Himachal Pradesh High Court
Oriental Insurance Company Ltd vs Sh.Krishan Dev And Others on 22 May, 2015
Author: Mansoor Ahmad Mir
Bench: Mansoor Ahmad Mir
IN THE HIGH COURT OF HIMACHAL PRADESH SHIMLA FAO (MVA) No. 476 of 2007.
Judgment reserved on 15th May,2015 Date of decision: 22nd May, 2015.
.
Oriental Insurance Company Ltd. .....Appellant.
Versus Sh.Krishan Dev and others ...Respondents Coram:
The Hon'ble Mr. Justice Mansoor Ahmad Mir, Chief Justice.
Whether approved for reporting ?1 Yes.
For the appellant: Mr. Ashwani K. Sharma, Advocate. For the respondents: Mr. Tara Singh Chauhan, Advocate, for respondent No.1.
r Mr. Vivek Singh Thakur, Advocate, for respondents No. 2 and 3.
_______________________________________________________ Mansoor Ahmad Mir, Chief Justice.
Challenge in this appeal is to the judgment and award dated 18.7.2007, made by the Motor Accident Claims Tribunal, Bilaspur, H.P. in MAC No. 112 of 2004 titled Krishan Dev versus Rattan Chand and others, whereby compensation to the tune of Rs.9,23,861/- with 7.5% interest was awarded in favour of the claimant and insurer/appellant came to be saddled with the liability, hereinafter referred to as "the impugned award", for short, on the grounds taken in the memo of appeal.
2. The claimant, owner and driver have not questioned the impugned award on any ground, thus it has attained finality so far it relates to them.
3. The insurer has questioned the impugned award on three counts, i.e., (i) that the driver was having 1 Whether the reporters of Local Papers may be allowed to see the judgment ?.
::: Downloaded on - 15/04/2017 18:14:03 :::HCHP -2-learner's license, thus was not having a valid and effective driving license to drive the offending vehicle, (ii) the owner has committed willful breach in terms of the .
mandate of the insurance contract read with Sections 146, 147 and 149 of the Motor Vehicles Act, for short "the Act, and (iii), the compensation awarded is excessive.
4. Thus, the questions to be determined in this appeal are whether the Tribunal has rightly saddled the insurer with the liability and whether the insurer can question the award on the ground of adequacy of compensation.
5. In order to determine these issues, the brief facts of the case, the womb of which has given birth to the present appeal, are to be noticed.
6. The claimant being the victim of a vehicular accident had filed claim petition before the Tribunal for the grant of compensation to the tune of Rs. 20 lacs as per the break-ups given in the claim petition on the ground that on 25.2.2004 he was on his way to his house on the scooter and that at about 8.15 a.m., when he reached near Kanchimor towards Kiratpur, the Jeep bearing registration No. HP-12-2970, which was being driven by Shri Sat Pal respondent No. 3 herein in a rash and negligent manner, who was overtaking another vehicle, came from front side and struck against his scooter due to which he suffered major injuries on his body, his both legs were crushed badly. He was firstly treated at Anandpur ::: Downloaded on - 15/04/2017 18:14:03 :::HCHP -3- Sahib and thereafter referred to Chima Medical hospital, Mohali where he remained admitted from 26.2.2004 to 27.3.2004. It is further averred that when the accident .
took place, claimant was 43 years of age and his monthly income was Rs.20,000/- per month. He is stated to have spent Rs.3 lacs on his treatment and is still undergoing treatment.
7. The claim petition was resisted and contested by the respondents and following issues came to be framed by the Tribunal.
(i) Whether the accident has taken place due to the rash and negligent driving of Shri Sat Pal, driver of Jeep No. HP-12-2970, as alleged? OPP
(ii) If issue No. 1 is supra is proved, to what amount of compensation the petitioner is entitled to and from which of the respondents? OPP.
(iii) Whether the driver of Jeep No. HP-12-2970 did not have valid and effective driving license at the time of accident, if so, its effect? OPR-3.
(iv) Whether the petition is bad for non-joinder of necessary party? OPR.
(v) Relief.
8. The claimant, including himself as PW1, examined as many as seven witnesses, namely Manoj Kumar (PW(2) Shashi Pal (PW3), Dr. Amarjeet Singh (PW4), Murari Dass (PW5), Jagat Ram, (PW6) and Manoj Kumar (PW7) and respondent examined only one witness, namely, Mohinder Singh.
