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Jugal Kishore Vs. Rai Singh and ors. - Court Judgment

LegalCrystal Citation
SubjectMotor Vehicles
CourtDelhi High Court
Decided On
Case NumberFirst Appeal No. 30 of 1975
Judge
Reported in[1986]59CompCas340(Delhi); 22(1982)DLT294
ActsMotor Vehicles Act, 1939 - Sections 96 and 96(4)
AppellantJugal Kishore
RespondentRai Singh and ors.
Cases ReferredRaddipalli Chinnarao v. Beddi Lorurdu and
Excerpt:
.....of suffering entitled him for amount more than rs. 1 lakh - demand justified - liability of insurance company not restricted irrespective of section 95 (2) on ground of failure to produce any insurance policy - held, owner, insurer and driver liable to pay compensation. - - 300.00 that he has been permanently disabled, he would not be able to earn his livelihood and would not be in a position to drive the scooter rickshaw or any other vehicle for life, that he has to support his family who has been rendered destitute, that he suffered lot of pain and agony due to the injuries, that he remained as anindoor patient from 15th june, 1969 to 8th august, 1969 in willingdon hospital where he was treated and his left foot above ankle was amputated as the same was badly crushed due to..........mercantile insurance co. ltd. v. chamla devi and others, 1980 a.g.j. 169 it has been held that an insurance company cannot raise any argument regarding quantum of compensation. similarly observations were made in raddipalli chinnarao v. beddi lorurdu and others 1980 a.g.j. 470. (8) the next question is who are liable to pay the amount of compensation due to the appellant. in the instant case insurance company respondent no. 3 pleaded that its liability was restricted to rs. 20,000.00 . the appellant required the insurance company to file the insurance policy but it was not filed. all presumptions may, thereforee, be drawn against the insurance company. if an insurance company does not produce a policy to show that its liability in respect of the accident was limited the insurance.....
Judgment:

Sultan Singh, J.

(1) This appeal under Section 110-D of the Motor Vehicles Act, 1939 (hereinafter referred to as 'the Act') is directed against the judgment and Award of the Motor Accidents Claims Tribunal dated 29th July, 1974 by which the appellant was awarded only a sum of Rs. 10,000.00 as compensation against respondents 2 and 3 i.e. the owner and the insurer who were granted two months time to deposit the amount otherwise the appellant was held entitled to interest @ 6% per annum from the date of the award till realisation. The appellant has filed this appeal for enhancement of compensation. Briefly the facts are that Jugal Kishore, the appellant on 15th June, 1969 at about 8 A.M. with two passengers was driving scooter No. Dir 9322 and going towards defense Colony via Pachkuian Road Connaught Circus, New Delhi and while crossing Connaught Circus, New Delhi bus No. DLP-3699 driven by Rai Singh, respondent No. 1 coming from Plaza side at a rash and reckless speed and without caring for the stop signal voilently hit his scooter and dragged it for some distance before the bus stopped. In the process the petitioner received grevious injuries. Respondent No. 1 driver was in the employment of respondent No. 2 owner of the said bus. The bus was being run by Delhi Transport Undertaking now known as Delhi Transport Corporation, respondent No. 4 on the date of accident. It is further alleged that he was aged about 23 years at the time of accident and his monthly income was Rs. 300.00 that he has been permanently disabled, he would not be able to earn his livelihood and would not be in a position to drive the scooter rickshaw or any other vehicle for life, that he has to support his family who has been rendered destitute, that he suffered lot of pain and agony due to the injuries, that he remained as anindoor patient from 15th June, 1969 to 8th August, 1969 in Willingdon Hospital where he was treated and his left foot above ankle was amputated as the same was badly crushed due to accident. The appellant claims Compensation for loss of limb, pain and suffering past and future, loss of future earning, expenses on treatment, loss of enjoyment of life and loss of expectation of life due to the injuries. He claimed a sum of rupees one lac as compensation. The offending vehicle is insured with respondent No. 3. The application was contested by the insurer and the Municipal Corporation of Delhi owning the Delhi Transport Corporation. The driver and owner of the vehicle, respondents 1 and 2 did not contest. The Tribunal awarded a sum of Rs. 10,000.00 as compensation. Hence this first appeal.

