Rajasthan High Court - Jodhpur
N.I.A.Co.Ltd vs Kalyan Singh & Ors on 9 April, 2013
Author: Vijay Bishnoi
Bench: Vijay Bishnoi
1
IN THE HIGH COURT OF JUDICATURE FOR RAJASTHAN AT
JODHPUR
JUDGMENT
1. S.B.CIVIL MISC. APPEAL NO.2536/2007
The New India Assurance Co.Ltd. vs. Kalyan Singh & Ors.
2. S.B.CIVIL MISC. APPEAL NO.554/2008
Chaina Ram & Anr. vs. Kalyan Singh & Anr.
Date of Judgment : 9th April 2013
PRESENT
HON'BLE MR JUSTICE VIJAY BISHNOI
Mr Sanjeev Johari, for Insurance Company
Mr Pradeep Choudhary-driver & owner
Mr S.S.Rathore for claimant
BY THE COURT:
Both these appeals are against the judgment and award dated 27.08.2007 passed by Judge, Motor Accident Claims Tribunal, Jaisalmer (for short 'the Tribunal' hereinafter) in M.A.C.T.Case No.66/2006, whereby the learned Tribunal has awarded a compensation of Rs.7,88,900/- to the respondent No.1-Kalyan Singh on account of injuries sustained by him in an accident took place on 10.09.2005 involving vehicle No.RJ-21G- 3005 owned by respondent No.3 (in appeal No.2536/2007) and appellant No.1 (in appeal No.554/2008). The learned Tribunal gave a direction to the appellant-Insurance Company to pay the compensation along with interest to the claimant and thereafter to recover it from the owner-Chaina Ram.
Brief facts of the case, which are necessary for disposal of both these appeals are being taken from S.B.Civil 2 Misc. Appeal No.2536/2007, which are thus, the respondent No.1-claimant filed a claim petition before the Tribunal while alleging that he was working as a Munim in Baba Ramdeo Sand Stone Gomat, Pokran, District Jaisalmer and a utility vehicle No.RJ21-G-3005 owned by Chaina Ram was attached with the firm, wherein, the claimant was working. On 10.09.2005, he along with driver of the utility vehicle was coming from Loharki to Pokran, then on the way on account of rash and negligent driving of the driver of the utility vehicle, the vehicle turned turtle and due to the same, the claimant suffered serious injuries. He remained in hospital for about 45 days and suffered 47.2% permanent disability. As such, the claimant filed a claim petition while claiming the compensation of Rs.43,20,000/-. The claim was contested by the appellant-Insurance Company as well as the owner of the vehicle, Chaina Ram.
The learned Tribunal, on the basis of the pleadings, has framed as many as 5 issues and after taking into consideration the evidence of the parties, has passed the impugned judgment and award dated 27.08.2007 while holding that though the appellant-Insurance Company cannot be held liable for compensation as the respondent-claimant has failed to prove that he was working with the firm as its employee where the insured vehicle was attached, but the learned Tribunal has directed the Insurance Company to pay the compensation awarded by it along with the interest and kept it open for the Insurance Company to recover the same from the owner of the vehicle.
The learned counsel for the appellant has assailed 3 the validity of the award dated 27.08.2007 while contending that the learned Tribunal has grossly erred in directing the appellant to pay the amount of compensation along with the interest and thereafter to recover it from the owner of the insured vehicle. The learned counsel for the appellant has contended that the injured claimant Kalyan Singh-respondent No.1 was only an unauthorized passenger in a goods vehicle and, therefore, his travelling in the utility vehicle was nothing but beyond the scope of policy as well as the permit. It has been further contended that as no payment of insurance for gratuitous/unauthorized passenger in the policy has been made, therefore, the appellant insurer cannot be held liable even at the first instance to pay the compensation and as such, the learned Tribunal has erroneously directed the insurance company to pay the amount of compensation and recover it from the owner later on while deciding the Issue No.3. The learned counsel for the appellant has further contended that the findings given by the learned Tribunal while deciding the Issue No.2 that the driver of the vehicle was authorized to drive the goods vehicle is not correct as per the provisions of section 2(12) and 2(47) read with sections 9 and 10 of the Motor Vehicles Act, 1988, it cannot be held that the driver of the vehicle insured was holding valid the licence at the time of accident.
The learned counsel for the appellant has also claimed that the compensation awarded by the learned Tribunal for the injuries suffered by the claimant is on higher side as the claimant failed to prove his income, as assessed by the Tribunal as Rs.4500/- per month by cogent and reliable evidence. It has 4 been urged that the learned Tribunal has also erred in awarding excess compensation to the claimant under the head 'medical expenses' as the evidence produced by the claimant to prove the medical expenses in this respect was not conclusive.
