JUDGMENT
S.N. Bhargava, J.
1. These three appeals arise out of a common order dated 31.12.1990 passed by the Judge, Motor Accidents Claims Tribunal, Jaipur and, therefore, are being disposed of by this common judgment.
2. The facts as mentioned in the memo of appeal are that on 17.11.1985 at about 5 p.m., Dr. Gop Ramchandani (claimant) was going to S.M.S. Hospital, Jaipur, for his duty, on the scooter. A car bearing registration No. RST 364 owned by Manju, which was insured with the New India Assurance Co. Ltd., Jaipur and which was being driven rashly and negligently by Onkar Singh s/o Dool Singh, hit the scooter of the claimant. He was dragged for about 25 feet which resulted in serious injuries on different parts of his body, with the result that the left leg of the claimant had to be amputated. The claimant filed a claim petition before the Motor Accidents Claims Tribunal, Jaipur (hereinafter referred to as ‘the Tribunal’), claiming a sum of Rs. 12,80,000/- as compensation. Since, according to Manju, she had transferred the vehicle to Yogendra Singh, he was also impleaded as a party. After hearing the parties, the Tribunal framed the following issues:
¼1½ vk;k fnukad 17-11-1985 dks okgu la[;k vkj ,l Vh 364 ds pkyd foi{kh la[;k&1 vksadkj flag ds }kjk okgu dks rst xfr o vlko/kkuh ls pykdj nq?kZVuk dkfjr dh xbZ ftlds dkj.k izkFkhZ dks pksV vkbZ o iSj dkVuk iM+kA
¼2½ vk;k foi{kh la[;k&1 okgu Lokeh foi{kh la[;k&2 ds fu;kstu esa dk;Z dj jgk Fkk o fu;kstu dky esa ;g nq?kZVuk dkfjr dhA
¼3½ vk;k izkFkhZx.k foi{khx.k ls 12]80]000@& :ñ dh jkf’k {kfriwfrZ Lo:i izkIr djus ds vf/kdkjh gS] vxj gS rks fdl fdl foi{kh ls rFkk fdruh fdruh jkf’kA
¼4½ vk;k chek dañ dks nq?kZVuk dh lwpuk ugha fn;s tkus ds dkj.k chek dañ dk mRrjnkf;Ro ugha gSA
¼5½ vk;k vkj ,l Vh 364 vukf/kd`r O;fDr ds }kjk pykbZ tk jgh FkhA
¼6½ vk;k chek dañ dk mRrjnkf;Ro 50]000@& :ñ rd lhfer gSA
¼7½ vuqrksÔA
3. After recording evidence of the parties, the Tribunal decided all the issues in favour of the claimant but awarded only a sum of Rs. 1,80,000/- as compensation, holding the non-petitioners as jointly and severally responsible. The award was passed on 31.12.1990. It is against this decision that the insurance company has filed S.B. Civil Misc. Appeal No. 129 of 1991, praying that the liability of the insurance company is to the extent of Rs. 50,000/- in case of persons other than passengers and, therefore, it should not be held liable to pay the whole amount of compensation. It has further been averred that since the driver was not having a valid driving licence, the insurance company cannot be held liable and since on the date of accident the vehicle had been sold by Manju Mathur to Yogendra Singh, the insurance company could not be held liable.
4. Manju has preferred S.B. Civil Misc. Appeal No. 262 of 1991 wherein she has asserted that since she had sold the vehicle to Yogendra Singh, she could not be held responsible and should not be asked to pay compensation on account of the accident, whereas Dr. Gop Ramchandani has filed S.B. Civil Misc. Appeal No. 267 of 1991, praying that the Tribunal has seriously erred in awarding a very paltry sum of compensation and he has prayed that he should be awarded compensation to the tune of Rs. 12,80,000/-.
5. Mr. S.P. Tyagi, learned Counsel for the insurance company, has drawn my attention to National Insurance Co. Ltd. v. Jugal Kishore 1988 ACJ 270 (SC), wherein their Lordships of the Supreme Court have held that a comprehensive policy means comprehensive insurance of the vehicle and entitles the owner to claim reimbursement of damage suffered by the vehicle but it does not mean that the limit of liability with regard to third party risk becomes unlimited or higher than the statutory liability. It has further been held that in case the insurance company wishes to take defence in a claim petition that its liability is not in excess of the statutory liability, it should file a copy of the insurance policy along with its defence. In the present case, it has been submitted that the insurance policy, Exh. D-6, had been filed before the Tribunal which shows that no additional premium was paid and, therefore, the liability of the insurance company is only to the extent of statutory limit of Rs. 50,000/-.
