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United India Insurance Co. Ltd. Vs. Joginder Singh and ors. - Court Judgment

LegalCrystal Citation
SubjectMotor Vehicles
CourtPunjab and Haryana High Court
Decided On
Case NumberFirst Appeal from Order No. 292 of 1979 and Civil Miscellaneous Nos. 380-CII/80, X-Obj. 7-CII/80 and
Judge
Reported in[1986]59CompCas216(P& H)
ActsMotor Vehicles Act, 1939 - Sections 95 and 96
AppellantUnited India Insurance Co. Ltd.
RespondentJoginder Singh and ors.
Appellant Advocate Maharaj Bakhsh Singh, Adv.
Respondent Advocate V.P. Gandhi, Adv. for respondent No. 1,; L.M. Suri, Adv. for respondent Nos. 2 and 3 and;
Cases ReferredNational Insurance Co. Ltd. v. Mrs. Sarla R. Gupta
Excerpt:
.....(hereinafter called 'the tribunal '), dated november 30, 1978, as well as civil miscellaneous applications nos. puq-4663 ? 2. whether jarnail singh, respondent, had a valid driving licence on the date of the accident ? if not, to what effect ? 3. to what amount of compensation are the claimants entitled and against whom ? 4. whether the petition is bad owing to non-joinder of necessary parties as alleged in the written reply of the insurance company ? 5. relief. this, according to the tribunal, clearly showed that in all probability, he was not holding a driving licence and was handling the heavy vehicle without proper skill and training. 38-cii and 39-cii of 1979 and 7-cii and 8-cii of 1980 as well as civil miscellaneous applications nos. having failed to lead any evidence in this..........earning a net income of rs. 4,800 per annum at the time of the accident. in the written statement filed on behalf of jarnail singh, the driver of the offending truck, the allegations made in the claim petitions were controverted and it was averred that the driver of the car was driving the car at a very high speed and it was due to his negligence and rash driving that the car struck against the said truck. the insurance company equally set up similar averments in the written statement filed on its behalf. on the pleadings of the parties, the tribunal framed the following issues :1. whether the accident arose out of the negligence of jarnail singh in the course of employment under respondent, joginder singh, and mohan lal, owners of truck no. puq-4663 ?2. whether jarnail singh,.....
Judgment:

J.V. Gupta, J.

1. This judgment will dispose of F. A. Os. Nos. 292 and 293 of 1979 and the cross-objections filed therein by the owners of the offending truck ; and 236 of 1979 as they arise out of an award of the Motor Accidents Claims Tribunal, Patiala (hereinafter called ' the Tribunal '), dated November 30, 1978, as well as Civil Miscellaneous Applications Nos. 380-CII and 381-CII of 1980 filed in F. A. Os. Nos. 292 and 293 of 1979, respectively, for allowing the production of additional evidence.

2. On June 5, 1976, Joginder Singh, claimant (appellant in F. A. 0. No. 236 of 1979), was going from Patiala to Delhi by car No. PUP-9133 which was driven by Jaswant Singh (deceased). When the said car reached village Haripur Ganduan on the G. T. Road, truck No. PUQ-4663, driven by Jarnail Singh, respondent, came from the Delhi side at a high speed. In a bid to overtake a military truck, it struck against the car. As a consequence, the car was smashed. Jaswant Singh (deceased), who was at that time driving the car, and Joginder Singh, claimant, sustained injuries. The said Jaswant Singh succumbed to his injuries in the hospital. Two claim petitions were filed before the Tribunal. Joginder Singh, injured, claimed a sum of Rs. 2,00,000 as compensation for the injuries sustained by him in the accident whereas the heirs of Jaswant Singh (deceased), i.e., his father, Sunder Singh, and his mother, Basant Kaur, claimed a sum of Rs. 1,70,000 by way of compensation, asserting that the deceased was a young man of about 30 years of age and was a licensed driver earning a net income of Rs. 4,800 per annum at the time of the accident. In the written statement filed on behalf of Jarnail Singh, the driver of the offending truck, the allegations made in the claim petitions were controverted and it was averred that the driver of the car was driving the car at a very high speed and it was due to his negligence and rash driving that the car struck against the said truck. The insurance company equally set up similar averments in the written statement filed on its behalf. On the pleadings of the parties, the Tribunal framed the following issues :

1. Whether the accident arose out of the negligence of Jarnail Singh in the course of employment under respondent, Joginder Singh, and Mohan Lal, owners of truck No. PUQ-4663 ?

2. Whether Jarnail Singh, respondent, had a valid driving licence on the date of the accident If not, to what effect ?

3. To what amount of compensation are the claimants entitled and against whom ?

4. Whether the petition is bad owing to non-joinder of necessary parties as alleged in the written reply of the insurance company ?