9. The Tribunal, after scanning evidence, awarded the compensation to the tune of Rs.9,23,861/- in favour of ::: Downloaded on - 15/04/2017 18:14:03 :::HCHP -4- the claimant and saddled the insurer with the liability, as stated supra.
10. Admittedly, the driver was having learner's .
license and was competent to drive the offending vehicle.
11. Section 2 (19) of the Act defines learner's license. It provides that a person who is holding a learner's license is authorized to drive a light motor vehicle or a motor vehicle of any r specified class or description. It is apt to reproduce Section 2 (19) of the Act herein:
"2(19) "learner's licence" means the licence issued by a competent authority under Chapter II authorising the person specified therein to drive as a learner, a motor vehicle or a motor vehicle of any specified class or description;"
12. While going through the said definition, one comes to an escapable conclusion that a person who is having a learner's license is competent to drive the motor vehicle or a motor vehicle of any specified class or description, for which he has been given the license.
13. A bare perusal of the driving license Ext. R3 does disclose that the license was valid and effective at the time of accident and the driver was competent to drive the Jeep, i.e., the offending vehicle. It is not the case, either of the claimant or of the insurer, that the driver was not having a learner's license. Reference in this regard is made to the judgment delivered by this Court in case titled Anuj Sirkek ::: Downloaded on - 15/04/2017 18:14:03 :::HCHP -5- versus Neelma Devi and others (FAO No. 57 of 2014) decided on 19.12.2014.
14. It is profitable here to reproduce Section 10 of .
the Act, which reads as under:
"10. Form and contents of licences to drive. - (1) Every learner's licence and driving licence, except a driving licence issued under section 18, shall be in such form and shall contain such information as may be prescribed by the Central Government.
(2) A learner's licence or, as the case may be, driving licence shall also be expressed as entitling the holder to drive a motor vehicle of one or more of the following cases, namely:-
(a) motor cycle without gear;
(b) motor cycle with gear;
(c) invalid carriage;
(d) light motor vehicle;
(e) transport vehicle;
(i) road-roller;
(j) motor vehicle of a specified description."
15. The mandate of Section 10 of the Act is that every learner is competent to drive the vehicle description of which is contained in the driving license Ext. R3 mention of which is made hereinabove.
16. Whether a person, who is holding a learner's license, is competent to drive light motor vehicle came up for consideration in case titled National Insurance Co. Ltd.
versus Swaran Singh and others, reported in AIR 2004 Supreme Court 1531, and it was held that a person having learner's license is deemed to have been holding a valid and effective driving license. It apt to reproduce paras 88, 89 and 90 of the said judgment herein:
"88. 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 ::: Downloaded on - 15/04/2017 18:14:03 :::HCHP -6- 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 provision of Section 149(2) of the said Act.
89. The provisions contained in the said Act provide also for grant of driving licence which is otherwise a learner's licence. Sections 3(2) and 6 of the Act provide for the restriction in the matter of grant of driving licence, Section 7 deals with such restrictions on granting of learner's licence. Sections 8 and 9 provide for the manner and conditions for grant of driving licence. Section 15 provides for renewal of driving licence. Learner's licences are granted under the rules farmed by the Central Government or the State Governments in exercise of their rule making power. Conditions are attached to the learner's licences granted in terms of the statute. A person holding learner's licence would, thus, also come within the purview of "duly licensed" as such a licence is also granted in terms of the provisions of the Act and the rules farmed thereunder. It is now a well-settled principle of law that rules validly framed become part of the statute. Such rules are, therefore, required to be read as a part of main enactment. It is also well-settled principle of law that for the interpretation of statute an attempt must be made to give effect to all provisions under the rule. No provision should be considered as surplusage.
90. Mandar Madhav Tambe's case (supra), whereupon the learned counsel placed reliance, has no application to the fact of the matter. There existed an exclusion clause in the insurance policy wherein it was made clear that the Insurance Company, in the event of an accident, would be liable only if the vehicle was being driven by a person holding a valid driving licence or a permanent driving licence "other than a learner's licence". The question as to whether such a clause would be valid or not did not arise for consideration before the Bench in the said case. The said decision was rendered in the peculiar fact situation obtaining therein. Therein it was stated that "a driving licence" as defined in the Act is different from a learner's licence issued under Rule 16 of the Vehicles Rules, 1939 having regard to the factual matrix involved therein.
