Punjab-Haryana High Court
Oriental Insurance Co Ltd vs Paramjit Kaur & Ors on 14 October, 2014
Author: Rekha Mittal
Bench: Rekha Mittal
FAO No. 243 of 2013 -1-
In the High Court of Punjab and Haryana at Chandigarh
Date of Decision: 14.10.2014
FAO No. 243 of 2013
Oriental Insurance Company Limited
---Appellants
Versus
Paramjit Kaur and others
---Respondents
FAO No.3493 of 2013
Paramjit Kaur and others
---Appellants
Versus
Balwinder Singh and others
---Respondents
Coram: Hon'ble Mrs. Justice Rekha Mittal
***
Present:- Mr. J.S.Chatrath, Advocate
for Mr. Ashwani Talwar, Advocate
for Oriental Insurance Co. Limited
Mr. Rajbir Singh, Advocate
for Mr. Sanjiv Goyal, Advocate
for appellants in FAO No. 3493 of 2013 and
for respondents No. 1 to 3 in FAO No. 243 of 2013
Mr. H.K. Brinda, Advocate
for respondents No. 4 to 6 in FAO No. 243 of 2013
***
1. Whether Reporters of local papers may be allowed to see
the judgment?
2. To be referred to the Reporter or not?
3. Whether the judgment should be reported in the Digest?
FAO No. 243 of 2013 -2-
REKHA MITTAL, J.
By way of this order, I shall dispose of FAO No. 243 of 2013 titled "Oriental Insurance Company Limited vs. Paramjit Kaur and others"
and FAO No. 3493 of 2013 titled "Paramjit Kuar and others vs. Balwinder Singh and others" as these are off shoot of common award dated 7.9.2012 passed by the Motor Accident Claims Tribunal, Sangrur (in short "the Tribunal") whereby compensation has been awarded to Paramjit Kaur and others in regard to death of Gurwinderjit Singh @ Gurinderjit Singh in a motor vehicular accident on 6.7.2009 due to rash and negligent driving of bus bearing No. PB-23C-6787 by Balwinder Singh, its driver.
FAO No. 243 of 2013 has been filed by the Oriental Insurance Company Limited (in short "the insurance company") to assail findings of the Tribunal on Issue No. 3 i.e. "Was first respondent not holding a valid and effective driving licence and bus in question was not having a valid goods permit at the time of occurrence, if so, its effect? OPR4"
The other appeal has been preferred by Paramjit Kaur and others seeking enhancement of compensation.
The parties shall be referred to as the insurance company, claimants and the insured for facility of reference.
Counsel for the insurance company has strenuously argued that the learned Tribunal grossly erred in returning findings on Issue No. 3 against the insurance company. It is argued that Balwinder Singh was admittedly the driver of bus with seating capacity of 52+2, the gross vehicle FAO No. 243 of 2013 -3- weight thereof was 15660 Kgs mentioned in the Registration Certificate Ex. R3 in column No. 16. Balwinder Singh was holding a driving licence bearing No. PB-120080022955 with Non Transport Validity from 10.5.2005 to 9.5.2025 which was issued on 10.5.2005. In the said licence, as per Ex. R5, there is an endorsement of transport validity from January 2008 to January 2011 but the class of vehicle has been described as LMV TRANS only. However, in Ex. R1, there is an endorsement of transport validity from 30.1.2011 to 29.1.2014 and the class of vehicle is described as LMV (NT) TRANS (TR) PSVBUS (TR). It is argued that on the day of occurrence i.e. 6.7.2009, there was no endorsement on the driving licence of Balwinder Singh to drive a heavy transport vehicle or a transport vehicle of which the gross vehicle weight exceeds 7500 Kgs. In addition, it is submitted that holding of licence with endorsement of LMV transport in the light of definition of 'LMV' defined in Section 2(21) of the Motor Vehicles Act, 1988 (in short "the Act") would not entitle Balwinder Singh to drive the public service bus in question which falls within purview and ambit of transport vehicle defined in Section 2(47) of the Act. According to counsel, as Balwinder Singh was not holding a valid driving licnece to drive a transport vehicle of the category which he was actually driving on the date of occurrence, the owner/insured is guilty of violating the terms and conditions of the insurance policy, therefore, the insurance company is entitled to recover the amount of compensation after discharging liability qua the claimants.
Counsel representing the claimants has submitted that the learned Tribunal has not allowed benefit of increase in income for future FAO No. 243 of 2013 -4- prospects and compensation under conventional heads needs reconsideration and enhancement in the light of judgment of the Hon'ble Supreme Court of India in Rajesh and others vs. Rajbir Singh and others (2013)3 RCR (Civil) 170 and Vimal Kanwar and others vs. Kishore Dan and others 2013(2)RCR(Civil)945.
