Guman Mal Lodha, J.
1. This appeal filed by the owner of Vehicle No. RRL 7626, and cross-objections by the claimant arise from the accident claims case No. 31 of 1974 decided on 2nd December, 1978.
2. There was a collision between two buses, No. RRL 551 in which Ramswaroop, the claimant, was travelling, and No. RRL 7626, on 17th March, 1974 on account of which Ramswaroop, received serious injuries due to which his right hand was amputated.
3. The Tribunal has held that the driver of both the vehicles were rash and negligent in driving. This part of the finding is not under challenge before this Court. The Tribunal has then held that Ramswaroop would get Rs. 20,000/- as compensation, out of this, Rs. 15,000/- ordered to be paid by the driver Purshottam and the owner Abdul Zabbar, of the bus No RRL 7626, jointly and severally. The costs of Rs. 200/- were also allowed against the insurance company. However, the insurance company with which the bus No. RRL 7626 was insured was held to be not liable but, the insurance company ie. the respondent No. 6, with which the bus No. RRL 551 (the owner of it is Sarfruddin and the driver is (Surajmal) was insured, was held to be liable to pay the compensation of Rs. 5,000/-.
4. In this appeal, Mr. Prakash Chand Jain, the learned Counsel for the owner of the bus No RRL 7626 pointed out that there is a mistake on account of which the award should not have been more than Rs. 11,000/-. Mr. Srivastava, the learned Counsel for the claimant, on the contrary, submitted that the finding regarding contributory negligence of Ramswaroop cannot be sustained because it has been held by this Court in Suraj Narain v. Sneh Lata 1985 ACJ 580 (Rajasthan), that when the two buses or two vehicles pass against or cross each other, then it is the duty of the drivers to leave ample space in between the vehicles and, merely because the passenger's hand was projecting outside, it cannot be said that the passenger is guilty of contributory negligence.
5. Mr. Srivastava, in support of this contention, relied upon the decisions of Madhya Pradesh and Delhi High Courts in Sushma Mitra v. M.P. State Road Transport Corporation 1974 ACJ 87 (MP) and Delhi Transport Undertaking v. Krishnawanti 1972 ACJ 423 (Delhi) and argued that the finding of contributory negligence of Ramswaroop is erroneous and cannot be sustained.
6. I am inclined to accept the contention of Mr. Srivastava that when two vehicles cross each other, it is the duty of the drivers to keep ample space in between and, merely because a part of hand of a passenger projects outside, it cannot be said that he is guilty of negligence. In such cases, it is again the duty of the driver to ensure by proper instructions from time to time that no passenger keeps his hand or part of his hand projects outside of the window and this has not been proved in this case. In view of the above, the apportionment awarded by the Tribunal need not be gone into for the finding whether they are correct or not.
7. The claimant was 22 years of age at the time of the accident and the Tribunal held that there was expectancy of 38 years more. The Tribunal held that the loss of expected income on account of. amputation of hand was Rs. 50/-per month as he was earning Rs. 250/- per month at the time of the accident. He was also student at the time in the Vidhya Bhawan College.
8. I am of the opinion that the complete loss of right hand on account of amputation at this young age of 22 years is very serious type of permanent disability and the Tribunal was too conservative in assuming the loss of income at Rs. 50/- per month only, even of the assumption that the income at the time of the accident was Rs. 250/-per month. The claimant was just at the threshold of his life being only 22 years of age and with the education and further performance and improvement in the prospects of his career, he was bound to earn much more. The amputation of right hand is a serious type of handicap for a person and, therefore. I am inclined to accept the contention of Mr. Srivastava that, atleast Rs. 100/- per month should be calculated for the loss of expected income on account of the amputation of the hand. The amount for 38 years comes to Rs. 45,600/-. The mental agony and physical suffering also deserves compensation of atleast Rs. 5,000/-. Thus, the above amount comes to Rs. 50,600/-.
9. The finding of the Tribunal is that 3/4th liability is of bus No. RRL 7626 and 1/4th of bus No. RRL 551. In view of this, Abdul Zabbar and the driver Purshottam are held liable to pay the damages and compensation of Rs. 37,950/-.
10. The Tribunal has exonerated the insurance company with which the bus No. RRL 7626 was insured, in respect of the liability of Abdul Zabbar on the ground that Puroshottam driver had no licence to drive the vehicle. Both Mr. Jain and Mr. Srivastava pointed out that the insurance company has not produced the insurance company containing the condition that the liability was conditional and the condition being that the vehicle must be driven by a person holding valid licence.
11. Confronted with the above, Mr. Bhargava appearing for the insurance company, submitted that though the policy of insurance has not been submitted but, Purshottam-driver has admitted that be had no valid licence to drive this vehicle and, therefore, the finding of the Tribunal should not be disturbed.
12. In New India Assurance Co. Ltd. v. Sushila Devi Sharma 1981 ACJ 119 (Rajasthan) this Court has held that the burden of proof in this respect is on the insurance company. In the instant case, the insurance company has firstly failed to produce the insurance policy to show that there was any such condition and, secondly to lead evidence that there was no valid licence. In my opinion, admission of the driver who, himself, is non-applicant and is likely to be held for the damages and compensation, cannot be treated as an admission against the claimant It was the duty of the insurance company to first prove that there was a condition in the policy that the liability of the insurance company would be only if the vehicle is driven by a person holding a valid licence and, then, it was necessary for them to prove that Purshottam had no valid licence. Since both the above have not been proved, the insurance company cannot be absolved of the liability and, I hold that the insurance company which was insurer of the bus No. RRL 7626, is liable to indemnify the owner of it, viz., Abdul Zabbar to the full extent.
13. The result of the above discussion is, that the cross-objection is accepted. The appeal of the owner of the bus No. RRL 7626 is partly allowed and the award of the Tribunal is modified as under :
(1) that, the claimant-Ramswaroop would get damages and compensation for this accident from the following to the following extent:
(i) Abdul Zabbar and Purshottam jointly and severally liable for Rs. 37,950/-. The insurer of the bus No. RRL 7626, viz. United India Fire and General Insurance Company Limited would be liable to indemnify the owner of the bus for the above amount of Rs. 37,950/-.
(ii) Sarfruddin, the owner and Surajmal the driver of the bus No. RRL 551 jointly and severally liable for Rs. 12,650/-. The insurer of the bus No. RRL 551, viz United India Fire ft General Insurance Company Limited would be liable to indemnify the owner of the bus to the extent of Rs. 5,000/-as held by the Tribunal.
(2) that the claimant would get interest from the date of application till date of realisation at the rate of 12 per cent on the above amount of Rs. 50,600/- from the non-claimants-respondents at their respective proportionate rate.
(3) that, the amount already paid would be adjusted in execution of the award.
(4) that, in other respects, the impugned award is confirmed.
14. With the above modifications, this appeal is partly allowed. The parties would bear their own costs so far as this appeal is concerned.