Rajasthan High Court - Jodhpur

National Insurance Co Ltd vs Laxman Singh And Ors on 4 October, 2023

Bench: Madan Gopal Vyas

(1 of 9) [CMA-245/2005]

HIGH COURT OF JUDICATURE FOR RAJASTHAN AT JODHPUR (1) S.B. Civil Misc. Appeal No. 245/2005 National Insurance Co Ltd. Panchshati Circle, Sardulganj, Bikaner through Assistant Manager, National Insurance Company Ltd., Residency Road, Jodhpur

----Appellant Versus

1. Sajjan Kanwar W/o Late Bhawani Singh, resident of Village and Post Untwalia, Tehsil & District Nagaur

2. Chandra Prakash S/o Late Bhawani Singh, minor, through mother Sajjan Kanwar W/o Late Bhawani Singh, resident of Village and Post Untwalia, Tehsil & District Nagaur

3. Pankaj Kanwar D/o Late Bhawani Singh, minor, through mother Sajjan Kanwar W/o Late Bhawani Singh, resident of Village and Post Untwalia, Tehsil & District Nagaur

4. Pushpa Kanwar D/o Late Bhawani Singh, resident of Village and Post Untwalia, Tehsil & District Nagaur

5. Madan Kanwar W/o Late Chain Singh, resident of Village and Post Untwalia, Tehsil & District Nagaur

6. Om Singh S/o Late Chain Singh, minor, through mother Madan Kanwar W/o Late Chain Singh, resident of Village and Post Untwalia, Tehsil & District Nagaur

7. Panney Singh S/o Late Chain Singh, minor, through mother Madan Kanwar W/o Late Chain Singh, resident of Village and Post Untwalia, Tehsil & District Nagaur ...Applicants

8. Gopalram S/o Late Girdhari lal, resident of near the temple of Panchmukha Balaji, Rani Bazar, Bikaner (Bus owner)

9. Ramswaroop S/o Prahladram, resident of village Sindhu, Tehsil Nokha, District Bikaner (Bus Driver)

----Respondent Connected With (2) S.B. Civ.cros.obj.miscapp No. 21/2005 Mohan Singh S/o Chain Singh, resident of Village and Post Untwalia, Tehsil & District Nagaur

----Appellant Versus

1. National Insurance Company Limited through its Branch Manager, Panchshati Circle, Sardulganj, District Bikaner and

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Divisional Office at Residency Road, Jodhpur Rajasthan

2. Gopal Ram S/o Late Sh. Girdhari Ram, reident of Near Panchmukha Hanuman Temple, Rani Bazar, Bikaner

3. Ram Swaroop S/o Prahalad Ram, resident of village Sindhu Tehsil Nokha, District Bikaner

----Respondent (3) S.B. Civil Misc. Appeal No. 243/2005

1. Sajjan Kanwar W/o Late Bhawani Singh

2. Chandra Prakash Singh S/o Late Bhawani Singh

3. Pankaj Kanwar D/o Late Bhawani Singh

4. Pushpa Kanwar D/o Late Bhanwani Singh

5. Madan Kanwar W/o Late Chain Singh

6. Om Singh S/o Late Chain Singh

7. Panney Singh S/o Late Chain Singh [all residents of village Untwalia Tehsil & and District Nagaur]

----Appellant Versus

1. Gopal Ram S/o Late Girdhari Ram, resident of Near Panchmukha Hanumaji Temple, Rani Bazar, Bikaner

2. Ram Swaroop S/o Prahalad Ram, resident of Sindhu, Tehsil Nokha, District Bikaner

3. National Insurance Company Ltd. Through its Branch Manager, Panchshati Circle, Sardulganj, District Bikaner and Divisional Office at Residency Road, Jodhpur

----Respondent (4) S.B. Civil Misc. Appeal No. 244/2005 National Insurance Company Ltd. Through its Branch Manager, Panchshati Circle, Sardulganj, District Bikaner and Divisional Office at Residency Road, Jodhpur.

----Appellant Versus

1. Laxman Singh S/o Jagmal Singh, resident of Village and Post Untwalia, Tehsil & District Nagaur

2. Gopal Ram S/o Late Girdharilal, resident of Near temple of Panchmukha Balaji, Rani Bazar, Bikaner

3. Ram Swaroop S/o Prahalad Ram, resident of village Sindhu Tehsil Nokha, District Bikaner

(3 of 9) [CMA-245/2005]

----Respondent (5) S.B. Civil Misc. Appeal No. 271/2005 National Insurance Company Ltd. Through its Branch Manager, Panchshati Circle, Sardulganj, District Bikaner and Divisional Office at Residency Road, Jodhpur..

----Appellant Versus

1. Panney Singh S/o Chain Singh minor through mother Madan Kanwar W/0 Lt. Chain Singh, resident of Village and Post Untwalia, Tehsil & District Nagaur

2. Gopal Ram S/o Late Girdharilal, resident of Near Temple of Panchmukha Balaji, Rani Bazar, Bikaner

3. Ram Swaroop S/o Prahalad Ram, resident of village Sindhu Tehsil Nokha, District Bikaner

----Respondent (6) S.B. Civil Misc. Appeal No. 285/2005 National Insurance Company Ltd. Through its Branch Manager, Panchshati Circle, Sardulganj, District Bikaner and Divisional Office at Residency Road, Jodhpur..

