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2008 DIGILAW 107 (RAJ)

National Insurance Company Ltd. v. Jethu Singh

2008-01-15

MANAK MOHTA

body2008
Judgment Manak Mohta, J.—The instant appeal has been preferred by the appellant-Insurance Company against the judgment and Award dt. 13.01.2006 passed by the Judge, Motor Accident Claims Tribunal (First), Jodhpur (in short “the Tribunal”) in Claim Case No. 272/2005 whereby the learned Tribunal has awarded compensation to the tune of Rs. 74,880/- in favour of the injured-claimant and has held the Insurance Company solely responsible to pay the entire amount of compensation. 2. Briefly stated the facts of the case are that the claimant-Jethu Singh (injured), who works driver of an insured jeep No. RJ-19T-3617, filed a claim petition on 04.04.2005 before the learned Tribunal under Sec. 163-A of M.V. Act, 1988 stating therein that on 20.10.2004 in the morning at about 8.30 AM while he was driving his jeep on Ramdeora-Phalodi road and was going at a slow speed and in his correct direction, no sooner he reached near the ‘Dhani of Narayansingh’ and near the fields of Chatur Singh on the culvert, a truck came from the opposite side in a high speed, dashed his jeep on account of which, the jeep dashed with the wall of the bridge and got overturned and he got pressed beneath the overturned jeep. At that time, Hati Singh and Rewant Singh, who too were coming from the side of Phalodi, rescued by immediately taking him to Government Hospital, Pokaran. In the said accident, the claimant sustained injury on his right thigh, head and chest. He received fracture on his right leg. For further treatment the injured was referred to Mahatma Gandhi Hospital, Jodhpur. The claimant has stated himself to be aged 27 years and was getting salary of Rs. 3,500/- per month, plus an allowance of Rs.50/- per day for driving the aforesaid jeep at the time of accident. Thus, his total income was stated to be Rs.5000/- per month. It was further stated that due to this accident he suffered heavy monetary loss and permanent disability of body. A claim of Rs.70,000/- was made on different heads. 3. After issuance of notices of claim petition, the owner (respondent No. 1 in the claim petition) appeared through his counsel and submitted his reply and stated that at the time of the accident, the claimant as a driver was driving the said vehicle. A claim of Rs.70,000/- was made on different heads. 3. After issuance of notices of claim petition, the owner (respondent No. 1 in the claim petition) appeared through his counsel and submitted his reply and stated that at the time of the accident, the claimant as a driver was driving the said vehicle. It was stated that he was having driving licence; further he admitted the accident but it was submitted that the jeep was insured with respondent No. 2, as such, if any liability to pay any compensation arises, then the entire responsibility is of the Insurance Company. 4. The Insurance Company (respondent No. 2 in the claim petition) whilst submitting a detailed reply admitted the factum of the jeep being insured with their Company, however, at the same time denied the averments made in the claim petition and stated that the driver of jeep met with accident because of his own negligence. He himself was driving the said jeep, therefore, under the provisions of Section 163-A or Section 166 of the M.V. Act, he is not liable to get any sort of compensation and the Insurance Company cannot be made liable to pay the compensation. It was prayed to dismiss the claim petition. 5. On the basis of pleadings of the parties, the learned Tribunal framed four issues, as under :- ß1- vk;k izÓuxr okgu thi vkj ts 19 Vh 3617 ds mi;ksx esa fnukad 20-10-2004 dks lqcg djhc 8-45 cts jkensojk ls QykSnh vke lM+d ij ukjk;.kflag dh <k.kh ds lkeus o prqjflag ds [ksr ds ikl lM+d ij cus iqy ds ikl mä okgu ds mi;ksx ls gqbZ nq?kZVuk esa tsBqflag iq= nsorflag ds pksaVs dkfjr gqbZ\ 2- vk;k foi{kh la[;k 2 chek dEiuh ds }kjk vius fyf[kr dFku dh izkjfEHkd vkifÙk;ksa ,oa vfrfjä dFku ds ens utj rFkk D;k foi{kh pkyd ds ikl oS| MªkbZfoax ykbZlsaUl ugha Fkk\ lks D;k chek dEiuh vius nkf;Ro ls eqä gks ldrh gS] ugha rks bldk izHkko gS\ 3- vk;k nkosnkj vius nkos esas vafdr izÓuxr jkfÓk ;k vU; dksbZ U;k; lEer jkfÓk ik ldrk gS] gka rks fdruh jkfÓk fdl fdl foi{kh ls ,oe~ fdl izdkj ls ik ldrk gS\ 4- nknjlhAÞ 6. During trial of the case, the statements of claimant was recorded as AW-1 and certain documents as Exh.1 to Exh.46 including driving licence and permanent disability certificate were got exhibited. During trial of the case, the statements of claimant was recorded as AW-1 and certain documents as Exh.1 to Exh.46 including driving licence and permanent disability certificate were got exhibited. Evidence were led by the opposite sides. 7. The learned Tribunal at the conclusion of trial held the appellant entitled to receive compensation under Sec. 163-A of M.V. Act and vide its judgment and Award dt. 13.01.2006 awarded a sum of Rs.74,880/- as compensation in favour of the claimant plus interest @ 7.5% per annum from the date of filing of the claim petition i.e. 04.04.2005 till the date of realization against the owner and the Insurance Company of the jeep. Hence, aggrieved and dissatisfied with the findings of the learned Tribunal, this appeal has been preferred by the Insurance Company. 