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2003 DIGILAW 9 (RAJ)

QAZI ATTA MOHD v. SYED FAZAL ALI

2003-01-03

O.P.BISHNOI

body2003
Judgment O. P. BISHNOI, J. ( 1 ) THESE four appeals have been filed against the judgment dated 28. 4. 1998 delivered by the learned Motor accidents Claims Tribunal, Nagaur. ( 2 ) ON 6. 8. 1992 at about 5. 30 a. m. a jeep bearing No. RJ 19-4407 overturned, near Nagaur as a result of which one Abdul kareem was fatally wounded. The appellant Qazi Atta Mohammed also received injuries. Sawai Singh was the driver of the said jeep at the time of accident and the appellant Fazal Ali was the owner of the said vehicle. The jeep was insured with the respondent United India Insurance Co. Ltd. at the relevant time. ( 3 ) QAZI Atta Mohd. filed Claim Petition no. 6 of 1993 claiming Rs. 12,00,000 as damages on account of injuries received by him. Claim Petition No. 47 of 1992 was filed by the legal heirs of the deceased abdul Kareem, who claimed Rs. 9,25,000 as damages. Fazal Ali, who was the owner of the jeep filed Claim Petition No. 16 of 1993 and claimed Rs. 46,500 on account of alleged damage caused to the jeep. ( 4 ) AFTER the replies were filed by the respective opposite parties, issues were framed and after the evidence of all the parties was recorded, all the three claim petitions were decided on 28. 4. 1998 by the impugned judgment. ( 5 ) THE learned Tribunal found that the respondent Sawai Singh was holding the driving licence to drive a heavy transport vehicle only and was not empowered to drive a jeep or a light motor vehicle and hence, it amounted to breach of the conditions of the policy. Consequently, it was found that the insurance company could not be held liable for any claim or damages. The Claim Petition No. 16 of 1993 which was filed by Fazal Ali (the owner of the vehicle) was filed against the insurance company alone and consequently, the same was dismissed in its entirety. For the claim Petition No. 6 of 1993 the learned tribunal found that the appellant Qazi atta Mohammed was entitled to damages to the extent of Rs. 18,000 only on account of the injuries received by him and it was found that the driver and the owner were liable for the said sum. For the claim Petition No. 6 of 1993 the learned tribunal found that the appellant Qazi atta Mohammed was entitled to damages to the extent of Rs. 18,000 only on account of the injuries received by him and it was found that the driver and the owner were liable for the said sum. For the Claim Pettion No. 47 of 1992 it was found that the legal heirs of the deceased Abdul Kareem were entitled to receive damages from the owner and the driver of the jeep jointly and severally to the extent of Rs. 1,17,200. In this way, so far as the insurance company was concerned, no award was passed against it. Feeling aggrieved Qazi Atta mohammed has filed Civil Misc. Appeal no. 417 of 1998. Civil Misc. Appeal No. 393 of 1998 has been filed by Amna Khatun and 7 others, who are the legal heirs of the deceased Abdul Kareem. In both these appeals a prayer for enhancement of the amounts awarded has been made with further prayer that the insurance company should also be held liable for the damages. In respect of the award passed in Claim petition No. 47 of 1992 another appeal has been filed by Fazal Ali with a prayer that the insurance company should also be made liable to reimburse the claimants in respect of the amount awarded. Civil Misc. Appeal No. 418 of 1998 has been filed by fazal Ali, feeling aggrieved by dismissal of Claim Petition No. 16 of 1993. ( 6 ) IN this way it is to be seen as to whether the dismissal of the three claim petitions vis-a-vis the insurance company was improper. Further, it is to be seen as to whether the amounts awarded in the said two cases require to be enhanced. ( 7 ) THE learned Tribunal has found that the driving licence produced by Sawai singh was for driving a heavy vehicle and there was no valid driving licence to drive a light motor vehicle or a jeep and in this way the insurance company could not be held liable. The learned counsel for the appellants has argued that if a person holds driving licence to drive a heavy vehicle, there is a presumption that initially he was issued driving licence for a light vehicle including a jeep and only thereafter a licence to drive heavy vehicle was issued to him. The learned counsel for the appellants has argued that if a person holds driving licence to drive a heavy vehicle, there is a presumption that initially he was issued driving licence for a light vehicle including a jeep and only thereafter a licence to drive heavy vehicle was issued to him. Further, it is argued that under subsection (7) of section 7 of Motor Vehicles Act, 1939 it is to be presumed that since sawai Singh was holding a driving licence to drive a heavy vehicle, he was entitled to drive a light vehicle as well. ( 8 ) I, however, find that the said contention cannot be accepted. So far as the question of presumption is concerned, Sawai singh was examined in the court and from his testimony the said presumption stood rebutted conclusively. He did not say that initially any driving licence to drive a light motor vehicle was issued to him and subsequently, the licence in question was issued to him. On the contrary, he specifically deposed that he had applied only once and from the very beginning he was holding the driving licence which was produced by him before the Tribunal. ( 9 ) AS pointed out earlier, the date of accident in this case was 6. 8. 