Sh. Rajaram Meghwal v. Sh. Ram Ashok Sahani Ors

Judgment

3. Ram Ashok Sahani S/o Jeetlal Sahani, R/o Harser Police Station Meenapur District Mujaffarpura, At Present Bangad Plant, Chhatrapura Police Station Tehsil Atru District Baran Driver Vehicle Dumper No. Rj-10-Ga-3432 Gwar Construction Ltd, D.S.M-378, Sector 16-17, Hisar District Hisar, Haryana Owner Vehicle Dumper No. Rj-10- Ga-3432 The New India Insurance Company Ltd,. Jhalawar Road, Kota Raj. Insurance, Company Vehicle Dumper No. Rj-10- Ga-3432 Insurance Period From 14.02.2012 to 13.02.2013 ----Non-claimants/Respondents For Appellant(s) : Mr. Sameer Sharma For Respondent(s) : Mr. Rishipal Agarwal

HON'BLE MR. JUSTICE MANEESH SHARMA Order 08/07/2025

1. The present appeal has been preferred by the claimant/appellant under Section 173 of the Motor Vehicle Act, 1988 (hereinafter to be referred as "the Act of 1988") for enhancement of compensation assailing the award dated

23.09.2016 passed by the (District Judge Cadre) learned Judge, Motor Accident Claims Tribunal No.1, Kota (hereinafter referred to as "the learned Tribunal") in Claim Case No.2771/2014 (71/2013) titled as "Sh. Rajaram Meghwal Vs. Sh. Ram Ashok Sahani & Ors.", whereby the claim petition filed by the claimant/appellant has been partly allowed and compensation of Rs.28,000/- with interest @7.5% per annum, has been awarded to the claimant/appellant on account of injuries sustained. [2025:RJ-JP:25192] (2 of 7) [CMA-6005/2016]

2. Brief facts giving rise to the present appeal are that on

17.07.2012, the claimant/appellant- Rajaram Meghwal and Rajendra Prasad Meghwal were going to Atru from Motpur on a motorcycle, when they reached Atru Power House, a dumper, bearing registration No. RJ-10-GA-3432, driven by non-claimant/respondent No.1- Ram Ashok Sahani in a rash and negligent manner, came from behind and hit the motorcycle. As a result of which, the claimant/appellant and co-passenger sustained grievous injuries.

3. Subsequently, a claim petition was filed by the claimant/appellant whereby he prayed for awarding of just compensation.

4. Notice of the claim petition was issued to the non-claimant/respondent No.1 but despite being granted opportunity, the non-claimant/respondent No.1 did not file any reply to the claim petition, thereafter, the right to file reply was closed on 17.03.2015.

5. The non-claimant/respondent No.2, despite service of summons of the claim petition, chose not to contest the claim petition, therefore, ex parte proceedings were drawn against him on 04.12.2013.

6. The non-claimant/respondent No.3- Insurance Company filed its response to the claim petition wherein they have denied the averments made in the claim petition and contested the claim while stating that the driver of the insured vehicle did not hold a valid driving license to operate the dumper, which was a violation of the Insurance Policy, hence, they are not liable to pay any compensation. [2025:RJ-JP:25192] (3 of 7) [CMA-6005/2016]

7. On the basis of pleadings of the parties, on 17.03.2015 learned Tribunal has framed five issues.

8. In order to substantiate the averments made in the claim petition, the claimant examined himself as AW-1 and produced the documents as Ex.1 to Ex.40.

9. In rebuttal, the respondent No.3- Insurance Company examined NAW-1 Sanjay Pandey and produced the documents as NA1 to NA3.

10. After hearing arguments of respective parties, the learned Tribunal partly allowed the claim petition and awarded Rs.28,000/- as compensation along with interest @ 7.5% per annum from the date of filing of the claim petition till its realization.

11. However, while deciding issue No.3, the learned Tribunal has observed that since the driver of the dumper did not have valid license rather was having a fake license (Ex.14), therefore, the Insurance Company was not liable to pay any compensation, and the liability to pay the compensation was fasten upon non- claimant/respondent Nos.1 & 2.

12. Being aggrieved of which, the claimant/appellant has preferred the present appeal.

13. The submissions of learned counsel claimant/appellant are that the learned Tribunal has seriously erred in awarding an inadequate amount of compensation, as the learned Tribunal overlooked the evidence produced in Ex.38 and Ex.39 and failed to assess the salary amount for the period

17.07.2012 to 19.10.2012 in the award. He further submits that the learned Tribunal seriously erred in not fastening the liability upon the Insurance Company while applying the rule of pay and [2025:RJ-JP:25192] (4 of 7) [CMA-6005/2016] recover. He further submits that despite the injuries suffered by the claimant/appellant, a meagre amount of Rs.28,000/- has been awarded, therefore, the impugned award may be suitably modified.