----Appellant Versus

1. Jagmal Singh S/o Sumer Singh, resident of Gadhliyasar, PS Shri Balaji, District Nagaur

2. Gopal Ram S/o Late Girdharilal, resident of Near Temple of Panchmukha Balaji, Rani Bazar, Bikaner

3. Ram Swaroop S/o Prahalad Ram, resident of village Sindhu Tehsil Nokha, District Bikaner

----Respondent (7) S.B. Civil Misc. Appeal No. 366/2005 National Insurance Company Ltd. Through its Branch Manager, Panchshati Circle, Sardulganj, District Bikaner and Divisional Office at Residency Road, Jodhpur.

----Appellant Versus

1. Mohan Singh S/o Chain Singh, resident of Village and Post Untwalia, Tehsil & District Nagaur

2. Gopal Ram S/o Late Girdharilal, resident of Near Temple of

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Panchmukha Balaji, Rani Bazar, Bikaner

3. Ram Swaroop S/o Prahalad Ram, resident of village Sindhu Tehsil Nokha, District Bikaner

----Respondent

For their respective : Mr. Sanjeev Johari, Sr. Advocate with parties Mr. Lalit Parihar, for the Insurance Company : Mr. Prasant Panwar, for the claimants

: None present for the driver and owner

HON'BLE MR. JUSTICE MADAN GOPAL VYAS Judgment

DATE OF JUDGMENT: 04/10/2023

The aforesaid civil misc. appeals preferred by the Insurance

company (SB CMA Nos.245/2005, 244/2005, 271/2005, 285/2005

and 366/2005), claimants (SB CMA No.243/2005) and SB Civil

Cross Objection Misc. Application No.21/2005 filed in SB CMA

No.245/2005 by the claimant-Mohan Singh have been heard and

are being decided by this common judgment as they have been

preferred against the common judgment and award dated

16.6.2004 passed by the learned Judge, Motor Accident Claims

Tribunal, Bikaner (hereinafter referred to as the learned tribunal for

short) in claim case No.193/2000 (Sajjan Kanwar & Ors. Vs. Gopal

Ram & Ors), No.257/2000 (Laxman Singh Vs. Gopal Ram & Ors.),

No.258/2000 (Panney Singh Vs. Gopal Ram & Ors.), No.75/2001

(Mohan Singh Vs. Gopal Ram & Ors.) and No.76/2001 (Jagmal

Singh Vs. Gopal Ram & Ors.).

2. The facts in brief are that on 21.4.2000 when the claimants

Laxman Singh, Panney Singh, Mohan Singh and Jagmal Singh were

(5 of 9) [CMA-245/2005]

travelling in jeep bearing No. RJ-19-C-3415 which was being driven

by the deceased Bhawani Singh from village Uthwaliya to Bambu,

bus driver Ramswarooop while driving the bus no.RJ-07-P-0876

rashly and negligently, hit the jeep, resulting into death of Bhawani

Singh and simple and grievous injuries to other claimants. Thus,

claiming the different amount of compensation, the claim petitions

were filed by the claimants.

3. In the aforesaid appeals preferred by the appellant-Insurance

Company, Mr. Sanjeev Johari, learned Senior Counsel submitted

that the learned tribunal has wrongly decided issue no.7. Issue no.

7 is reproduced as under:-

"¼7½ D;k nq?kZVuk ds le; vizkFkhZ la0 2 jkeLo:i ds ikl okgu pykus dk os/k ,ow izHkkoh Mz~kbZfoax ykbZlsUl ugh Fkk] blfy;s chek daiuh dk nkf;Ro ugh gS\ vizkFkhZ la03"

4. Learned Senior Counsel submits that it an admitted position

that the driving license of the driver was valid from 17.7.1996 to

16.7.1999 and the accident occurred on 21.4.2000. Thus, the

driving license had expired 9 months before the date of accident.

However, learned Tribunal while deciding the issue no.7 gave a

finding that since the appellant-Insurance Company failed to prove

the aforesaid issue, therefore, it is liable to indemnify the

claimants.

5. Learned Senior Counsel while relying upon the judgments of

the Hon'ble Supreme Court delivered in the case of Ishwar Chandra

& Ors. Vs. Oriental Insurance Company Ltd & Ors. reported in

(6 of 9) [CMA-245/2005]

(2007) 10 SCC 650 and Ram Babu Tiwari Vs. United India

Insurance Company Ltd & Ors reported in (2008) 8 SCC 165

submits that though as per the provisions of Section 15 of the

Motor Vehicles Act, in the event application for renewal of license is

filed within a period of 30 days from the date of expiry thereof, the

same would be renewed automatically, which means that even if

an accident had taken place within the aforementioned period, the

driver shall be deemed to be possessing a valid license, but in the

present case, the accident occurred on 21.4.2000 and the license

expired on 16.7.1999 and there is no evidence available on record

to show that the driver had applied for renewal of his license.

