KIMATMAL JAMANDAS MAKHIJA Vs. BALOCH ISMAIL HUSEIN

JUDGEMENT

(1.) The challenge in this appeal is to the judgment and award dated 30th July, 2002 passed by the M.A.C. Tribunal [Aux. II], Junagadh [for short 'the Tribunal'], in Claim Petition No. 154/1993. The Tribunal awarded the compensation amount of Rs. 60,000 to the appellant herein with running interest at the rate of 9% p.a., from the date of said claim petition till realization of the awarded amount. However, the Tribunal directed the respondent Nos. 1 and 2 herein being the driver and owner of the vehicle to pay the amount of compensation with interest to the appellant-claimant, but the respondent No. 3 United India Insurance Company, which was opponent No. 3 before the Tribunal was exonerated from the liability of paying compensation amount. The original claimant feeling aggrieved and dissatisfied with the impugned judgment and award, preferred this appeal. As per the case of the appellant-claimant, on 12th September, 1992 he was travelling in goods rickshaw No. GJ-11-T-3593 along with his goods namely the fruits. The respondent No. 1 was driving the said rickshaw, which was owned by the respondent No. 2 herein. It is alleged that the respondent No.1 was driving the rickshaw with excessive speed, rashly and negligently and he lost control over the steering and rickshaw turned turtle and he sustained bodily injuries. The appellant-claimant contended that at the time of the accident, he was doing business as fruit vendor and was earning Rs. 2,000 p.m. That at the time of accident he was aged about 50 years. That on account of the serious bodily injuries he had to remain as indoor patient in the hospital and he suffered actual loss of income as well as he sustained pain, shock and suffering. It was further his case that due to injuries he sustained permanent bodily disability affecting his earning capacity. He, thus, claimed in all Rs. 2 lac by way of compensation.

(2.) Before the Tribunal, the appellant-claimant was examined. He also examined Dr. Vaishnav as his witness. On behalf of the opponent, no oral evidence was adduced. As stated above, at the end of the trial, considering the oral and documentary evidence on record, the Tribunal assessed the amount of compensation at Rs. 60,000 and directed, the respondents-opponent Nos. 1 and 2 to pay the amount of compensation and exonerated the respondent-opponent No. 3 Insurance Company.

(3.) Mr. A.R. Thakkar, learned Advocate for the appellant original claimant, at the outset, submitted that the Tribunal committed serious error in exonerating the Insurance Company on the solitary ground that the driver of the rickshaw was not holding valid driving licence. He submitted that admittedly, the vehicle involved in the accident was light motor vehicle as defined under Sub-section (21) of Section 2 of the Motor Vehicles Act, 1988 [for short 'the Act'] and the vehicle was not heavy vehicle as observed by the Tribunal. It is further submitted that the driver of the vehicle was holding a valid licence to drive light motor vehicle and as per the definition of 'light motor vehicle' under Section 2(21) of the Act, it included even the transport vehicle and other similar vehicles, unladen weight of any of which does not exceed 7,500 kgs. It is submitted that in the instant case, such weight of the rickshaw was hardly 1000 kgs. Mr. Thakkar relied upon the decision rendered in the case of National Insurance Co. Ltd. v. Annappa Irappa Nesaria, 2008 3 SCC 464.