S.B. CIVIL MISC. APPEAL No. 1492/2006 (National Insurance Co. Ltd. Vs. Hanuman & Ors.) DATED : 06.10.2006 HON'BLE MR. JUSTICE DINESH MAHESHWARI Mr.Jagdish Vyas for the appellant By way of this appeal, the insurer of the vehicle, a Tata 407 truck bearing registration No. RJ31 G 1351 seeks to question the award dated 01.04.2006 made by the Motor Accidents Claims Tribunal, Bhadra in Claim Case No. 4/2003 whereby the Tribunal has awarded compensation to the respondent-claimant Hanuman in the sum of Rs. 1.00 lacs for the loss suffered by him due to the grievous injuries caused by the said vehicle on his left hand leading to 40% permanent partial disablement; and has mulcted liability upon the appellant-insurer. The claimant alleged that in the said truck he took the goods that were delivered at the residence of his relative on 06.11.2000 and while he was returning in the same vehicle on 07.11.2000, at about 9 a.m., the truck got stuck in mud on a kuchcha way between Sheyoratada and Bhadi and upon asking of the driver Ram Kumar, non-applicant No. 1, he was 1 removing the mud beneath the wheel of the vehicle; and at that moment the non-applicant driver negligently put the vehicle in motion and its front wheel crushed his left hand causing extensive injuries. The Claimant averred that he attempted to lodge First Information Report regarding the incident but the same was not taken; he got admitted in Vivekanand Hospital, Bhadra but was discharged when curfew was clamped on Bhadra town on 09.11.2000; he continued to get himself treated for the injuries; then he lodged a complaint in the court on 09.01.2001 and thereupon FIR No. 21/2001 was registered at the Police State Bhadra; then challan was field against the non-applicant No. 1 for offences Under Sections 279,337 and 338 IPC. Stating the liability of the non- applicants as driver, owner and insurer of the truck in question, the claimant made a claim in the sum of Rs. 23,25,000/-. The non-applicant No. 1 submitted a reply to the claim application denying the claim averments; denying his being the driver of the truck in question; and alleged that the claimant was a drunkard and was not a truthful person. The non- applicant No. 2, owner of the truck, filed a separate reply and while denying the claim averments submitted that the allegation about the occurrence were all concoctions. The non-applicant No. 3, insurer of the truck in its reply while 2 disputing the facts regarding the injuries sustained by the claimant and about his income, imputed responsibility towards the incident upon the claimant himself with the submissions that he was placing bricks under the wheel; and upon his asking the truck was put in motion by the driver; and that the claimant sustained injuries from the bricks he was pushing under the wheel. It was also alleged that earlier the propositions for compromise were being negotiated; and upon failure of settlement, the FIR was lodged after due deliberations; that the claimant did not suffer any such injury that would have required his hospitalization; that the certificate of disablement was not issued by a competent medical officer and that the claimant has made baseless claim towards treatment expenditure and pains and sufferings etc. For exoneration of its liability the insurer, inter alia, alleged violation of policy conditions because passengers were carried in the goods vehicle that was not plied under valid permit. After framing necessary issues and taking the evidence led by the parties, the Tribunal held the accident having occurred for the negligence of the driver, non-applicant No. 1 Ram Kumar that resulted in causing injuries to the claimant. The Tribunal also found that the non-applicant No. 1 was driving the vehicle in the employment and for the benefit of its 3 owner. The Tribunal also observed that the claimant has furnished sufficient explanation for delay in lodging the FIR; that the driver was holding valid licence and that the injured- claimant was a third party in the context of the accident in question and the insurer was liable to satisfy the award. While quantifying compensation, the Tribunal noticed 40% permanent partial disablement of the injured-claimant and allowed him Rs. 60,000/- towards non-pecuniary loss and Rs. 40,000/- towards pecuniary loss including Rs. 15,000/- towards treatment expenditure, Rs. 5,000/- towards special diets and Rs. 20,000/- towards loss of income in his work as a hairdresser. The appellant-insurer essentially seeks its exoneration with the submissions that the claimant was admittedly a passenger in a goods vehicle and the insurer has not undertaken his risk under the policy in question. Quantum of compensation has also been questioned being on higher side. The submissions are not well founded. From the fact situation of the present case it is but apparent that the claimant got injured from the vehicle in question while he was leveling the ground beneath its wheels 4 at the asking of the driver. The accident did not occur when the injured was traveling in the vehicle. In fact he got down the vehicle unharmed and was not a passenger of the vehicle when he was either removing the mud beneath the wheels or was pushing the bricks thereunder. In the context of the incident in question, the injured was only a third party; and when he got hurt for negligent moving of the truck, obviously, the insurer cannot be absolved of its liability under the insurance policy. The driver and owner of the vehicle have otherwise contested the claim application and the appellant- insurer seems not to have obtained permission to contest on other grounds under Section 170 of the Act. Therefore, and in the overall circumstances, there appears no justification to permit insurer to question the quantum of compensation awarded. Consequently, the instant appeal, being devoid of merits, is dismissed summarily. (DINESH MAHESHWARI),J. MK 5