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2011 DIGILAW 574 (RAJ)

Pramod Kumar v. Ramchandra

2011-03-16

MAHESH CHANDRA SHARMA

body2011
JUDGMENT 1. - Since the misc. appeals and cross objections relate to award dated 12.12.2002 passed by Judge, Motor Accident Claims Tribunal Jhunjhunu (in short MACT) in MACT Case No. 340/1999, they are being disposed by this common judgment. 2. The facts have been set out in the impugned award and hence I am not repeating the same here except wherever necessary. 3. The facts in brief are that on 21.6.1999 at 5.30 A.M. the truck No. RJ 18G 0052 met with an accident while returning from Chirana, on the main public road near the agricultural field of Jeevan Singh, Sarpanch of village Bagora. In the accident one Sultan Singh, died and one Ram Chandra got injured. Sultan and Ramchandra both were travelling in the truck as labourer. The truck is said to have collided with a boundary wall and thus turned round. Two separate claim petitions were filed, one for the deceased Sultan Singh by his mother and Smt. Mali Devi and Shopal and another by the injured Ram Chandra. The claim petition filed by the Ram Chandra was registered as Claim Petition No. 340/1999. According to the claimant the driver of the vehicle was driving the vehicle rashly and negligently. In the claim petition filed by Ramchandra, he claimed compensation in the amount of Rs. 10,60,000 for the injuries received by him. 4. The owner and driver of the vehicle filed reply, denying the rash and negligent driving of the vehicle. They denied all the pleadings made in the claim petition. They denied the age and income of the deceased and injured and stated that the accident did not occur due to rash and negligent driving of the driver Sampat Lal. According to the owner and driver, the truck turned round due to pits on the road; the staring rod of the vehicle was broken and as a result of which the steering control could not be continued by the driver and therefore the truck was turned towards road side and turned round. The driver was driving the vehicle carefully and with a slow speed. 5. The Insurance Company filed a separate reply to the claim petitions, wherein the accident was denied. It was also denied that the driver of the vehicle was driving the vehicle rashly and negligently. The insurance admitted the insurance of the vehicle with it. The driver was driving the vehicle carefully and with a slow speed. 5. The Insurance Company filed a separate reply to the claim petitions, wherein the accident was denied. It was also denied that the driver of the vehicle was driving the vehicle rashly and negligently. The insurance admitted the insurance of the vehicle with it. It was further pleaded that the driver and the owner of the vehicle committed breach of the insurance policy hence the Insurance Company is not liable. 6. On the basis of the pleadings of the parties the MACT framed three issues : 1) Whether the driver of the truck Sampat Lal was driving the truck rashly and negligently on 21.6.1999 and as a result of which the accident took place wherein Sultan Singh died and Ram Chandra sustained injuries? 2) whether for the objections raised by the insurance company, the Insurance Company is not liable? 3) What compensation the claimants are entitled? 4) Relief. 7. In support of the claim petition, the claimants examined three witnesses AW-1 Shopal, AW-2 Ramchandra and AW-3 Nagar and also submitted documentary evidence and exhibited 34 documents. The Insurance Company examined NAW-1 Satyaveer Yadav and NAW-2 J.K. Jain. The Insurance Company also produced documentary evidence of register of issuing of the driving licence, as Ex. 1. The MACT decided issue No. 1 in favour of the claimants holding that the accident took place due to rash and negligent driving of the driver of the vehicle. As far as issue No. 2 with regard to the liability of the Insurance Company is concerned the MACT held that on the date of accident i.e. 21.6.1999 the driving licence of the driver Sampat Lal was not renewed and the vehicle was being driven by a person whose licence was not renewed on the date of accident and thus the Insurance Company was not liable for the liability. With regard to issue No. 3 in case of Ramchandra it was held that he has suffered a permanent disability to the extent of 15% but it was not proved that the aforesaid disability is hampering his day to day life. The claimant Ramchandra has been awarded Rs. 25,000 as compensation. The MACT further directed that the claimant is entitled to interest @ 9% from the date of filing of the claim petition i.e. 9.8.1999. 