5. Relief.

3. Under issue No. 1, it was concluded that the accident had taken place due to the negligence of Jarnail Singh, the driver of the offending truck. Issue No. 2 was also decided against him, as it was observed that there was no official record to show that he had a valid driving licence on the date of the accident. This, according to the Tribunal, clearly showed that in all probability, he was not holding a driving licence and was handling the heavy vehicle without proper skill and training. Under issue No. 3, the claimants in one of the claim petitions, the legal heirs of Jaswant Singh, deceased, were allowed a sum of Rs. 30,000 in all. Out of that amount, Rs. 12,000 was awarded to 65 years old father of the deceased and Rs. 18,000 to the mother of the deceased. In the claim application filed on behalf of Joginder Singh, claimant, a total sum of Rs. 30,000 was awarded by way of compensation on account of the injuries sustained by him. Ultimately, the liability of the insurance company was held to be limited to the tune of Rs. 50,000 in all. Dissatisfied with the same, two appeals, viz., F. A. Os. Nos. 292 and 293 of 1979, have been filed on behalf of the insurance company, F.A.O. No. 236 of 1979 has been filed on behalf of the injured, Joginder Singh, claimant, while cross-objections Nos. 38-CII and 39-CII of 1979 and 7-CII and 8-CII of 1980 as well as Civil Miscellaneous Applications Nos. 380-CII and 381-CII of 1980 in F.A.Os. Nos. 292 and 293 of 1979 for adducing additional evidence, have been filed by the owners of the offending truck.

4. The appeals filed on behalf of the insurance company were admitted on the ground that the company could not be held liable in a case where the driver of the vehicle did not hold a valid driving licence. Reliance was placed by the appellant on Brij Lal Khera v. Raksha Devi [1972] ACJ 69 (P&H;) and Section 96(2)(b) of the Motor Vehicles Act, 1939 (hereinafter called ' the Act ').

5. As regards the appeals filed on behalf of the insurance company, the only controversy between the parties is whether there was any plea taken by it in its written statement that Jarnail Singh, the driver of the offending vehicle, had no valid driving licence at the time of the accident. From the written statement filed on behalf of the insurance company, it is evident that no such plea was taken therein. Paragraph 25 of the written statement filed by it reads :

' That the replying respondent No. 3 takes up all the defences open to it under sections 95 and 96 of the Motor Vehicles Act. The deceased was not an employee of the insured and had no driving licence.

From the above reply, it is evident that it has been nowhere stated therein that Jarnail Singh, the driver of the offending truck, had no valid driving licence at the time of the accident. It only says that the deceased was not an employee of the insured and had no driving licence at the time of the accident. Apart from that, Jarnail Singh appeared in the witness-box as R.W. 1. No question was put to him in his cross-examination on behalf of the insurance company to this effect. There is absolutely no evidence on the record led on behalf of the insurance company to prove that Jarnail Singh had no driving licence at the time of the accident. Of course, the Tribunal did frame the issue to this effect, but it is strange that the said issue was framed without any pleading and was decided against Jarnail Singh, without any evidence. It could not be successfully contested that it was for the insurance company to take a specific plea in this behalf and to prove the same. Reference in this behalf may be made to Bishan Devi v. Sirbaksh Singh, AIR 1979 SC 1862 ; [1979] ACJ 496 ; [1981] 51 Comp Cas 128 (SC) wherein, in paragraph 12 of the judgment, their Lordships of the Supreme Court observed (p. 135 of 51 Comp Cas) : 'Under Section 96(2)(b)(ii), the insurer can defend a claim for compensation on the ground that the vehicle was driven by a person who was not duly licensed. Apart from making the averment in his written statement, the insurer did not take any steps to establish that the vehicle was driven by a person who was not properly licensed...It is the duty of the insurer to have substantiated his plea.'

6. Apart from the above-said case, there is a plethora of case-laws wherein it has been held that it is for the insurance company to plead and prove that the driver did not hold a valid driving licence. Reference in this behalf may be made to New India Assurance Co. Ltd. v. Sushila Devi Sharma [1981] ACJ 119 (Raj) ; National Insurance Co. Ltd. v. V. Sugantha Kunthalambal [1981] ACJ 302 (Mad) ; Bairon v. Nandram [1980] ACJ 513 (Raj) ; National Insurance Co. Ltd. v. Bachibai [1979] ACJ 183 (MP); Sanjiva Shetty v. Anantha [1976] ACJ 261 (Kar); Orissa Co-operative Insurance Society Ltd. v. Gunei Behera [1976] ACJ 385 (Orissa) and Ruby General Insurance Co. Ltd. v. Kesharbai [1976] ACJ 385 (MP). No authority taking a contrary view has been cited at the Bar. In any case, in view of the authoritative pronouncement of the Supreme Court in Bishan Devi's case, AIR 1979 SC 1862 ; [1979] ACJ 496 (SC); [1981] 51 Comp Cas 128 (SC), it was for the insurance company to take the pleas available to it under Section 96 of the Act. However, an effort was made to argue that a plea in the written statement filed by it that all the defences open to it under sections 95 and 96 of the Act were available, has been taken, but the same has no force, as no such defence was specifically pleaded by the insurance company so that the other party could be in a position to meet the same. Under these circumstances, issue No. 2, as such, could not be framed and, in any case, even if framed, no evidence was led thereon.