::: Downloaded on - 15/04/2017 18:14:03 :::HCHP -7-17. Thus, the Tribunal has rightly held that the driver was having a valid and effective driving license.
18. The offending vehicle being Jeep, the gross .
weight of which does not exceed 7,500 kilograms, falls within the definition of "light motor vehicle" as contained in Section 2 (21) of the Act. It is apt to reproduce Section 2 (21) of the Act herein.
"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 7,500 kilograms."
19. This issue came up for consideration before the Supreme Court in case titled Ashok Gangadhar Maratha v. Oriental Insurance Co. Ltd. reported in AIR 1999 SC 3181. It is apt to reproduce paras 10, 11 and 14 of the said judgment herein:
"10. Definition of "light motor vehicle" as given in clause (21 ) of Section 2 of the Act can apply only to a "light goods vehicle" or a "light transport vehicle". A "light motor vehicle" otherwise has to be covered by the definition of "motor vehicle" or "vehicle" as given in clause (28) of Section 2 of the Act. A light motor vehicle cannot always mean a light goods carriage. Light motor vehicle can be non-transport vehicle as well.
11. To reiterate, since a vehicle cannot be used as transport vehicle on a public road unless there is a permit issued by the Regional Transport Authority for that purpose, and since in the instant case there is neither a pleading to that effect by any party nor is there any permit on record, the vehicle in question, would remain a light motor vehicle. The respondent also does not say that any permit was granted to the appellant for plying the vehicle as a transport vehicle under Section 66 of the Act. Moreover, on the date of accident, the vehicle was not carrying any goods, and thought it could be said to have been designed to be ::: Downloaded on - 15/04/2017 18:14:03 :::HCHP -8- used as a transport vehicle or goods carrier, it cannot be so held on account of the statutory prohibition contained in Section 66 of the Act.
12-13 .... ..... .....
14. Now the vehicle in the present case weighed 5,920 .
kilograms and the driver had the driving licence to drive a light motor vehicle. It is not that, therefore, that insurance policy covered a transport vehicle which meant a goods carriage. The whole case of the insurer has been built on a wrong premise. It is itself the case of the insurer that in the case of a light motor vehicle which is a non-transport vehicle, there was no statutory requirement to have specific authorisation on the licence of the driver under Form 6 under the Rules. It had, therefore, to be held that Jadhav was holding r effective valid licence on the date of accident to drive light motor vehicle bearing Registration No. KA-28-
567."
20. This Court in FAO No. 54 of 2012 titled Mahesh Kumar and another vs. Smt. Piaro Devi and others decided on 25th July, 2014, held that such type of vehicle is LMV. It is apt to reproduce paras 10,11,14,16,18 and 19 of the said judgment herein:
"10.I deem it proper to reproduce the definitions of "driving licence", "light motor vehicle", "private service vehicle" and "transport vehicle" as contained in Sections 2 (10), 2 (21), 2(35) and 2 (47), respectively, of the MV Act herein:
"2. .................
(10) "driving licence" means the licence issued by a competent authority under Chapter II authorising the person specified therein to drive, otherwise than a learner, a motor vehicle or a motor vehicle of any specified class or description.
xxx xxx xxx "(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 7,500 kilograms.
::: Downloaded on - 15/04/2017 18:14:03 :::HCHP -9-xxx xxx xxx (35) "public service vehicle" means any motor vehicle used or adapted to be used for the carriage of passengers for hire or reward, and includes a maxicab, a motorcab, contract .
carriage, and stage carriage.
xxx xxx xxx (47) "transport vehicle" means a public service vehicle, a goods carriage , an educational institution bus or a private service vehicle."
11. Section 2 (21) of the MV Act provides that a "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. Section 2 (35) of the MV Act gives the definition of a "public service vehicle", which means any vehicle, which is used or allowed to be used for the carriage of passengers for hire or reward and includes a maxicab, a motorcab, contract carriage and stage carriage. It does not include light motor vehicle (LMV). Section 2 (47) of the MV Act defines a "transport vehicle". It means a public service vehicle, a goods carriage, an educational institution bus or a private service vehicle.
12-13. ...... ...... .....
14. It mandates that the driver should have the licence to drive a particular kind of vehicle and it must contain endorsement for driving a transport vehicle. In this section, the words "light motor vehicle" are not recorded. Meaning thereby, this section is to be read with the definition of other vehicles including the definition given in Section 2 (47) of the MV Act except the definition given in Section 2 (21) of the MV Act for the reason that Section 2 (21) of the MV Act provides, as discussed hereinabove, that it includes transport vehicle also.
