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Oriental Fire and General Insurance Company Limited Vs. Darshan Kumari and ors. - Court Judgment

LegalCrystal Citation
SubjectMotor Vehicles
CourtDelhi High Court
Decided On
Case NumberFirst Appeal No. 120 of 1969
Judge
Reported inILR1973Delhi150
ActsMotor Vehicles Act, 1939 - Sections 110D
AppellantOriental Fire and General Insurance Company Limited
RespondentDarshan Kumari and ors.
Advocates: S.C. Dhanda,; R.K. Mathur and; P.R. Monga, Advs.
Cases ReferredMadhya Pradesh High Court. In Subhash Chander v. Shri Ram Singh and
Excerpt:
.....it is somewhat better than the left one. but the chances, of improvement are, stated by the doctor, to be very slight, said to be about 3 to 4%, if she is given good food and exercises. according to this doctor, she was one of the worst patients he had. 5000.00 was considered as reasonable compensation for the permanent disability suffered by the appellant and loss of prospects of marriage and happy settled life. failure to produce this evidence raises a strong presumption against the insurance company. is :when i heard the facts of this case, i said to myself good gracious me-as low as that for these injuries'.in the present case, the appellant has not only suffered a permanent and serious disfiguring of her face, with a squint in one of her eyes, she is experiencing difficulty..........fao 120 of 1969 and respondent no. 1 in fao 8 of 1970. he is referred to herein as 'the driver'. onkar singh is respondent no. 2 in fao 120 of 1969 and no. 3 in fao 8 of 1970. he is said to be the owner of the vehicle and is referred to herein as 'respondent no. 3'. vas deo, also said to be the owner is respondent no. 3 in fao 120 of 1969 and no. 2 in fao 8 of 1970. the appeals have arisen in the following circumstances. (2) on may 6, 1964, the appellant was about 11 years and 6 months old. on that fateful day at about 7.00 p.m. she was trying to cross the road in front of the new delhi railway station from the side of amrit kaur market towards the railway station. she was about 4 to 5 feel away from the foot path on the railway station side, when thakar dass, the driver, driving a.....
Judgment:

P.N. Khanna, J.

(1) This judgment will dispose of two First Appeals, Fao 120 of 1969, filed by the Oriental Fire and General Insurance Company Limited, herein called 'the Insurance Company and Fao 8 of 1970, filed by Darshan Kumari, who was injured in the accident, and is referred to herein as 'the appellant'. Thakar Dass, who was driving the offending vehicle is repondent No. 4 in Fao 120 of 1969 and respondent No. 1 in Fao 8 of 1970. He is referred to herein as 'the driver'. Onkar Singh is respondent No. 2 in Fao 120 of 1969 and No. 3 in Fao 8 of 1970. He is said to be the owner of the vehicle and is referred to herein as 'respondent No. 3'. Vas Deo, also said to be the owner is respondent No. 3 in Fao 120 of 1969 and No. 2 in Fao 8 of 1970. The appeals have arisen in the following circumstances.

(2) On May 6, 1964, the appellant was about 11 years and 6 months old. On that fateful day at about 7.00 p.m. she was trying to cross the road in front of the New Delhi Railway Station from the side of Amrit Kaur Market towards the Railway Station. She was about 4 to 5 feel away from the foot path on the Railway Station side, when Thakar Dass, the driver, driving a three wheeled scooter rickshaw came out of the outward gate of the New Delhi Railway Station and suddenly turning to his right took the right side of the road going towards Kutab Road, against the rule of the road, and struck against the appellant and knocked her down. The appellant was entangled under the engine of the scooter. The driver with the aid of some passer by extricated her from there under. The appellant was removed to the hospital where she lay in an unconscious state for about two months. Although she regained consciousness after that period, she had to remain an indoor patient for 3' months in all.

