Birjesh Kumar vs Roop Chand And Ors

FAO-2860 of 2002 (O&M) -1-
225 IN THE HIGH COURT OF PUNJAB AND HARYANA
AT CHANDIGARH
FAO-2860 of 2002 (O&M)
Date of Decision: 8.9.2026

Birjesh Kumar ......... Appellant

Versus
Roop Chand and others .....Respondents
CORAM: HON'BLE MR. JUSTICE YASHVIR SINGH RATHOR
Present : Mr. Sandeep Chhabra, Advocate for the appellant.
Respondents No.1 and 3 ex parte before the Tribunal.
Mr. Ram Bhati, Advocate, Amicus Curiae for respondent
No.2.
Mr. Vinod Gupta, Advocate for respondent No.4 -
Insurance Company.
*
YASHVIR SINGH RATHOR , J. (Oral)
1. On the request of learned counsel/Amicus Curiae for
respondent No.2, the matter is being taken up in post lunch session.
2. This appeal has been instituted by claimant for enhancement
of compensation against the Award dated 1.3.2002 passed by MACT,
Yamunanagar at Jagadhri ( for short “Tribunal” ) in MACT Case No.22
of 11.02.2000 in a petition under Section 166 of Motor Vehicles Act,
1988 vide which a sum of Rs.60,000/- has been awarded as compensation
to the claimant/appellant along with interest 9% per annum on account of
injuries suffered by him in a motor vehicular accident due to rash and
negligent driving by respondent No.1 to the extent of 67% while driving
offending vehicle No.HR-37-2401 Tata-608) ( for short ‘offending
RENU
2026.09.10 18:05
I attest to the accuracy and
integrity of this document

FAO-2860 of 2002 (O&M) -2-
vehicle’ ), owned by respondent No.2, which was insured with respondent
No.4 and and due to his own negligence while driving the rickshaw to the
extent of 33%.
3. It is pertinent to mention that the record of the present appeal
and the Tribunal has got burnt in a fire incident in the High Court
Registry and the present appeal has to be decided on the basis of the facts
and evidence discussed by the Tribunal in the impugned award.
4. From the pleadings of parties, following issues were framed
by the learned Tribunal:-
“1. Whether the accident resulting into injuries to the
claimant was caused due to rash and negligent
driving of four wheeler No.HR-37-2401 by respondent
no.1?OPP
2. Whether the claimant is entitled to compensation. If
so how much and from whom?OPP
3. Whether respondent no.1 was not having a valid
driving licence at the time of the accident?OPR
4. Whether the claim petition is not maintainable?OPR.
5. Whether the claim petition is bad fro nonjoinder and
misjoinder of parties?OPR.
6. Relief.
5. Thereafter, the parties led evidence in support of their case.
6. After hearing the parties and going through the material on
the file, learned Tribunal awarded a sum of Rs.60,000/- as compensation
to the claimant, on account of injuries suffered by him along with interest
@ 9% per annum from the date of filing of claim petition till realization.
7. Under Issue No.1, it was held that the accident in question
RENU
2026.09.10 18:05
I attest to the accuracy and
integrity of this document

FAO-2860 of 2002 (O&M) -3-
had taken place on account of rash and negligent driving on the part of
respondent No.1 while driving offending vehicle as well as due to own
negligence of the claimant while driving the rickshaw for crossing the
road and their liability has been fixed in the ratio of 67%:33%. After
assessing the total compensation of Rs.90,000/-, 1/3rd amount was
deducted and a sum of Rs.60,000/- was awarded as compensation to the
claimant on account of his contributory negligence in the accident.
8. Under Issue No.3, it was held that driving licence produced
by the driver was fake as per report received from District Transport
Office, Kamroop East Zone, Guwahati which reported that the licence
Ex.P2 had not been issued and on the basis of report from the DTO,
Kamroop, Tribunal held that the licence was fake and as such, Insurance
Company is not liable to indemnify the owner. However, a direction was
given to Insurance Company to pay the amount of compensation to the
claimant and Insurance Company was given a right to recover the same
from the insured.
9. Feeling aggrieved, the appeal in hand has been preferred.
The material on file has been perused and parties have been heard.
10. Learned counsel for the appellant argued that the Tribunal
has not appreciated the facts of the case and evidence on file in the
correct perspective while assessing the compensation which is grossly
inadequate. The compensation has not been awarded for the pecuniary
and non-pecuniary damages as per settled law and the compensation
awarded vide impugned award is thus liable to be enhanced. In support
RENU
2026.09.10 18:05
I attest to the accuracy and
integrity of this document

