C.G. Suri, J. - (1.) THE owners and the driver of a motor vehicle involved in an accident have filed this joint appeal against the award of the Motor Accidents Claims Tribunal, Ludhiana given on the application of the claimant Harnek Singh Respondent No. 2, under Section 110A of the Motor Vehicles Act. The National Insurance Company Limited, Respondent No 1, with whom the vehicle was insured before it was purchased by Appellant No. 1, had been absolved from liability because Appellant No. 1 had not taken out any fresh policy of insurance after purchase of the vehicle about a month before the accident.
(2.) ON 24th August, 1967 at about 1 p.m. Harnek Singh Respondent No. 2, a dairy owner, aged 35 years, was going on a cycle from Ludhiana City to a suburb known as Gurdev Nagar when he was knocked down and run over by the Oil Tanker No. PNL -6033 belonging to Appellant No. 1 and being driven at the time by Appellant No. 2. There was a complete fracture of the two bones of his right lower leg and this limb had to be amputated at the knee after a few weeks. A report about the accident was lodged within a few minutes to A.S. I. Gopal Dass by Puran Singh A.W., a disinterested passerby. Kuldip Singh A.W. 5 was another eye -witness of the accident. Both these persons along with the injured had given a consistent account of the occurrence before the learned Tribunal. Their testimony was fully corroborated by the report lodged in writing so soon after the accident that there was hardly any time to give the version any finishing retouches. According to the testimony of these eye - witnesses the Oil Tanker had come at a fast speed and could not be stopped for more than 15 yards after it had knocked down and run over the cyclist. The accident had taken place in a crowded locality and the presence of the witnesses may appear quite natural. The doctrine of res ipsa loquitur would be fully applicable. Mr. Suri, the learned Counsel for the Appellants, has not advanced any convincing argument why the finding of the Tribunal on the first issue should not be sustained. Appellant No. 2 had admitted that he was driving the vehicle at the time of the accident. No independent witnesses had been examined by the Appellants and they had made inconsistent statements which went beyond their pleadings and which could as such be described as an after -thought. As regards the quantum of damages, it may appear lucky for the Appellant that no appeal or cross -objections have been filed by the claimant for the enhancement of the amount. The medical evidence is that the claimant has suffered a permanent disability because of the loss of an important limb. The claimant is a dairy owner and it was brought out during his cross -examination that he owns more than a score of milch cattle. This may seem to represent an investment in business of about half a lakh of rupees and it is not very clear as to how the learned Tribunal has come to the conclusion that the claimant had sustained a loss of only Rs. 50/ - per month in his income. In view of the disability, the claimant has to employ a wholetime labourer to assist him in the dairy business. The most unskilled labourer cannot be had for less than Rs. 4 or Rs. 5 per day. An employee would insist on fixed hours of work and a day off every week but the milch animals have to be attended to at all hours and not all week days. It is, therefore, obvious that the claimant shall have to pay the labourers employed by him at higher rates than those prevailing in the market. He had to spend about Rs. 2,000/ - on treatment, medicines and an artificial limb. Under the circumstances, the amount of Rs. 18,000/ - awarded as damages cannot be described as lavish even if we adopt the most conservative standards.
(3.) MR . Suri then argued that the Insurance Company has wrongly been absolved from liability. His main reliance is on a Division Bench ruling of this Court in New India Assurance Co. Ltd. v. Moti Ram and Ors., 196 A.C.J. 312. In that ruling, there was no allegation that the vehicle was being driven without the permission of the insured. An extended clause of the policy in that case was relied upon to come to the finding that the driver of the vehicle was to be indemnified by the Insurance Company even though the insured had sold the vehicle to someone else. It had been conceded in that case that the seller of the motor vehicle had retained some sort of an interest in the vehicle even after it had been sold. In Jupiter General Insurance Co. Ltd. and Anr. v. Gurcharan Singh and Ors. : 1966 A.C.J. 382, a Single Bench of this Court had held under similar circumstances that the Insurance Company would be liable even after the sale of the motor vehicle but the finding in that case was that the seller of the vehicle had continued to retain a control over the vehicle even after the sale because the transferee was using the route permit issued in favour of the previous owner, who had taken out the insurance policy. The facts in our case are, however, altogether different. The Insurance Company had taken the clear plea in its written statement that after the sale of the Oil Tanker, the Motor driver was not acting under the instructions of the insured, in order to invoke the extended clause of the Insurance Policy, it would be necessary to prove that Appellant No 2 was driving the motor vehicle on the orders of the insured or with his permission. There is no evidence worth the name on that point. In Sitaram Moti Lal Kalal v. Santanuprasad Jaishankar Bhatt and Ors. : 1966 A.C.J. 89 the Hon'ble Judges of the Supreme Court were pleased to hold that the owner of a motor vehicle would not be vicariously liable in torts even though he had entrusted the car to another for plying it as a taxi and even when that other person had allowed the cleaner to use the car for taking driving lessons. In this case, decided by the Hon'ble Judges of the Supreme Court, the owner had clearly retained some sort of control over the vehicle as there had been no out and out transfer. Still the cleaner, who had caused an accident while taking a driving test, could not claim to be indemnified by the Insurance Company as the owner of the car, who had entrusted it to another for plying as a taxi, was not liable as a principal. A similar view may appear to have been taken by another Single Bench of this Court in Joginder Nath and Anr. v. Shanti Devi and Ors., 1966 A.C.J. 150. A driver would be presumed to drive the vehicle for and on behalf of the owner unless the contrary is proved by cogent evidence. The owner of the vehicle at the time of the accident in the present case was Appellant No. 1 and the driver is to be presumed to be acting under his control and orders. As Appellant No. 1 was not the insured under the policy taken out by the seller, none of the Appellants can call upon the Insurance Company to indemnify them.;