Counsel for the insured, while refuting contentions of counsel for the appellants would argue that Kuldeep Singh, Clerk from the office of the District Transport Authority, Rupnagar RW1 has deposed during cross examination that licence was valid for plying heavy vehicle including a bus having 52 seats. It is further argued that keeping in view documents Ex. R5 and R8, as there was an endorsement on the driving licence of Balwinder Singh of transport validity for the period from January 2008 to January 2011, covering the date of accident, the learned Tribunal has rightly determined Issue No. 3 against the insurance company holding that Balwinder Singh was having a valid driving licence to drive the vehicle in question. It is further argued that the insurance company has failed to discharge its obligation to prove Issue No. 3 and therefore, it neither can avoid its liability to pay compensation nor can seek recovery rights after payment to the claimants. In support of his contention, he has referred to judgment of the Hon'ble Supreme Court of India in Pepsu Road Transport Corporation vs. National Insurance Company, 2013(4) R.C.R.(Civil)273. It is further argued that there is no justifiable reason to enhance compensation awarded by the learned Tribunal.
I have heard counsel for the parties and perused the records. Before adverting to the inter se dispute between the FAO No. 243 of 2013 -5- respondents therein, it is appropriate to deal with the contentions raised by the claimants for enhancement of compensation. The learned Tribunal assessed income of the deceased at Rs. 4500/- per month, deducted 1/3rd towards personal expenses, adopted multiplier of 18 and computed loss of dependency to a sum of Rs. 6,48,000/-. Another amount of Rs. 10,000/- each was awarded for expenses on funeral and last rites and loss of consortium to the widow of the deceased making total compensation to the tune of Rs. 6,68,000/-.
The Tribunal has not given benefit of increase in income for future prospects. In view of ratio laid down in Rajesh and others' case (supra), the claimants are entitled to 50% increase in income of the deceased for future prospects. Thus, loss of dependency is calculated at Rs. 6,48,000/- +Rs. 3,24,000/- (50% increase)= Rs.9,72,000/-.
Paramjit Kaur, widow of the deceased shall be entitled to an amount of Rs. 1,00,000/- for loss of consortium. Jashanjeet Singh, minor son of the deceased is awarded Rs. 1,00,000/- towards loss of love and affection. Another amount of Rs. 50,000/- is awarded in favour of Amarjit Kaur, mother of the deceased under the same head. The claimants shall be entitled to an amount of Rs. 25,000/- each for expenses on funeral and last rites and loss of estate. The total compensation payable to the claimants is calculated at Rs. 12,72,000/- and the enhanced compensation is Rs.6,04,000/-.
The enhanced compensation shall be payable to the claimants with interest at the rate of 7.5% per annum from the date of filing of petition till realization. If the insurer deposits the amount in the Tribunal FAO No. 243 of 2013 -6- within 45 days, interest at the rate of 6% shall be payable. The enhanced amount shall be payable to the widow and son of the deceased in the ratio of 40:60. The amount falling to the share of the minor shall be deposited in his name in a fixed deposit receipt with a nationalized bank payable to him on attaining the age of majority. However the interest accruing on FDR shall be payable to the guardian of the minor to meet expenses on his livelihood, education etc. In the appeal preferred by the insurance company, the sole question for determination is, whether Balwinder Singh driver of the offending vehicle was holding a valid driving licence to drive bus No. PB- 23C-6787with seating capacity of 52+2 and gross vehicle weight of 15660 Kgs, reflected in the Registration Certificate Ex.R3.The occurrence in question took place on 6.7.2009. In the documents Ex. R5 and R8 which are exactly the same, there is an endorsement of transport validity from January 2008 to January 2011, however, against class of vehicles on right hand side, it is mentioned on the left hand side Class of Vehicles LMV TRANS only.
