CMA/756/2000 of HEMLATA Vs BABU KHAN and ORS on 14 November 2000

Judgment

19/09/2017

These appeals are directed against judgment and awarddated 06.07.2000 passed by the Motor Accident Claims Tribunal, Churu (‘the Tribunal’), whereby the Tribunal has awarded a sum ofRs.1,15,589/- as compensation to the claimant Smt. Hemlata forthe injuries suffered by her alongwith interest @ 12% per annumfrom the date of application and it has further been directed that ifthe amount of compensation was not paid within a period of twomonths, 15% interest per annum would be payable.

The application for compensation was filed by the claimant-Smt. Hemlata, inter alia, with the averments that on 25.06.1999,the claimant alongwith her husband Radhey Shyam Soni, daughterPooja and others was travelling in Jeep No.RJ-10-C-1098 fromSardarshahar to Ratangarh, which was being driven rashly andnegligently by its driver Babu Khan, the Jeep collided with a CamelCart, which resulted in injuries to Rewant Ram Jat, claimant, herdaughter and one Ramgopal Soni. Based on the said averments,compensation to the tune of Rs.9,96,576/- was claimed.

Despite service, driver Babu Khan did not appear. The ownerfiled his reply and submitted that the Jeep was handed over toRadhey Shyam, which unfortunately met with an accident,however as the Jeep was insured with the Insurance Company, theliability, if any, was of the Insurance Company. The InsuranceCompany also filed its reply and denied its liability alleging thatthe passengers were being carried for hire and reward, which wasin violation of policy conditions, the driver was not in possession ofvalid driving licence and, therefore, the Insurance Company wasentitled to be exonerated.

The Tribunal framed 5 issues. On behalf of the claimant, claimant herself and her husband Radhey Shyam were examinedand several documents pertaining to the treatment of the claimantwere produced. On behalf of the Insurance Company, statement ofIndrajeet Singh (NAW-1) were recorded and insurance policy (Ex.-NA-1) was produced.

Arguments

After hearing the parties, the Tribunal came to the conclusionthat the accident occurred on account of rash and negligentdriving by driver Babu Khan. While deciding the issue pertaining tothe defence raised by the Insurance Company, the Tribunal cameto the conclusion that the vehicle was registered as a privatevehicle, the policy was issued for private use and, thereafter basedon the statement of Radhey Shyam (AW-2), husband of theclaimant that the Jeep was taken on hire @ Rs.3 per kilometer andthe statement of claimant that the Jeep was taken on hire and asin reply to notice under Section 133 of the Motor Vehicles Act,1988 (‘the Act’), the owner Barkat Khan had indicated that theJeep was ‘booked’ from Sardarshahar and was going to JeewanMata, came to the conclusion that as the vehicle was being usedfor hire and reward and the policy was issued for private use only,on account of violation of policy conditions, the InsuranceCompany was not liable to pay compensation. While assessing thequantum of compensation, the Tribunal based on the materialavailable on record, assessed the compensation at Rs.1,15,589/-and passed the award as noticed hereinbefore.

While SBCMA No.756/2000 has been filed by the claimantSmt. Hemlata seeking enhancement of compensation and aggrieved against exoneration of the Insurance Company, SBCMANo.399/2001 has been filed by owner Barkat Khan aggrievedagainst the exoneration of the Insurance Company and thequantum of compensation.

It is submitted by learned counsel appearing for the ownerthat the Tribunal committed error in coming to the conclusion thatthe vehicle in question was being used for hire and reward andwrongly exonerated the Insurance Company. It was submittedthat except for the oral statements of claimant and her husband,there was no material available on record to come to a conclusionthat the vehicle was being used for hire and reward and,therefore, the finding in this regard deserves to be quashed andset aside. Further submissions were made that the compensationawarded is excessive and the same therefore, deserves to bereduced.

Learned counsel appearing for the claimant submitted thatthe statement given by the claimant and her husband have beenwrongly construed and from the material available on record, itcannot be said that the vehicle was taken on hire and, therefore,the exoneration of the Insurance Company is not justified. Furthersubmissions were made that the Tribunal has awarded meagercompensation towards the various injuries and permanentdisablement suffered by the claimant, which deserves to beenhanced substantially.

Learned counsel appearing for the Insurance Companyvehemently opposed the submissions. It was submitted that the claimant Smt. Hemlata and her husband Radhey Shyam havecategorically admitted taking the insured vehicle on hire and thereis no dispute that the vehicle was registered for private use andthe insurance policy was also issued for private use, wherein theuse of vehicle for hire and reward was specifically prohibited and,therefore, for violation of policy conditions, the InsuranceCompany was rightly exonerated by the Tribunal and, therefore,the appeals filed by the appellants qua the Insurance Companydeserves to be dismissed.

I have considered the submissions made by learned counselfor the parties and have perused the material available on record.

A bare look at the statements of Radhey Shyam, husband ofthe claimant Smt. Hemlata, indicates that he has categoricallystated that the Jeep was taken on hire @ Rs.3/- per kilometer andthat he himself had taken the vehicle on hire; in her statement,claimant-Smt. Hemlata stated that the Jeep, in which they weregoing to Jeewan Mata was taken on hire by her husband andreiterated that the Jeep was taken on hire. Further, in reply to thenotice under 133 of the Act, the owner Barkat Khan himselfindicated that the Jeep was “booked” from Sardarshahar for goingto Jeewan Mata. The said oral statements of claimant, herhusband and the documents available on record are sufficient tocome to a conclusion that the vehicle was being used for hire andreward by the owner of the vehicle. Further, it is not in disputethat the vehicle was registered as a private vehicle and theinsurance policy was also issued for private use only. In those circumstances, the finding of the Tribunal exonerating theInsurance Company from liability to pay compensation on accountof violation of policy conditions does not call for any interference.

Coming to the aspect of the quantum of compensationawarded to the claimant, the Tribunal after thoroughly assessingthe oral and documentary evidence available on record, hasquantified the compensation to be awarded to the claimant.Learned counsels for the claimant and the owner failed to pointout any perversity in the said finding so as to require interferenceeither way and the finding of the Tribunal assessing the quantumof compensation also does not call for any interference.

In view of the above discussion, there is no substance in theappeals, the same are, therefore, dismissed.

(ARUN BHANSALI)J.

PKS-6-7