M.B. Shah, J.
1. The Insurance Company being aggrieved by the judgment and order dated 29th February 1980 passed by the Motor Accidents Claims Tribunal No. 1 Nadiad in Motor Accident Claim Applications Nos. 164/79, 165/79, 172/79 and 215/79 has preferred First Appeals Nos. 131/81, 132/81, 133/81, 134 and 135/81. Along with these appeals the original applicant minor Yogeshkumar Vithalbhai Patel has filed Cross Appeal No. 472/81 against the said judgment and order where by the learned Tribunal has awarded Rs. 6,500/- proportionate costs and interest at the rate of 6% per annum for enhancing the said award of compensation and has prayed that in all Rs. 25,000/- ought to have been awarded to him for pain and suffering and for medical expenses.
2. Before dealing with the Contention of the Insurance Company, the short facts of the case are that on 4-1-79 respondent No. 1 Bhanubhai Dhulabbai Bharwad was the driver of the motor truck bearing No. GTY 4539. The said truck was owned by respondent No. 2 Himatlal Mohanlal Acharya. It is no doubt alleged that the said truck was transferred by respondent No. 2 in fayour of respondent No. 3 Ukabhai Vaghjibhai Bharwad. The said truck was insured with the New India Assurance Co. Ltd. The minor Yogeshkumar Vithalbhai Patel i.e. the claimant in M.A.C. Application No. 164/79 boarded the said truck with the other schoolmates and teachers of the school to visit Thermal power station at Kuni from Timba station. It is the case of the claimants that respondent No. 1 was driving the said truck rashly and negligently with excessive speed at about 1 to 1-30 p.m. when the truck was crossing Mahi river bridge. There was another truck coming from the opposite direction and a third truck No. GTD 5483 was standing on the road. While overtaking the third truck respondent No. 1 drove rashly; with: excessive speed and dashed with the standing truck as a result of which two persons died on the spot and the respondent No. 4 (applicant) and others were injured. In this group of appeals we are concerned with claims of injured, persons and not of the heirs of the persons who have died because of the accident. The following table would show the claims, the claims, No. of application and the name of the claimant and the No. of First Appeal and the amount awarded by the Tribunal:
F.A. M.A.C. Name of the Claim Award
131/81 164/79 Minor Yogesh- Rs. 25,000/- Rs. 6 00/-
Appeal ... Vithal- Rs. 18,500/-
472/81 ... bhai (Addl. Ckum)
132/81 165/79 Minor Khodabhai Rs. 9,999/- Rs. 2,500/-
133/81 172/79 Mulshanker
Sharma Rs. 19,500/- Rs. 12,000/-
134/81 173/79 Minor Takhatsinh
Natwarsinh Rs. 15,000/- Rs. 15,000/-
135/81 215/79 Mansuri Isufbhai Rs. 19,999/- Rs. 19,999/-
3. Before the Trial Court respondent No. 3 had not appeared. Respondent No. 1 driver has filed his written statement Ex. 25. In his written statement he has admitted that he was driving the aforesaid truck No. GTY 4539 and that applicants along with teacher boarded the said truck from Timba Station. He denies that the truck was driven by him rashly and negligently. In paragraph 6 of the written statement he has specifically admitted that respondent No. 2 Himatlal Mohanlal Acharya was the owner of the truck and that he was serving with him as a driver of the said truck. He has not entered the witness Box nor has led any evidence before the Tribunal. Even be has not filed the affidavit in support of his written statement or to prove his case.
4. Respondent No. 2 has filed the written statement Ex. 32. He has denied that he was the owner of the said truck and that respondent No. 1 was serving as his driver for the said truck. It is his say that he had purchased the said truck on the basis of hire-purchase and on 17-8-77 he sold the said truck to respondent No. 3 Ukabhai Vaghjibhai Bharwad and the possession of the said truck was also handed over to him. He also averred that for sale of the said truck a document was executed and, therefore, he was not liable for the alleged accident. Before the Tribunal he has not stepped into the witness Box, nor bad he filed the affidavit nor has he led any evidence in support of his say. The Insurance Company has filed two written statements one Ex. 17 and the other Ex. 39. In the both the written statements the liability of the Insurance Company is denied mainly on the ground that they were not in a position to find out the copy of the insurance policy alleged to have been taken by either respondent 2 or 3 as no details of the policy were given in the written statement and it was impossible for the Insurance Company to trace the policy of the said vehicle. It was further contended that admittedly the claimants were travelling in a goods' Vehicle and, therefore, also the Insurance Company would not be liable to pay the damages or compensation to the claimants. It is further contended that the Insurance policy specifically prohibits the use of goods' Vehicle for conveyance of passengers for hire or reward.