Mr Pradeep Choudhary, learned counsel for the owner and driver of the vehicle has also assailed the validity of the judgment and award passed by the learned Tribunal while claiming that the Tribunal has erred in deciding the Issue No.1 while holding that the accident took place on account of rash and negligent driving of the driver of the insured vehicle. It has also been contended that from the evidence produced on behalf of the claimant, it was not proved that the accident took place on account of rash and negligent driving of the driver of the vehicle. The learned counsel has also assailed the findings of the Tribunal given in respect of the compensation while claiming that the same is on higher side.
The learned counsel for the claimant has supported the impugned award passed by the Tribunal and has claimed that there is no illegality in passing of the impugned award and the Tribunal after taking into consideration each and every aspect of the matter has passed a just and reasoned award. It has also been contended on behalf of the claimant that the claimant has suffered 47.2.% permanent disability and this fact had been proved by the claimant before the Tribunal and, therefore, the learned Tribunal has not committed any illegality in granting compensation to him. The learned counsel for the claimant has further claimed that it is very difficult for the claimant to recover the compensation from the owner of the insured vehicle as he 5 has suffered 47.2% permanent disability and, therefore, has prayed that the directions given by the learned Tribunal to the Insurance Company to pay the amount of compensation along with the interest to him and thereafter recover from the owner of the vehicle should not be disbursed.
The learned counsel for the respondent has relied on decisions of Hon'ble Supreme Court in Oriental Insurance Co. Ltd. vs. Smt. Gyan Devi & Ors., reported in 2002 R.A.R. 212 (Raj.) and Manager, National Insurance Co. Ltd. vs. Saju P. Paul & Anr. Reported in (2013) 2 SCC 41.
Heard learned counsel for the parties and perused the record.
The learned Tribunal while deciding the Issue No.1 has taken into consideration the fact that in respect of the accident, an FIR was lodged at the instance of the driver of the vehicle, Dilawar Singh and the police after investigation, filed charge-sheet against driver and owner of the insured vehicle. The learned Tribunal has also taken into consideration the statements of the claimants and several documents and while deciding the Issue No.1, has held that the accident took place on account of rash and negligent driving of the driver of the insured vehicle.
This Court has also perused the record of the case and found that there is no illegality in the findings given by the learned Tribunal while deciding the Issue No.1.
So far Issue No.2 is concerned, the learned Tribunal, after taking into consideration the licence of the driver, has concluded that he was authorized to drive the light motor vehicle 6 and the insured vehicle involving in the accident was also a light motor vehicle. This Court has also gone through the licence of the respondent No.2 and the registration certificate of the vehicle and from the said documents, it is clear that the insured vehicle No.RJ-21G-3005 was registered as a Light Motor Vehicle and the driver of the said vehicle was holding a valid licence to drive the light motor vehicle. In such circumstances, this Court does not find any infirmity in the findings arrived at by the learned Tribunal while deciding the Issue No.2.
The learned Tribunal has decided the Issue No.3 against the owner and driver of the insured vehicle, and partially in favour of the appellant while holding that though the appellant-insurance company is not liable to pay the compensation as the claimant failed to prove that he was the employee of the company in which the insured vehicle was attached, but looking to the facts and circumstances of the case and in view of the judgment rendered by the Hon'ble Supreme Court in National Insurance Company vs. Baljeet Kaur & Ors., reported in 2004 2 SCC (1), directed the Insurance Company to pay the compensation along with the interest to the claimant and thereafter to recover it from the owner of the vehicle. The appellant has challenged the said directions given by the learned Tribunal on the ground that since the Insurance Company was not held liable for payment, therefore, the learned Tribunal is wrong in directing the respondent to pay the amount of compensation along with the interest and, thereafter to recover it from the owner of the vehicle.
In view of the decisions of Hon'ble Supreme Court in 7 Mohammad Shafeeq vs. Mirza Mohammad Husain & Ors., reported in (2002) 9 SCC 460; National Insurance Co.Ltd. vs. Baljit Kaur & Ors., reported in (2004) 2 SCC 1; Maharwal Khewaji Trust (Regd.), Faridkot vs. Baldev Dass, reported in (2004) 8 SCC 488; and Manager, National Insurance Co. Ltd. vs. Saju P. Paul (supra), reported in (2013) 2 SCC 41 and in view of the facts and circumstances of the case and looking to the injuries sustained by the claimant, particularly the fact that the respondent- claimant has suffered permanent disability to 47.2%, this Court is not inclined to interfere with the directions given by the Tribunal while deciding the Issue No.3.
Consequently, both the appeals fail and are hereby dismissed.
[VIJAY BISHNOI],J.
m.asif/-