Yashvir Singh Rathor, J. (Oral)

CM No.3605-CII of 2019 in FAO No.1210 of 2019 (O&M)

1. This is an application filed under Section 5 of the Limitation Act for condonation of 95 days’ delay in filing the appeal.

2. For the reasons mentioned in the application, the same is allowed and delay of 95 days in filing the appeal is hereby condoned.

FAO No.5374 of 2018 (O&M)

FAO No.1210 of 2019 (O&M)

3. This judgment shall dispose of above noted two appeals, as the same have emanated out of the same award.

4. Both the afore-said appeals have been instituted against award dated 19.7.2018 decided by the MACT, Rewari (for short, “Tribunal”). FAO No.1210 of 2019 has been instituted by the claimant – Amit Kumar for enhancement of compensation awarded in MACP case No.315 of 2015 in a petition under Section 166 of Motor Vehicles Act, 1988 vide which a sum of Rs.5,87,690/- has been awarded as compensation to the claimant/appellant alongwith interest at the rate of 7.5% per annum from the date of filing of claim petition till realization on account of injuries suffered by him due to rash and negligent driving on the part of the driver of the tractor No.HR-36S-5706 (for short, `offending vehicle’) while FAO No.5374 of 2018 has been instituted by the owner/ insured whereby the Insurance Company has been given the right to recover the awarded amount from respondent No.2 on the ground that there was violation of the terms and conditions of the insurance policy.

5. From the pleadings of parties, following issues were framed:-

“1. Whether Amit Kumar suffered injuries in a vehicular accident that took place due to rash and negligent driving of offending vehicle No.HR-36S-5706 by respondent as alleged in petition? OPP

2. If issue no.1 is proved whether the petitioner is entitled to compensation? if so to what amount?OPP

3. Whether respondent no.1 was not holding a valid and effective driving licence on the date of alleged accident? If so its effect?OPR

4. Relief.”

6. Thereafter, the parties led evidence in support of their case.

7. After hearing the parties and going through the material on the file, learned Tribunal awarded a sum of Rs.5,87,690/- as compensation to the claimant- Amit Kumar, on account of injuries suffered by him along with interest @ 7.5% per annum from the date of filing of claim petition till realization and it was held that insured has violated terms and conditions of the insurance policy and liability of respondents No.1 and 2 shall be joint and several but respondent No.3 shall first of all satisfy the award with a right to recover the same from the insured.

8. Feeling aggrieved, both the afore-said appeals have been instituted. The material on file has been perused and parties have been heard.

9. The only issue required to be determined in the present appeals relates to the assessment of compensation and fixing the liability to pay the compensation. Therefore, the entire facts regarding the manner of the accident are not required to be reproduced in detail, as the Tribunal has already held under issue No.1 that the accident in question had taken place due to rash and negligent driving on the part of respondent No.1. Accordingly, finding on issue No.1 is not required to be interfered with and the same is affirmed.

10. Learned counsel for appellant/ owner in FAO No.5374 of 2018 argued that the Tribunal has not appreciated the facts of the case and evidence on record in the correct perspective and has wrongly granted right to the Insurance Company to recover the awarded amount. A wrong finding has been given that the vehicle was being used for commercial purposes and there was violation of terms and conditions of the insurance policy. Learned Tribunal wrongly came to the conclusion that bricks were loaded in the trolley and as such, the tractor was being used for commercial purposes whereas no such evidence has been led by the Insurance Company to prove violation of terms and conditions of the insurance policy and infact the bricks we