FAO-2860 of 2002 (O&M) -4-
of his contentions, learned counsel for the appellant has relied upon 2014
(1) RCR (Civil) 914 Sanjay Verma Vs. Haryana Roadways and 2017
(16) SCC 680 National Insurance Co. Ltd Vs. Pranay Sethi and
Others .
11. Learned Amicus Curiae for respondent No.2 argued that the
Insurance Company has miserably failed to prove that the driving licence
produced by the driver was fake as the record from the said Licensing
Authority was not summoned to prove this fact and no opportunity to
cross-examine the witness was afforded to the owner and the driver.
Learned counsel next contended that the report received by the Tribunal
directly from the Licensing Authority was not per se admissible and same
was required to be proved by leading cogent and convincing evidence but
learned Tribunal has placed implicit reliance upon the same while
holding the driving licence to be fake. Learned counsel contended that
the finding of the Tribunal in this regard is not sustainable and Insurance
Company be held liable to indemnify the insured.
12. On the other hand, learned counsel for respondents argued
that the award in question is well reasoned and justified. The material on
file has been appreciated in the correct perspective. Learned counsel next
contended that the Tribunal has rightly appreciated the facts of the case
while holding that the licence produced by the driver was fake and no
interference in the same is thus called for.
RENU
2026.09.10 18:05
I attest to the accuracy and
integrity of this document

FAO-2860 of 2002 (O&M) -5-
Assessment of Compensation
13. As per version of claimant, he was taken to PGI, Chandigarh
for treatment on the same date of accident, i.e. 27.11.1999 and was
operated upon. He tendered discharge card Ex.P3 which shows that he
was discharged from PGI on 4.12.1999. The claimant also alleged that
he also got treatment from Civil Hospital, Jagadhari thereafter. He also
tendered bills Ex.P4 to Ex.P19 for Rs.7011.50 and receipts of PGI Mark-
B to Mark-H worth Rs.4710/- and total of these bills comes to
Rs.11,721.50 but the Tribunal awarded him a sum of Rs.15,000/- on
account of expenses incurred on treatment which in my opinion is
adequate and there is no scope for further enhancement in the absence of
the bills.
14. As per testimony of PW2- Dr. Deepan Jain Medical Officer,
Civil Hospital, Yamunanagar, claimant has suffered 15% disability and
he tendered the certificate Ex.P1. Tribunal held that the income of
deceased was Rs.15,000/- per annum and awarded him a sum of
Rs.75,000/- as compensation on account of loss of past, present and
future earning due to permanent disability and total compensation
awarded was Rs.90,000/-. However, in my considered opinion, the
compensation is inadequate as it has not been awarded under all the
pecuniary and non-pecuniary heads.
15. The law is well settled that the compensation to be awarded
for injuries suffered by victim in a motor vehicular accident should be
RENU
2026.09.10 18:05
I attest to the accuracy and
integrity of this document

FAO-2860 of 2002 (O&M) -6-
just and equitable. Courts have consistently held that while money cannot
erase the pain, suffering, or trauma but it is the only legal means to
provide restitution and restore the victim to his previous position as far as
possible for which ‘just compensation’ has to be assessed. It is also well
settled that while it is impossible to fully compensate for the loss of limb,
life, or quality of life, the compensation must be ‘Just’, meaning thereby,
that it should be fair, reasonable, and equitable based on the evidence and
not merely a ‘Windfall’ or a ‘Pittance’. The core objective is to put the
injured/victim in the same position he would have been if the accident
had not taken place, to the extent money can do so. This approach
ensures that the law provides a realistic recompense for the trauma
endured, rather than just providing normal relief.
16. Hon'ble Supreme Court in 2013 (3) RCR (Civil) 934 -
G.Ravindranath @ R. Chowdary Vs. E. Srinivas and another , has
held that in a case of accident resulting in injuries to the victim, the
compensation in personal injury cases should be determined under the
following heads:-
Pecuniary damages (Special damages)
(i) Expenses relating to treatment, hospitalization, medicines,
transportation, nourishing expenditure. food and miscellaneous
(ii) Loss of earnings (and other gains) which the injured would
have made had he not been injured, comprising:
(a) Loss of earning during the period of treatment;
(b) Loss of future earnings on account of permanent
RENU
2026.09.10 18:05
I attest to the accuracy and
integrity of this document