5. After considering the affidavit of Mulshanker Sharma Ex. 66 who was travelling by the said truck with his son Bhavanishanker who died as a result of the accident, along with the affidavit of Isufbhai Umarbhai Ex. 68 the learned judge arrived at a conclusion that the truck was driven fast by the driver respondent No. at about 1-30 p.m. and had suddenly dashed against the stationary truck because the driver lost control over the said vehicle. The driver was trying to overtake the latter truck and did not only slow down his vehicle inspite of a third vehicle coming from the opposite side. In the cross-examination of these two witnesses nothing material has been brought out so as to discredit their version. The driver has not stepped into the witness Box. In this set of circumstances the learned Judge has rightly held that driver of the truck was rash and negligent and because of his rashness and negligence the accident occurred which caused injuries to the claimants.
6. In this appeal, the learned advocate for the appellant Insurance Company has contended that the Insurance Company is not liable to satisfy the award because at the time of accident there was no subsisting contract between the Insurance Company and the respondent No. 3, owner of the Vehicle, and therefore the order passed by the learned judge holding that the Insurance Company is liable to pay the damages is illegal. He further contended that as the claimants were gratuitous passengers, therefore also the Insurance Company is not liable to pay the damages.
7. Now with regard to the first contention of the appellant Insurance Company, the learned Judge has rightly considered that there is no evidence on record to show or prove that respondent No. 2 had transferred the said truck in favour of respondent No. 3. As stated above, respondent No. 2 has not led any evidence before the Court. He had not filed his affidavit to support his say he had transferred the said truck in favour of respondent No. 3 the written statement of respondent No. 2 there is a specific admission on the part of the driver in his written statement paragraph 6 that he was serving as a driver with respondent No. 2 and he had not stated that he was driver of respondent No. 3. Respondent No. 2 has produced on record Ex. 37 which is alleged to have been executed on 17-8-77. For proof of the said document no evidence is led by respondent No. 2. The said document is on a Stamp Paper, but the said document no where mentioned the date of its execution. None of the attesting witnesses of the execution of the said document is examined before the Court. The said document is alleged to have been executed by respondent No. 2 for sale of the impugned truck. In the said document it is specifically mentioned that the truck was to be transferred in the name of respondent No. 3 in the office of R.T.O.
8. The execution of this document is not proved. Its contents are not proved by either respondent No. 2 or respondent No. 3. It cannot Be said that the truck was transferred by respondent No. 2 in favour of respondent No. 3. Apart from this, if really the truck was transferred by respondent No. 2 on 17th August 1977 as alleged by him, then it is surprising that for two years i e. till the date of accident in R.T.O.'s Office it remained in the Name of respondent No. 2. On record Ex. 90 is produced which is a letter written by the Assistant Regional Transport Officer, Kutch Bhuj. on 25th January 1979 wherein it has been specifically stated that the owner's name of the said truck was Himatlal Mohanlal Acharya i.e. respondent No. 2 and the name of the Insurance Company was The New India Assurance Co. Ltd. and that the policy was for the period commencing from 22nd April 1978 to April 1979. Neither party has disputed this document further, looking to Ex. 38 which is a certificate for the Insurance Policy, it mentions that for the truck GTY 4539 policy No. MVC 4114912278 was taken by the insured Himatlal Mohanlal Acharya and the insurance policy was effective for the period commencing from 22nd April 1978 to 21st April 1979. If really Himatlal had transferred the said truck in August 1977 to respondent No. 3, what was the necessary for him to pay premium and the insurance for the said vehicle. I, therefore, hold, that the learned Judge was right in holding that respondent No. 2 was the owner of the said vehicle and that he had taken insurance from The New India Assurance Co. Ltd. covering the risk for the said truck. The learned judge has rightly not relied upon the alleged agreement ex. 37 as discussed above. Even though the certificate was produced on record at Ex. 38, in Ex. 39 which is a written statement filed by the Insurance Company it has been stated that insured had not given the No. of the policy or the insurance certificate No. and the office from where it was issued, it was impossible for the Insurance Company to trace the policy of the said vehicle. In my view, this gross negligence on the part of Insurance Company in not producing the policy or copy of the policy before the court. Before the Tribunal the learned advocate Shri R.M. Gandhi has concerned that if the name of respondent No. 3 is not entered as registered owner in the R.T.O. record, the transfer would not be complete for the purpose of fixing liability, therefore the learned Judge was right in holding that the Insurance Company was liable to pay damages along with other respondents.
