Dismissed

New India Assurance Co. Ltd. v. Nandram and Ors.

Rajasthan HC15 Jul 2024CMA/676/2017

Case brief

AI extract

What is this about?

Appeal filed by the insurer challenging TR award in motor accident claim. Court affirmed TB finding that driver held valid LMV license pre-amendment, thus insurer liable. Compensation for injury and death deemed adequate.

What did the court decide?

Misc. appeals dismissed. No costs. Stay and pending applications rejected.

What the court decided

New India Assurance Co. Ltd. Vs Nandram and Ors. — Motor Accident Claims | Rajasthan HC (2024)

¶1

[2024:RJ-JD:28848]

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HIGH COURT OF JUDICATURE FOR RAJASTHAN AT JODHPUR

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S.B. Civil Misc. Appeal No. 670/2017

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New India Assurance Co. Ltd., Hanumangarh through Divisional Manager, New India Assurance Company Limited, T.P. Hub, Abhay Chambers, Near Jalori Gate, Jodhpur (Raj.)

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----Appellant/Insurer

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Versus

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Santosh Kumar S/o Rambabu, R/o Bihar at present Chachan Sweet House, Indra Chowk, Hanumangarh Town, District- Hanumangarh. - Claimant

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Shiv Kumar S/o Shri Prakash Chandra Jhinwar, R/o Durga Colony, Ward No. 11, Hanumangarh Junction, Tehsil and Distt. Hanumangarh. - Driver of the Tempo

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Gurunam Singh S/o Shri Major Singh, R/o Gurusar, Tehsil and Distt. Hanumangarh. - Regd. Owner of the Tempo

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Chandra Prakash Jain S/o Hajarimal Jain, R/o Ward No. 11, Hanumangarh Junction, Tehsil and Distt. Hanumangarh. - Owner of the Tempo

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----Respondents

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Connected With

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S.B. Civil Misc. Appeal No. 676/2017

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New India Assurance Co. Ltd., Nava Punjab, through Divisional Manager, The New India Assurance Co, T.P. Hub, Abhay Chambers, Near Jalori Gate, Jodhpur (Raj.)

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----Appellant/Insurer

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Versus

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Nandram S/o Horilal, R/o 2 K.N.J. Tehsil and Distt. Hanumangarh deceased through -

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1/1. Smt. Simara Devi W/o Shri Nandram, Resident of 37, Dr. Arjun Singh Ki Dhani, Chak Jwala Singh Road, Hanumangarh Junction, Distt. Hanumangarh.

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1/2. Naresh Kumar S/o Shri Nandram, Resident of 37, Dr. Arjun Singh Ki Dhani, Chak Jwala Singh Road, Hanumangarh Junction, Distt. Hanumangarh.

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1/3. Ashok Kumar S/o Shri Nandram, Resident of 37, Dr. Arjun Singh Ki Dhani, Chak Jwala Singh Road, Hanumangarh Junction, Distt. Hanumangarh.

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(2 of 8) [CMA-670/2017]

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[2024:RJ-JD:28848]

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Shiv Kumar S/o Shri Prakash Chandra Jhinwar, R/o Durga Colony, Ward No.11, Hanumangarh Junction, Tehsil and Distt. Hanumangarh. -Driver Of The Tempo

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Gurunam Singh S/o Shri Major Singh, R/o Gurusar, Tehsil and Distt. Hanumangarh. -Regd. Owner Of The Tempo

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Chandra Prakash Jain S/o Hajarimal Jain, R/o Ward No.11, Hanumangarh Junction, Tehsil and Distt. Hanumangarh. -Owner Of The Tempo

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Smt. Rajani Bala D/o Late Shri Nandram S/o Horilal, R/o 2 K.N.J.. Hanumangarh Junction, Distt. Hanumangarh.

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Smt. Sheela Devi D/o Late Shri Nandram S/o Horilal, R/o 2 K.n.j. Hanumangarh Junction, Distt. Hanumangarh.

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Smt. Kiran D/o Late Shri Nandram S/o Horilal, R/o 2 K.N.J. Hanumangarh Junction, Distt. Hanumangarh.

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----Respondents

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For Appellant(s)	: Mr. Sanjeev Johari, Sr. Advocate with Mr. Lalit Parihar.
For Respondent(s)	: None for respondent No.1/claimant (In CMA No.670/2017)
	None for respondents/claimants
	despite service.
	Mr. VijayJain,R-2 to 3.