15.My this view is supported by Section 10 of the MV Act, which reads as under:
"10. Form and contents of licences to drive.
- (1) Every learner's licence and driving licence, except a driving licence issued under section 18, shall be in such form and shall ::: Downloaded on - 15/04/2017 18:14:03 :::HCHP
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contain such information as may be prescribed by the Central Government.
(2) A learner's licence or, as the case may be, driving licence shall also be expressed as entitling the holder to drive a motor vehicle of .
one or more of the following cases, namely:-
(a) motor cycle without gear;
(b) motor cycle with gear;
(c) invalid carriage;
(d) light motor vehicle;
(e) transport vehicle;
(i) road-roller;
(j) motor vehicle of a specified description."
15- .... ..... .....
16. Section 10 (2) (d) of the MV Act contains "light motor vehicle" and Section 10 (2) (e) of the MV Act, which was substituted in terms of amendment of 1994, class of the vehicles specified in clauses (e) to
(h) before amendment stand deleted and the definition of the "transport vehicle" stands inserted.
So, the words "transport vehicle" used in Section 3 of the MV Act are to be read viz-a-viz other vehicles, definitions of which are given and discussed hereinabove.
17. ..... ....... ........ .......
18. The purpose of mandate of Sections 2 and 3 of the MV Act came up for consideration before the Apex Court in a case titled as Chairman, Rajasthan State Road Transport Corporation & ors. versus Smt. Santosh & Ors., reported in 2013 AIR SCW 2791, and after examining the various provisions of the MV Act held that Section 3 of the Act casts an obligation on the driver to hold an effective driving licence for the type of vehicle, which he intends to drive. It is apt to reproduce paras 19 and 23 of the judgment herein:
"19. Section 2(2) of the Act defines articulated vehicle which means a motor vehicle to which a semi-trailer is attached; Section 2(34) defines public place; Section 2(44) defines 'tractor' as a motor vehicle which is not itself constructed to carry any load; Section 2(46) defines `trailer' which means any vehicle, other than a semi-
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trailer and a side-car, drawn or intended to be drawn by a motor vehicle. Section 3 of the Act provides for necessity for driving license; Section 5 provides for responsibility of owners of .
the vehicle for contravention of Sections 3 and 4; Section 6 provides for restrictions on the holding of driving license; Section 56 provides for compulsion for having certificate of fitness for transport vehicles; Section 59 empowers the State to fix the age limit of the vehicles; Section 66 provides for necessity for permits to ply any vehicle for any commercial purpose; Section 67 empowers the State to control road transport;
Section 112 provides for limits of speed;
Sections 133 and 134 imposes a duty on the owners and the drivers of the vehicles in case of accident and injury to a person; Section 146 provides that no person shall use any vehicle at a public place unless the vehicle is insured. In addition thereto, the Motor Vehicle Taxation Act provides for imposition of passenger tax and road tax etc.
20. ..........................
21. .........................
22. ........................
23. Section 3 of the Act casts an obligation on a driver to hold an effective driving license for the type of vehicle which he intends to drive. Section 10 of the Act enables the Central Government to prescribe forms of driving licenses for various categories of vehicles mentioned in sub-section (2) of the said Section. The definition clause in Section 2 of the Act defines various categories of vehicles which are covered in broad types mentioned in sub-section (2) of Section 10. They are 'goods carriage', 'heavy goods vehicle', 'heavy passenger motor vehicle', 'invalid carriage', 'light motor vehicle', ::: Downloaded on - 15/04/2017 18:14:03 :::HCHP
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'maxi-cab', 'medium goods vehicle', 'medium passenger motor vehicle', 'motor-cab', 'motorcycle', 'omnibus', 'private service vehicle', 'semi- trailer', 'tourist vehicle', 'tractor', 'trailer' .
and 'transport vehicle'."
19. The Apex Court in another case titled as National Insurance Company Ltd. versus Annappa Irappa Nesaria & Ors., reported in 2008 AIR SCW 906, has also discussed the purpose of amendments, which were made in the year 1994 and the definitions of 'light motor vehicle', 'medium goods vehicle' and the necessity of having a driving licence. It is apt to reproduce paras 8, 14 and 16 of the judgment herein:
"8. Mr. S.N. Bhat, learned counsel appearing on behalf of the respondents, on the other hand, submitted that the contention raised herein by the appellant has neither been raised before the Tribunal nor before the High Court. In any event, it was urged, that keeping in view the definition of the 'light motor vehicle' as contained in Section 2(21) of the Motor vehicles Act, 1988 ('Act' for short), a light goods carriage would come within the purview thereof.
