Babu Singh Sikarwar vs Shreelal and Others

G.D. Saxena, J.—This appeal u/s 173 of the Motor Vehicles Act 1988 has been preferred by the owner/appellant of the vehicle involved in accident against an Award dated 4th July 2006 in Claim Case No. 3/2006 passed by the Additional Member of the Motor Accidents Claims Tribunal Guna (M.P.) while exonerating the Insurance Company/respondent No. 3 from indemnifying the liability on behalf of the owner to pay award amount to the claimant/injured. Facts, in brief, just for the decision of this appeal are that on 27th September 2004 at about 3 p.m., the injured and 7-8 passengers were going in a Jeep No. MP08A/8768 from Bharsula Chauraha to Khamkheda Balaji. It is alleged that due to rash and negligent act of the driver of the jeep, it met with collision against a Babul tree near Awasthi Hotel while over-crossing the truck coming from front side and thereafter overturned. As a result, petitioner/respondent No. 1, namely, Shrilal got severe injuries and fractures in femur and fibula. The F.I.R. was lodged against the driver of the jeep and after investigation the charge sheet was filed in the Criminal Court. On submitting claim, the learned tribunal after consideration of the evidence passed the award for Rs. 34,000/- against the owner and driver but exonerated the Insurance Company for indemnifying the liability of payment of award to claimant/injured. Being aggrieved by the directions of the learned MACT, the appellant-owner has come to this court.

Learned counsel for the appellant contended that the award under appeal is not passed in consonance with the facts and evidence on record and therefore it is liable to be set aside. It is submitted that the compensation was awarded without considering the evidence on higher side. The finding that the Insurance Company was liable to exonerate from indemnifying the liability of the insured while the vehicle was insured under comprehensive insurance cover note and an extra premium was recovered for covering risk of 8 other passengers travelling in the vehicle involved in accident is therefore not sustainable in law. It is also not proved by the evidence that the passengers died or injured in vehicle were travelling on paying fare or the driver was involved in racing the vehicle, hence, according to the learned counsel, the Insurance company cannot be excluded for breach of the terms and conditions of the policy. It is, therefore, prayed that by allowing the appeal, the directions issued by the tribunal for payment of the award by the appellant and driver may be set aside and the Insurance company may be directed to indemnify the liability of the owner for payment of award to the claimant.

The respondent/claimant by filing the counter appeal under Order XLI Rule 22 of C.P.C. contended that the learned claims tribunal without considering the ocular and medical evidence for severe injuries caused in the accident passed the compensation which is on lower side and therefore the same may be enhanced as per evidence on record and the law applicable to the case.

On the other hand, the submission put forth on behalf of the Insurance company is that the vehicle was plying against the terms of insurance policy in violation the provisions of Motor Vehicles Act, hence, the learned tribunal rightly exonerated the company for indemnifying the liability on behalf of the owner for payment of the award amount to the claimant. Accordingly, it is prayed that the appeal may be set aside and the directions contained under the award may be confirmed.

Heard the learned counsel for the parties. Also perused the record of the case and the law.

The heart of the matter involves mainly two of the questions as following:-

(i) Whether the learned tribunal after considering the evidence on record and the law has rightly exonerated the Insurance Company from the liability of payment of the award amount to the claimant/injured ?

(ii) Whether the learned tribunal after considering the injuries sustained, has properly passed the award or there is a scope of enhancement ?"

The injured/claimant in his cross-examination admitted that he and his 5-6 relatives were traveling by paying fare to the driver. The accident occurred due to rash and fast driving of the vehicle by the driver in which claimant/respondent No. 1 sustained serious injuries. His bone of knee was fractured causing permanent disability. He stated that he used to earn porter age for his livelihood but due to accident, he suffered a lot of problems throughout his life. He became permanently handicapped. Pooran (AW-2) who was travelling in the jeep which met with an accident confirmed the evidence of the injured Shrilal. However, no medical evidence has been led to support the disability certificate (Ex. P/37) issued by the District Disability Medical Board. Moreover, the Certificate of Disability (Ex. P/37) clearly indicates complaining of pain in left leg by the injured but it did not in any manner show the percentage of permanent disability in the body of the injured.

Kallu (NAW-2) driver of the vehicle involved in accident deposed that the accident was the result of negligence on the part of the driver of the truck who had rashly overtaken the jeep as a result, the jeep run over the big stone lying by the side and thereafter turned turtle. He, therefore, deposed that he was not the author of the accident. He also deposed that the passengers were either relatives or known to the owner and therefore were gratuitous passengers travelling in the jeep.

On perusal of the Insurance Policy (Ex. D/1) issued for insuring the Jeep bearing No. MP08-A8768 was for the period from 22nd January 2004 to midnight of 21st January 2005 under Private Car Policy. A liability only was insured for third party, PA to unnamed Passengers 9, compulsory PA to owner/driver and WC to employee. No other risk was covered under policy except as mentioned above. The policy covers use of the vehicle for any purpose other than (a) hire or reward. Thus, the Insurance company is liable to indemnify, as per terms of the policy, the liability of award granted to the injured travelling as gratuitous passenger or travelling as passenger on hire. The Insurance company on contradictory evidence on record that the injured along with other passengers was travelling in jeep as passenger on paying fare to the driver or as per evidence that the injured and others were known or relatives of the owner were gratuitous passengers has not even tried to rebut the same by cogent evidence. Consequently, the learned tribunal has committed an error in holding the exoneration of the Insurance company.

The next question for consideration is about the quantum of award.

On considering the medial documentary evidence on record, it appears that a fracture of femur on head of fibula was seen by the doctor conducting X-ray examination. The fracture was of major bone on lower part of the body. Though no surgical treatment was done for union of the bone but looking to the traditional treatment in applying the plaster, dressing for certain period and thereafter the time taken in resuming normal life all will be indicative of the fact that at least two months more would be required for gaining fitness as was rightly considered by the tribunal. Still, it appears that the amount of compensation in all the heads as awarded is on lower side which requires proper enhancement. Hence, taking into consideration all the heads of compensation, the award amount as granted by the learned tribunal is enhanced by Rs. 25,000/- more, which comes to Rs. 59,000/-. The enhanced amount shall be paid to the claimant with interest @ 9% from the date of filing of the appeal before this court. Consequently, by allowing the present appeal as aforesaid and accepting the cross-objections, the amount is enhanced to the extent mentioned above. The total amount of award shall be paid within three months from today by the respondent No. 3, i.e., the Insurance Company. The cost of the appeal shall also be borne by the respective parties.