1992 and hence, the provisions of Motor Vehicles act, 1988 were applicable on the date of the accident. In this way instead of section 7 of the Motor Vehicles Act, 1939, section 10 of the Motor Vehicles Act, 1988 was attracted in the matter and the matter could not be interpreted as provided under section 7 of the Motor Vehicles Act, 1939. Nor it was the case of the driver that he was holding a driving licence issued under the provisions of Motor Vehicles Act, 1939. In this way, neither the provisions of Motor vehicles Act, 1939 could be attracted nor the provisions of Motor Vehicles (Amendment) Act, 1994 could be attracted and in the light of section 10 of the Motor Vehicles Act, 1988 coupled with the admission of Sawai Singh to the effect that he was never issued a driving licence to drive a light motor vehicle, the finding arrived at by the learned Tribunal cannot be termed as erroneous. In the matter of Mishrilal v. Kamla, 1999 ACJ 1533 (Rajasthan), the concerned driver was found to be not holding a driving licence and this court found that in such a situation the insurance company cannot be held liable to reimburse any party. I, therefore, find that the dismissal of claim petitions against the insurance company cannot be termed as illegal. In the light of this the Civil Misc. Appeal No. 418 of 1998, which is filed by Fazal Ali solely against the insurance company has to fail. Similarly, the Civil Misc. Appeal no. 424 of 1998 filed by Fazal Ali also has to be dismissed for the same reason. ( 10 ) NOW the Civil Misc. Appeal Nos. 417 and 393 of 1998 are left and it is to be seen as to whether there is a case to further enhance the amounts which were awarded by the learned Tribunal. ( 11 ) SO far as the Civil Misc. Appeal no. 417 of 1998 is concerned damages to the extent of Rs. 12,00,000 were claimed by the appellant Qazi Atta Mohammed. The injury report, Exh. P-l 1 and the X-ray report, Exh. P-10 were tendered in evidence by claimant Qazi Atta Mohammed and no other documentary evidence in respect of the alleged damages was produced. Neither any documentary evidence in respect of the alleged monthly income of the injured was produced. Learned Tribunal found that there was no evidence to infer that there was any reduction of income in the business during the relevant period and hence, no amount could be awarded in the head of loss of income. For the injuries including the grievous injury Rs. 10,000 were awarded. Further, Rs. 5,000 were awarded towards pain suffered and future pain. No receipts or bills of any medicines were produced but still Rs. 2,000 were awarded for medicines. Further Rs. 1,000 were awarded as expenses of the claim petition. In this way in all Rs. 18,000 were awarded. I find that no fault can be found with the conclusion of learned Tribunal. No doctor was examined to suggest that there was any permanent disability to the claimant. No bills of any expenses were produced. Further, there was no proof to show that the income of the claimant was reduced in any way on account of the injuries. In these circumstances, the award for Rs. No doctor was examined to suggest that there was any permanent disability to the claimant. No bills of any expenses were produced. Further, there was no proof to show that the income of the claimant was reduced in any way on account of the injuries. In these circumstances, the award for Rs. 18,000 cannot be termed as inadequate. ( 12 ) SO far as the Civil Misc. Appeal No. 393 of 1998 is concerned, the deceased abdul Kareem was aged 47 years at the time of his death. It was alleged that he was running a shop of photography and other electric goods. His monthly income in the claim petition was shown as Rs. 2,500. AW 1 Sakhawat Hussain (son of the deceased) orally stated that monthly income of the deceased was Rs. 2,500. Another independent witness AW 2 Mohd. Hanif, in his sworn testimony stated that monthly income of the deceased was Rs. 3,000. In this way, according to the son of the deceased, the deceased was earning Rs. 2,500 per month but according to AW 2 Mohd. Hanif the income was Rs. 3,000 per month. This, thus, is a case in which AW 2 Mohd. Hanif has clearly tried to be more catholic than even the Pope. No documentary evidence in respect of the income was produced. Needless to say that in the light of this type of unsatisfactory oral testimony, the Tribunal was handicapped to arrive at a correct conclusion. However, the learned tribunal found that still a monthly income of Rs. 1,050 could be presumed and after reducing /3rd of it as personal expenses of the deceased, it was found that deceased must be contributing about Rs. 700 per month for the upkeep of his family. Looking to the age of the deceased which was 47 years at the time of accident, a multiplier of 13 was applied and Rs. 1,09,200 were awarded for loss of income. Rs. 5,000 for mental pain and Rs. 2,000 towards the expenses of last rites were awarded and rs. 1,000 were awarded for the expenses of the claim petition. In this way, in all rs. 1,17,200 were awarded. In view of the fact that the claimants failed to produce satisfactory evidence in respect of the income of the deceased, the conclusions drawn by the learned Tribunal cannot be criticised. 1,000 were awarded for the expenses of the claim petition. In this way, in all rs. 1,17,200 were awarded. In view of the fact that the claimants failed to produce satisfactory evidence in respect of the income of the deceased, the conclusions drawn by the learned Tribunal cannot be criticised. ( 13 ) IN the result, I find that no case is made out for enhancement of the amounts awarded by the learned Tribunal in any of the appeals. ( 14 ) IN the result all the four appeals are dismissed. Appeals dismissed.