A 'light goods carriage' having not been defined in the Act, the definition of the 'light motor vehicle' clearly indicates that it takes within its umbrage, both a transport vehicle and a non- transport vehicle.
Strong reliance has been placed in this behalf by the learned counsel in Ashok Gangadhar Maratha vs. Oriental Insurance Company Ltd., [1999 (6) SCC 620].
9. .....................
10. ..................
11. ..................
12. .................::: Downloaded on - 15/04/2017 18:14:03 :::HCHP
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13. .................
14. Rule 14 prescribes for filing of an application in Form 4, for a licence to drive a motor vehicle, categorizing the same in nine types of vehicles.
.
Clause (e) provides for 'Transport vehicle' which has been substituted by G.S.R. 221(E) with effect from 28.3.2001. Before the amendment in 2001, the entries medium goods vehicle and heavy goods vehicle existed which have been substituted by transport vehicle. As noticed hereinbefore, Light Motor Vehicles also found place therein.
15. .............................
16. From what has been noticed hereinbefore, it is evident that 'transport vehicle' has now been substituted for 'medium goods vehicle' and 'heavy goods vehicle'. The light motor vehicle continued, at the relevant point of time, to cover both, 'light passenger carriage vehicle' and 'light goods carriage vehicle'.
A driver who had a valid licence to drive a light motor vehicle, therefore, was authorised to drive a light goods vehicle as well."
21. Applying the ratio, the vehicle in question falls within the definition of "Light Motor Vehicle" while keeping in view the "unladen weight", "gross weight" and type of vehicle, given in the Registration Certificate and other documents.
22. Same principles of law have been laid down by this Court in FAOs No. 385 of 2007 & 388 of 2007 decided on 14.11.2014, FAOs No. 33 & 55 of 2010, decided on 17.10.2014 and FAO No. 293 of 2006 decided on 4.4.2014.
23. In order to seek exoneration, it was for the insurer to plead and prove that the owner has committed willful breach, in terms of the mandate of Sections 147 and ::: Downloaded on - 15/04/2017 18:14:03 :::HCHP
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149 of the Act read with the Insurance Policy, which the insurer has failed to do, thus, cannot seek exoneration. It is apt to reproduce relevant portion of para 105 of the .
judgment delivered in Swaran Singh's case referred to supra, herein:
"105. .....................
(i) .........................
(ii) ........................
(iii) The breach of policy condition e.g. disqualification of driver or invalid driving licence of the driver, as contained in sub-section (2) (a) (ii) of Section 149, have to be proved to have been committed by the insured for avoiding liability by the insurer. Mere absence, fake or invalid driving licence or disqualification of the driver for driving at the relevant time, are not in themselves defences available to the insurer against either the insured or the third parties. To avoid its liability towards insured, the insurer has to prove that the insured was guilty of negligence and failed to exercise reasonable care in the matter of fulfilling the condition of the policy regarding use of vehicles by duly licensed driver or one who was not disqualified to drive at the relevant time.
(iv) The insurance companies are, however, with a view to avoid their liability, must not only establish the available defence(s) raised in the said proceedings but must also establish 'breach' on the part of the owner of the vehicle; the burden of proof wherefore would be on them.
(v).........................
(vi) Even where the insurer is able to prove breach on the part of the insured concerning the policy condition regarding holding of a valid licence by the driver or his qualification to drive during the relevant period, the insurer would not be allowed to avoid its liability towards insured unless the said breach or breaches on the condition of driving licence is/are so fundamental as are found to have contributed to the cause of the accident. The Tribunals in interpreting the policy conditions would apply "the rule of main purpose" and the concept of "fundamental breach" to allow defences available to the insured under Section 149 (2) of the Act."