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HON'BLE DR. JUSTICE NUPUR BHATI

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Judgment

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15/07/2024

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These misc. appeals have been filed by the appellant/nonclaimant No.4/Insurer under Section 173 of the M.V. Act, 1988 challenging the judgment and award dated 23.11.2016 passed by learned Judge, Motor Accident Claims Tribunal, Hanumangarh (for brevity, hereinafter referred to as ‘Tribunal’) in MAC Case Nos.284/2006 and 322/2006, whereby the learned Tribunal partly allowed the claim petitions filed by the claimants and awarded compensation to tune of Rs.9,00,000/- and Rs.10,000/-

[2024:RJ-JD:28848]

[CMA-670/2017]

(3 of 8)

respectively alongwith interest @ 7.5% p.a. and the liability to satisfy the award was fastened upon the non-claimants jointly and severally.

¶39

Briefly stated, the facts of the case are that claimant, Santosh Kumar filed claim petition claiming compensation of Rs.28,61424/- for the injuries suffered by him in the accident. Likewise, claimant, Nandram (who died during pendency of the claim petition and thereafter his legal representatives were brought on record) filed claim petition claiming compensation of Rs.1,49,200/- injuries suffered by him in the accident.

¶40

In the claim petitions, it was inter-alia alleged that on 01.08.2006 at about 08-09:00 pm the claimants were coming from Hanumangarh Town to Hanumangarh Junction in the Temp (RJ-13-P-0599). The said tempo was plied by its driver/nonclaimant No.1 rashly and negligently and when said tempo reached near Ashish Cinema, it hit a bullock cart from behind and the tempo got turtled. In the said accident, claimant sustained fracture in right wrist and leg. During treatment at PBM Hospital, Bikaner, left leg beneath the knee of claimant Santosh Kumar was amputated/cut. Likewise, claimant Nandram also stated that in the said accident, his bull sustained injuries and thereafter bull also died. It was further alleged that cart also got damaged. The said accident was reported by filing FIR No.468/2006 at Police Station Hanumangarh Junction, wherein after investigation, charge sheet was filed against the driver/non-claimant No.1 of the offending vehicle before the competent court.

¶41

After registration of the claim petitions, summons were issued to the non-claimants and after service of the summons,

[2024:RJ-JD:28848]

[CMA-670/2017]

(4 of 8)

non-claimants No.1, 2 and 3 filed reply while denying the averments made in the claim petitions. The non-claimants denied the factum of accident being caused by their tempo.

¶46

On behalf of appellant/non-claimant No.4, it was stated that the vehicle in question was not involved in the accident and the same was caused by other vehicle. An objection with regard to driving of the offending vehicle not having valid and effective licence was also taken. An objection with regard to not affixing reflector on the cart was also taken and the accident had taken place on account of negligence on the part of owner of the cart. An objection with regard to income of the injured was also raised. Thus, it was prayed that the claim petitions be rejected. Despite service upon non-claimants No.5 to 7, nobody appeared and, therefore, exparte proceedings were drawn against them on 29.06.2015.

¶47

As per the pleadings of the parties, the learned Tribunal framed five issues including relief. In support of their claim petitions, the claimants examined themselves as AW.1 Santosh Kumar and AW.2 Nandram and 52 documents were exhibited. On behalf of non-claimants, statements of NAW.1 Avtar Singh were recorded and one document viz. Insurance Policy was exhibited. 7. The learned Tribunal thereafter heard arguments of parties and after appreciating the same vide its judgment and award dated 23.11.2016 partly allowed the claim petitions and awarded compensation in favour of claimants.

¶48

The appellants/non-claimant No.4 being aggrieved by the judgment and award impugned dated 23.11.2016 has preferred these misc. appeals.

