G.M. Lodha, J.
1. These are two Misc Appeals: one by Sukhram being S.B. Civil Misc Appeal No. 16 of 1977 and the second one by National Insurance Company being S.B. Civil Misc. Appeal No. 15 of 1977 against the claimant Taru arising out of the judgment of the Motor Accidents Claims Tribunal, Jodhpur, dated 5-11 76.
2. Respondent Taru made a claim of Rs. 15,000/- against the appellants before the Motor Accidents Claims Tribunal, Jodhpur, on 5-11-73 on the allegation that on 5-5-73, at about 12 30 p.m, there was an accident on the Nagaur-Mandore road near the agricultural farm. In this accident, truck No. RSQ, 3217 being full of calcium stones (Choona), hit Taru and Taru sustained injuries. The injuries are said to have been caused by the truck in his right leg.
3. The appellant Sukhram's case was that the vehicle was being driven by Dhannaram driver and not by him. A written-statement was filed by Sukhram on 12-7-74 and the Insurance Company filed a written statement on 28-2-75. Adjournment was obtained by the Insurance Company for filing a written statement on 27-9-74, 1-11-74 and 14-12-74. The ease was adjourued again on 21-1-75 and the reply was filed by the Insurance Company on 28-.2-75.
4. The above facts would show that the Insurance Company was a ft are of the fact that the defence of the owner of the vehicle was that his driver Dhanaram was driving the vehicle. Issues were framed there after on 5-4-75.
5. However, the contention of Mr. Maheshwari on behalf of the Insurance Company Is that the Insurance Company was required to defend the case as set up by the claimant and which was further clinched in issues Nos. 1 and 4 which are as under.
1. Whether the petitioner Taru sustained injuries as mentioned in para No.6 of the claim petition on account of the accident caused by non-applicant No. 1 Sukhram, driving truck No. RSQ 3217, rashly and negligently on 5th of May, 1973, on Nagaur Road near Agricultural Farm, Jodhpur?
4. Whether the driver Sukh Ram was not holding the driving licence and/or was disqualified to hold the same at the time of the accident? If so is the insurer not liable, as alleged in para 12 of the additional pleas?
It is contended that if issues Nos. 1 and 4 would not have been there, and if the claimant would have come with the case that Dhannaram was the driver then the Insurance Company would have and could have contested that fact and further shown that Dhannaram had no licence.
6. Learned Counsel for the claimants in reply to the above submission of Mr. Maheshwari relies upon the allegation of the owner Sukhram that Dhannaram was the driver and on that basis, he argued that since the Insurance Company is the agent of the owner, the Company is bound by the admission of owner also. It was also argued that because the owner has also taken the plea that Dhannaram was the driver, the Insurance Company, being aware of this plea, should have contested this position also and led evidence to show that Dhannaram had no licence.
7. I have considered the above submission of learned Counsel for the parties. It is to be noted that in the claim petition and also as per the issues Nos. 1 and 4 framed, the case set up before the Tribunal was that Sukhram was the driver of truck No. RSQ, 3217 and was driving it rashly and negligently on 5-5-73 at Nagaur road near agricultural farm, Jodhpur. The insurance Company had taken a specific plea that Sukhram had no driving licence and the Insurance Company was not liable in terms of the policy. The evidence was Jed by the parties on issues Nos. 1 and 4 only, therefore, I am of the opinion that the Insurance Company was not required to either file a reply pg the allegation of Danaram was driving the vehicle nor the insurance Company could have led any evidence to show that Danaram had no driving licence.
8. It is proved that Sukhram was the owner of this truck and he heaving taken the plea that Danaram was driving the vehicle and he was his employee, Is bound to pay compensation on that score also the moment It (s proved that the accident occurred on account of rash and/or negligent driving of the vehicle. But the same cannot be said for the Insurance Company.
9. It Is well settled that under Section 96 of the Motor Vehicles Act, the Insurance Company is entitled to take some of the defences mentioned there-tin even though the insured, that is, the owner of the vehicle may plead contrary to It. Section 96(2) (d) (ii) of the Motor Vehicles Act reads as under.
96 Duty of Insurers to satisfy judgments against persons insured In respect of third-party risks.
(1) ... ... ... ... ... ... ... ... ... ...
(2) No sum shall be payable by an Insurer under Sub-section (1) in respect of any judgment unless before or after the commencement of the proceedings In which the judgment is given the Insurer had notice through the Court of bringing of the proceedings, or in respect of any judgment so long as execution is stayed thereon pending an appeal; and an Insurer to whom notice of the bringing of any such proceedings is so given shall be entitled to be made a party thereto and to defend the action on any of the following grounds merely:. ... ... ... ... ... ... ... ...
(d) (ii) a condition excluding driving by a named person or persons or by any person who is not duly licensed, or by any person who has been disqualified for holding or obtaining a driving licence during the period of disqualification; or. ... ... ... ... ... ... ... ...
The above would show that the Insurance Company was within Its rights to take the defence that Danaram had no valid licence and, therefore, if the accident occurred on account of rash and negligent driving of Danaram, the Insurance, Company would not be liable in terms of the policy for payment of compensation to injured.