8. During the course of arguments, it was mainly contended that in this case the claimant/victim himself was driving the vehicle and because of his own negligence the accident had taken place, therefore, the claimant under Sec. 163-A of the M.V. Act is not entitled to get any sort of compensation for his own negligence but the learned Tribunal has not considered this important aspect of the matter in its right perspective, therefore, it was urged that the judgment and Award be quashed and set aside and the appeal may be allowed. 9. On the contrary learned counsel for the respondents submitted that the claimant has filed application specifically under Sec. 163-A of the M.V. Act, thus, looking to the scope of that petition, the negligence of the driver was not to be seen even, if the vehicle was being driven by the claimant/victim himself. The learned Tribunal was to satisfy that the claimant sustained permanent injuries out of the use of motor vehicle, then the concerned person may be the driver of vehicle was entitled to compensation. In support of his contention, the learned counsel for the respondents placed reliance on the decisions given by this Court in the cases of: [1] United India Insurance Co. Ltd. vs. Smt. Rekha & Ors., 2007(3) WLN 247 (Raj)=AIR 2007 NOC 1548 (Raj.) and [2] United India Insurance Company Ltd. vs. Smt. Shyam Kanwar & Ors., 2004 R.A.R. 572 (Raj.). In support of his contention, the learned counsel for the respondents placed reliance on the decisions given by this Court in the cases of: [1] United India Insurance Co. Ltd. vs. Smt. Rekha & Ors., 2007(3) WLN 247 (Raj)=AIR 2007 NOC 1548 (Raj.) and [2] United India Insurance Company Ltd. vs. Smt. Shyam Kanwar & Ors., 2004 R.A.R. 572 (Raj.). The learned counsel for the respondent also relied upon decision given by Division Bench of Punjab & Haryana High Court in the case of New India Assurance Comapny Ltd. vs. Shyamo Chauhan & Ors., 1 (2005) ACC 856 (DB) and again stressed that the grounds taken in appeal are not tenable and the appeal is liable to be dismissed. 10. I have considered the rival contention of both the sides and have thoroughly gone through the record of the case, arguments as well as the authorities cited by the learned counsel for the respondents. 11.From the perusal of record, it seems that the claimant/victim was himself driving the Jeep No. RJ-19T-3617 and whilst driving the jeep dashed against the wall of bridge, as a result of which, the jeep over-turned and the claimant sustained permanent injuries that is corroborated by the medical evidence. He has filed petition for award of compensation under Sec. 163-A of M.V. Act. Taking into consideration the legal position as laid down in the Section, the negligence on the part of the driver/victim was not to be seen and the claim petition was very much maintainable. The learned Tribunal after considering the age and income of the claimant and the incident having taken place out of use of vehicle and the claimant suffered permanent injuries, has rightly after considering the facts and circumstances of the case and the guidelines set out in the Schedule has reasonably awarded just compensation of Rs.74,880/-. 12.The contention of the learned counsel for the appellant that as the claimant himself was driving the vehicle and has met with an accident, therefore, he is not covered under Sec. 163-A but his contention is not tenable under Sec. 163-A of M.V. Act such exceptional position is not provided. 12.The contention of the learned counsel for the appellant that as the claimant himself was driving the vehicle and has met with an accident, therefore, he is not covered under Sec. 163-A but his contention is not tenable under Sec. 163-A of M.V. Act such exceptional position is not provided. Similar type of controversy was raised before this Court in the case of United India vs. Smt. Rekha (supra) and United India vs. Smt. Shyam Kanwar (supra) and in those cases, it was held that the claim petition is tenable and in those cases compensation was awarded on account of accident having been caused by the drivers’ of the concerned vehicles. Same type of controversy was dealt with by the Hon’ble Division Bench of Punjab & Haryana High Court in the case of New India vs. Shamu Chouhan (supra), the relevant observation is quoted as under:- “4..................Thus, from a perusal of the provisions of Section 163-A of the Act, it would be clear that the owner and the Insurance Company would be liable to pay the compensation amount to the legal heirs of the deceased in the case of death where the accident had taken place “arising out of the use of motor vehicle”. Even if the deceased was the driver of the motor vehicle in question, still the owner and the Insurance Company of the said motor vehicle would be liable to pay compensation to the legal heirs of the deceased under the “no fault liability” under Sec. 163-A of the Act. In this view of the matter, the learned Tribunal was perfectly justified in holding the owner and the Insurance Company liable to pay the compensation amount to the claimants.” 13.Thus, on the basis of the aforesaid discussion, the judgment and Award passed by the learned Tribunal is affirmed. The appeal deserves to be dismissed and is hereby dismissed. No order as to costs.