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2008 DIGILAW 726 (MP)

Renuka v. Oriental Insurance Co. Ltd

2008-06-16

N.K.MODY

body2008
Judgment N.K.Mody, J. ( 1. ) Being aggrieved by the inadequacy of the amount awarded and exoneration of respondent No. 1 vide award dated 20.12.2007 passed by the Fifteenth Member, M.A.C.T., Indore in Claim Case No. 492 of 2005 whereby the claim petition filed by the appellant was allowed and a sum of Rs. 40,000 was awarded, present appeal has been filed. ( 2. ) Short facts of the case are that appellant filed a claim petition under section 163-A of Motor Vehicles Act (hereinafter referred to as the Act) alleging that on 18.11.2004 appellant was going in a Maruti van along with her husband, who was owner and driver of the offending vehicle. It was alleged that the said Maruti van met with an accident with a truck bearing registration No. MP 09-KA 4065. It was alleged that the offending vehicle was insured with respondent No. 1. Further case of the appellant was that in the said accident appellant sustained fracture of radius and ulna in right hand. Appellant was hospitalised where the appellant was operated and rod was inserted. It is submitted that appellant sustained 17 per cent permanent disability. It was alleged that the claim petition be allowed and compensation be awarded. The claim petition was contested by respondent No. 1 on various grounds, including on the ground that the respondent No. 1 is not liable for payment of compensation and it was prayed that the claim petition be dismissed. After framing the issues and recording of evidence learned Tribunal allowed the claim petition and awarded a sum of Rs. 40,000 as compensation and exonerated respondent No. 1 on the ground that offending vehicle was insured as ambulance and the appellant was a gratuitous passenger. Being aggrieved by the inadequacy of the amount awarded and the findings whereby the respondent No. 1 was exonerated, present appeal has been filed. ( 3. ) Learned counsel for appellant submits that looking to the injuries sustained by the appellant the amount awarded is on lower side, which deserves to be enhanced. So far as respondent No. 2 is concerned, it is submitted that the offending vehicle was a light motor vehicle and the respondent No. 2 was possessing the valid driving licence to drive the same, therefore, learned Tribunal committed error in exonerating respondent No. 1. So far as respondent No. 2 is concerned, it is submitted that the offending vehicle was a light motor vehicle and the respondent No. 2 was possessing the valid driving licence to drive the same, therefore, learned Tribunal committed error in exonerating respondent No. 1. It is further submitted that undoubtedly, in the policy it is mentioned that the offending vehicle is ambulance, but the application which was filed by the appellant for correction of the policy was not produced by the respondent No, 1 deliberately. In the policy, it is also mentioned that the capacity of the offending vehicle is zero, while even if it is assumed that it was an ambulance then too it is having the seating capacity as the attendants including the doctors are required to travel in it. ( 4. ) Learned counsel for respondent No. 1 submits that after due appreciation of evidence adduced by the parties, learned Tribunal has rightly exonerated respondent No. 1 which required no interference. The learned counsel further submits that the offending vehicle was transport vehicle and undisputedly respondent No. 2 was not possessing the licence to drive the same. It is submitted that right from the beginning the appellant was knowing the number of truck with whom the accident took place, but deliberately appellant has not impleaded the driver, owner and insurance company of the truck as party to the petition. In the facts and circumstances of the case the appeal filed by the appellant deserved to be dismissed. ( 5. ) From perusal of the record it is evident that the accident took place on 18.11.2004 and the policy was for the period w.e.f. 6.1.2004 to 5.1.2005. In the policy the offending vehicle is mentioned as ambulance and seating capacity has been shown as zero. ( 6. ) Section 41 of the Act deals with how the registration of the vehicle has to take place. Central Government in exercise of powers conferred by sub-section (4) of section 41 of the Act has specified the type of motor vehicles vide S.O, No. 1248 (E) dated 5.11.2004 in which transport vehicle and non-transport vehicle has been defined. The ambulance has been taken in the category of transport vehicle at SI. Central Government in exercise of powers conferred by sub-section (4) of section 41 of the Act has specified the type of motor vehicles vide S.O, No. 1248 (E) dated 5.11.2004 in which transport vehicle and non-transport vehicle has been defined. The ambulance has been taken in the category of transport vehicle at SI. No. 40, Transport vehicle is defined in section 2 (47) of the Act according to which the transport vehicle means a public service vehicle, a goods carriage, an educational institution bus or a private service vehicle. Thus a transport vehicle can be light motor vehicle as well as heavy motor vehicle. ( 7. ) Insurance policy which respondent No. 2 was possessing was w.e.f. 6.1.2004 to 5.1.2005 while the accident took place on 18.11.2004, at the fag end of the year of the policy, therefore, the contention of the appellant that some application was filed by respondent No. 1 for correction in the policy cannot be accepted in absence of any record. ( 8. ) So far as exoneration of respondent No. 1 is concerned, from perusal of the written statement it is evident that it was not the case of respondent No. 1 before the learned Tribunal that the insurance company is not liable for payment of compensation, because the offending vehicle was a transport vehicle. In absence of pleadings and also in absence of any issue, in the opinion of this court, the learned Tribunal committed error in exonerating respondent No. 1 on the ground that the offending vehicle was a transport vehicle and respondent No. 2 was not possessing a valid driving licence to drive a transport vehicle. Apart from this Exh. D4 is the registration certificate in which seating capacity of the offending vehicle has been shown as four while in the policy filed by respondent No, 1 the seating capacity has been shown as zero. There is nothing on record to show that on what basis the seating capacity is mentioned in the policy as zero. Even if it is assumed that it was an ambulance then too it required to carry the patient with the attendants and some times along with doctors as well. Therefore, it cannot be said that the ambulance is having a seating capacity of zero. ( 9. Even if it is assumed that it was an ambulance then too it required to carry the patient with the attendants and some times along with doctors as well. Therefore, it cannot be said that the ambulance is having a seating capacity of zero. ( 9. ) It is true that right from beginning appellant was knowing the number of the truck with whom the accident took place, but keeping in view the law laid down by the Full Bench of this court in the matter of Sushila Bhadoriya v. Madhya Pradesh State Road Trans. Corpn., 2005 ACJ 831 (MP), it was not necessary on the part of the appellant to implead joint tortfeasors as party to the petition. ( 10. ) So far as the amount of compensation is concerned, looking to the injuries sustained by the appellant it appears that the amount awarded by the learned Tribunal is just and proper. ( 11. ) In view of this the appeal filed by the appellant is allowed. The findings of learned Tribunal whereby respondent No. 1 was exonerated is set aside. Appellant shall be entitled to recover the amount awarded by the learned Tribunal from the respondents. ( 12. ) With the aforesaid modification, the appeal stands disposed of. Appeal allowed.