1 IN THE HIGH COURT OF JUDICATURE FOR RAJASTHAN AT JODHPUR J U D G M E N T THE NEW INDIA ASSURANCE CO.LTD. Vs. SHRI SURAJ BHAN & ORS. S.B. CIVIL MISC. APPEAL NO.1705/2007 under section 173 of Motor Vehicles Act 1988 against the judgment and award dated 13.03.2007 passed by the learned Judge, Motor Accident Claims Tribunal, Bhadra in Claim Case No.35/2005 DATE OF JUDGMENT :: 13.10.2008 PRESENT HON'BLE MR.JUSTICE MANAK MOHTA Mr. Jagdish Vyas, for the appellant. Mr. J.R.Choyal for Mr.G.R.Punia , for respondents No.1 to 6. Mr. Nitin Trivedi for respondent No.8 (owner of the vehicle). BY THE COURT : This appeal has been filed by the Insurance Company against the judgment and award dated 13.03.07 2 passed by the learned Judge, Motor Accident Claims Tribunal, Bhadra (in short ' the Tribunal') in Claim Case No.35/2005 whereby the learned Judge has allowed the claim petition and has awarded compensation of Rs.3,75,000/- with interst @ 9% per annum and in case the compensation is not paid within two months from the date of award it was further ordered that the claimants shall be entitled for interest @ 12% per annum. Briefly stated, the facts of the case are that Suraj Bhan, husband of Smt.Savitri (deceased) and daughters and sons of deceased Mst. Sharda, Mst.Santosh, Ms. Urmila, Mst.Pooja and Vijay Singh, filed a joint claim petition before the learned Motor Accident Claims Tribunal, Bhadra under Section 166 of M.V. Act, stating therein that on 26.07.05 , deceased Smt.Savitri was travelling in a school bus bearing No.RJ-31-P-1560 and at that time, at about 07.00 AM, when the bus reached near the field of Bhoop Singh, she asked the driver to stop the bus and while she was stepping down from the bus, all of a sudden the driver started the bus, as a result of which the bus hit her head from back side and caused injuries on her body. Injured Smt.Savitri was taken to the 3 hospital at Hissar but during treatment she could not saved and she expired on 27.07.05 . It was averred that the accident took place due to the rash and negligent driving of the bus by its driver. A report of the incident was registered at Police Station, Bhirani, vide FIR No.132/2005. The police, after investigation of report, filed challan against Dalip Singh in the court of ACJM, Bhadra. It was further stated that at the time of accident, she was 34 years old and was earning Rs.3,000/- per month by agriculture labour , the claimants were benefited from this income but due to death they have been deprived from the same and it was stated that they have suffered monitory loss and mental agony. As per claim petition respondent No.1 was the driver of the bus , respondent No.2 was the owner of the bus and respondent No.3 was the Insurance Company, with whom the bus was insured. The appellant claimants have claimed a total compensation of Rs.15,15,000/- as compensation on various heads, for the untimely death of deceased Smt.Savitri in the 4 road accident. In reply, respondent No.1driver of the bus denied the averments made in the claim petition and stated that at the time of accident deceased Smt.Savitri was not traveling in the said bus but she was walking on the road and all of a sudden she tried to cross the road and in order to save her, he took the bus to the 'kutcha' and at that time the back side of the bus hit her on the head as a result of which she fell down and got injuries on the head. It was further stated that as the accident occurred due to her own fault, therefore, he was not responsible for causing accident and prayed to dismiss the claim petition. Respondent No.2 in his reply denied the averments made in the claim petition and admitted that Dalip Singh , was driver of the bus but he was not authorised to carry passengers other than students / teachers of Sarvodaya Public School in the bus. It was further stated that deceased Smt. Savitri was not travelling in the bus as alleged, but she was walking on the road and while trying to cross the road, 5 she was hit by the bus, resulting into head injuries. In reply it was also submitted that the bus was insured with respondent No.3, therefore, in case any situation arises for paying compensation then Insurance Company would be responsible for the payment of the same. Respondent No.3 in its reply denied the averments made in the claim petition and stated that the deceased Smt.Savitri was aged about 34 years and she was not earning anything and it was further averred that the accident took place due to her own negligence while she was crossing the road. It was further stated that at the time of accident the driver was not possessing any valid and effective licence and since the terms and conditions of the Insurance Policy have been violated by the owner of bus, therefore, the Insurance Company was not liable to pay any compensation. The learned Tribunal, on the basis of pleadings of the parties, framed the relevant issues with regard to responsibility of causing accident