(2) Learned counsel for the appellant submits that the amount of compensation awarded by the Tribunal is very inadequate, that the Tribunal ought to have awarded at least the claimed amount of Rupees one lac as compensation on account of pecuniary and non-pecuniary loss with interest at 12% per annum from the date of the application against all the respondents. This appeal is being contested by the insurer respondent No. 3 only. The Tribunal after recording evidence concluded that the appellant was injured and sustained injuries due to rash and negligent driving of bus No. Dlp 3699 on the part of its driver. Learned counsel for the appellant has taken me through the evidence on record and I am of the view that the said finding of the Tribunal is correct.

(3) The crucial question is whether the compensation awarded is adequate. Learned counsel submits that the appellant aged 23 years of age was earning Rs. 300.00 per month at the time of Occident and as life expectancy is about 70 years, the appellant is entitled to a sum of mare than rupees one lac on account of loss of future earnings besides the amount spent on treatment. The amount of Rs. 10,000.00 awarded by the Tribunal on the face of it is most inadequate. A person injured by another's wrong is entitled to general damages for non pecuniary loss such as his pain and suffering, past and future and his loss of amenity and enjoyment of life. The left leg above the ankle has been amputated. The appellant is entitled to pecuniary loss also. Pecuniary loss is of two categories one negative and the other positive. Deprivation of earnings or other items which would have been received by him but for the accident and have now been taken away is in the negative category. The burden of expenses required to be incurred as a result of accident would be in the category of positive pecuniary loss. It is very difficult to make an estimate in the case of a boy of 23 years whose prospective earning and probable loss connot be properly estimated. It is generally based on guess work very often a rough estimate. The burden of expenses to be incurred as a result of the accident, the costs of medical expenses which the appellant may be required to incur in future have also to be taken into. There is unrebutted evidence on record that the monthly income of the appellant was Rs. 300.00 . He is not in a position to drive the scooter or any other vehicle on account of amputation of his left leg. If the loss of future earning of the appellant is taken into consideration it would be at the rate of Rs. 300.00 per month for a period of 47 years i.e. from the date of the accident up to the age of 70 years and it amounts to Rs. 1,69, 200.00 while the appellant has claimed rupees one lac. Further the appellant is stated to have spent a sunn of Rs. 800.00 on his treatment. Although there is no documentary evidence yet the amount is not an unreasonable one. Besides this for pain and suffering and loss of enjoyment and amenties the appellant is further entitled to some amount which may roughly be taken as Rs.20,000.00 on the basis of various precedents brought to my notice. Thus it seems that the appellant was entitled to more than rupees one lac but he had restricted his compensations claim to rupees one lac. I am, thereforee, of the view that the appellant ought to have been awarded a sum of rupees one lac as compensation claimed by him besides interest.

(4) In Amul Ramachandra Gandhi v. Abhasbhai Kasambhai Diwan and others, 1979 A.G.J.450 a boy of 12 years was injured in the accident. His right leg was amputated. He was required to use crutches and special shoes while going to school. A sum of Rs. 25,000.00 for pain and suffering and loss of enjoyment and amenities of life and Rs. 45,000.00 for future pecuniary loss was awarded. He was also awarded interest. In Rattanjil Kaur v. State of Haryana and others, 1981 AC.J.416 years employed as a clerk drawing Rs. 418.00 per month met with an accident, bones of right leg and right arm were fractured. She was awarded Rs. 75,360.00 for pain and suffering, special diet, disfigurement, conveyance and loss of pay besides interest. In Karnataka State Road Transport Corporation v. A. R. Satishchandra, 1981 A.G.J. 138 left arm of a boy aged 9 years was fractured. His left arm became lifeless and he became permanently disabled. Although it was not a case of amputation but a sum of Rs. 25,000.00 as damages and disability in earning capacity, Rs. 10,000.00 for pain and suffering and loss of amenities of life, Rs. 1000.00 for medical expenses total Rs. 36,000.00 was awarded besides interest. In Ramesh Chandra v. Randhir Singh and others, 1978 A G.J. 252 right foot was amputated. The injured was earning Rs. 300.00 per month. He was awarded Rs. 78.000.00 as compensation besides interest. The Supreme Court in M/s. Concord of India Insurance Co. Ltd. v. Nirmala Devi and others, A.G.J. 55 has observed that the determination of the quantum must be liberal. Further although the accident took place in 1969, the appellant has not received the compensation as yet and the value of money has fallen considerably. Considering the fall in value of money and the entire circumstances of the case, I am of the view that the appellant should get rupees one lac as compensation besides interest.

