BHAGWATI, J. - (1.) CHALLENGE in this appeal is to the judgment and award dated 31.3.2001 whereby the learned Motor Accident Claims Tribunal, Bayana, District Bharatpur decreed an amount of Rs 22,857/- in favour of the appellant-claimant and against the respondent-non-claimants Nos. 1, 2/1 to 2/7 and absolved the liability of respondent No.3 New India Insurance Co. Ltd.
(2.) THE nub of the appellant's story is that: On 8.12.1993, the claimant-appellant Pooni accompanied by Rajbai, Muli, Dhupi and others were returning from Shekhpur to their village Jagantha. when they reached near 'Puliya' private Bus bearing registration No. RRD 6925 emerged at the fast speed from the opposite direction and rammed the traula attached to the tractor resulting into fracture of right hand of the claimant. Heard learned counsel for the parties and perused the relevant material on record including the impugned award. Learned counsel for the appellant has canvassed that the learned Tribunal absolved the Insurance Company of its liability on the ground that the drier of the offending Bus was not having a valid and effective license to drive the vehicle. Albeit, the driver was having learner's license but in view of the judgment of Hon'ble Apex Court reported in 1996(1) TAC page 506, did not find the learner's license to be valid and effective for the purpose of meeting out the Insurance Company's liability. Learned counsel canvassed that the finding of the learned Tribunal is totally contrary to the provisions of law as also the conditions of the Insurance policy. Learned counsel cited the judgment of National Insurance Company Ltd. vs. Swaran Singh & Ors. reported in 2004(1) WLC (SC) Civil 270 : (2004) 3 Supreme Court Cases 297 and contended that the Full Bench of the Hon'ble Apex Court held that if a vehicle at the time of accident was driven by a person having a learner's license, the Insurance Company would be liable to satisfy the decree. Learned counsel for the Insurance Company, in contrary, has defended the impugned judgment and called the same to be just and proper. Albeit, she contended that the learner's license cannot be said to be valid and effective license and the Insurance Company cannot be made liable to satisfy the decree but she failed to sow any law in support thereof. In the case of National Insurance Company Ltd. vs. Swaran Singh & Ors. (supra) the Hon'ble Apex Court has held thus : Learner's Licence : 93. Motor Vehicles Act, 1988 provides for grant of learner's licence. [See Section 4(3), Section 7(2), Section 10(3) and Section 14). A learner's licence, is thus, also a licence within the meaning of the provisions of the said Act. It cannot, therefore, be said that a vehicle when being driven by a learner subject to the conditions mentioned in the licence, he would not be a person who is not "duly licensed" resulting in conferring a right on the insurer to avoid the claim of the third party. It cannot be said that a person holding a learner's licence is not entitled to drive the vehicle. Even if there exists a condition in the contract of insurance that the vehicle cannot be driven by a person holding a learner's licence, the same would run counter to the provisions of Section 149(2) of the said Act."
(3.) HAVING carefully perused the aforesaid judgment, it is found that the case of New India Assurance Co. Ltd. vs. Mandar Madhav Tambe reported in (1996) 2 SCC 328 and in 1996(1) TAC 506 relied upon by the Tribunal has been distinguished and Hon'ble Apex Court in National Insurance Company Ltd. vs. Swaran Singh & Ors. (supra) held that if a vehicle at the time of accident was driven by a person having learner's licence, the Insurance Company would be liable to satisfy the decree. In view of this observation of Hon'ble Apex Court, the Insurance Company cannot be absolved of its liability merely on this ground that the driver of the offending vehicle was having a learner's license at the time of accident. The finding arrived at by the learned Tribunal in this regard seems to be contrary to law and the same deserves to be set aside. Relying upon the judgment of Hon'ble Apex Court rendered in National Insurance Co. Ltd. vs. Swaran Singh and Ors. (supra) the liability can be fastened on the respondent No.3 New India Assurance Co. Ltd. and the appellant-claimant shall be entitled to claim the amount of compensation under the award from the respondents Nos. 1, 2/1 to 2/7 and 3 severally and jointly. The second thrust of argument advanced by the learned counsel for the appellant is that the amount of compensation under the award is insufficient and meager looking to the nature of injury, the claimants sustained. He contended that the claimant Pooni sustained a fracture on the right hand in the said accident. She remained admitted in the Hospital. Thereafter, she visited Doctor many a times to show the progress of healing of wound and spent a huge amount in transportation and treatment. Learned Tribunal taking a very unreasonable view awarded only Rs. 5,000/- for pain and suffering but did not award anything for the simple injury she sustained on her forehead. Similarly, the learned Tribunal did not award anything for the loss of income. Thus, the reasonable amount of compensation may be granted and the award may be modified. Per contra, learned counsel for the respondent Insurance Company contended that the impugned award is just and proper and it calls for no interference. ;