and with regard to quantum of compensation along with responsibility of paying the same. 6 During trial, on behalf of claimants AW-1 Suraj Bhan and AW-2 Bhoop Singh were examined , their statements were recorded and certain documents were produced and got exhibited. From the side of respondents NAW/1 Krishna Kumar Indoliya, NAW/2 Rajendra Pal Singh, NAW/3 Mahaveer and NAW/4 Prabhu Singh were examined and certain documents were also got exhibited. After hearing both the parties, the learned Tribunal on the basis of material available on record, held vide judgment and award dated 13.03.07 that accident occurred due to fault of driver of offending bus the learned tribunal also overruled the other defences taken by the non-claimants and further, after considering the age and income of the deceased, determined and awarded the compensation of Rs.3,75,000/- and held responsible the non-claimants- respondents jointly and severally responsible for payment of compensation to the claimants and directed the Insurance Company to make payment of compensation amount of Rs.3,75,000/- along with interest as stated above. 7 Being aggrieved by the judgment and award dated 13.03.07 , the instant appeal has been preferred by the appellant the New India Assurance Company before this Court. Notice of the appeal was issued, record was called and the parties were heard. During the course of argument, learned counsel for the appellant submitted that the learned tribunal has not properly considered and appreciated the contentions raised before it and erroneously held appellant responsible for the payment of compensation. It was submitted that admittedly the vehicle in question was an educational institution's bus, owned by the Educational Institution. Therefore, that could only be used solely for the purpose of transporting the students and staff of the educational Institution and that was not meant for carrying other passengers. But in this case, the deceased was found travelling in the said bus as a passenger that was a violation of terms of the policy, thus, Insurance Company could not be held responsible for the payment of compensation. But the tribunal has not considered this aspect in right perspective . It was further contended that at the time of accident the driver of the 8 concerned vehicle was not having effective and valid driving licnce a specific issue , issue No.3 was framed in this respect and the appellant has proved this issue by producing NAW 1 Krishna Kumar Idoliya, NAW/2 Rajendra Pal Singh and NAW/4 Prabhu Singh and has also produced documentary evidence in this respect. It was urged that from the perusal of evidence produced in this respect it is crystal clear that the driver was not having effective driving licence and the Insurance Company deserves to be exonerated from the payment of compensation but the tribunal has wrongly fastened the liability upon the appellant. On the basis of these submissions, it was stated that holding the liability against the appellant for the payment of compensation be quashed. Further, if any amount has been paid by the Insurance Company, a right to recover the same may be given and appeal may be allowed. On the contrary, learned counsel for the respondent refuted the contentions raised by the appellant and supported the judgment given by the learned tribunal. It was contended by the learned counsel appearing on behalf of respondent that while the deceased Smt.Savitri was stepping down from the 9 bus at that time due to rash and negligent driving of the bus by its driver, the bus hit her head from the back side and caused injury on her body. On the basis of these factual aspect, it was submitted that when she was hit by the bus, she was outside the bus. Therefore, the learned tribunal has rightly held the Insurance Company liable for the payment of compensation. It was further contended that Insurance Company has failed to prove that the driver was not having valid and effective driving licence with the prior knowledge of the owner as well as insurer, has not been able to prove that driver was not having valid driving licence. Therefore, violation of any term of the policy is not found proved and the Insurance Company cannot shirk from its responsibility from paying compensation. On the basis of these submissions, it was contended that the appeal may be dismissed. I have considered the rival submissions and perused the findings and the conclusion drawn thereon by the learned tribunal. The main question remains for consideration is whether the appellant Insurance Company has been wrongly held responsible for the payment of compensation ? In this 10 respect, I have perused the statement of the witnesses produced from both the sides. From the perusal of the statements, it is clear that the deceased Savitri Devi was hit by the bus from the back side and thus she sustained fatal injuries resulting into her death. Thus, the contention raised by the appellant that