6. The aforesaid case of Jugal Kishore 1988 ACJ 270 (SC), has been relied in Shakuntla v. United India Insurance Co. Ltd. 1989 ACJ 1063 (Rajasthan), wherein this Court has held that one of the defences available to the insurance company is that the person who is driving the vehicle at the time of accident should be in the employment of the owner or he was driving the vehicle on his own or with permission. Since in the present case, the owner of the vehicle Manju has deposed in court that she had sold the vehicle to Yogendra Singh and the driver Onkar Singh was not in her employment and he was never authorised by her to drive the vehicle and in fact Onkar Singh was in the employment of Yogendra Singh, therefore, the insurance company is not liable to pay any compensation whatsoever. Same view has been taken again by this Court in National Insurance Co. Ltd. v. Dakhi 1990 ACJ 827 (Rajasthan). The same view has again been taken by this Court in Oriental Insurance Co. Ltd. v. Evan Lodricks 1991 ACJ 1085 (Rajasthan).
7. On the other hand, learned Counsel for Manju, Mr. S.M. Mehta, Advocate, has submitted that there is a presumption that a vehicle is driven on the master’s business and by his authorised agent or servant. It is a settled law that a master is liable for the acts of his servant acting in the course of his employment. Unless the act was done in the course of employment, the servant’s act would not make the employer liable and the scope of employment should not be viewed narrowly. In this connection, he has placed reliance on a decision of the Supreme Court in Sitaram Motilal Kalal v. Santanuprasad Jaishankar Bhatt 1966 ACJ 89 (SC), which has been relied in Devki Devi Tiwari v. Raghunath Sahai Chatrath 1978 ACJ 169 (Allahabad). He has further placed reliance on Nerati Pichamma v. Pasumala Arogiya 1991 ACJ 251 (AP). He has further submitted that no notice was given to the insurance company as required under Section 103A of the Motor Vehicles Act.
8. Mr. Mehta, learned Counsel for Onkar Singh, has further submitted that since the insurance company has failed to produce the original policy and has not proved the same in accordance with law, therefore, the liability of the insurance company was unlimited and not statutory liability limited to Rs. 50,000/- only and in this connection, he has placed reliance on Mahinder Singh v. Manju Sawhney 1986 ACJ 446 (Delhi).
9. Mr. A.K. Bhandari, learned Counsel for Dr. Gop Ramchandani, the claimant, submitted that the injured claimant is not concerned as to whether the vehicle had been transferred or sold by Manju to Yogendra Singh or not because it is the vehicle which is insured and the accident had taken place by the vehicle. It is immaterial as to who was the real owner at the relevant time. Moreover, unless there is a change in the registration, the ownership of the vehicle is not transferred and the person in whose name the registration stands is supposed to be the owner and should be treated as an owner of the vehicle. In this connection, he has placed reliance on Maina v. Niranjan Singh 1976 ACJ 1 (Rajasthan), wherein after considering the case-law and relying on earlier decisions of this Court, it has been held that mere transfer of ownership being by delivery of possession of a transport vehicle registered under the Motor Vehicles Act does not confer any title in the transferee unless the registration is changed in the name of the transferee in accordance with Section 31 of the Act. If the registration of the truck stands in the name of the original owner he will be taken to be the owner in spite of the transfer and will be liable to pay damages for the death caused by accident. He has further placed reliance on Automobile Transport (Rajasthan) Pvt. Ltd. v. Dewalal 1977 ACJ 150 (Rajasthan).
10. Mr. Bhandari, learned Counsel for the claimant, has further submitted that Section 103-A of the Act cannot be interpreted in a narrow way and the insurance company can only take such defences as are available to it under Section 96(2) of the Act and no more and both, the original owner and the one to whom it is alleged to have been transferred, are held liable to pay compensation, as has been held by the Division Bench of this Court in New India Assurance Co. Ltd. v. Sheela Rani 1988 ACJ 206 (Rajasthan), to which I was also a party. The same view has been taken by this Court again in New India Assurance Co. Ltd. v. Avinash 1988 ACJ 322 (Rajasthan), wherein this Court has again held that the registered owner is the owner of the vehicle for all practical purposes. It is the duty of the registered owner to inform the registering authority within a period of 14 days about the transfer. The mandate of law cannot be flouted and the registered owner cannot escape the liability on the ground that he has transferred the vehicle to the third party. The liability of the registered owner does not cease with the transfer of vehicle. In such cases, the registered owner as well as the real owner both will be jointly and severally liable and responsible for payment of compensation.
