1 S.B. Civil Misc. Appeal No.732/2007 National Insurance Co. Ltd.. vs. Parmeshwar & Ors. And other connected appeals & cross objections IN THE HIGH COURT OF JUDICATURE FOR RAJASTHAN AT JODHPUR. JUDGMENT 1.S.B. Civil Misc. Appeal No.732/2007 National Insurance Co. Ltd. vs. Parmeshwar & Ors. 2.S.B. Civil Misc. Appeal No.733/2007 National Insurance Co. Ltd. vs. Narayan & Ors. 3.S.B. Civil Misc. Appeal No.734/2007 National Insurance Co. Ltd. vs. Nanka & Ors. 4.S.B. Civil Misc. Appeal No.735/2007 National Insurance Co. Ltd. vs. Kachru & Ors. 5.S.B. Civil Misc. Cross Objection No.5375/2007 DR(J) National Insurance Co. Ltd. vs. Magan & Ors. 6.S.B. Civil Misc. Cross Objection No.5378/2007 DR(J) National Insurance Co. Ltd. vs. Nathu & Ors. 7.S.B. Civil Misc. Cross Objection No.5439/2007 DR(J) National Insurance Co. Ltd. vs. Sohan & Ors. 8.S.B. Civil Misc. Appeal No.792/2007 Magan. vs. Razik Mohd. & Ors. 9.S.B. Civil Misc. Appeal No.794/2007 Sohan. vs. Razik Mohd. & Ors. 10.S.B. Civil Misc. Appeal No.795/2007 Kachru. vs. Razik Mohd. & Ors. 2 S.B. Civil Misc. Appeal No.732/2007 National Insurance Co. Ltd.. vs. Parmeshwar & Ors. And other connected appeals & cross objections 11.S.B. Civil Misc. Appeal No.796/2007 Nathu vs. Razik Mohd. & Ors. 12.S.B. Civil Misc. Appeal No.636/2007 Parmeshwar. vs. Razik Mohd. & Ors. 13.S.B. Civil Misc. Appeal No.793/2007 Nanka. vs. Razik Mohd. & Ors. 14.S.B. Civil Misc. Appeal No.638/2007 Narayan. vs. Razik Mohd. & Ors. Date : 19.9.2008 HON'BLE MR. PRAKASH TATIA, J. Mr.Sanjeev Johari, for the appellant. Mr.Parikshit Nayak ) for the respondents. Mr.PR Mehta ) - - - - - Heard learned counsel for the parties. In all these appeals and cross objections preferred by the appellant insurance company, the award dated 18.10.2006 passed by the Motor Accident Claims Tribunal (Fast Track), Banswara and the findings recorded therein are under challenge. 3 S.B. Civil Misc. Appeal No.732/2007 National Insurance Co. Ltd.. vs. Parmeshwar & Ors. And other connected appeals & cross objections Brief facts of the case are that on 26.11.2003 at about 5-6 PM, the accident was caused by the Bus no.RJ 03/P 0776. At that time, Huka was the driver of the vehicle and it is alleged that he drove the vehicle rashly and negligently and because of that reason, the vehicle turned and fell down. It caused injuries to Narayan, Sohan, Parmeshwar, Nathu, Magan, Nanka and Kachru. The owner of the bus was Rajik Mohammed. Because of the injuries suffered by the claimants, they filed the claim petitions before the Tribunal. Following are the claim petitions and the award passed by the Tribunal :- Claim Title Amount Case No. Awarded 171/06 Narayan vs. Rajik Mohd. & Ors. Rs.206000/- 172/06 Sohan vs. Rajik Mohd. & Ors. Rs.10000/- 173/06 Parmeshwar vs. Rajik Mohd. & Ors. Rs.29000/- 174/06 Nathu vs. Rajik Mohd. & Ors. Rs.10000/- 175/06 Magan vs. Rajik Mohd. & Ors. Rs.8000/- 176/06 Nanka vs. Rajik Mohd. & Ors. Rs.31000/- 192/06 Kachru vs. Rajik Mohd. & Ors. Rs.31000/- Before the Tribunal, it was contended by the insurance company that in fact, the accident occurred 4 S.B. Civil Misc. Appeal No.732/2007 National Insurance Co. Ltd.. vs. Parmeshwar & Ors. And other connected appeals & cross objections from Bus no.RJ 03/P 0638 and since that vehicle was not insured, therefore, subsequently, the number of vehicle has been changed to Bus no.RJ 03/P 0776. Since the accident was caused by Bus no.RJ 03/P 0638, therefore, the insurance company was not liable and the finding of the Tribunal that the accident was caused by Bus no.RJ 03/P 0776 is wrong. It is also submitted that the driver of Bus was holding driving license of heavy transport vehicle whereas he was driving Mini Bus which was light motor vehicle. Since driver Huka had no valid driving license to drive the said vehicle, the insurance company was not liable to reimburse the amount. It is further submitted that admittedly in the vehicle, which was having capacity of 25 passengers, about 40-45 persons were travelling, therefore, the insured violated the conditions of the insurance policy and because of this reason, the insurance company is not liable to pay the compensation amount. Learned counsel for the insurance company relied upon the judgment of the Hon'ble Supreme Court in the case of National Insurance Company case of National Insurance Co. Ltd. vs. Annappa Irappa Nesaria alias Nesaragi and ors. reported in 2008(3) SCC 464 wherein 5 S.B. Civil Misc. Appeal No.732/2007 National Insurance Co. Ltd.. vs. Parmeshwar & Ors. And other connected appeals & cross objections the amendments of 1989 in the Rules were considered by the Hon'ble Supreme Court and it has been held that the amendment has prospective operation i.e. it is operative after 28.11.2001 and in view of the above fact, the driver since had no valid driving