(3) The appellant at the time of the accident was a student of sixth class of the Municipal Corporation Middle School. She is said to have been an intelligent student enjoying very good health. She had a goodlooking face and walked and ran about as a normal child and took parts in games. She, according to her father, intended to go into teaching line. Her sister is already a teacher in a school. As a result of the accident, the appellant received severe injuries in her brain and some injuries on other parts of her body. According to the doctor who was attending on her, she had severe paralysis resulting from injuries to the brain stem. She has been afflicted with a permanent disability affecting her face and limbs. Her facial beauty has been affected and her appearance and eyes are not normal. Her face has been bent on one side. She has developed a squint in one of her eyes. She has incoordination of her legs and hands and cannot move them in an organized manner. She limps and cannot walk like a normal girl. She has difficulty in holding things. The disablement is to the extent of 55 to 60%. According to the doctor, she might be able to do house-hold chores, but not independently, as all the four limbs are said to have been affected. Her right hand is not normal, although it is somewhat better than the left one. She cannot understand things properly nor can speak properly. She had intensive physio-therapy at Irwin Hospital; but the chances, of improvement are, stated by the doctor, to be very slight, said to be about 3 to 4%, if she is given good food and exercises. But the face is said to have been permanently damaged. She is no longer in a position to live a normal and in dependent life. According to Public Witness 9, Dr. K.S. Mehdiratta, Reader in Surgery, the appellant, when she left the hospital, had difficulty in speech, difficulty in walking properly, squint in one eye, and some mental changes, such as difficulty in understanding and coordinating movements. According to this doctor, she was one of the worst patients he had. Her marriage prospects had impaired because of these injuries.

(4) The Motor Accidents Claims Tribunal, while assessing the compensation to which the appellant was entitled, allowed Rs. 1626.81 as the actual out of pocket expenses incurred by her father, during her illness. Another sum of Rs. 2500.00 was allowed as general damages for physical pain and suffering. A further sum of Rs. 5000.00 was considered as reasonable compensation for the permanent disability suffered by the appellant and loss of prospects of marriage and happy settled life. The Tribunal observed that this sum was not enough from any standards, but it was very difficult to arrive at an exact figure. The Tribunal also observed that the learned counsel was not able to draw its attention to any case wherein a similar question had to be decided. Thus a total sum of Rs. 9126.81 was worked out, which according to the Tribunal. Thakar Dass, driver. Onkar Singh. respondent No. 3 and the Insurance Company, were liable to pay jointly and severally to the appellant with costs. Onkar Singh. respondent No. 3 was held to be the owner of the offending scooter. The Insurance Company had issued a policy of insurance in respect of the said scooter in favor of respondent No. 3, as the owner. The contention that the vehicle had been sold by respondent No. 3 to Vas Deo was not accepted. The policy was accordingly said to be in force, resulting in the liability of the insurance Company, which was held to have been established.

(5) The appellant, Darshan Kumari, feeling aggrieved filed her appeal (FAO 8 of 1970). under section 110-D of the Motor Vehicle Act, 1939 praying for the enhancement of the compensation allowed by the Tribunal to Rs. 40,000.00 as was originally claimed by her in her claim petition. The Insurance Company in its appeal (FAO 120 of 1969), has prayed that the award of the Tribunal was against it, be set aside with costs on the ground that the Insurance cover issued in favor of Onkar Singh had lapsed on his transferring the offending vehicle to Vas Deo.

(6) Two main questions have been agitated before me : (i) whether the offending scooter rickshaw was sold or transferred to Vas Deo, which as contended on behalf of the Insurance Company, brought the Insurance policy to an end: (ii) what amount of compensation should be allowed to the appellant. Mr. S. C. Dhanda, the learned counsel for the Insurance Company contended that to begin with, Thakar Dass, the driver, and Vas Deo were the only two respondents imp leaded in the application filed by the appellant on July 12. 1964. It was on November 26, 1964 that an application under Rule 10 of Order I of the Code of Civil Procedure was filed for impleading Onkar Singh as respondent No. 3 on the allegation that the appellant had been told that Vas Deo was the owner of the vehicle. But on making further inquiries from the office of the Delhi State Motor Registering Authority, Onkar Singh. was respondent No. 3 was learned to be the registered owner of the vehicle. The counsel also referred to the written statement filed on behalf of the driver and Vas Deo, where it was stated in para 15, that the owner of the scooter No. Dlr 5158 was Vas Deo, while Onkar Singh, respondent No. 3 was the permit holder. In the written statement filed on behalf of Onkar Singh, respondent No. 3 it was stated that he (Onkar Singh), had sold 'the rickshaw to Gurvinder Finance Company, G.T. Road, Ghaziabad, prior to the date of the accident. The said Finance Company was said to have given that vehicle to Vas Deo on hire purchase. The ownership of the vehicle, however, had continued to stand in the name of Onkar Singh, as he was the permit holder. At the time of the accident, the said scooter, it was stated, was being driven under the authority and control of Vas Deo. The subsequent allegation on behalf of the appellant, that Onkar Singh was the owner of the scooter, said the counsel, was a mere after thought, in an attempt to rope in the Insurance Company. This was further borne out, the counsel contended, by certain other documents. Exhibit RW5/2 is a copy of a letter dated August 2, 1965, written by the Insurance Company to Onkar Singh asking him to furnish the Insurance Company with the details of the accident and to file a claim. Exhibit RW5/4 dated September 1, 1965 is another copy of a letter written by the Insurance Company to Onkar Singh referring to his personal discussion with the company's advocate and asking him to send to the company his reply. Exhibit RW4/1 is a letter dated 12-8-1965, typed in English and signed by Onkar Singh in Urdu, addressed to the Insurance Company, the relevant portion of which reads as follows :-