(5) The Tribunal has observed that the appellant has not examined any medical evidence in support of his version. The main case of the appellant is that on account of the injuries to his left foot his leg above the ankle was amputated. This is sufficient. It is no body's case that the leg of the appellant was amputated for any other reason. The Tribunal granted Rs. 10,000.00 as general damages and the sum ofRs. 800.00 medical expenses was not granted on the ground that he was getting free medical aid in the hospital. The Tribunal erred in observing that there was no evidence that the appellant was not in a position to do the work of a scooter mechanic. I do not appreciate how a person whose leg above the ankle has been amputated can work as a scooter mechanic. A mechanic is required to move about freely and do various jobs while carrying out repairs a scooter or any other vehicle. As a matter of fact no evidence has been led on behalf of the respondents to rebut the version of the appellant. The driver has not been produced. The driver and the owner in fact remained absent and the proceedings were ex parte.

(6) The defenses open to the Insurence Company are limited under Section 96(2) of the Act. Sub-section (2) of Section 9 6 of the Act reads as under:

'96(2): No sum shall be payable by an insurer under Sub-section (1) in respect of any judgment unless before or after the commencement of the proceedings in which the judgment is given the insurer had notice through the court of the bringing of the proceedings, or in respect of any judgment so long as execution is stayed thereon pending an appeal; and an insurer to whom notice of the bringing of any such proceeding i so given shall be entitled to be made a party thereto and to defend the action on any of the following grounds, namely:

(A)That the policy was cancelled by mutual consent or by virtue of any provision contained therein before the accident giving rise to the liability, and that either the certificate of insurance was surrendered to the insurer or that the person to whom the certificate was issued has made an affidavit slating that the certificate has been lost or destroyed, or that either before or not later than fourteen days after the happening of the accident the insurer has commenced proceedings for cancellation of the certificate after compliance with the provisions of Section 105; or

(B)that there has been a breach of a specified condensation of the policy, being one of the following conditions, namely : (i) a condition excluding the use of the vehicle :

(A)for hire or reward, where the vehicle is on the date of the contract of insurance a vehicle not covered by a permit to ply for hire or reward, or

(b) for organized racing and speed testing, or

(c) for a purpose not allowed by the permit under which the vehicle is used, where the vehicle is (a transport vehicle) or (d) without side car being attached, where the vehicle is a motor cycle; or

(II)a condition excluding driving by a named person or persons or by any person who is not duly licensed, or by any person who has been disqualified for holding or obtaining a driving license during the period of disqualification; or

(III)a condition excluding liability for injury caused or contributed to by conditions of war, civil war, riot or civil commotion; or

(C)that the policy is void on the ground that it was obtained by the non-disclosure of a material fact or by a representation of fact which was false in some material particular.'

(7) In British Indian General Insurance Co. Ltd. v. Captain Itbar Singh and others, : [1960]1SCR168 it has been held that an insurer made defendant to the action is not entitled to take any defense which is not specified in Section 96(2) of the Act. In Indian Mercantile Insurance Co. Ltd. v. Chamla Devi and others, 1980 A.G.J. 169 it has been held that an insurance company cannot raise any argument regarding quantum of compensation. Similarly observations were made in Raddipalli Chinnarao v. Beddi Lorurdu and others 1980 A.G.J. 470.

(8) The next question is who are liable to pay the amount of compensation due to the appellant. In the instant case Insurance company respondent No. 3 pleaded that its liability was restricted to Rs. 20,000.00 . The appellant required the insurance company to file the insurance policy but it was not filed. All presumptions may, thereforee, be drawn against the insurance company. If an insurance company does not produce a policy to show that its liability in respect of the accident was limited the insurance company must be held liable for the full amount. The remedy of the insurer, if any, against the insured is provided in Section 96(4) of the Act which reads as under:

'96(4): If the amount which an insurer becomes liable under this section to pay in respect of a liability incurred by a person insured by a policy exceeds the amount for which the insurer would apart from the provisions of this section be liable under the policy in respect of that liability) the insurer shall be entitled to recover the excess from that person.'