11. He has also placed reliance on a judgment of Orissa High Court in National Insurance Co. Ltd. v. Krushna Chandra Das 1990 ACJ 288 (Orissa), wherein it has been observed that the benevolent provision in Section 95 to facilitate the claimants to get their compensation conveniently from the insurer is to be construed in a manner so that large number of claimants get the benefit excepting those in respect of whom the liability of the insurer is clearly limited by the legislature. Pedestrian is not such a person in respect of whom liability has been limited under Section 95(2)(b)(i) of the Act.
12. Mr. Bhandari has further placed reliance on Bachan Singh v. State of Punjab, [Sic. N.K.V. Bros. (P) Ltd. v. M. Karumai Ammal 1980 ACJ 435(SC)] wherein their Lordships of the Supreme Court have held that the Accidents Claims Tribunals must take special care to see that innocent victims do not suffer and drivers and owners do not escape liability merely because of some doubt here or some obscurity there. Save in plain cases, culpability must be inferred from the circumstances where it is fairly reasonable. The court should not succumb to niceties, technicalities and mystic maybes.
13. He has further submitted that the amount of compensation awarded to him is towards the lower side. Dr. Gop Ramchandani had suffered amputation of left leg below knee and also suffered head injuries and the medical evidence produced has suggested 50 per cent permanent disability. The appellant had to spend Rs. 20 to 25 thousand on his treatment, apart from what was reimbursed to him. The doctors have suggested him to get an artificial leg from some developed country to get better efficiency. The social activities of the claimant have also been reduced to 50 per cent and his private practice has also suffered a great loss. Night duty and night visits have come to an end and his mobility has been curtailed by 80 per cent. Amputation of his leg has changed the whole life-style and course of life of the appellant and his further progress is marred. He has become dependent on others. He has then submitted that the amount awarded for mental agony and physical pain is also on the lower side.
14. I have given my thoughtful consideration to the whole matter and have also perused the record of the case as also taken into consideration various submissions made at the Bar and the authorities cited by the learned Counsel for the parties. It is not disputed by either party that Dr. Gop Ramchandani was a very young and promising doctor and associated with several social activities and was connected with many voluntary associations doing social service. He was Secretary of Rajasthan Medical Association, Founder Member and Secretary, Voluntary Blood Bank, S.M.S. Hospital, Jaipur and Member of the Executive of the Tarun Samaj, Member of the Executive of Indian Medical Association and Jaipur Medical Association. While he was going on his scooter on 17.11.1985 from his house to S.M.S. Hospital, car No. RST 364 which was being driven rashly and negligently by Onkar Singh, driver, dashed against him, as a result of which he received very severe injuries and was admitted in the hospital and his left leg below knee had to be amputated. It is also not disputed that the vehicle originally belonged to Manju Mathur who was the registered owner at the time of the accident. In reply to the claim petition, Manju Mathur has submitted that she had sold the vehicle to Yogendra Singh much before the accident occurred and had also handed over possession of the same and at the time when the accident took place, the owner of the vehicle was Yogendra Singh and Onkar Singh who was driving the vehicle at the time of the accident was not under her employment and, therefore, she is not liable to pay any compensation jointly or severally. In spite of service, no reply has been filed by Onkar Singh, driver, nor did he put in appearance and ex parte proceedings were taken against him. On his application, ex parte proceedings were set aside but still he did not file any reply.
15. The insurance company in its reply has also submitted that since it was not informed about the transfer of the registration or of the accident, it is not liable to pay compensation. It has further been asserted that since the vehicle had been sold by Manju Mathur to Yogendra Singh on 18.10.1985 the insurance company was not liable. They have further asserted that even if it is taken that Manju Mathur was the owner of the vehicle, the driver Onkar Singh who was driving the vehicle at the time of the accident was not in her employment nor was he driving the vehicle with her permission and, therefore, Manju Mathur, the registered owner, was not liable for any compensation and. hence, the insurance company is also not liable to pay any compensation to the injured. It has further been asserted that the insurance company is liable to pay compensation only to the extent of the statutory liability of Rs. 50,000/-. Surprisingly no reply has been filed by Onkar Singh nor has he put in appearance before the Tribunal in spite of being impleaded and served. During the course of evidence, it has come out that the payment of fee for transfer of registration in the name of Yogendra Singh was made on 25.11.1985 and an entry with regard to transfer in the registration was made on 31.12.1985. During the course of arguments also, it was not contested by anybody that Dr. Gop Ramchandani was injured by the vehicle on account of its rash and negligent driving and, therefore, he was entitled for compensation, as has been held by this Court in the case of Maina v. Niranjan Singh 1976 ACJ 1 (Rajasthan), which was relied in Dewalal’s case 1977 ACJ 150 (Rajasthan). At the time of accident, the registration