24. In a case titled as Lal Chand versus Oriental Insurance Co. Ltd., reported in 2006 AIR SCW 4832, the ::: Downloaded on - 15/04/2017 18:14:03 :::HCHP
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owner had performed his job whatever he was required to do and satisfied himself that the driver was having valid driving licence. The Apex Court held the insurer liable. It is .
apt to reproduce paras 8, 9 and 11 of the judgment herein:
"8. We have perused the pleadings and the orders passed by the Tribunal and also of the High Court and the annexures filed along with the appeal. This Court in the case of United India Insurance Co. Ltd. v. Lehru & ors., reported in 2003 (3) SCC 338, in paragraph 20 has observed that where the owner has satisfied himself that the driver has a licence and is driving competently there would be no breach of Section 149(2)(a)(ii). He will, therefore, have to check whether the driver has a driving licence and if the driver produces a driving licence, which on the face of it looks genuine, the owner is not expected to find out whether the licence has in fact been issued by a competent authority or not. The owner would then take test of the driver, and if he finds that the driver is competent to drive the vehicle, he will hire the driver.
9. In the instant case, the owner has not only seen and examined the driving licence produced by the driver but also took the test of the driving of the driver and found that the driver was competent to drive the vehicle and thereafter appointed him as driver of the vehicle in question. Thus, the owner has satisfied himself that the driver has a licence and is driving competently, there would be no breach of Section 149(2)(a)(ii) and the Insurance Company would not then be absolved of its liability.
10. .............................
11. As observed in the above paragraph, the insurer, namely the Insurance Company, has to prove that the insured, namely the owner of the vehicle, was guilty of negligence and failed to exercise reasonable care in the matter of fulfilling the condition of the policy regarding use of vehicles by a duly licensed driver or one who was not disqualified to drive at the relevant point of time."
25. It would also be profitable to reproduce para 10 of the judgment rendered by the Apex Court in Pepsu Road Transport Corporation versus National Insurance ::: Downloaded on - 15/04/2017 18:14:03 :::HCHP
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Company, reported in (2013) 10 Supreme Court Cases 217, herein:
"10. In a claim for compensation, it is certainly open to the .
insurer under Section 149(2)(a)(ii) to take a defence that the driver of the vehicle involved in the accident was not duly licensed. Once such a defence is taken, the onus is on the insurer. But even after it is proved that the licence possessed by the driver was a fake one, whether there is liability on the insurer is the moot question. As 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 the 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. However, the situation would be different if at the time of insurance of the vehicle or thereafter the insurance company requires the owner of the vehicle to have the licence duly verified from the licensing authority or if the attention of the owner of the vehicle is otherwise invited to the allegation that the licence issued to the driver employed by him is a fake one and yet the owner does not take appropriate action for verification of the matter regarding the genuineness of the licence from the licensing authority. That is what is explained in Swaran Singh case. If despite such information with the owner that the licence possessed by his driver is fake, no action is taken by the insured for appropriate verification, then the insured will be at fault and, in such circumstances, the Insurance Company is not liable for the compensation."
26. Having said so, the Tribunal has rightly recorded the findings and saddled the insurer with the liability.
27. The word "just compensation" has been used in Section 168 of the Act. In order to award just ::: Downloaded on - 15/04/2017 18:14:03 :::HCHP
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compensation, the Tribunal has to weigh all the aspects, in order to come to the conclusion what is the just compensation.
.
28. In the case titled as State of Haryana and another versus Jasbir Kaur and others, reported in AIR 2003 Supreme Court 3696, the Apex Court has discussed the expression 'just'. It is apt to reproduce para 7 of the judgment herein:
"7. It has to be kept in view that the Tribunal constituted under the Act as provided in S. 168 is required to make an award determining the amount of compensation which is to be in the real sense "damages" which in turn appears to it to be 'just and reasonable'. It has to be borne in mind that compensation for loss of limbs or life can hardly be weighed in golden scales. But at the same time it has to be borne in mind that the compensation is not expected to be a windfall for the victim. Statutory provisions clearly indicate the compensation must be "just" and it cannot be a bonanza; nor a source of profit; but the same should not be a pittance. The Courts and Tribunals have a duty to weigh the various factors and quantify the amount of compensation, which should be just. What would be "just" compensation is a vexed question. There can be no golden rule applicable to all cases for measuring the value of human life or a limb. Measure of damages cannot be arrived at by precise mathematical calculations. It would depend upon the particular facts and circumstances, and attending peculiar or special features, if any. Every method or mode adopted for assessing compensation has to be considered in the background of "just"
compensation which is the pivotal consideration. Though by use of the expression "which appears to it to be just" a wide discretion is vested on the Tribunal, the determination has to be rational, to be done by a judicious approach and not the outcome of whims, wild guesses and arbitrariness. The expression "just" denotes equitability, fairness and reasonableness, and non-arbitrary. If it is not so it cannot be just. (See Helen C. Rebello v. Maharashtra State Road Transport Corporation (AIR 1998 SC 3191)."
