SANTOSH KUMAR GOHIL Vs. JAGDISH PRASAD

JUDGEMENT

(1.) -CLAIMANTS have filed this without licence and directed to refund the appeal under section 173 of Motor Vehicles amount awarded under no fault liability act, being aggrieved by the award dated under section 140 of the Motor Vehicles 13. 1. 2001 passed by First Motor Accidents Act. Claims Tribunal, Vidisha in Claim Case no. 9 of 1998, whereby the Tribunal has

(2.) BRIEF facts of the case are that on awarded only compensation of Rs. 50,000 12. 5. 1998 at about 7 p. m. in the evening for the death of a boy of 8 years old and the deceased Krishna Kumar, aged about has also exonerated insurance company 8 years, was going to the market from his from its liability on the ground that the house near Police Chowki at Mohangiri, a driver of the tractor was not having valid tractor-trolley No. MP 04-L 2795, which driving licence and was driving the tractor was being driven by respondent No. 2 and owned by respondent Nos. 1 and 3, dashed the boy Krishna Kumar. As a result of this accident deceased Krishna Kumar sustained injuries in his head, leg and both the shoulders, he became unconscious. He was referred to District Civil Hospital, Vidisha, where he died next day during treatment. The matter was reported to Police Station kotwali, Vidisha, where crime was registered and after investigation charge-sheet was filed. Appellants who are the claimants and parents of the deceased, have filed claim petition claiming compensation of Rs. 6,20,000. Before the Tribunal issues were framed and evidence of the parties were recorded. After recording evidence of the parties, Tribunal recorded finding on all the issues and held that the deceased krishna Kumar died in an accident. The accident took place because of rash and negligent driving of tractor-trolley by its driver Prashant Singh. The Tribunal also found that the driver of the tractor-trolley was driving the tractor without any valid driving licence and thereby he committed breach of the terms and conditions of the insurance policy. The Tribunal awarded a lump sum compensation of Rs. 50,000 for the death of the child and held that both the owners of the tractor, respondent Nos. 1 and 3 and driver are jointly and severally liable for the payment of compensation and also exonerated the insurance company from its liability on the ground that there is a breach of the terms and conditions of the policy as driver was not having any driving licence. The Tribunal also directed to the appellants to refund back the amount of Rs. 50,000 which was deposited by the insurance company which was awarded by the Claims Tribunal while deciding the application under section 140 of the Motor vehicles Act for no fault liability. Against which the claimants have filed this appeal. In the appeal claimants not only prayed for enhancement of the compensation but challenged the finding by which the insurance company has been exonerated.

(3.) MR. M. K. Jain, learned counsel for the appellants submitted that the learned tribunal has committed illegality in not awarding proper compensation and exonerating the insurance company. He submitted that in view of the decision in the case of National Insurance Co. Ltd. v. Swaran singh, 2004 ACJ 1 (SC), in which the apex Court has clearly held that the liability of the insurance company vis-a-vis the owner would depend upon several factors of the case and the owner would be liable for the payment of compensation. In a case where the driver was not having a licence at all, it was the obligation on the part of owner to take adequate care to see that the driver had an appropriate licence to drive the vehicle. The question as regard the liability of the owner vis-a-vis the driver being not possessed with a valid licence is considered in the said case.