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2012 DIGILAW 679 (RAJ)

National Insurance Co. Ltd. v. Sonu Swami

2012-03-19

MAHESH BHAGWATI

body2012
BHAGWATI, J.—Since both, the appeal and the cross-objections relate to one accident and arise out of judgment and award dated 8.9.2006 passed by Motor Accident Claims Tribunal (Additional District Judge Fast Track No. 3), Jhunjhunu, therefore, arguments have been heard together and they are being disposed of by this common order. 2. Brief facts of the case, in nub, are that on 5.3.2004, Sonu Swami was coming from Chirawa to his home Bagad by Bus bearing registration no RJ 18 P 1514. The driver drove the bus rashly and negligently. Despite being warned by the passengers, he did not pay any heed. The driver knocked down the bus from the road and dashed it against the tree, as a result of which Sonu Swami sustained injuries over his body. On a claim petition having been filed, the learned Tribunal decreed an amount of Rs. 70,000/- in favour of claimant and against the appellant and non claimants. 3. Learned counsel appearing for the Insurance Company contended that at the time of accident, the driver of the offending vehicle was not having a valid and effective driving licence, as such the Insurance Co. was not liable to pay the quantum of compensation. Hence, the Insurance Company be absolved from its liability. 4. E contra, learned counsel for the respondents defended the impugned award. 5. Having heard the learned counsel for the parties and carefully perused the impugned award, it is noticed that Apex Court in the case of National Insurance Company vs. Kusum Rai & Ors., (2006) 4 SCC 250 = RLW 2006(3) SC 1863, opined thus:- “14. This Court in Swaran Singh clearly laid down that the liability of the Insurance Company vis-a-vis the owner would depend upon several factors. The owner would be liable for payment of compensation in a case where the driver was not having a licence at all. It was the obligation on the part of the owner to take adequate care to see that the driver had an appropriate licence to drive the vehicle. The question as regards the liability of the owner vis-a-vis the driver being not possessed of a valid licence was considered in Swaran Singh stating (SCC pp.336-37, para 89). 6. It was the obligation on the part of the owner to take adequate care to see that the driver had an appropriate licence to drive the vehicle. The question as regards the liability of the owner vis-a-vis the driver being not possessed of a valid licence was considered in Swaran Singh stating (SCC pp.336-37, para 89). 6. Further, the facts of the instant case are found to be similar to that of the judgment dated 15.7.2010 delivered by this Court in the case of Raja Ram vs. Rajendra and & Others (S.B. Civil Misc. Appeal No. 1699/1999 = 2010(2) CCR 1088 (Raj.)). Hence, in the light of the judgment of Apex court rendered in the case of Kusum Rai (supra) and of this Court in the case of Raja Ram (supra), the instant appeal filed by the Insurance Company succeeds and the impugned award dated 8.9.2006 passed by the Tribunal in CMA No. 136/2005 qua appellant – Insurance Company stands set-aside. 7. So far as the cross objections filed by the claimant(s) are concerned, the claimant injured was found to have sustained two injuries: first on right shoulder and another on left thigh, which was found to be grievous in nature. He remained admitted in hospital at Sikar w.e.f. 6.3.2004 to 19.3.2044. He is found to have sustained 20-25 % permanent disability, but the learned Tribunal is found not to have awarded any amount under the head of physical pain, mental agony and trauma. Hence, I am of the view that if an additional amount of Rs. 20,000/- is awarded under the aforesaid heads, it would sub-serve the purpose. Hence, the claimant is held entitled to receive Rs. 90,000/- instead of Rs. 70,000/- from the non claimants-respondents. 8. For the reasons stated above, the cross objections filed by the injured are partly allowed and he is held entitled to claim Rs. 90,000/- instead of Rs. 70,000/- from the respondents non claimants. He is also held entitled to get interest @ 6% per annum on the enhanced amount from the date of filing the claim petition till the amount is actually realized. Rest of the terms under the award shall remain unchanged. 9. Impugned award stands modified as indicated here-in-above.