14. Per contra, learned counsel for Insurance Company vehemently opposed the said submissions and submitted that in view of the fact that the license (Ex.14) was fake, the Insurance Company cannot be held liable to make the payment of compensation. He further submits that the impugned award is based on correct appreciation of pleadings and law, therefore, no interference is called for in the present appeal.

15. Heard the learned counsel for the parties and also considered the material available on record.

16. So far as, findings of issue No.3 are concerned, as per the judgment of the Hon'ble Supreme Court in the matter of National Insurance Co. Ltd. vs. Swaran Singh & Ors. reported in (2004) 3 SCC 297 Hon'ble Court considered the aspect of "duly licensed" and observed that: "110(iii) The breach of policy condition eg. disqualification of the driver or invalid driving license of the driver, as contained in Sub- Section (2)(a)(ii) of Section 149, has to be proved to have been committed by the insured for avoiding liability by the insurer. Mere absence, fake or invalid driving license or disqualification of the driver for driving at the relevant time, are not in themselves defences available to the insurer against either the insured or to the third parties who avoid its liability towards the insured, the insurer has to prove that the insured was guilty of negligence and failed to exercise reasonable care in the matter of fulfilling the condition of the policy regarding use of [2025:RJ-JP:25192] (5 of 7) [CMA-6005/2016] vehicles by a duly licensed driver or one who was not disqualified to drive at the relevant time."

17. Therefore, the Insurance Company cannot be exonerated only on the grounds of fake or invalid driving license of the driver rather the Insurance Company is directed to pay the compensation amount and then recovered the same from the owner. Thus, the finding on issue No.3, whereby the Insurance Company was exonerated and liability to pay compensation was fastened on non-claimant/respondent Nos.1 & 2 is reversed and set aside.

18. So far as, issue of quantum is concerned, from bare perusal of the record, it is revealed that on account of the said accident, the claimant/appellant suffered a fracture and sustained permanent disability to the extent of 3% (Ex.15). From the record, it is also evident that the claimant was hospitalized for four days as evident from discharge slip (Ex.16), and on account of said injury, he remained on leave from 17.07.2012 to

19.10.2012. Thus, as per the certificate issued by the school authorities in Ex.39, the injured could not join his duties and remained on leave without pay. It is evident from the salary certificate issued by the govt. employer in Ex.39 that salary of the injured till November 2012 was Rs.16,281/ per month.

19. From the record of the case, it is revealed that the learned Tribunal only awarded a meager sum of Rs.2,327/- under the head of physical/mental suffering, further, it is also established that the claimant/appellant had suffered loss of income for the period from

17.07.2012 to 19.10.2012 as the monthly income of the [2025:RJ-JP:25192] (6 of 7) [CMA-6005/2016] claimant/appellant was Rs.16281/- (as is evident from the leave certificate issued by the State Higher Secondary School, Nayaganv, Papdi in Ex.38), thus this Court is of the opinion that the claimant/appellant is entitled to the loss of income for the period of 90 days @ Rs. 542.7 per day (elucidated in detail in the table below).

20. Accordingly, the appeal is partly allowed and the compensation is enhanced in terms of table mentioned below:- Fracture (+) Medical Bills (+) Loss of income due to hospitalization (543x4) (+) Rs. 8,000/- Rs. 13,501/- Rs. 2,172/- Food and nutritious diet and transportation (+) Rs. 5,000/- Physical and mental suffering(+) Rs. 10,000/- Loss of Income due to injury (542.7 x 90 days) Rs. 48,843/- Total Already awarded Rs. 87,516/- Rs. 28,000/- Enhanced compensation Rs. 58,516/-

21. Therefore, the present appeal is partly allowed and award passed by the learned Motor Accident Claims Tribunal is modified and finding of issue No.3 is set aside and respondent- Insurance Company is directed to pay the compensation amount to the claimant and thereafter, Insurance Company may recover the same from the respondent Nos.1 & 2 while adhering to the principle of pay and recover and finding of issue No.4 is also modified and compensation is enhanced to Rs.87,516/- from the [2025:RJ-JP:25192] (7 of 7) [CMA-6005/2016] original amount of Rs.28,000/-. The Insurance Company is directed to deposit the remaining amount of Rs.58,516/- before the learned concerned Motor Accident Claims Tribunal within Sixty (60) days from the date of passing of this order. The claimant is also entitled to get interest on the enhanced amount of Rs.58,516/- at the rate of 6% per annum from the date of filing of the claim petition until the realization of the said amount.

22. The appeal is partly allowed as indicated herein above.

23. Record of the Court below be sent back immediately.

24. All the pending application(s), if any, shall stand disposed of. DEEPA-66 (MANEESH SHARMA),J