she got injured during travelling in the school bus, is not sustainable. From the side of claimant AW/1 Suraj Bhan and AW/2 Bhoop Singh have appeared. Both the witnesses are not eye witnesses and have not stated that she got injured during travelling in bus but AW/2 Bhoop singh has stated that the deceased was hit by the bus from back side of head when she was stepping down from the bus. No other evidence has been produced by the appellant in this respect. Owner and driver of the bus also have stated that she was hit by the bus while she was crossing the road. Further, I have also considered the other contentions. I have seen the statement of witnesses produced by the appellant with regard to issue No.3. But after perusal of the statement it is not proved that bus was insured for students but the cover note (Ex.A/1) contains to cover the 11 risk of 19 travellers , the witnesses produced by the insurance company NAW/1 Krishna Kumar Indoliya admits this fact. Thus, the contention raised is not having any force. From the perusal of the evidence it has not been found proved that the driver was not having valid and effective driving licence. In this respect from the side of appellant, NAW/1 Krishna Kumar, an officer of the Insurance Company has appeared. But he has not stated that he himself made any enquiry with regard to driving licence . His statement is totally based on the survey report Ex.A/3 conducted by NAW/2 Rajendra Pal Singh. Thus, his evidence is of no use. NAW/2 Rajendra Pal Singh has stated that he made enquiry from the DTO, Hanumangarh about the driving licence of Dilip Singh. He has admitted in his statement that the said driving licence was issued by the District Transport Office, Srignaganagar. But he has not made any enquiry from that office. He has supported his survey report Ex.A/3 which is based on the report obtained form the DTO Office, Hanumangarh Ex.A/4. Further he has stated that Ex.A/4 was signed by the concerned DTO in his presence. But as per statement of NAW/4 Prabhu Singh it has 12 not been signed by the DTO. Thus, his statement is not reliable to this extent. Further his report is also incomplete as he has not enquired from the office from where the driving licence is alleged to be issued. NAW/2 Rajendra Pal Singh has further stated the he has not made enquiry as to when Dilip Singh applied for renewal of the licence. NAW/3 Mahaveer Singh , Secretary of the concerned School to whom the bus belongs, has appeared. He has stated that he was not aware that the driving licence was renewed or not on the day of accident. NAW/4 Prabhu Singh a Clerk of DTO Office, Hanumangarh has appeared. He has admitted in his statement that the driving licence has been found to be issued by the DTO, Ganganagar and he is not aware whether the driving licence has been renewed by the Office of DTO, Ganganagar . NAW/4 Prabhu Singh has further stated that Ex.A/4 is not having signature of the DTO , Hanumangarh but is having the signature of Sub-Inspector Jal Singh Meena, who is still working in that office. He has further stated that he is not aware when Dillip Singh , driver applied for renewal of the licence. Thus, on the basis of aforesaid evidence the Insurance Company has not been able to prove that on the day of 13 accident, driver Dilip Singh was not having valid and effective driving licence. The burden of proving this issue was on the Insurance Company but it failed to prove it. It is pertinent to mention that the driver of the offending bus was neither, summoned nor he has appeared. The owner of the bus has not supported their version. In these facts and circumstances of the case, the finding of the learned tribunal holding the Insurance Company responsible for the payment of compensation, is not suffering from any infirmity or illegality. Thus, the contention raised in this respect are having no force and are hereby rejected. I have also considered the authorities cited by the learned counsel for the appellant but they are hot helping his contentions. In Oriental Insurance Co.Ltd. vs. Meena Variyal (MACD 2007 (1) (SC)390 the victim was found occupant of the vehicle at the time of accident , thus he was not held to be a third party but that is not the position in this case. Likewise, in the case of Malla Prakasa Rao vs. Malla Janaki (2004) 3 SCC 343 and Ishwar Chandra & Ors vs. Oriental Insurance Co.Ltd. (MACD 2007 (1) (SC) 416, on the 14 basis of proved facts that driving licence was not found effective and valid. Insurance Company was exonerated from paying compensation, but the factual aspects in this case as stated above is different. Thus, they are not helping the appellant. I have perused the judgment and award, that is maintainable from all sides. On the basis of aforesaid discussion, appeal is liable to be dismissed and it is hereby dismissed. The judgment and the award passed by the learned tribunal is maintained . No order as to costs. ( MANAK MOHTA ),J. l.george