was in the name of Manju and for the purposes of the Motor Vehicles Act, at least she will be treated as the owner of the vehicle and, therefore, she is liable for payment of compensation to the injured. Since in fact the vehicle had been sold to Yogendra Singh and he was using the vehicle he also cannot escape the liability for payment of compensation on mere technicalities that the registration had not been transferred in his name and as has been held by this Court in the cases of Sheela Rani 1988 ACJ 206 (Rajasthan) and Avinash 1988 ACJ 322 (Rajasthan), both Manju Mathur and Yogendra Singh are jointly and severally liable for payment of compensation to the injured. The insurance company can take up pleas only which are permitted under the Motor Vehicles Act and, therefore, merely because no notice was given to the insurance company in accordance with Section 103-A, such defence cannot be taken up by the insurance company as it is not one of the defences permissible under Sections 95 and 96(2) of the Act. In the present case, the insurance company has not produced the original insurance policy and has produced only a certificate of insurance, Exh. D-6. The proposal form has also not been produced, which would have shown as to what type of insurance the insured wanted to take. In the evidence also, Ranveer Singh, NAW 3, who has appeared on behalf of the insurance company, has at one stage stated that it is not necessary that for taking the policy, it is a must that the proposal form should be filled. Ranveer Singh further stated that he cannot say whether in the present case, the proposal form was filled or not. Later on, during the course of further cross-examination, he has tried to improve his statement and stated that in the present case, the party did not fill up the proposal form and it is wrong that I have not brought it. But the fact remains that the proposal form is not on record nor the original policy is on record and the insurance company has failed to produce the original policy and, therefore, the insurance company has not proved the original contract or policy of insurance in accordance with law. It has, of course, been admitted that the policy was comprehensive. As has been observed in the case of Jugal Kishore 1988 ACJ 270 (SC), merely because the policy was comprehensive it does not mean that the limit of liability with regard to third party risk becomes unlimited or higher than the statutory limit. The burden to prove this plea was on the insurance company which it has failed to discharge. Orissa High Court in Krushna Chandra Das’s case 1990 ACJ 288 (Orissa), while interpreting the provisions of Section 95(2)(b)(i) has held that the benevolent provision in Section 95 to facilitate the claimants to get their compensation conveniently from the insurer is to be construed in the manner so that large number of claimants get the benefit except those in respect of whom the liability of the insurer is clearly limited by the legislature. A pedestrian is not such a person in respect of whom liability has been limited under Section 95(2)(b)(i) of the Act. It is a beneficial legislation and it should be interpreted in a manner that it helps in fulfilling the object for which the Act was enacted, i.e., the person who has been injured or killed in an accident by a vehicle should have no difficulty in recovering compensation and if the vehicle is insured, the insurance company should be liable to make the payment. In this view of the matter, I am not persuaded to agree with the view of the learned Counsel for the insurance company, Mr. Tyagi, that in the present case the insurance company is liable to pay only to the extent of Rs. 50,000/- by way of compensation as per statutory limit only, more so when the insurance company has failed to discharge its burden in proving and producing the original insurance policy and also the proposal form.
16. In this view of the matter, S.B. Civil Misc. Appeal No. 129 of 1991 has no force and is hereby dismissed and it is held that the insurance company is jointly and severally liable to make payment of the award in favour of the claimant and its liability is not restricted to the statutory limit of Rs. 50,000/- only. S.B. Civil “Misc. Appeal No. 262 of 1991 filed by Manju Mathur is also dismissed and it is held that she is also liable, jointly and severally, to pay the compensation awarded to the injured claimant.
17. Now, coming to S.B. Civil Misc. Appeal No. 267 of 1991 filed by Dr. Gop Ramchandani, the Tribunal has awarded Rs. 50,000/- for physical and mental agony which appeals to be on the lower side. Dr. Gop Ramchandani, at the relevant time, was associated with several social organisations and even as per the doctor’s advice his disability has been assessed to be 50 per cent; his leg had been amputated; he has become dependent on others for all times to come. His scope and capacity to work has been reduced. I think, looking to the facts of the case, the amount on this count should have been Rs. 1,00,000/- instead of Rs. 50,000/-. The Tribunal has awarded Rs. 70,000/- on account of amputation of the leg and Rs. 50,000/- for permanent disability. This also seems to be on the lower side and I grant him Rs. 1,00,000/- on this count as well. The Tribunal has also awarded Rs. 10,000/- for the loss of salary on account of his admission in the hospital and for special food which seems to be reasonable and no increase is necessary. He has also been awarded Rs. 50,000/- for the loss of his social life and loss in profession which is also very little in comparison to his bright future and I award Rs. 1,00,000/- on this count.
18. In the result, S.B. Civil Misc. Appeal No. 267 of 1991 is partly allowed as indicated above. No order as to costs.