In licence Ex. R1, there is an endorsement of transport validity from 30.1.2011 to 29.1.2014 and against class of such vehicles, it is mentioned as Class of vehicles LMV (NT)TRANS (TR) PSVBUS(TR) To answer the dispute raised by the insurance company, it is necessary to recapitulate the definitions of 'Light Motor Vehicle" ( in short "LMV") and 'Transport Vehicle' defined under the Act. A relevant FAO No. 243 of 2013 -7- extract from Sections 2(21) and 2(47) defining 'LMV' and 'Transport Vehicle' respectively is usefully quoted for ready reference:-
"2(21) "light motor vehicle" means a transport vehicle or omnibus the gross vehicle weight of either of which or a motor car or tractor or road-roller the unladen weight of any of which, does not exceed 7500 kilograms:"
"2(47) "transport vehicle" means a public service vehicle, a goods carriage, an educational institution bus or a private service Vehicle:"
A Plain reading of definition of LMV makes it apparent that even a LMV can be a transport vehicle but the gross vehicle weight should not exceed 7500 Kgs. Indisputably, in the case at hand, the offending vehicle has gross vehicle weight of 15660 Kgs, therefore, does not fall within the purview and ambit of LMV. On the contrary, the vehicle in question falls within the definition of transport vehicle being a private service vehicle.
Now the question arises, if the endorsement of transport validity on the driving licence Ex.R5/R8 for the period from January 2008 to January 2011 negates plea of the insurance company that Balwinder Singh was not holding a valid driving licence to drive the bus in question. Keeping in view the class of vehicle in regard whereof the endorsement of transport validity was made on Ex. R5 describing it as LMV transport only, I find myself unable to accept the submissions of the insured that Balwinder Singh was holding a valid driving licence to drive the vehicle of the kind which he was driving on the fateful day. In this view of the matter, FAO No. 243 of 2013 -8- I find force in the contention of the insurance company that Balwinder Singh was not holding a valid driving licence to drive a transport vehicle on the day of occurrence. My observation in this regard gets fortified from the statement of Kuldeep Singh, Clerk from the office of District Transport Authority, Rupnagar. A relevant extract from his testimony reads as follows:
"I have brought computer generated record regarding issuance of driving licence in favour of Balwinder Singh son of Harminder Singh which bear licence no. PB 1220080022955, valid upto for non transport from 10.5.2005 to 09.05.2015 and for transport from 30.01.2011 to 29.01.2014. However, it is not mentioned that the licence is for HMV and HTV."
Counsel for the insured has made reference to cross examination of the witness by the driver and the insured etc. wherein he has deposed that licence is valid for plying heavy vehicle including a bus having 52 seats. No fault can be found in the statement of the witness in this regard as from 30.1.2011 to 29.1.2014 in view of endorsement of transport validity read with class of vehicles, Balwinder Singh was certainly holding a driving licence to drive a transport vehicle. However, there is nothing in the statement of Kuldeep Singh that Balwinder Singh was competent to drive a transport vehicle on 6.7.2009, the date of occurrence. It appears that as there was no endorsement of transport vehicle in view of its definition in Section 2(47) of the Act for the period from January 2008 to January 2011, the said licence was neither exhibited FAO No. 243 of 2013 -9- in the statement of witness nor this fact was specifically put to the witness. Keeping in view evidence on record, there is no escape from conclusion that Balwinder Singh was not holding a driving licence to drive a transport vehicle on the date of occurrence. The judgment cited by counsel for the insured has got no bearing on the facts of the case in hand because it is none of the plea of the insured that either he had verified the driving licence held by Balwinder Singh at the time of his induction in service or he has tested his driving skills to drive a transport vehicle at the relevant time. In Pepsu Road Transport Corporation's case (supra), it has been held that so far as the owner of the vehicle is concerned, when he hires a driver, he has to check whether the driver has a valid driving licence. Thereafter he has to satisfy himself as to the competence of the driver. If satisfied in that regard also, it can be said that owner had taken reasonable care in employing a person who is qualified and competent to drive the vehicle. The owner cannot be expected to go beyond that, to the extent of verifying the genuineness of the driving licence with the licensing authority before hiring the services of the driver.
As in the instant case, no such facts have been proved on record by the insured/owner, he cannot seek any aid to his contentions from the observations made in the above cited authority. As Balwinder Singh was not holding a valid driving licence to drive a transport vehicle i.e. the vehicle in question on the date of accident, the insured is guilty of committing breach of the terms and conditions of the insurance policy which entitled the insurance company to recover the amount of compensation after discharging liability qua third party i.e. Claimants, in FAO No. 243 of 2013 -10- view of judgment of the Hon'ble Supreme Court of India in National Insurance Company Limited vs. Swaran Singh and others 2004(2)RCR (Civil)114. Accordingly, the findings recorded by the learned Tribunal on Issue No. 3 are modified in the aforesaid terms.
For the reasons aforesaid, the appeal filed by the insurance company and the claimants are partly allowed in terms indicated above. No order as to costs.
(Rekha Mittal) Judge 14.10.2014 paramjit