NATIONAL INSURANCE COMPANY LTD Vs. MANBHAR & OTHERS

JUDGEMENT

(1.) The appellant National Insurance Company limited (hereinafter 'the Insurance Company') by this civil miscellaneous appeal under Section 173 of the Motor Vehicles Act, 1988 (hereinafter 'the 1988 Act') has challenged the award dated 10-1-2002 passed by the Judge, Motor Accident Claims Tribunal, Malpura District Tonk (hereinafter 'the Tribunal'), on a claim petition No.25/1999 under Section 166 of the 1988 Act laid by the respondent claimant (hereinafter 'the claimant'). The Tribunal has allowed the claim petition of the claimant inter alia against the insurance company for a total compensation of Rs.81,500/- (including Rs.25,000/- already paid under Section 140 of the 1988 Act) along with interest at the rate of 9% per annum on the amount due from the date of filing claim petition till the date of payment.

(2.) The facts of the case are that the claimant Manbhar instituted a claim petition under Section 166 read with 140 of the 1988 Act before the Tribunal seeking a compensation of a sum of Rs.4,16,000/- owing to injuries sustained by her in a motor accident of 16-10-1998 in which jeep No.RJ-26/C-0279 insured with the insurance company under a comprehensive/ package policy was involved. The injuries alleged to be sustained by the claimant Manbhar were a bruise on the medial side of right knee and fracture of ulna bone of left arm. With regard to the fracture aforesaid an injury report and a certificate of permanent disability of the right arm to the extent of 3% was filed by the claimant, inspite of having pleaded and deposed with regard to fracture of the left forearm.

(3.) After service of notice of the claim petition the Insurance Company as the insurer of the jeep No.RJ-26/C-0279 in question filed appearance and submitted a written statement. It was the specific defence of the insurance company that the vehicle in question i.e. jeep No.RJ-26/C-0279 was insured only for the private use as per the cover note Ex.9, submitted by the claimant herself but instead was being unauthorisedly used at the time of the accident for hire and reward in breach of the policy conditions consequent to which the insurance company was entitled to be absolved of its liability to indemnify the insured no amount was payable to the injured whose remedy would be limited to the driver/ owner of the vehicle. It was in the alternative submitted that if the insurance company were to be directed to pay any compensation to the claimant on account of injuries sustained by her in the accident owing to the rash and negligent driving of the vehicle, the Tribunal should allow the insurance company by a specific order to recover the compensation paid under the Tribunal's award from the owner of the offending vehicle. It was also submitted on the merits of the claim that the whole case set up before the Tribunal was false, inasmuch as while it was pleaded in the claim petition that the claimant sustained fracture of the left forearm, the injury report exhibited before the Tribunal and proved indicated that the claimant had sustained fracture of ulna bone of the right forearm. Consequently the injury/ fracture was unrelated to the accident and no compensation resulting from the accident could be claimed. It was prayed that the claim petition be dismissed.