Nar Singh vs Vijay and Others

N.K. Mody, J.—Being aggrieved by judgment dated 23rd December, 2004, passed by M.A.C.T., Jhabua, in Claim Case No. 111/2002, whereby claim petition filed by the appellant was allowed and compensation of Rs. 80,000/- was awarded on account of injuries sustained in a motor accident which took place on 24th March, 2002 and the respondent No. 3 was exonerated, present appeal has been filed. Short facts of the case are that claim petition was filed by the appellant alleging that on 24th March, 2002 when appellant Narsingh was going from Dahod to Indore in truck No. GJ-17-T-1996, as labourer. It was alleged that the said truck was being driven by respondent No. 1 rashly and negligently, owned by respondent No. 2 and insured with respondent No. 3. It was alleged that because of rash and negligent driving the said truck met with an accident with the result appellant sustained grievous injuries. It was alleged that the appellant was examined in District Hospital where it was found that appellant has sustained fracture of Fibula bone in right leg. It was alleged that claim petition be allowed and compensation be awarded.

Claim petition was contested by respondent No. 3 on the ground that since the offending truck was being driven contrary to the terms of the policy, therefore, the Insurance Company is not liable for payment of compensation. It was prayed that the claim petition be dismissed. After framing of issues and recording of evidence learned Tribunal awarded compensation of Rs. 80,000/- and exonerated respondent No. 3 on the ground that the offending truck was carrying passengers whereas the passengers were not allowed as per terms of policy. The break up of the compensation awarded is as under:-

Rs. 75,000/-

Towards permanent disability

Rs. 2,000/-

Towards medicines

Rs. 3,000/-

Towards pain and suffering.

Rs. 80,000/-

Total

Learned Counsel for the appellant submits that the appellant was hospitalized for a period of 24 days. Learned Counsel submits that the appellant was operated and rod was inserted with the result there is shortening of leg of 11/2" Learned Tribunal assessed the permanent disability to the extent of 56% which is on lower side. It is submitted that since the appellant was travelling in the truck as a labourer and the respondent No. 3 has not adduced any evidence, therefore, learned Tribunal committed error in exonerating the respondent No. 3. It is submitted that the amount be enhanced and the findings regarding exoneration be set aside.

Learned Counsel for the respondent No. 3 submits that when the appellant was travelling in the truck as labourer then it was incumbent upon him to examine the owner or driver. It is submitted that in the present case appellant has not examined himself and it is only the son of the appellant who was examined on behalf of the appellant who was not present on the spot.

Learned Counsel placed reliance on a decision in the matter of National Insurance Co. Ltd. v. Baljeet Kaur and others reported in 2004 (2) J.L.J. 127 : 2004 (1) T.A.C. 366 (S.C.), wherein it is held that effect of amended Section 147 of the Motor Vehicles Act is that the representative travelling in goods vehicle with goods have been included. It is submitted that since the appellant has failed to prove that the appellant was travelling as labourer, therefore, the Insurance Company cannot be held liable. Reliance is also placed on a decision in the matter of M.V. Jayadevappa and another v. Oriental Fire & Genl. Ins. Co. Ltd. and others reported in 2005 A.C.J. 1801 : 2005 (2) T.A.C. 5 (S.C.), wherein Apex Court has held that where a vehicle is goods vehicle and not authorized to carry passengers Insurance Company is not liable for death/injury to the passengers. Lastly reliance is placed on a decision in the matter of United India Insurance Co. Ltd. Vs. Suresh K.K. and Another, , wherein owner of goods hired a three wheeler goods carriage and he was travelling in it but there was no goods at the time of accident and he sustained injuries, Hon''ble Apex Court held that so far as liability is concerned, keeping in view the facts and circumstances of the case, this Court is of the view that since there is a breach of policy, therefore, Insurance Company is exempted from liability. It is submitted that appeal has no merit and the same be dismissed.

In the facts and circumstances of the case this Court is of the view that a case for enhancement is made out and the same is further enhanced by Rs. 25,000/- . So far as liability of respondent No. 3 is concerned, keeping in view the fact that the offending vehicle was a goods vehicle and the offending vehicle was not being used for carrying goods and also keeping in view the position of law as stated hereinabove, learned trial Tribunal committed no error in exonerating the respondent No. 3. In view of this appeal filed by the appellant is allowed in part. Amount of award is enhanced by Rs. 25,000/- which shall carry interest @ 8% per annum from the date of application. So far as liability is concerned findings recorded by the learned Tribunal shall remain intact. No order as to costs.