[2024:RJ-JD:28848]

[CMA-670/2017]

(5 of 8)

Learned counsel for the appellant vehemently contended that the learned Tribunal has not considered the objections raised by the insurance company with regard to breach of policy conditions and so also the driver of the offending vehicle not having valid and effective licence, inasmuch as though the driver/non-claimant No.1 was having licence of LMV, however, the same was not valid to ply tempo. Learned counsel for the appellant thus submits that the learned Tribunal has erred in deciding Issue No.3, inasmuch as the tempo was essentially a transport vehicle and, therefore, it was legal mandate for the driver to have the specific driving licence to drive such transport vehicle. Learned counsel for the appellant further submitted that the owner of the vehicle were guilty of entrusting the vehicle to a person, who was not the valid driving licence to ply transport vehicle like tempo, therefore, on account of violation of policy conditions, the insurance company has wrongly been held entitled to pay the compensation. Learned counsel for the appellant further submits that the learned Tribunal has also erred in relying upon the disability certificate (Ex.16), according to which claimant Santosh Kumar on account of amputation of his left leg, sustained 60% permanent disability. Learned counsel for the appellant submitted that the learned Tribunal has also erred in awarding compensation of Rs.6,00,000/under ‘non-pecuniary’ head without considering the earning of the claimant. Learned counsel further submitted that under the head of ‘pecuniary’ a sum of Rs.3,00,000/- has been awarded, though bills of Rs.26,426/- qua the treatment were produced. Learned counsel for the appellant further submitted that the Tribunal although no bills with regard to expenses being incurred for

[2024:RJ-JD:28848]

[CMA-670/2017]

(6 of 8)

repairing of the bullock cart were produced, however, the learned Tribunal awarded compensation of Rs.10,000/- in favour of legal heirs of deceased claimant, Nandram.

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Learned counsel for the appellant qua the aspect of quantum submitted that the learned Tribunal has erred in awarding excess compensation, inasmuch as it has not considered the evidence thoroughly and the objection raised in the reply have not been taken into consideration.

¶58

I have considered the submissions made by counsel for the appellant and have perused the material available on record. 12. This Court finds that the leaned Tribunal has, in its judgment and award impugned, taken into consideration the objections raised by the appellant insurance company. This Court finds that the learned Tribunal while deciding the Issue No.3 has considered the arguments advanced on behalf of parties and observed that at the time of accident, the driver was having the valid and effective licence to ply LMV and considering the law laid down by Hon’ble Apex Court in the cases of Kulwant Singh v. Oriental Insurance Company Ltd. : (2015) (1) Apex Court Judgments 32 (SC) and National Insurance Co. Ltd. vs. Annappa Irrappa Nesaria & Ors. : 20085 RAR 84 (SC) held that since the licence was issued in favour of driver prior to amendment being brought into force, therefore, the tempo being a light motor vehicle, was plied by its driver and the appellant insurer could not be exonerated from its liability.

¶59

This Court also finds that claimant, Santosh Kumar, in the said accident had sustained 60% permanent disability, inasmuch as he lost his left leg beneath the knee. The learned Tribunal

[2024:RJ-JD:28848]

[CMA-670/2017]

(7 of 8)

considered that claimant Santosh Kumar was doing the job of confectioner at Chachan Sweet House and by doing the said job in parties and marriage functions etc. he was earning Rs.5000/- per month. On account of injuries suffered by the claimant, he remained hospitalized for a period of one and half month and had also undergone three operations, wherein his left leg was amputated and he being the elder son in the family was the sole bread winner, therefore, on account of his sustaining 60% permanent disability, the claimant was unable to discharge the work of confectioner or any other work. Thus, considering the overall facts and circumstances of the case, this Court finds that the learned Tribunal has rightly assessed the income of the injured and has awarded adequate compensation of Rs.6,00,000/- in favour of claimant for pain, mental agony, permanent disability, loss of income etc. under the non-pecuniary head. So far as the expenses being incurred in the treatment, claimant Santosh Kumar remained hospitalized for a period of one and half month and has undergone three operations, therefore, the compensation awarded under the pecuniary head of Rs.3,00,000/- is also considered to be fair enough and, therefore, the same calls for no interference.

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This Court also finds that the amount awarded by learned Tribunal in favour of legal heirs of deceased claimant to the tune of Rs.10,000/- towards damage caused to bullock cart and death of bull do not call for any interference, as in the considered opinion the said compensation is adequate and not higher.

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Accordingly and in view of above discussion, this Court finds no force in the misc. appeals filed by the appellant Insurance

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(8 of 8) [CMA-670/2017]

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[2024:RJ-JD:28848]

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Company and, therefore, the same are hereby dismissed. No costs. Stay applications and pending applications, if any, are also rejected.

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(DR. NUPUR BHATI),J

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87 & 88-DJ/-

New India Assurance Co. Ltd. v. Nandram and Ors.

Case brief

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New India Assurance Co. Ltd. v. Nandram and Ors.

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