1 IN THE HIGH COURT OF JUDICATURE FOR RAJASTHAN JAIPUR BENCH, JAIPUR. JUDGMENT (The New India Assurance Co. Ltd. Vs. Ramnarain and ors.) S.B.CIVIL MISC. APPEAL NO.782/1997 S.B. Civil Misc. appeal under Section 173 of Motor Vehicles Act against the award dated 10.06.1997 passed by M.A.C.T. Jaipur City, Jaipur in claim Case No.295/1992. DATE OF JUDGMENT ::: 6st OCTOBER, 2009 PRESENT HON'BLE MR. JUSTICE MAHESH BHAGWATI Mr. Ram Singh, for the appellant. Mr. Sandeep Mathur for the respondents. REPORTABLE BY THE COURT: Challenge in this appeal is to the judgment and award dated 10th June, 1997 whereby the learned Motor Accident Claims Tribunal, Jaipur City, Jaipur decreed an amount of Rs.2,65,000/- against the appellant-the New India Assurance Co. Ltd. along with interest @ 15% per annum payable w.e.f 25th March, 1992 till the realization of decretal amount under the award. Back ground facts, in nut-shell, are as follows:- That on 29th November, 1991 at about 11-12 pm, the claimant Ramnarain was returning to his house from the place of work. When 2 he reached near the Sodala Police Station at Jaipur, one truck No.HYN 1366 came from the back in a wavering state and hit him causing injuries in both his legs. The claimant fell on the ground, who was taken to S.M.S. Hospital by Police for treatment. It is alleged that the said truck was being driven rashly and negligently by driver-Jaswant Singh who caused the accident. The appellant has assailed the impugned award on following two grounds: (i) That the owner of the truck HYN-1366 violated the terms and conditions of the Insurance Policy as he had engaged Jaswant Singh to be the driver of the truck, who was having a fake driving licence. The learned Tribunal has also observed that the driving license owned by driver Jaswant Singh was not found to be genuine, yet the Tribunal decreed the aforesaid amount in favour of the claimant and against the appellant. (ii) That the 15% rate of interest payable on the amount of compensation under award is highly excessive, which has affected the total quantum of compensation. The rate of interest needs to be reduced to 6%, which is prevalent rate of interest in the present times. The learned counsel for the appellant has reiterated these grounds while making the submissions before the Court and contended that the Insurance Co. cannot be held liable to pay the amount of compensation, if the terms and 3 conditions are being violated by the owner of the vehicle. In the instant case, the owner of the truck employed Juswant Singh to be the driver of the truck who had fake driving license with him. Hence, the Insurance Co. should be absolved of its liability. The learned counsel for the respondents, in contra, has contended that the owner of the truck did not engage the driver Jaswant Singh on his truck willfully knowing it that the driver was having a fake driving license. The owner of the vehicle after making preliminary enquiry from the driver himself employed him as a driver. The driver was having the driving license with him. He did not know that the driving license owned by the driver was fake, hence, the Insurance Co. cannot be absolved of its liability. Learned counsel for the respondents has further contended that in the year 1992 as also at the time of passing the award 15% rate of interest was prevalent in the market. In the instant case, the claimant sustained injuries in both his legs and he suffered permanent physical impairment due to amputation of upper ¼th right thigh. He sustained 85% permanent disability, hence, in view of the facts and circumstances of the case. 15% rate of interest awarded by the learned 4 Tribunal does not seem to be excessive and the appeal deserves to be dismissed. In the case of National Insurance Co.Ltd. Vs.Geeta Bhat & Ors. reported in 208, RAR, 157 (SC), the Hon'ble Apex Court has held : We would, therefore, assume that the licence possessed by the 6th respondent, Gopal Singh was a fake one. Only because the same was fake, the same, having regard to the settled legal position, as noticed hereinbefore, would not absolve the insurer to reimburse the owner of a vehicle in respect of the amount awarded in favour of a third party by the Tribunal in exercise of its jurisdiction under Sec.166 of the Motor Vehicles Act, 1988. From the perusal of the evidence and relevant documents on record, it is found that the owner of the truck in question had no knowledge at the time of employing Jaswant Singh as driver on his vehicle that he was having a fake driving license. He is found to have conducted the preliminary enquiry from the driver himself and came to know that Jaswant Singh knew driving and he had a valid license with him. The Insurance policy can absolve from its liability only in that situation where a willful breach of terms and conditions of the Insurance policy is found to have been made by the owner of the vehicle. In the instant appeal, it is not found so. The learned 5 Tribunal has critically examined the entire evidence and carefully analyzed the matter in the light of the pronouncement of the Hon'ble Supreme Court on this point. In the case of National Insurance Co. Ltd. Vs. Swarn Singh and Ors. reported in ACJ, 2004, (Vol-I),1, it has been held that mere absence, fake or invalid driving licence or dis- qualificaton of the driver for driving, are not in themselves defences available to the Insurance Co. So far as the rate of interest is concerned, after hearing both the parties, it is found that 15% rate of interest was prevalent at the time of pronouncement of the impugned judgment. Otherwise too, keeping in view the 85% disability and permanent physical impairment due to amputation of upper 1/4th right thigh as suffered by the claimant Ramnarain, 15% rate of interest as awarded by the learned Tribunal on the amount of compensation does not seem to be excessive. The impugned judgment is not found to have suffered any infirmity. The finding arrived at by the learned Tribunal is just and proper and warrant no intervention. For these aforesaid reasons, the appeal filed by the appellant-the New 6 India Assurance Co. Ltd. fails and the same being bereft of merits, stands dismissed. No order as to costs. (MAHESH BHAGWATI),J. PCG 7 IN THE HIGH COURT OF JUDICATURE FOR RAJASTHAN JAIPUR BENCH, JAIPUR. JUDGMENT (The New India Assurance Co. Ltd. Vs. Ramnarain and ors.) S.B.CIVIL MISC. APPEAL NO.782/1997 DATE OF JUDGMENT ::: 6th OCTOBER, 2009 PRESENT HON'BLE MR. JUSTICE MAHESH BHAGWATI Mr. Ram Singh, for the appellant. Mr. Sandeep Mathur for the respondents. For these aforesaid reasons, the appeal filed by the appellant-the New India Assurance Co. Ltd. fails and the same being bereft of merits, stands dismissed. No order as to costs. (See separate judgment). (MAHESH BHAGWATI),J. PCG