'REGARDINGthe answer of 1st letter, we have already submitted the answer to your advocate in court; that we have sold the vehicle No. Dlr 5158 before the accident took place. The driver who had committed the accident is the answer (owner) of this vehicle. We are not in the least connected to the vehicle. Regarding the reply to your second letter we have to state that you should contact the driver who is the answer (owner) of this vehicle and who has committed the accident. We have sold this vehicle.'

(7) The learned counsel for the Insurance Company submitted that these documents proved that Onkar Singh had sold the vehicle to Vas Deo. The learned Tribunal in its order under appeal, has observed:

'ITappears to me that this written statement has been got signed from Onkar Singh, who did not even know English, at the instance of Insurance Company. Similarly document exhibits RW4/1 to RW4/5 cannot be said to establish that the vehicle had at any stage been transferred.'

(8) The mere fact that Onkar Singh was not made a respondent to begin with does not seem to be material, as there is nothing unusual in the appellant's father not being able to ascertain the correct particulars about the ownership of the vehicle, at the time of filing the petition. On the other hand, RW3, Onkar Singh, respondent as his own witness, stated on oath, that Thakar Dass was his driver on DLR. 5158 and that he himself (Onkar Singh) was the owner of the said vehicle on the date of the accident. Thakar Dass, according to him, was in his employment at that time. The income of the vehicle was received by him (Onkar Singh). The permit of the vehicle was also in his name. In cross-examination he explained that he signed the written statement without reading it at the instance of the Insurance Company. He did not know English. He denied that Gurvinder Finance Company had given this vehicle to Vas Deo on hire purchase. RW4, Thakar Dass, the driver, stated in examination-in-chief, that his written statement was correct. In cross-examination he stated that he was in the employment of Onkar Singh and it was Onkar Singh alone who used to take accounts from him. The permit of the scooter was also in the name of Onkar Singh. Onkar Singh, according to him, continued to be the owner of the vehicle.

(9) A comparison of the written statement filed on behalf of the Insurance Company with that of respondent No. 3 is significant. Both are exactly as the same lines and appear to have been typed on the same typewriter at one and same time. The signatures of Onkar Singh, who did not know English, appear on this written statement in Urdu. The letter exhibit RW4/1, bearing the signatures of Onkar Singh also in Urdu is typed in English. It rather looks unusual that Onkar Singh, who does not know English, would take the trouble of getting a letter addressed to the Insurance Company, duly drafted and typed and then posted, especially when as stated in the letter itself, he had explained his answer already to the Insurance Company's lawyer. Apart from this, exhibit RW5/1 is the Insurance policy. This policy is dated April 17, 1964. The accident took place 19 days after the issuance of the said policy of insurance. It is highly improbable that Onkar Singh would sell the vehicle, immediately after paying the premium for getting the insurance policy. If he really was planning to sell the vehicle within less than three weeks, he would not have himself obtained the policy of insurance in his own name. Onkar Singh himself appeared in the witness box and did not support the Insurance Company at all. Thakar Dass, driver, also made a deposition before the Tribunal and gave no support to the story put forward by the Insurance Company. The Additional issue in the case was in the following terms :-

'WHETHERthe Insurance Company is not liable on the ground given in para 2 ?'