8. The claimant Ramchandra has been awarded Rs. 25,000 as compensation. The MACT further directed that the claimant is entitled to interest @ 9% from the date of filing of the claim petition i.e. 9.8.1999. 8. The learned counsel for the appellant has argued that the award of the MACT is absolutely illegal, arbitrary and capricious, particularly whereby it has exempted the Insurance Company from its liability. The owner of the vehicle engaged the driver Sampat Lal and by that time he was having a valid licence and his licence was initially renewed upto 7.2.1999 and thereafter the same further renewed upto 21.6.2002 but this renewal was made on 22.6.1999. When the owner of the vehicle engaged Sampat Lal, driver, he was having a valid licence and he was under the impression that the driver has a valid licence later on also. Unfortunately this renewal took place only on 22.6.1999 i.e. after one day of the alleged incident, but due to this fact, it cannot be said that the owner of the vehicle i.e. the appellant No. 1 was aware that his driver Sampat Lal was having no valid and renewed licence on 21.6.1999 therefore the owner of the vehicle cannot be held liable for any inadverence on the part of the driver in the matter of renewal of the licence. Both the persons deceased as well as the injured were travelling in the vehicle as labourer and there was no negligence on the part of the driver in driving the vehicle. The owner and the driver of the vehicle cannot be held liable for any compensation. The vehicle was insured with the Insurance Company and both the deceased and injured were travelling in the vehicle as labourer. The insurance was for six persons of the vehicle. They were among the driver and conductor and were not exceeding more than six persons. The Insurance Company should have been held liable for the compensation and the MACT has committed a serious illegality in exempting the Insurance Company from its liability. Mr. S.C. Gupta, learned counsel for the appellant has placed reliance on Sohan Lal Passi v. P. Sesh Reddy and others, JT 1996(6) 278 , United India Insurance Co. Ltd. v. Lehru and others, (2003) 3 SCC 338 and Prem Rumari and others v. Prahlad Dev and others, AIR 2008 SC 1073 . 9. After service of notice of this misc. S.C. Gupta, learned counsel for the appellant has placed reliance on Sohan Lal Passi v. P. Sesh Reddy and others, JT 1996(6) 278 , United India Insurance Co. Ltd. v. Lehru and others, (2003) 3 SCC 338 and Prem Rumari and others v. Prahlad Dev and others, AIR 2008 SC 1073 . 9. After service of notice of this misc. appeal, the injured claimant Ramchandra filed cross objection under Order 41, Rule 22 C.P.C. It was stated in the cross objection that the injured claimant was 19 years at the time of accident and he was a helper on truck and earning thereby 3000 per month, as such he demanded a sum of Rs. 10,60,000 as compensation from the opposite parties. The MACT awarded a very meager sum of Rs. 25,000 only on account of injuries sustained to the extent of 15% permanent disablement. The claimant has sustained fracture in his right leg and under went an operation. He has also sustained injuries on knee joint, chest and other part of his body. He has sustained permanent disability to the extent of 15%. Due to this he was totally unable to do work as before. The MACT ought to have kept in mind the life long mental agony, physical pain, diminished capacity to work and thereby loss of future income while granting compensation. The driver of the vehicle was not disqualified from obtaining the licence, as such no benefit can be given to the opposite party No. 3. The award ought to have been fastened as against the said insurer of the vehicle in this matter. The MACT has erred in not awarding compensation on account of pecuniary loss throughout of his life due to disablement to the extent of 15%. It was prayed that in these circumstances, the compensation should be enhanced. 