9. With regard to the second contention of the Insurance Company that the claimants were gratuitous passengers and hence the Insurance Company is not liable, it can be said that no such contention was raised by the Insurance Company in its written statement. Further, looking to the evidence Mulshanker Sharma Ex. 66 and the affidavit of Mansuri Isufbhai Ex. 68 it is clear that Mulshanker had paid 60 paise as fare for himself and 30 paise as fare for his son. Mansuri Isufbhai has also paid Rs. 1/- as a fare for boarding the said truck. As respondent No. 1 has not stopped into the witness Box, there is no reason to disbelieve the say of these two witnesses. Further, the learned Judge was right also in holding that the claimants would get seat in the truck without paying as a fare for the seat. In this set of circumstances, it cannot be said that the claimants were gratuitous passengers.
10. Admittedly in this case the Insurance Company has not produced on record the Insurance Policy. In the case of New India Insurance Co. Ltd. v. Smt. Nathiben, reported in 23(1) G.L.R. 411 the Full Bench of this Court has held as under:
The liability in respect of the death of or bodily injury to a passenger carried for hire or reward on the insured vehicle when the accident giving rise to the claim occurred, including the liability in respect of the owner or hirer of the insured vehicle or his bona fide employees within the permissible limit, will be covered by the statutory insurance either by virtue of Section 95(1)(b)(1) read with the second clause of the proviso or by reason of Section 95(1)(b)(ii) of the Act. In such a case, the insurer will have to pay to the person entitled to the benefit of the award the sum assured, which shall be less than the sum specified in Section 95(2), subject, however, to the right of the insurer to disclaim the liability, inter alia, Under Section 96(2) (b)(i)(a). The insurer, in order to successfully disclaim his liability on that ground, will have to establish:
1. that on the date of the contract of insurance, the insured vehicle was expressly or implicitly not covered by a permit to carry any passenger for hire or reward,.
2. that there was a specified condition in the policy which excluded the use of the insured vehicle for the carriage of any passenger for hire or reward, and.
3. that the vehicle was in fact, used in breach of such specified condition on the occasion giving rise to the claim by reason of the carriage of the passenger therein for hire or reward.
If all these facts are established by the insurer, the benefit of statutory insurance will hot be available in respect of such passenger. In other words the claimant in such a case, be he the passenger himself or his dependent, will be able to recover from the insurer the amount, if arty, awarded in his favour to the extent specified in Section 95(2) and the insurer will not be liable to satisfy such award.
In view of this, the appeals filed by the Insurance Company deserve to be dismissed.
11. Still, however, the question which required consideration is whether in the cross Appeal No. 472/81 filed by minor Yogeshkumar the compensation awarded by the learned Tribunal requires to be enhanced. The learned Judge has awarded Rs. 5000/- under the head of pain and suffering and loss of amenities and enjoyment of life and Rs. 1500/- for the medical expenditure.