license, therefore, the insurance company is not liable. Learned counsel for the claimants submitted that it is clear from Section 10 of the Motor Vehicles Act, 1988 (for short 'the Act of 1988') itself that after amendment in the Act before the present accident, the category of licenses have been changed and now the licenses can be issued for the category of vehicle as given in Section 10(2) of the Act of 1988. The vehicle as well as license of driver Huka both falls in Section 10(2)(e) of the Act of 1988, therefore, the driver at the relevant time had valid driving license. Learned counsel for the claimants further vehemently submitted that Bus no.RJ 03/P 0776 caused the accident and inadvertently, Bus no.RJ 03/P 0638 has been mentioned in the FIR. This mistake occurred in view of the fact that in Bus no.RJ 03/P 0638 of the same owner, the victims were taken to the hospital for treatment. It is also submitted that complete challan 6 S.B. Civil Misc. Appeal No.732/2007 National Insurance Co. Ltd.. vs. Parmeshwar & Ors. And other connected appeals & cross objections papers have been submitted before the Tribunal from which it is clear that the accident was caused by Bus no.RJ 03/P 0776 and the investigating agency seized the said vehicle. It is also submitted that mere travelling of excess passengers in the vehicle itself cannot be a ground for exonerating the insurance company and this issue has been decided by the Tribunal with the help of the decision given by this Court and in the present case, even if there were excess passengers in the vehicle, even then that has not contributed to the accident in any manner. Rash and negligent driving of the vehicle is fully proved as the vehicle turned and fell down. I considered the submissions of learned counsel for the parties and perused the record as well as the impugned award. So far as the contention of learned counsel for the appellant that Bus no.RJ 03/P 0776 has been substituted with the intention to get the benefit of insurance by the owner of vehicle is concerned, it is clear from the various documents placed on record of the Tribunal that though there was a mention of Bus 7 S.B. Civil Misc. Appeal No.732/2007 National Insurance Co. Ltd.. vs. Parmeshwar & Ors. And other connected appeals & cross objections no.RJ 03/P 0638 in the FIR but in all other papers of police challan, there is clear mention of involvement of Bus no.RJ 03/P 0776. It is also relevant to mention here that the oral evidence is also to the effect that the accident was caused by Bus no.RJ 03/P 0776. This finding of fact suffers from no error and it appears that because of the mistake committed by the owner of the vehicle while lodging the FIR, the appellant got the opportunity to take the ground that the vehicle has been substituted for getting the insurance claim. In view of Section 10 of the Act of 1988, the driving license of the driver was valid driving license for the mini bus and the judgment relied upon by the learned counsel for the appellant has no relevance in the facts of the present case. It is true that more number of persons were travelling in the bus but there is no evidence that because of excess number of passengers in the vehicle only, the accident was caused or it has been contributed to the accident. The vehicle is a mini bus and unless it was rashly and negligently driven, it may not have fell down in the manner in which it fell down 8 S.B. Civil Misc. Appeal No.732/2007 National Insurance Co. Ltd.. vs. Parmeshwar & Ors. And other connected appeals & cross objections with the passengers. In view of the above reasons, I do not find any merit in the appeals and cross objections filed by the insurance company and the same are hereby dismissed. So far as the appeals preferred by the claimants are concerned, it will be relevant to mention here that the appellants have been awarded compensation on various accounts which I shall be considered individually herein after. S.B. Civil Misc. Appeal No.792/2007 Magan vs. Razik Mohammed & Ors. This appeal has been preferred to challenge less award of compensation in Claim Case No.175/2006. According to learned counsel for the appellant, the award is too low as the appellant suffered several injuries and remained admitted in the hospital for 15 days. He suffered loss of income also. He has proved his injuries by report Ex.29. 