singh Virdi v. Punjab Roadways, Amritsar, (1962) 64 Pun LR 917 : (AIR 1963 Punj 214).
3. Section 96 of the Act provides for the duty of the insurers to satisfy judgments against persons insured in respect of third party risks. It also provides that the insurance company or the insurer to whom the notice of the bringing of any such proceedings is given, shall be entitled to be made a party thereto and to defend the action on any of the grounds given therein. Section 102 of the Act provides,--
'Notwithstanding anything contained in Section 306 of the Indian Succession Act, 1925 (XXXIX of 1925), the death of a person in whose favour a certificate of insurance had been issued, if it occurs after the happening of an event which has given rise to a claim under the provisions of this Chapter, shall not be a bar to the survival of any cause of action arising out of the said even against his estate or against the insurer.'
In view of these provisions of the Act, it cannot be said that the insurance company is not liable to satisfy the claim for compensation to be awarded in the claim application simply because the legal representatives of Amrit Lal Gupta insured who died during the pendency of the proceedings, were not brought on the record. It is particularly so because in the insurance policy, Exhibit R-11, it has been provided inter alia vide Clause (4) of Section II, thereof that the company may, on its own option, undertake the defence of proceedings in any Court of law in respect of any act or alleged offence causing or relating to any event which may be subject of indemnity under that section. It was because of this term of the policy that the insurance company took a specific plea in paragraph 3 of their additional grounds that it had taken over the defence of the claim petition in the name of the insured to contest the claim, as they had reserved the right under the policy of insurance. As observed earlier, this claim was accepted by the Tribunal and on that account, it was allowed to cross-examine the witnesses, on merits, as well. Under the circumstances, the ratio of the decision in Norati Devi's case, (AIR 1978 Punj & Har 113) (supra), is most relevant. It has been held therein (at p. 114),--
'Section 96 only clarifies that if an award is made, it would be the duty of the insurance company to meet the claim. It nowhere lays down that if the insurance company is allowed to contest the liability in the absence of the insurer, it should not be held liable. Therefore, it cannot be contended that an insurance company can never be held liable so long as the insured is not impleaded as a party to the proceedings, or having been impleaded his name is ordered to be struck off from the array of the respondents on the basis that he enjoys diplomatic immunity from being sued in a Court.'
In view of the abovesaid decision of this Court, the claim application of Natha Singh, appellant, could not be dismissed on the ground that the legal representatives of Amrit Lal Gupta, deceased, were not brought on the record.
4. Now, the question to be decided is as to the amount of compensation to which the appellant is entitled on account of the injuries sustained by him.
5. Dr. Kuldip Singh, Medical Officer, General Hospital, Sector 16, Chandigarh, who appeared as A. W. 3, has stated that the appellant had compound fracture of the bones of the left leg at the junction of the middle and distal one-third. He also had lacereted would on the right foot. The skin flap was evulsed with gross contamination. The fracture of the left leg was reduced and he was put under plaster. For the injury on the right foot, skin grafting was done. He was discharged on Nov. 8, 1968, from the hospital while he was admitted there on June, 9, 1968. According to the doctor, he was again admitted to the hospital on Nov. 16, 1968, because the would an his right foot had resulted in a big scar and weight could not be put on it. He was again operated upon and skin grafting around his heel was done. Thus, he was discharged from the hospital on April 12, 1969. During the time he was admitted to the hospital, he could not move about and was confined to his bed. According to this doctor, he could not fully bear the weight on his right foot and that his disability was 30 per cent. The learned Tribunal, on these findings, came to the conclusion that the claimant was entitled to a sum of Rs.10,000/- as compensation because of the disability suffered, the expenses on treatment, the amount spent on food and medicines, mental agony and pain. However, considering the facts and circumstances of this case, I am of the considered opinion that this amount is too meagre; particularly in view of the permanent disability which the appellant has suffered to the extent of 30 per cent. It is in the statement of the appellant, who appeared as A. W. 4, that he spent Rs.1,500/- on his treatment, Rs.1,200/- on his food and Rs.1,200/- on his medicines and now he cannot cultivate the land and that he can walk very small distance. Although, he did claim a sum of Rs.80,000/- in this claim application, yet in view of these facts, a sum of Rs.20,000/- will meet the ends of justice.
6. As a result of the above discussion, this appeal succeeds and is allowed. The order of the Tribunal is set aside and a sum of Rs.20,000/- is awarded as compensation against the National Insurance Company, respondent No. 6, with interest at the rate of six per cent, per annum from the date of the filing of the present appeal, that is, March 3, 1976. In case, this claim is not satisfied within a period of three months, the appellant will be further entitled to interest at the rate of twelve per cent, from the date of this order till realisation. No costs.
7. Appeal allowed.