Thus, in the present case, the driver did not possess a valid driving

license at the time of accident and therefore, there was a violation

of policy conditions for which the appellant-Insurance Company

cannot be held liable.

6. Learned counsel appearing for the claimants submits that in

case, this Court comes to the conclusion that the appellant-

Insurance Company is not liable to pay the compensation, then

also, as per the ratio laid down by the Hon'ble Apex Court in Rishi

Pal Singh Vs. New India Assurance Company Ltd. & Ors. (Civil

Appeal No.4919/2022), decided on 26.7.2022) and this Court in

Baksha Ram Vs. Ladu Singh & Ors (SBCMA No.626/2002), decided

on 16.9.2019, if there was a gap in the renewal of driving license,

then the Insurance Company is absolved from its liability, however,

can be directed to pay and recover the award amount from the

driver and owner of the offending vehicle.

(7 of 9) [CMA-245/2005]

7. Despite service, nobody appeared on behalf of the driver and

owner.

8. Heard learned counsel for the parties in the appeals filed by

the appellant-Insurance Company.

10. This Court in Baksha Ram (supra) has held as under:

"Mr. Rajesh Panwar, learned Counsel for the claimants also supports the doctrine of pay and recovery by citing judgment of Parminder Singh v. New India Assurance Company Limited & Ors., reported in (2019) 7 SCC 217, relevant portion of which is as under:

"7. On the issue of liability to pay the compensation awarded, we affirm the view taken by the High Court that the Respondent-Insurance Company is absolved of the liability to bear the compensation, as evidence has been produced from the office of the Regional Transport Office to prove that the drivers of the two offending trucks were driving on the basis of invalid driving licenses. It is also relevant to note that the owners and drivers of the offending trucks have not appeared at any stage of the proceedings, including this Court.

7.1. This Court in Shamanna & Ors. v. The Divisional Manager, The Oriental Insurance Co. Ltd. & Ors., held that if the driver of the offending vehicle does not possess a valid driving license, the principle of 'pay and recovery' can be ordered to direct the Insurance Company to the pay the victim, and then recovery the amount from the owner of the offending vehicle.

7.2. We deem it just and fair to direct the Respondent-Insurance Company to pay the enhanced amount of compensation as indicated in Para 6 above, to the Appellant within a period of 12 weeks from the date of this judgment. The Respondent-Insurance Company is directed to make out a Demand Draft in the name of the Appellant, which can be used for his

(8 of 9) [CMA-245/2005]

care for the rest of his life. The Respondent-Insurance Company is entitled to recovery the amount from the owners and drivers of the two offending trucks.""

11. In view of the above, the civil misc. appeals (SBCMA

Nos.245/2005, 244/2005, 271/2005, 285/2005 and 366/2005)

filed by the appellant-Insurance Company are allowed and it is held

that the appellant-Insurance Company is exonerated from its

liability. It is further directed that the appellant-Insurance

Company shall at first pay the award amount to the claimants and

thereafter, be at liberty to recover the same from the driver and

owner of the offending vehicle.

12. In so far as the cross objection (SB Civil Cross Objection Misc.

Application No.21/2005) and the civil misc. appeal (SBCMA

No.243/2005) preferred by the claimants for enhancement of the

award amount are concerned, the same are disposed of in view of

the agreement arrived at between the learned counsel for the

Insurance Company and claimants. Thus, the enhanced amount of

compensation is as enumerated in the following tables:

SB Civil Misc. Cross Objection No.21/2005 in SBCMA No.245/2005:

Total

For Permanent Disablement =Rs.25,000+Rs. Rs.1,75,000/-

(A)                                      5,000*30

Pain and Suffering (B)                   =25%*1,75,000               Rs. 43,750/-

Medical Expenses (C)                                                 Rs. 20,000

Total compensation awardable                                         Rs.2,38,750/-
(D=A+B+C)

Compensation               already                                   Rs. 1,50,000/-
awarded (E)

Remaining Amount (F=D-E)                                             Rs. 88,000


                                                                          (9 of 9)                            [CMA-245/2005]


                                   Interest @6% p.a. from date            =5,325*23                   Rs.1,22,475/-
                                   of award i.e. from 21.03.2001
                                   (G)

                                   Enhanced compensation                                              Rs. 2,11,225/
                                   (F+G)

SB Civil Miscellaneous Appeal No.243/2005

Total

Annual income of the Rs.4000/+ 40% Rs.8,56,800/- deceased + (40%) increase in x 12 x 17-1/4 income + 17 multiplier -

deduction (one fourth of the income) (A)

Other conventional heads (B) Rs 77,000/-

Total compensation awardable Rs.9,33,800/- (C=A+B)

Compensation already Rs.4,58,200/- awarded (D)

Remaining Amount (E=C-D) Rs. 4,75,600/-

Interest @6% p.a. from date Rs. 6,56,328/- of award i.e. from 20.07.2000 (F)

Enhanced Award (E+F) Rs. 11,31,928/-

13. It is made clear that the appellant-Insurance Company shall

pay the aforesaid enhanced amount and then will be entitled to