12. The learned advocate for the appellant submitted that looking to the evidence of Dr. Dholakia Ex. 82 it it clear that he had examined Yogesh Kumar on 9-10-1979 and he found that the fracture of the shaft femur on the left side was well united. The patient was having partial permanent disability of 20% of the working of the left lower limb. The Doctor was cross-examined and he has admitted that he had not treated the patient but he has merely assessed the disability. There is no other or further cross-examination of this Doctor as to on what basis he has arrived at the conclusion that the patient was having 20% disability of the Working of the left lower limb. The learned advocates for Respondents No. 2 and 4 submitted that the evidence of this Doctor cannot be relied upon as he has not given any reason for arriving at this conclusion. In my opinion, the said submission is without any basis Dr. Dredash Kumar is an Orthopedic Surgeon in the Civil Hospital at Godhara. It is his say that he had examined Yogesh Kumar and after examining him he found that there was well united fracture but at the time the patient had partial permanent disability of 20% of the working of the left lower limb. Once the medical expert had examined the patient and had arrived at a conclusion specifically that there was partial disability of the working of the left lower limb to the extent of 20% and when his evidence is not doubted by the respondents by asking him any questions in the cross-examination it would not be proper to discard the evidence of this witness. The Doctor has further produced on record Ex. 51 which is a certificate issued by the Resident Medical Officer, Civil Hospital, Godhara, that the patient is an old case of fracture shaft femur left side, having partial permanent disability of 20%. Further, looking to the affidavit of Ex. 64 filed by the father of minor, it is clear that the minor Yogesh Kumar was hospitalized for 2 to 2 1/2 Months and thereafter again he was taken to the hospital because of pain and again he was treated. According to his say the left of Yogesh Kumar was slightly shorter and that he was limping while walking. It is his say that during the treatment the minor was having tremendous pain and mental shock. He has also produced at Ex. 75 'which is a note book containing the account of expenses for the treatment of his minor son. There is also the certificate issued by the Medical Officer, Civil Hospital, Godhara, Ex. 76, dated 11-1-1979 wherein it is stated that Yogesh Kumar was examined on 4-1-1979 at about 3-45 p.m. and he had the following injuries:
(i) Diffused tender swelling on middle 1/3rd of Lt thigh CXLX 4'X3' muscle deep on posterploteral aspect of lower 1/3rd of Lt thigh.
(ii) CXLXW oblique 1'X1' muscle deep on Lt gluteal region.
X ray No. 30 Date 5-1-1979 shows fracture lower 1/3rd (1) Femur.
In view of the aforesaid evidence it is clear that minor Yogesh Kumar was having fracture and that he was hospitalized for the first time for a period of 2 to 2 1/2 Months and thereafter again as he was having pain, he was treated by the Doctor. No doubt there is no evidence on record to show that his left leg was shortened. But looking to the fact that Yogesh Kumar was hospitalized nearly for 4 months and looking to the fact that he was having fracture and further considering that he was having 20% partial permanent disability of working of left lower limb and that a minor aged about 13 to 14 years-was required to undergo long and painful treatment in hospital for nearly 2 to 2 1/2 months and that subsequently also he was treated and looking to the nature of the injury, in my opinion it would be just and proper to award Rs. 10,000/. on the head of pain and suffering and loss of amenities and enjoyment of life. Further, looking to Ex. 77 arid tooking to ttie fact that the appellant was required to be treated nearly for 4 months, the learned Judge ought to have awarded Rs. 2500/- for the past and future medical treatment and incidental charges.
13. In the result, the appeal filed by the appellant Yogesh Kumar is partly allowed and that the appellant is entitled to have compensation of following sums:
for pain and suffering and loss of amenities
Rs. 10,000/- and enjoyment of life.
for past and future medical treatment and
Rs. 2,500/- incidental charges.
The learned Judge has awarded Rs. 6500/-. Therefore, the appellant is entitled to have an additional compensation in the sum of Rs. 6000/- with interest of 6% till realisation. The Insurance Company will deposit the amount awarded herein in the Tribunal within a period of eight weeks from today. Upon such deposit being made, the entire amount including costs and interest awarded in this appeal will be invested in Fixed Deposit with a Nationalised Bank for a period of ten Years and subject to a further condition that such Fixed Deposit shall not be enchased by him and no loan shall be raised by him against the said Fixed Deposit till its maturity save and except with the permission of the Tribunal. Meanwhile the appellant will be entitled only to the interest accruing due on such Fixed Deposit periodically. The appeal is partly allowed with costs.
14. In the result, the appeals filed by the Insurance Company are dismissed with costs and the appeal filed by the claimant Yogesh Kumar is partially allowed with costs.