(9) In Shyam Lal and others v. The New India Assurance Ce. Ltd. and another, 1979 A.G. J. 208 the insurance company did not produce the policy to show that its liability was restricted or limited. Similarly in Smt. Prem Devi Pandey ami others v. Dayal Singh and others, : 12(1976)DLT280 it has been held that it was the duty of the insurance company to file necessary documents before the Tribunal and if it failed to do so it must bear the consequences. The insurance company was held liable for the full amount. Section 95(2) of the Act prescribes the minimum requirements of insurance policy. It is open to the insurer to cover risk to a larger extent. As already stated the insurance company did not produce the insurance policy and thereforee it is a fit case where presumption ought to have been drawn against the insurance company. I thereforee hold that the insurance company is liable for the full amount irrespective of Section 95(2) of the Act.

(10) The next question is whether the Municipal Corporation of Delhi and the driver of the vehicle arc liable. The Tribunal has held that both were not liable. As far as Municipal Corporation owning Delhi Transport Corporation is concerned I do not find any infirmity in the judgment of the Tribunal. The bus was owned by respondent No. 2. There is an agreement between the owner of the bus and Delhi Transport Corporation which is Ex. RW. 1/1 whereby it was agreed between the owner and the Delhi Transport Corporation that the corporation would not be liable for any civil action during the course of operation of the said bus. Under the Act the owner, 'insurer and driver of the vehicle are liable to pay the compensation. I thereforee hold that the Delhi Transport Corporation under whom the offending bus was being run is not liable to pay compensation to the appellant.

(11) Now the question is whether respondent No. 1 driver is liable. After the accident the first information report was lodged. This has been proved by constable Public Witness . 3 and Exhibited as Public Witness . 3/5. Fir specifically mentions that the bus was being driven by Rai Singh, respondent No. 1. The driver and the owner did not, as already stated, defend the claim. From the evidence it is clear that the bus was driven by respondent No. 1 and thereforee he is liable.

(12) The last question is at what rate and for what period interest should be awarded to the appellant. Section 110-CG of the Act reads as under:

'WHEREany Court or Claims Tribunal allows a claim for compensation made under this Chapter, such Court or Tribunal may direct that in additions to the amount of compensation simple interest shall also be paid at such rate and from such date not earlier than the date of making the claim as it may specify in this behalf'

(13) The accident took place in 1969. The appellant has bean disabled He has not got the amount. The amount becomes due and payable as soon as the accident takes place. On account of pendency of arrears there has been delay in disposal of cases. For this delay the injured and the insured should not suffer. The respondent kept the money with them and utilised the same. The market rate of interest is 15% to 18% per annum. Considering the delay in disposing of the petition, I think interest at 9% per annum from the date of filing of the petition till realisation would be a reasonable amount payable to the appellant.

(14) Learned counsel for the insurance company submits that the details of the injuries were not given by the appellant in the claim petition. Reading the claim petition as a whole it is apparent that the main injury, on the basis of which compensation has been claimed by the appellant, is amputation of his left leg above the ankle. The doctor has not been examined but it does not mean that the appellant is not entitled to compensation. Amputation of the left leg, has not been disbelieved and stands proved and there is no evidence in rebuttal. Learned counsel submits that the maximum liability of the insurance company was for Rs. 20,000.00 . As already observed the insurance company has failed to place on record the documentary evidence available with it and thereforee it must be held that the liability of the insurance company qua the appellant is not restricted in this case. If the insurance company has any claim it can proceed against the owner under Section 96(4) of the Act. Learned counsel further submits that there is no specific issue for the liability of the insurance company. I do not agree. Issue No. 3 is as under :

'TO what amount, if any, is the petitioner entitled by way of compensation for injuries sustained by him and from which of the respondents'.

This is a comprehensive issue. It includes the liability of the insurance company besides the quantum. I thereforee accept the appeal and modify the Award of Tribunal. I award a sum of rupees one lac as compensation to the appellant with interest @9% per annum from the date of institution of the claim petition i.e. 18-8-1969 till realisation with costs against the driver, respondent No. 1, owner, respondent No. 2 and the insurer-respondent No. 3. The appellant's claim against respondent No. 4 is dismissed with no order as to costs. Counsel fee Rs. 300.00 .


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