(10) The onus was heavy on the Insurance Company to prove its allegations made in its written statement to the effect that the vehicle had been sold to Gurvinder Finance Company, who had given it on hire purchase to Vas Deo. The Insurance Company neither produced Vas Deo in the witness box, nor called any one from Gurvinder Finance Company. The allegations of the Insurance Company were not supported by any of the witness. Even in the letters, exhibit RW4/1 the name of Gurvinder Finance Company was not mentioned. If the vehicle had really been sold to Gurvinder Finance Company, as alleged in the written statement of respondent No. 4, it would have been easy for the Insurance Company to call the account books and other records of the said Finance Company to show that price of the scooter rickshaw had been paid to Onkar Singh and that the said scooter had further been made over to Vas Deo on hire purchase basis. Failure to produce this evidence raises a strong presumption against the Insurance Company. The contention raised on its behalf cannot, under the circumstances, be accepted. The Tribunal had the advantage of noticing the demeanour of the witnesses, who had made oral deposition before it; and nothing has been shown in the judgment to indicate that any important or material feature of any part of the evidence has escaped the notice. I am. thereforee, not inclined to interfere with the finding of the Tribunal to the effect that the vehicle in question at the time of the accident belonged to Onkar Singh. The said finding is fully supported by the evidence on record. The Insurance Company, thereforee, cannot disown its liability on the plea that the insurance policy had come to an end as a result of the so-called transfer of the offending vehicle by Onkar Singh before the date of the accident.

(11) The evidence on record has established that the accident occurred as a result of the rash and negligent driving of the vehicle by the driver. No serious challenge, thereforee, was made against the finding to this effect reached by the Tribunal. On behalf of the appellant, the assessment of general damages for physical pain and suffering at Rs. 5000.00 was seriously contested, and it was contended,that it was wholly inadequate. Assessment in respect of the other heads of compensation was not objected to. The assessment of general damages, by its very nature is not an easy task. It is impossible to quantify in any exact terms the compensation money. All that can be attempted is an assessment, which would be fair and reasonable under the circumstances of the case, for every case has to depend ultimately on its own facts. The Tribunal has been given a discretion to fix such compensation, as appears to it to be just. This discretion normally would not be interferred with in appeal, unless its exercise can be shown in to be unreasonable and arbitrary. Denning L.J. in Taylor v. Mayor, Alderman & Burgesses of Southampton, 1952 Ca No. 89, referring to the circumstances under which the Appeal Court may interfere with the assessment made by the trial Court, approved, as quoted by the Madras High Court in Champalal Jain and another v. B.P. Venkataramaiah, 1966 Acj 224, the graphic test which in the words of Denning L.J. is : 'When I heard the facts of this case, I said to myself good gracious me-as low as that for these injuries'. In the present case, the appellant has not only suffered a permanent and serious disfiguring of her face, with a squint in one of her eyes, she is experiencing difficulty in speech and in the movement of her limbs. She feels difficulty in holding things and in moving about. Facial beauty has been permanently lost. The brain has been affected and her power of understanding has been impaired. She is not able to continue her studies, nor can she hope to go into the teaching profession, which she was looking forward to join. Her marriage prospects have seriously been impaired and she has been rendered unfit to live an independent life. Chances of recovery are stated to be slight. Charm in life has gone and a whole life full of misery and distress devoid of happiness stares her in the face. Even the Tribunal observed : 'from any standards this sum of Rs.5,000.00 is not big [enough.' In her Miscellaneous Application No.696 of 1972, dated April 10, 1972, supported by an affidavit, the appellant stated that she is passing through most anguishing time for lack of proper treatment due to shortage of funds. The sum of Rs. 9126.11 awarded by the Tribunal was received by her and the same is said to have already been spent during the period from 1964 to 1970. She has stated that in these days of high cost of living and medical treatment, she cannot continue even her treatment without having a substantial amount to cover at least a part of her expenses. A certificate dated September 10, 1971 from the Senior Physician Coronary Cardiac Clinic. Willingdon Nursing Home, New Delhi, has been filed certifying that the appellant is under his treatment for post epieptic fits with mental retardness since 29-1-1970. It has been certified that continuous treatment for maintaining progress and to avoid relapse was essential. She has been advised rich diet. It is true that there are no hard and fast rules, nor is there any yardstick with which to measure with any accuracy the damages for such injuries. All the same, it would not be unreasonable if, on being told about the assessment of Rs. 5,000.00 as damages one were to say to oneself in the words of Denning L.J. 'good gracious me-as low as that, for these injuries.' The assessment of general damages at Rs. 5000.00 appears to be unreasonably low assessment of the compensation. A comparison of one case with another may not be off much assistance, as the circumstances of each case are likely to vary. Yet such a comparison, may, at times, proves useful.