7. The only argument raised on behalf of the appellant is that it was for Jarnail Singh, the driver of the offending truck, to prove that he had a driving licence at the time of the accident. It may be so in an ordinary case but in an accident case, if the insurance company is taking any such plea, in view of the provisions of Section 96 of the Act, then in that situation, it is for the insurance company to plead and prove the same. It may be stated here that in F.A.Os. Nos. 292 and 293 of 1979, two civil miscellaneous applications, referred to above, have been filed for permission to adduce additional evidence. Along with those applications, copies of the driving licence held by Jarnail Singh, the driver of the offending truck, was also produced in this court. Notice of those applications was given to the counsel for the insurance company, but no reply thereto has been filed by it. However, those applications were ordered to be listed along with the main appeals. It shows that Jarnail Singh, the driver of the offending truck, did have a driving licence at the time of the accident. Though the present was a fit case to allow the production of the additional evidence and to remit it to the Tribunal for fresh decision, since the insurance company did not file any reply thereto and thus never controverted the allegation made therein nor did it take any specific plea to the effect that Jarnail Singh, the driver of the offending truck, did not have a valid driving licence at the time of the accident in its written statement, in the facts and circumstances of this case, it is not necessary to remand the case. In this view of the matter, the finding of the Tribunal under issue No. 2 is liable to be set aside. It is the common case of the parties that this was the only plea available to the insurance company. If this finding is reversed, then there remains no other plea which can be taken on behalf of the insurance company in support of the appeals.

8. It has been argued on behalf of the claimants that in view of the judgment of the Supreme Court in Motor Owners Insurance Co. Ltd. v. Jadavji Keshavji Modi, AIR 1981 SC 2059 ; [1981] ACJ 507 ; [1982] 52 Comp Cas 454, the liability of the insurance company extends to Rs. 50,000 in the case of each person in any one accident. The total liability in both the claim petitions has been fixed at Rs. 60,000 by the Tribunal and thus the insurance company is liable for the whole amount awarded. In view of the above-said decision of the Supreme Court, this proposition could not be disputed on behalf of the insurance company. It is, therefore, held that the insurance company is liable for the total amount awarded by the Tribunal.

9. In F.A.O. No. 236 of 1979, filed on behalf of Joginder Singh, claimant, the learned counsel for the appellant contended that the amount of Rs. 30,000 awarded by way of compensation by the Tribunal is most inadequate. Nothing, it was stated, has been allowed on account of the medical expenses incurred by the claimant. According to the learned counsel, the appellant has already spent more than Rs. 25,000 as medical expenses and at least that amount should have been allowed to him as there was no rebuttal to the same. Of course, Joginder Singh, claimant, while appearing as A.W. 3, stated in his examination-in-chief that he had incurred a sum of Rs. 25,000 on his treatment, but in his cross-examination, he has admitted that the medicines, etc., for his treatment were paid for by his firm and partly some expenditure was incurred by his wife also. He has further stated that he could not tell the details of the amount withdrawn by his wife for his treatment from her account. He did not withdraw any amount from his account for this purpose. Under the circumstances, if the medical expenses were borne by his firm, then evidence should have been led to show as to what amount was incurred by it in this behalf. Having failed to lead any evidence in this respect, the claimant is not entitled to any amount on this account separately. Under the circumstances, the Tribunal rightly allowed a sum of Rs. 30,000 in view of the shortening of his leg and the expenses incurred on his medical treatment besides the blurring of future chances of his efficient travelling. I do not find any illegality or infirmity therein as to be interfered with in this appeal.

10. It was further contended on behalf of Joginder Singh, appellant, that in any case, the claimant was entitled to interest at the rate of ten per cent. per annum from the date of the filing of the claim petition in view of the decision of this court in National Insurance Co. Ltd. v. Mrs. Sarla R. Gupta [1982] ACJ 40 (P & H), wherein it was held that because of the amendment of the law on the point, it was now permissible to allow interest to the claimants under the Act. But there is no quarrel with the proposition that in view of the amended law, under Section 110CC of the Act, the grant of interest on the amount awarded is within the discretion of the Claims Tribunal or the court, as the case may be.

11. In view of the above discussion, all the three appeals, the cross-objections and the civil miscellaneous applications fail and are dismissed. However, since nothing has been paid up till to day to the claimants, they will be entitled to interest on the amount awarded by the Tribunal at the rate of ten per cent. per annum from the date of the award of the Tribunal till realisation. No costs.


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