Madhya Pradesh High Court
Ashok Kumar Agrawal vs Om Prakash And Ors. on 20 February, 1998
Equivalent citations: II(1998)ACC569, 2000ACJ445
JUDGMENT S.K. Dubey, J.
1. Heard counsel.
2. The appellant-claimant is an advocate who has filed this appeal under Section 173 of the Motor Vehicles Act, 1988, to seek enhancement of the amount of compensation awarded and also against order of Tribunal absolving the respondent No. 3 from its liability for the breach of the terms of the policy.
3. The facts giving rise to this appeal are thus:
The appellant was travelling as a passenger on payment of fare for going to Gwalior in jeep No. MP-07-B 0966 which was driven by respondent No. 1, owned by respondent No. 2 and insured with the respondent No. 3. The said jeep met with an accident on way near village Patara. As a result of which the appellant received injuries. The appellant averred that due to injuries he could not discharge his duties of his legal profession properly for a period of two months. Appellant claimed compensation of Rs. 1,25,500 for the injuries suffered by him. The owner and driver of the jeep remained ex parte before the Tribunal. The respondent No. 3 contested the claim on the ground that the jeep was insured as private car which could not have been used for carrying passengers for hire or reward. The Tribunal after appreciation of evidence found that the appellant received six simple injuries, proved by the medical evidence of Dr. C.P. Suman, AW 1, injury certificate is Exh. P/1. Looking to the nature of the injuries, on sympathetic consideration, the Tribunal awarded pecuniary damages for the loss of earning for a period of two months at the rate of Rs. 100 per day, an amount of Rs. 6,000 and medical expenses of Rs. 2,000. Thus a total sum of Rs. 8,000 was awarded which was ordered to be paid by the respondent Nos. 1 and 2, i.e., driver and owner jointly or severally, as the insurance company was absolved from its liability as jeep was being plied as a taxi in breach of the terms of the policy Exh. D/1.
4. Learned counsel for the appellant submitted that the Tribunal ought to have awarded the compensation as claimed. Though the injuries are simple in nature, but the Tribunal has found that the appellant could not discharge his legal duties properly because of the injuries.
5. The Tribunal has not awarded any amount of damages for pain and suffering which the appellant had suffered. As to the absolvement of the insurance company, it was submitted that the burden was on the respondent which was not discharged. It was further submitted that under Sub-section (4) of Section 149 of the Act, the insurance company can only be discharged if defence in clause (a) of Sub-section (2) of Section 149 is available. Counsel cited New India Assurance Co. Ltd. v. Bafatbai 1996 ACJ 336 (MP) and Oriental Insurance Co. Ltd. v. Usha 1996 ACJ 838 (Kerala).
6. Learned counsel for respondent No. 3 submitted that it was the case of the appellant itself in para 2 of the application that he travelled in the jeep after payment of fare from Shivpuri to Gwalior. The jeep was registered as private vehicle, which could not have been plied as taxi. To that effect there is a specific condition in the policy that the jeep will not be plied for hire or reward, reliance was placed on the Division Bench decision of this court in Oriental Fire & Genl. Ins. Co. Ltd. v. Pramila 1989 ACJ 809 (MP).
7. Having heard learned counsel for the parties and on going through the record, I am of the opinion that this appeal has no merit. Though the Tribunal has not awarded any compensation for mental pain and suffering under the head of non-pecuniary damages, but looking to the nature of the injuries, which are simple in nature the award of compensation is on the higher side. It is not the case of the appellant that he could not attend the court for two months. He casually stated that he could not discharge his functions of a lawyer properly. It seems that the Tribunal on sympathetic consideration, looking to the nature of the injuries has awarded Rs. 6,000 which in the opinion of the court is excessive. As there is no appeal on behalf of the owner and driver, I am not inclined to reduce the amount and maintain the same which will meet the grievance of the appellant of the claim under the head of pain and suffering.
8. As to the liability of the insurance company, the appellant has come with the case that he was travelling as a passenger in the jeep after payment of fare from Shivpuri to Gwalior. The jeep was being used as not private car but was used as taxi, plying of which like taxi was prohibited. Therefore, relying on the decision of the Division Bench of this court in the case of Oriental Fire & Genl. Ins. Co. Ltd. v. Pramila 1989 ACJ 809 (MP), I am of the view that the Tribunal was right in absolving the insurance company from its liability. The decision of this court in New India Assurance Co. Ltd. v. Bafatbai 1996 ACJ 336 (MP), has no application, wherein this court has taken view that to establish the plea of breach of condition, burden lies upon insurer and in that case the burden was not discharged, therefore, the court held that the insurance company cannot be exonerated from its liability. The other decision of Kerala High Court is also distinguishable on facts as in that case the driver of the vehicle did not possess a valid licence. The court held that the insurance company cannot disown its liability to pay the amount awarded to the claimants, in view of the provisions contained in Sub-section (4) of Section 149 of the Act. It is not necessary to go into the question, because the decision runs counter to the recent decision of the Supreme Court in United India Insurance Co. Ltd. v. Gian Chand 1997 ACJ 1065 (SC).
9. As a result of the aforesaid decisions, the appeal has no merit and is dismissed with no order as to costs.