10. That being so, the submission of Mr. Panwar that the Insurance Company Is bound by the statement and admissions of the owner given in the claim dispute before the Motor Accidents Claims Tribunal cannot be accepted being too wide and too vague. In the facts and circumstances of the case, I am, convinced that the Insurance Company could have been made liable only if Issue No. 1 as framed would have been decided in favour of the claimant holding that Sukhram was driving the truck. Though the Tribunal has decided issue No. 1 in favour of the claimants but the finding is that Danaram and not Sukhram was driving the truck at the time of accident.
11. In case the claimant wanted to make an alternative claim do the basis of the accident haying been caused by Danaram or by some person unknown, it was necessary for the claimant to have said so in the claim petition and then move an application for amendment of issues on that basis. If that would have been done, then the Insurance Company could not have been allowed to be absolved of the limberly on the ground that initially Sukhram was shown as the driver but latter on, Danaram was introduced as driver in the claim petition a ad issues by amendment. Then it would have been for the In urance Company to show that Danaram was not having a valid licence and issue No. 4 would have also been amended accordingly. This all not having been done by the claimant, the Insurance Company certainly cannot be made liable on the basis, of entirely new case which was never set up by the claimant directly or indirectly, willing or even remote. It is well established principle that no party can be allowed to be taken by surprise and no party can be mace liable for a claim which has never been set up in the pleadings.
12. Mr. Panwar then argued that though his client has not based the claim on the basis of Danaram being the driver, k was the duty of the Tribunal to have included the same in the issue framed when the owner has taken that objection. It was conceded that no such grievance was made before the Tribunal nor any such prayer was made at any stage. Not only that, even in the cross objection that has been filed by the claimant before this Court, no such grievance, as now argued by Mr. Panwar, has been made that the Tribunal should have amended the issues suo moto and that being so, I am of the opinion that now, it is too late to take this plea after the award was given in 1976.
13. I am, therefore, of the opinion that the appeal of the Insurance Company should succeed on this short point and the sward given against the Insurance Company is therefore, quashed.
14. However, so for as the award against Sukhram is concerned, that would stand because it is the admitted case of Sukhram that at the time of accident, Danaram was in the employment of Sukhram and was driving the vehicle at the relevant time.
15. Coming in the appeal of Sukhram, the only point pressed by Mr. Choudhary appearing for him is that the amount awarded is excessive because there has been no l permanent disablement of the leg of the injured claimant Mr. Panwar, on the contrary, has filed cross Objection & submitted that the amount awarded is not only not excessive but required to be increased from Ra 6,000/-. to 15,000/-.
16. It would be useful here to mention the medical evidence in relation to the injury caused to the claimant. Dr. G.P. Sinhaa, Lecturer In Orthopedists, who treated the claimant, Taru, has mentioned in his statement that Taru had a compound fracture of tibia. He was admitted on 5-5-73 and was discharged on 16-6-73 and was given out door treatment thereafter. According to him, the result of this Injury has been shortening of right leg by about half an inch and this has created a permanent disability. In addition so it, there has been a permanent deformity on account of the curvature. It was also stated that the patient would not be able to carry load as he could carry earlier and the strength of the right lower limb would be less as compared to the left lower limb The injury was caused as a result of the crushing.
17. The above evidence makes it clear that the accident has resulted in permanent deformity and permanent disability of the young boy and be will have to suffer severe and serious consequences of it throughout his life, both in his personality and his career. In view of this, the amount of Rs. 6000A can, by no stretch of imagination, be said to be on the excessive side. Claimant Taru was only of fourteen years at the time of the accident and though he was a perfectly normal and healthy boy by birth this accident his created handicap on account of which, he would be handicapped throughout his life. The miseries and the difficulties of a handicapped man can very well be appreciated without much argument and analysis. That being so, I am in agreement with the submission of Mr. Panwar that the compensation allowed required to be Increased suitably.
18. Mr. Panwar has relied upon the judgment of the Supreme Court Madhya Pradesh State Road Transport Corporation of Sudhokar and Ors. (1) in which, for identical injuries caused in accident, and amount of Rs. 10,000/- awarded by the Tribunal was increased to Rs. 20,000/- by the High Court and the Hon'ble Supreme Court refused to reduce it and the same was upheld. He also relied upon the judgment Srinioassa v. Parasiva Murthy and Ors. (2) In which the Karnataka High Court awarded Rs. 10,000/ by increasing it from Rs 8000/- awarded by the Tribunal, in an accident which resulted in identical Injuries.
19. Looking to the facts and circumstances of this case and more particularly the fact that the accident resulted in crushing the tibia and (sic)abula into pieces and that has caused permanent disfiguration, deformity and disablement of the right leg of Taru at the age of 14 years, the amount of compensation deserves to be increased from Rs. 6,000/- (six thousand) to Rs. 10,000/- (Rupees ten thousand) The cross-objection of Taru is, therefore, accepted and the award is modified to the extent that instead of Rs. 6000/- the claimant would be entitled to get Rs. 10,000/ (Rupees ten thousand only) as compensation along with interest by the Tribunal from the respondent-non-petitioner Sukhram only.
20. The result is that where as the appeal of Sukhram is dismissed, with costs, the cross-objection of Taru is accepted as mentioned above with proportionate costs The appeal of the Insurance Company is also accepted and the award given by the Tribunal against the Insurance Company is set aside to that extent only. In this appeal, the parties shall bear their own costs.