9 S.B. Civil Misc. Appeal No.732/2007 National Insurance Co. Ltd.. vs. Parmeshwar & Ors. And other connected appeals & cross objections Learned counsel for the respondent submitted that a just compensation has been awarded. It appears that the appellant suffered some minor injuries in his knee, thighs, hand and shoulder only which is apparent from the injury report Ex.29. The Tribunal has awarded lumpsum amount of Rs.6000/-. The appellant has not suffered any grievous injury nor has suffered any serious injury nor has been disabled and also failed to prove any medical expenses. In view of the above, the award of Rs.8000/- in total is just and appropriate award. In view of the above, there is no merit in the appeal and the same is hereby dismissed. S.B. Civil Misc. Appeal No.794/2007 Sohan vs. Razik Mohammed & Ors. This appeal has been preferred to challenge less award of compensation in Claim Case No.172/2006. The facts of this appeal are identical to the facts in S.B. Civil Misc. Appeal No.792/2007 (Magan vs. Razik Mohammed & Ors.) and in view of the reasons given in the said appeal, the present appellant Sohan is not entitled to enhancement of the compensation amount. 10 S.B. Civil Misc. Appeal No.732/2007 National Insurance Co. Ltd.. vs. Parmeshwar & Ors. And other connected appeals & cross objections In view of the above, there is no merit in the appeal and the same is hereby dismissed. S.B. Civil Misc. Appeal No.795/2007 Kachru vs. Razik Mohammed & Ors. This appeal has been preferred to challenge less award of compensation in Claim Case No.192/2006 wherein the appellant has been awarded compensation of Rs.31,000/- in total and the appellant suffered only 3% permanent disability. He has been granted Rs.18000/- for pains and sufferings, Rs.8,000/- for special diet etc. and Rs.5,000/- on account of permanent disability of 3%. After going through the reasons given in the award, the award of Rs.31000/- cannot be said to be low. In view of the above, there is no merit in the appeal and the same is hereby dismissed. S.B. Civil Misc. Appeal No.796/2007 Nathu vs. Razik Mohammed & Ors. This appeal has been preferred by appellant Kachru 11 S.B. Civil Misc. Appeal No.732/2007 National Insurance Co. Ltd.. vs. Parmeshwar & Ors. And other connected appeals & cross objections to challenge less award of compensation in Claim Case No.174/2006. The appellant has been awarded in total Rs.10,000/- as compensation and the appellant suffered some minor injuries only and the Tribunal has awarded compensation of Rs.8,000/- on account of pain and sufferings and Rs.2,000/- for special diet. Looking to the facts of the case, the award of Rs.10,000/- in total is just and appropriate award. In view of the above, there is no merit in the appeal and the same is hereby dismissed. S.B. Civil Misc. Appeal No.636/2007 Parmeshwar vs. Razik Mohammed & Ors. This appeal has been preferred to challenge less award of compensation in Claim Case No.173/2006. According to learned counsel for the appellant, the award is too low as the appellant suffered several injuries i.e. injuries in right hand, in both knees, left eye and some minor injuries. According to the appellant, he remained admitted in the hospital for 2 days and he has to incur Rs.30,000/- for his treatment. He also complained that his hand is also not properly 12 S.B. Civil Misc. Appeal No.732/2007 National Insurance Co. Ltd.. vs. Parmeshwar & Ors. And other connected appeals & cross objections working. He claimed that he earned wages at the rate of Rs.100/- per day. He placed on record injury report Ex.21 with disability certificate Ex.22 to prove his 9% permanent disability. Learned counsel for the respondent submitted that a just compensation has been awarded. The Tribunal awarded compensation of Rs.16,000/- as lumpsum amount for the total injuries suffered by the appellant and awarded Rs.8,000/- against the expenses which he incurred for his treatment. The appellant was granted Rs.5000/- on account of his 9% permanent disability. In total, the appellant has been granted Rs.29,000/-. There cannot be any fixed formula for award of compensation in a case where a victim suffered several injuries. In this case, the appellant suffered injuries on right hand, both legs and other parts of the body. He had to incur expenditure for Rs.8,000/- which he has proved by evidence. He suffered 9% permanent disability. In view of the above, the award of Rs.16,000/- on account of pain and sufferings is low and it is enhanced to Rs.20,000/- and on account of permanent 13 S.B. Civil Misc. Appeal No.732/2007 National Insurance Co. Ltd.. vs. Parmeshwar & Ors. And other connected appeals & cross objections disability, the compensation is enhanced from Rs.5,000/- to Rs.10,000/-. In view of the above, this appeal is partly allowed and the compensation awarded by the Tribunal to the appellant is enhanced by Rs.9,000/- above the award passed by the Tribunal. The appellant shall be entitled to interest at the rate of 7.5% from the date of filing of the claim petition. S.B. Civil Misc. Appeal No.793/2007 Nanka vs. Razik Mohammed & Ors. This appeal has been preferred by appellant Nanka to challenge less award of compensation in Claim Case No.176/2006. According to learned counsel for the appellant, in