10. The National Insurance Company has also filed cross objection and stated that the MACT has committed illegality by deciding quantum of compensation without giving any proper finding. The MACT has granted 9% rate of interest on the award amount. Looking to the fact and circumstances 9% rate of interest is excessive and it should have been 6% as payable by most of the banks to its depositors on fixed deposit accounts. The MACT has granted 9% rate of interest on the award amount. Looking to the fact and circumstances 9% rate of interest is excessive and it should have been 6% as payable by most of the banks to its depositors on fixed deposit accounts. Along with the cross objection the counsel for the Insurance Company also filed an application for condonation of delay of 180 days from the stipulated time of 30 days from the date of first hearing i.e. 4.12.2003. The only ground taken by the Insurance Company in the application is that on account of non-availability of the copy of the impugned award and the matter could not be discussed with the authorities concerned. Mr. S.R. Joshi, learned counsel appearing for the Insurance Company has placed reliance on the case of Ishwar Chandra and others v. Oriental Insurance Co. Ltd. and others, (2007) ACJ 1067 and National Insurance Co. Ltd. v. Bommithi Subbhayamma and others, 2005 ACJ 721 in support of his argument that the driver was not having a valid and effective driving license at the material time of accident and hence the Insurance Company was not liable. Another objection taken was that the truck was a goods vehicle in which passengers were carried for hire and reward which was not covered by the terms and conditions of insurance policy and the Insurance Company should be absolved from its liability. As the Insurance Company was not liable hence recovery rights were rightly given to it. 11. I have heard the learned counsel for the parties and considered the rival contentions and the award passed by the MACT and material on record. 12. Before proceeding further it would be necessary to have a look at the rulings cited by the learned counsel for the parties. 13. In Sohan Lal Passi v. P. Sesh Reddy and others (supra), the Apex Court held that the vehicle at the time of accident was driven by a person not holding the driving licence. In that case, it was held that the owner had appointed a duly licensed driver and the driver had allowed the cleaner and conductor to drive the vehicle and therefore in these circumstances the Insurance Company cannot repudiate its liability to pay compensation. 14. In United India Insurance Co. In that case, it was held that the owner had appointed a duly licensed driver and the driver had allowed the cleaner and conductor to drive the vehicle and therefore in these circumstances the Insurance Company cannot repudiate its liability to pay compensation. 14. In United India Insurance Co. Ltd. v. Lehru and others (supra), the Apex Court held that merely showing that the person driving at the time of accident was not duly licensed, not sufficient. It was further held that where prior to hiring the driver, the owner satisfied himself that the driver had a licence and was driving competently, held there would be no breach of Section 149(2)(a)(ii) and the insurer would not be absolved of liability. 15. In Prem Kumari and others v. Prahlad Dev and others (supra), the Apex Court placing reliance on Oriental Insurance Co. Ltd. v. Nanjappan, (2004) 3 SCC 22 , permitted the Insurance Company to recover the amount from the owner of the vehicle in the same manner as directed in Ninjappan (supra) case. 16. Ishwar Chandra and others v. Oriental Insurance Co. Ltd. and others (supra) the Apex Court held that as application for renewal of licence was filed after 30 days from the date of expiry, it shall be renewed from the date of renewal; Insurance Company directed to pay the compensation amount to the claimants with option to recover the amount from the insured by initiating proceedings before the executing Court. 17. National Insurance Co. Ltd. v. Bommithi Subbhayamma and others (supra) was related to a case of gratuitous passenger. The Tribunal allowed compensation but exempted the Insurance Company from liability. The High Court in appeal affixed liability on the Insurance Company. The Apex Court held that the claimants are entitled to recover awarded compensation from owner of vehicle. 