FAO-2860 of 2002 (O&M) -7-
disability
(iii) Future medical expenses.
Non-pecuniary damages (General damages)
(iv) Damages for pain, suffering and trauma as a consequence of
the injuries.
(v) Loss of amenities (and/or loss of prospects of marriage).
(vi) Loss of expectation of life (shortening of normal longevity).
In routine personal injury cases, compensation will be awarded
under heads (i), (ii) (a) and (iv) It is only in serious cases of injury, where
there is specific medical evidence corroborating the evidence of the
claimant that compensation will be granted under any of the heads (ii)
(b), (iii), (v) and (vi) relating to loss of future earnings on account of
permanent disability, future medical expenses, loss of amenities (and/or
loss of prospects of marriage) and loss of expectation of life.
17. Claimant has suffered grievous injuries and he was operated
upon and it is a matter of common knowledge that pain component in
such injuries is enormous which take a considerable time to heal
particularly due to surgical interventions and accordingly claimant is
held entitled to a sum of Rs.20,000/- on account of Pain and Sufferings.
18. The accident had taken place in the year 1999. Tribunal has
assessed the notional income of the claimant to be Rs.15,000/- per annum
which is in my opinion is grossly inadequate. Claimant was a rickshaw
puller. No cogent and convincing evidence was led to prove the
RENU
2026.09.10 18:05
I attest to the accuracy and
integrity of this document

FAO-2860 of 2002 (O&M) -8-
Hon'ble Supreme Court in (2022) 1 SCC 198,
`income’. However,
Chandra alias Chander alias Chanda Ram and another Vs. Mukesh
Kumar Yadav , decided vide judgment dated 01.10.2021 has held that
merely because claimants are unable to produce documentary evidence to
show the monthly income of the deceased is not a ground to discard the
oral evidence and in such cases, the Court is required to ensure just
compensation based on preponderance of probabilities. Minimum wage
notification may serve as a yardstick but cannot be the sole basis for
assessing the income. Moreover, it is also well settled that where the
victim/deceased belongs to unorganized sector, strict proof of income is
not mandatory and notional income can be reasonably assessed based on
the social status and facts and circumstances of the case. As such, some
amount of guess work has to be applied while assessing the income.
T aking into consideration the fact that accident had taken place in 1999,
it can be assumed that deceased must have been earning atleast
Rs.2,500/- per month and his income is accordingly taken as Rs.2,500/-
per month.
19. Claimant remained under treatment for a long period. It
must have taken at least three months for the injuries to heal & during
this period, claimant would have remained bed ridden and would not
have been able to do any work and he is accordingly held entitled to a
sum of Rs.7,500/- on account of ‘ loss of income during the period of
treatment ’.
RENU
2026.09.10 18:05
I attest to the accuracy and
integrity of this document

FAO-2860 of 2002 (O&M) -9-
20. During the period of treatment, he must have spent some
amount on nutritious diet, transportation and in engaging an attendant.
Accordingly, claimant is held entitled to a sum of Rs.2,500/- for
nutritious diet, Rs.5,000/-for engaging an attendant and Rs.2,500/-
for the expenses incurred on transportation and the total amount
comes out to Rs.10,000/- .
21. The claimant has suffered 15% of permanent disability but
the record of the Tribunal has burnt and from the award, it cannot be
ascertained as to in which body part, the disability had been suffered by
the claimant & whether the disability suffered by the claimant is going to
impact his earning capability. However, he is held entitled to a sum of
suffered by him.
Rs.50,000/- on account of permanent disability
22. The disability suffered by him will impact his routine
activities in his day to day life and he will not be able to lead a normal
life. Accordingly, he is held entitled to a sum of Rs.10,000/- on account
of loss of amenities i.e. discomfort, inconvenience, hardship and loss
of expectancy of life.
Issue of Liability
23. The Tribunal has held that the driving licence produced by
the driver was fake and this finding is based upon the report received
from District Transport Office, Kamroop East Zone, Guhawati, according
to which no such licence had been issued. However, no record has been
summoned by the Insurance Company and no witness has been examined
RENU
2026.09.10 18:05
I attest to the accuracy and
integrity of this document

FAO-2860 of 2002 (O&M) -10-
to prove the said report or to show that the driving licence Ex.P2 tendered
by the driver was fake. The said report was not per se admissible and
heavy onus lay upon the Insurance Company to prove that the licence
was fake. To prove this fact, record from the said Licensing Authority
should have been summoned and an opportunity to cross-examine the
witness should have been afforded to the owner and driver and in the
absence of evidence to this effect, no implicit reliance could have been
placed upon the said report in coming to the conclusion that the driving
licence was fake. The Tribunal thus committed a grave error while
relying upon the said report which had not been legally proved.
Resultantly, it is held that Insurance Company has failed to establish that
the driver was not possessing a valid and effective driving licence.
24. Moreover, even if, it is assumed that the driving licence was
fake, the Insurance Company can not be exonerated of its liability to
indemnify the insured in the absence of evidence to the effect that there
was wilful breach of terms and conditions of Insurance policy by the
insured/owner. Hon’ble Supreme Court in 2022 ACJ 1868, Rishi Pal
Singh Versus New India Assurance Company Limited and others, has
held that owner of the vehicle is expected to check driving skills of the
driver and not to run to the licensing authority to verify genuineness of
the driving licence before appointing a driver and therefore, once the
owner is satisfied that driver is competent to drive the vehicle, it is not
expected from him to verify genuineness of the driving licence issued to
the driver and the direction of ‘pay and recover’ given by the High Court
RENU
2026.09.10 18:05
I attest to the accuracy and
integrity of this document