identical facts and circumstances i.e. in S.B. Civil Misc. Appeal No.636/2007 decided by this very judgment, the amount of compensation on account of pain and sufferings in a case where there was 9% permanent disability, this Court awarded compensation of Rs.20,000/- and on account of permanent disability, the compensation was enhanced from Rs.5,000/- to 14 S.B. Civil Misc. Appeal No.732/2007 National Insurance Co. Ltd.. vs. Parmeshwar & Ors. And other connected appeals & cross objections Rs.10,000/-. The same amount is awarded in this appeal also. In view of the above, the award of Rs.18,000/- is enhanced to Rs.20,000/- and on account of permanent disability, the compensation is enhanced from Rs.5,000/- to Rs.10,000/-. In view of the above, this appeal is partly allowed and the compensation awarded by the Tribunal to the appellant is enhanced by Rs.7,000/- above the award passed by the Tribunal. The appellant shall be entitled to interest at the rate of 7.5% from the date of filing of the claim petition. S.B. Civil Misc. Appeal No.638/2007 Narayan vs. Razik Mohammed & Ors. This appeal has been preferred to challenge less award of compensation in Claim Case No.171/2006. According to learned counsel for the appellant, the award is too low as the appellant suffered several injuries resulting into amputation of left leg from below knee. The Tribunal has awarded compensation of Rs.18,000/- on account of pain and sufferings and 15 S.B. Civil Misc. Appeal No.732/2007 National Insurance Co. Ltd.. vs. Parmeshwar & Ors. And other connected appeals & cross objections Rs.40,000/- because of 40% permanent disability. These two amounts have been challenged by the appellant and he stated that too low amount has been awarded by the Tribunal to a person of 30 years of age who has to carry on with one leg only for the whole of life. Learned counsel for the appellant relied upon the judgment of this Court delivered in Executive Officer, Municipal Board, Jhunjhunu & Anr. vs. Bhinwa Ram & Anr. reported in ACTC 2001 page 321 wherein on amputation of leg, the Court held that the compensation could not be less than Rs.3 lakhs. Learned counsel for the respondent submitted that a just compensation has been awarded. It appears from the evidence on record that the appellant was low paid person and was dependent upon his daily work for earning. He was of the age of 30 years at the time of accident. His agony is grave and his compensation cannot be determined mainly on the basis of the disability certificate given by the doctor because that disability makes his body disabled but so far as his pain and sufferings are concerned, they are too much and, therefore, there is no reason for not following the decision of this Court in the case of 16 S.B. Civil Misc. Appeal No.732/2007 National Insurance Co. Ltd.. vs. Parmeshwar & Ors. And other connected appeals & cross objections Bhinwa Ram (supra) in the present case. In view of the above reason, on both the counts for pain and sufferings and disability, the amount which has been awarded Rs.40,000/- and Rs.18,000/- is enhanced consolidating it to Rs.3,00,000/-. (The total increase in the award will be Rs.3,00,000/- - Rs.58,000/- = Rs.2,42,000/-). It will be worthwhile to mention here that in the case of Bhinwa Ram (supra), the age of the victim was 55 years and in that case, after considering other judgments, this Court opined that the compensation in a case of amputation of leg itself should not be less than Rs.3,00,000/-. Learned counsel for the respondent insurance company submitted that it cannot be a precedent because the compensation depends upon the facts of each case. Learned counsel for the respondent rightly pointed out this and in this case, when we examine the facts, the situation is more grave that the victim was 30 years age only. Therefore, the compensation of Rs.3 lakhs on account of amputation of leg is assessed after considering age and other factors. In view of the above, the appeal of appellant 17 S.B. Civil Misc. Appeal No.732/2007 National Insurance Co. Ltd.. vs. Parmeshwar & Ors. And other connected appeals & cross objections Narayan is allowed and it is held that the appellant Narayan shall be entitled to total Rs.3,00,000/- for his pain and sufferings and because of amputation of his leg below the knee (in place of Rs.18,000/- towards pain and sufferings as awarded by the Tribunal and Rs.40,000/- on account of permanent disablement due to amputation of his left leg from below the knee as awarded by the Tribunal). Therefore, the appellant is entitled to total compensation of Rs.4,48,000/- in place of Rs.2,06,000/- as awarded by the Tribunal. The appellant shall be entitled to interest at the rate of 7.5% from the date of filing of the claim petition over the enhanced amount also. (PRAKASH TATIA), J. S.Phophaliya