18. Now I may consider the findings arrived at by the MACT and the arguments of both the parties on the basis of the rulings cited by them. 19. The MACT considered the statement of AW-1 Sheopal that truck No. RJ 18G 0052 was driven by driver of the truck with rashly and negligent manner and near Ghat Udaipurwati it collided with a boundary wall wherein Sultan died. AW-2 Ramchandra injured who was eye-witness to the accident stated that when the truck reached near Bagora it collided with wall. The MACT considered the statement of AW-1 Sheopal that truck No. RJ 18G 0052 was driven by driver of the truck with rashly and negligent manner and near Ghat Udaipurwati it collided with a boundary wall wherein Sultan died. AW-2 Ramchandra injured who was eye-witness to the accident stated that when the truck reached near Bagora it collided with wall. The MACT decided issue No. 1 in favour of the claimants holding that the accident took place due to rash and negligent driving of the driver of the vehicle. As far as issue No. 2 with regard to the liability of the Insurance Company is concerned the MACT held that on the date of accident i.e. 21.6.1999 the driving licence of the driver Sampat Lal was not renewed and the vehicle was being driven by a person whose licence was not renewed on the date of accident and thus the Insurance Company was not liable for the liability. 20. The owner and driver of the vehicle filed Misc. Appeal No. 1788/2003 for quashing of the award dated 12.12.2002 in respect of claim amount awarded to the injured claimant Ram Chandra. Injured claimant Ramchandra has also filed cross objection after receipt of notice of the misc. appeal. The National Insurance Company Ltd. has also filed cross objection after expiry of limitation. Along with the cross objection an application under Section 5 of the Limitation Act was filed. No order was passed on the application under Section 5 of the Limitation Act and the Co-ordinate Bench of this Court on 9.9.2004 directed that the cross objections filed by Mr. S.R. Joshi shall be heard at the time of final hearing of the appeal. The injured claimant Ramchandra in his statement stated that he incurred Rs. 30,000/- towards medicines and treatment. The injured claimant also filed X-ray report and permanent disability certificate Ex.15. The MACT after considering all these material awarded Rs. 25,000/- to the injured. The MACT held that the injured claimant has not produced any expert evidence to show that he suffered 15% disability. The finding of the MACT cannot be said to be unjust. The appeal filed by the appellants for quashing the award granting the compensation in the amount of Rs. 25,000/- deserves to be rejected. Similarly the cross objections filed by the injured claimant also deserves to be rejected in the facts of this case. The finding of the MACT cannot be said to be unjust. The appeal filed by the appellants for quashing the award granting the compensation in the amount of Rs. 25,000/- deserves to be rejected. Similarly the cross objections filed by the injured claimant also deserves to be rejected in the facts of this case. It may be mentioned that immediately after passing of the award, the Insurance Company submitted cheque No. 533426 dated 29.1.2003 for Rs. 32,237/- to be payable to the injured claimant Ram Chandra. Out of the said amount Rs. 10,000/- were kept in FD for 7 years and Rs. 22,237 were paid to the injured claimant on 7.2.2003. Now as per the judgment of the Apex Court in Prem Kumari and others v. Prahlad Dev and others (supra), and Oriental Insurance Co. Ltd. v. Nanjappan, (2004) 3 SCC 22 , the Insurance Company is free to recover the amount from the owner of the vehicle. The cross objections filed by the Insurance Company also deserves to be rejected. The Insurance Company has already deposited the amount and the same has been disbursed to the injured claimant and now it can only be recovered as per the Apex Court's judgment as mentioned above. Since the Insurance Company has not produced any other evidence and on that basis the MACT decided other issues in favour of the claimants. The findings on other issues are also confirmed. The rulings cited by the counsel for the appellants are not applicable in the facts and circumstances of this case. 21. For the reasons and the findings mentioned above, the Misc. Appeal No. 1788 of 2003 filed by the appellants and the Cross Objection No. 32/2004 filed by the injured claimant and the Cross Objection No. 89/2004 filed by the Insurance Company along with the application for condonation of delay, deserve to be rejected and are hereby rejected. The stay application also stands rejected. The common award dated 12.12.2002 passed by MACT, Jhunjhunu in Claim Petition No. 340/1999 stands confirmed. Looking to the facts and circumstances of the case, the parties are directed to bear their own costs.Appeal and cross objections dismissed. *******