NEW INDIA ASSURANCE CO LTD Vs. SURINDER PAUL

JUDGEMENT

(1.) GURMUKH Singh was driving tractor trolley No. PBQ-7285 rashly on 8-11-1982 while coming out of the fields in Nauranshanpur, Tehsil Phagwara, District Kapurthala causing injuries to Surinder Paul, aged 16, a carpenter who was on his own rickshaw rehri. There is a kind of permanent disability in the right hand of the injured and his right kidney was also removed in Christian Medical College, Ludhiana, Mrs. Bakhshish Kaur acting as Motor Accident Claims Tribunal, Kapurthala awarded a compensation of Rs 44,000/- and Gurmukh Singh the driver respondent No. 1, Pala Singh the owner respondent No. 2 and M/s New India Assurance Company Ltd. were held liable by its order dated 28-8-1984.

(2.) THE present appeal has been preferred by M/s. New India Assurance Company Ltd and their plea is that Gurmukh Singh did not hold a driving licence at all and though this plea was taken from the beginning and evidence also adduced on it, and the finding of the trial Court deserves reversal vis-a-vis the New India Assurance Company Ltd the sole appellant.

(3.) P. W 2 Dr. I J. Christopher of C. M C Hospital, Ludhiana who appeared in the trial court after examining the injured in the court has opined that the right hand of Surinder Paul has been permanently damaged and his disability was 70 per cent which was not expected to minimise in future. P. W. 3 Surinder Paul the injured and P. W. 5 Gurmeet Ram a labourer who is also a resident of the same locality and an eyewitness have specifically deposed that Gurmukh Singh was driving the tractor trolley. The denial of Gurmukh Singh is not convincing, notwithstanding that here in evidence Gurmukh Singh has also deposed that his right arm was missing since long and he was not even capable of driving a tractor. On the contrary the fact that he did not consider himself capable of driving a tractor but still he did so, goes to establish his negligence. Gurmukh Singh has not produced his driving licence either at the time of filing of the written statement or when his evidence was recorded or even at any subsequent stage On behalf of the appellant it has been pointed out that after trial Gurmukh Singh was convicted for offence under Sections 279/338, I. P. C. and he was given benefit of Probation of Offenders Act and burdened with costs amounting to Rs. 4,000- by the Court at Phagwara on 6-1-1984 and he has specifically said in his cross-examination that he did not prefer any appeal against his conviction. The learned counsel for the appellant has stressed the only question which requires determination is whether the Insurance Company could be made liable when the driver did not possess licence. He has referred to Shri Kashiram Yadav and Anr. v. Oriental Fire and Gen Insurance Co. , A. I. R. 1989 S. C. 2002, in support of his contention. Another authority relied upon is The Anand Insurance Company Ltd. v. Hasanali, 1975 A. C. J. 471, where also the insurance company had specifically pleaded that the driver was a person not authorised to drive the vehicle as he had no driving licence. In order to meet such a plea it was for the driver to produce the licence. Any authority to the contrary has not been referred to by the learned counsel for the respondents. The conclusion is that the appeal is accepted and it is held that the amount of compensation awarded by the learned trial court was recoverable only from respondent Nos. 1 and 2 not M/s New India Assurance Company Ltd. There is, however, no order as to costs.