FAO-2860 of 2002 (O&M) -11-
was set aside and it was held that Insurance Company is liable to
indemnify the insured and it cannot recover the amount from the
owner/insured. Recently, Hon’ble Supreme Court in Law Finder Doc ID
#2790918, Hind Samachar Ltd. (Delhi Unit) Versus National
Insurance Company Ltd. And others, has also held that owner of the
vehicle is not expected to verify the authenticity of the driving licence
from the licensing authority and he can only rely upon the licence
produced by the prospective driver seeking employment. In case,
Insurance Company seeks to avoid liability or to get “pay and recover
rights” against the insured/owner on the ground of driving licence being
fake, the Insurance Company must establish that the breach was on the
part of the insured, meaning thereby, the insured had deliberately
committed a breach by entrusting the vehicle to a driver who had a fake
driving licence or that the owner did not employ due diligence at the time
of handing over the vehicle. It has been further held that in the absence of
pleading or substantiation that owner allowed the driver to drive a vehicle
knowing the licence to be fake, or failed to employ due diligence in the
driver’s employment/entrustment, the High Court erred in issuing pay
and recover directions against the insured-owner. It has been further held
that Insurance Company must prove the willful breach of the policy
condition i.e. entrusting the vehicle to a driver without a valid licence by
the insured in case it wants right of recovery against the insured, even if
the driver’s licence is fake.
25. In the present case also, Insurance Company has failed to
RENU
2026.09.10 18:05
I attest to the accuracy and
integrity of this document

FAO-2860 of 2002 (O&M) -12-
establish that the driving licence was fake or that there was wilful default
on the part of the insured and breach of terms and conditions of the
Insurance Policy on account of the insured handing over the vehicle to a
person having a fake driving licence. In these circumstances, Insurance
Company cannot be absolved of its liability to indemnify the insured and
it cannot recover the awarded amount from the owner/insured.
Accordingly, finding of Issue No.3 is not sustainable and same is
reversed and this issue is decided against Insurance Company & it is held
that respondents No.1, 2 and 4 shall be jointly and severally liable to pay
compensation to the claimants.
26. Resultantly, the compensation to be awarded to claimant is
assessed as under:-
Sr. No. Head This Court (₹)
1. Rs.50,000/-
Loss of income due to perman-
ent disability
2. Pain and suffering
Rs.20,000/-
3. Expenses incurred on nutri-
tious diet, for engaging an at-
tendant and on transportation
Rs.10,000/-
(Rs.2,500/- + Rs.5,000/- +
Rs.2,500/-).
4. Expenses incurred on his Rs.15,000/-
treatment

5. Loss of income during the Rs.7,500/-
period of treatment

6. Loss of Amenities in life Rs.10,000/-
Total Rs.1,12,500/-
Interest 9%
RENU
2026.09.10 18:05
I attest to the accuracy and
integrity of this document

FAO-2860 of 2002 (O&M) -13-
27. As a result of afore-said discussion, the present appeal is
partly allowed with costs. However, keeping in view the contributory
negligence of claimant in causing the accident, as already held by the
Tribunal, the said amount of compensation is reduced proportionately to
the extent of 1/3rd and the claimant is entitled to a total compensation of
Rs.75,000/-. The enhanced compensation thus comes to Rs.15,000/-
(Rs.75,000/- - Rs.60,000/-) over and above the compensation awarded by
Tribunal along with interest @ 9% per annum, from the date of filing of
claim petition i.e. 1.3.2002, till realization. The entire compensation
including enhanced compensation shall be payable by respondents No.1,
2 and 4 jointly and severally.
28. Registry is directed to email the authenticated copy of the
judgment to the respondent Insurance Company in terms of directions
issued by the Hon’ble Supreme Court in Writ Petition (Civil) No.534 of
2020 titled Bajaj Allianz General Insurance Company Versus Union
of India and others, decided on 16.03.2021 and Insurance Company
shall comply with the directions as issued under Clause (F) of the said
judgment.
29. Pending miscellaneous application(s), if any, shall also stand
disposed of.
(YASHVIR SINGH RATHOR)
JUDGE
08.09.2026
renu
Whether speaking/reasoned Yes/No
Whether reportable Yes/No
RENU
2026.09.10 18:05
I attest to the accuracy and
integrity of this document