(12) In Madhya Pradesh Road Transport Corporation, Bhopal v. Sadhakar and others, 1967 Acj 90 an educated lady of a well to do family has suffered a compound fracture of right tibia and fibula and fracture of a rib. Her gait was said to have been permanently affected. There was no categorical statement that she had acquired a permanent limp. The general damages awarded to her were reduced from Rs. 30,000.00 to Rs. 20,000.00 in appeal. In the case of a child aged four years, who had received compound fracture of right tibia and fibula, resulting in a permanent limp, general damages were enhanced by the same judgment from Rs.10,000.00 to Rs. 20,000.00. In Rajinder Kaur and others v. Puran Chand and others, 1966 Acj 207, a girl aged seven years suffered fracture on both the bones of her right leg, which resulted in a slight limp likely to be permanent. She was awarded Rs. 10,400.00. In State of Madras v. Appadurai and another, : AIR1959Mad369 , the son of a carpenter was awarded Rs. 10,000.00 for a leg injury. In Ganpati Bhatta v. State of Madras, Air 1960 Myr 222, injuries were received on the back of the head, upper lip, left thigh and left elbow. All the injuries were simple except on the skull. He was discharged from the hospital after two and a half months as cured. He could not appear in his intermediate examination. The general condition was found to have been substantially impaired. He had to discontinue his studies for two years. The injuries were described as neither very serious nor quite simple. The total compensation was assessed at Rs. 7.500.00 as against Rs. 10.000.00 claimed in appeal. In Sughdev Singh v. Pepsu Road Transport Corporation, 1969 Acj 197, the appellant received damage to his brain resulting in complete paralysis. He was 38 years of age and earning about Rs. 2000.00 per annum. He was totally incapacitated for life. The Tribunal awarded Rs. 10,000.00, which was held to be too low. The compensation was enhanced to Rs. 50,000.00 in appeal. Seth Banwari Lal & others, 1966 Acj 217, a girl aged 15 received fracture of spine resulting in permanent deformity of vertebra. She remained in plaster jacket for three months resulting in loss of studies. She was likely to develop back-ache. The Tribunal's award of Rs. 750.00 as general damages was enhanced to Rs. 4,000.00. In Indian Trade and General Insurance Co. Ltd. and others v. Madhukar Govind Rao Bhangade, 1966 Acj 244, the claimant received simple fracture of left clavical, compound fracture of parietal bones of the head and permanent disfiguration. His vision was impaired. The award of Rs. 5,000.00 as general damages, apart from other damages amounting to Rs. 2870.00 was upheld by the Madhya Pradesh High Court. In Subhash Chander v. Shri Ram Singh and others, : AIR1972Delhi189 a young boy aged about seven years old, sustained injuries as a result of which he was unable to walk without a surgical shoe or to take part in any activity. He would be debarred from taking employment in certain avenues. The award of general damages of Rs. 3000.00 was enhanced by V.D. Misra J. of this Court to Rs. 7500.00.

(13) In the instant case, the appellant has claimed a sum of Rs. 40,000.00. But considering all the facts and circumstances, the status of the family and the fact that she still is receiving medical treatment, I think, it would be just and fair to enhance the award of general compensation from Rs. 5,000.00 to Rs. 15,873.19. The amount of Rs. 10,873.19 and not Rs. 11,000.00 has been added, so that when further added to Rs. 4126.81, the compensation allowed under other heads, it would make the round figure of Rs. 20,000.00 as the total compensation.

(14) In the result, the appeal filed by the Oriental Fire and General Insurance Company (FAO 120 of 1969), is dismissed with costs, while the appeal filed by Darshan Kumari, appellant (FAO 8 of 1970), is partially allowed. The total amount of compensation payable to Darshan Kumari by the Insurance Company, Onkar Singh, respondent No. 3 and Thakar Dass, driver, respondent jointly and severally shall be Rs. 20000.00 in all. The appellant will also have her costs through- out. Counsel fee Rs. 100.00 in each appeal.

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