29. The same view has been taken by the Apex Court in a case titled as The Divisional Controller, ::: Downloaded on - 15/04/2017 18:14:03 :::HCHP
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K.S.R.T.C. versus Mahadeva Shetty and another, reported in AIR 2003 Supreme Court 4172.
30. The Apex Court in the case titled as Oriental .
Insurance Co. Ltd. versus Mohd. Nasir & Anr., reported in 2009 AIR SCW 3717, laid down the same principle while discussing, in para 27 of the judgment, the ratio laid down in the judgments rendered in the cases titled as Nagappa v.
Gurudayal Singh & Ors, (2003) 2 SCC 274; Devki Nandan Bangur and Ors. versus State of Haryana and Ors.
1995 ACJ 1288; Syed Basheer Ahmed & Ors. versus Mohd.
Jameel & Anr., (2009) 2 SCC 225; National Insurance Co.
Ltd. versus Laxmi Narain Dhut, (2007) 3 SCC 700; Punjab State Electricity Board Ltd. versus Zora Singh and Others (2005) 6 SCC 776; A.P. SRTC versus STAT and State of Haryana & Ors. versus Shakuntla Devi, 2008 (13) SCALE
621.
31. The Apex Court in another case titled as Ningamma & another versus United India Insurance Co.
Ltd., reported in 2009 AIR SCW 4916, held that the Court is duty bound to award just compensation to which the claimants are entitled to. It is profitable to reproduce para 25 of the judgment herein:
"25. Undoubtedly, Section 166 of the MVA deals with "Just Compensation" and even if in the pleadings no specific claim was made under section 166 of the MVA, in our considered opinion a party should not be deprived from getting "Just Compensation" in case the claimant is able to make out a case under any provision of law. Needless to say, the MVA is beneficial and welfare legislation. In fact, the Court is duty bound and entitled to award "Just Compensation"
irrespective of the fact whether any plea in that behalf was raised by the claimant or not.
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However, whether or not the claimants would be governed with the terms and conditions of the insurance policy and whether or not the provisions of Section 147 of the MVA would be applicable in the present case and also whether or not there was rash and negligent driving on .
the part of the deceased, are essentially a matter of fact which was required to be considered and answered at least by the High Court."
32. The Apex Court in the judgments delivered in the cases titled as A.P.S.R.T.C. & another versus M. Ramadevi & others, reported in 2008 AIR SCW 1213 and Sanobanu Nazirbhai Mirza & others versus Ahmedabad Municipal Transport Service, reported in 2013 AIR SCW 5800, discussed what is the just compensation. It is apt to reproduce para 9 of the judgment rendered in Sanobanu's case supra, herein:
"9. In view of the aforesaid decision of this Court, we are of the view that the legal representatives of the deceased are entitled to the compensation as mentioned under the various heads in the table as provided above in this judgment even though certain claims were not preferred by them as we are of the view that they are legally and legitimately entitled for the said claims. Accordingly we award the compensation, more than what was claimed by them as it is the statutory duty of the Tribunal and the appellate court to award just and reasonable compensation to the legal representatives of the deceased to mitigate their hardship and agony as held by this Court in a catena of cases. Therefore, this Court has awarded just and reasonable compensation in favour of the appellants as they filed application claiming compensation under Section 166 of the M.V. Act. Keeping in view the aforesaid relevant facts and legal evidence on record and in the absence of rebuttal evidence adduced by the respondent, we determine just and reasonable compensation by awarding a total sum of Rs. 16,96,000/- with interest @ 7.5% from the date of filing the claim petition till the date payment is made to the appellants."
33. The same principles of law have been laid by this Court in case titled Jagdish versus Rahul Bus ::: Downloaded on - 15/04/2017 18:14:03 :::HCHP
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Service and others (FAO No. 524 of 2007) decided on 15.5.2015.
34. Applying the test in the present case, I am of .
the considered view that the Tribunal has rightly awarded the compensation to the tune of Rs.9,23,861 alongwith 7.5% interest in favour of the claimant, cannot be said to be excessive, in any way, rather the compensation awarded is meager.
35. rAs a corollary, the appeal merits dismissal and is accordingly dismissed and the impugned award is upheld. Send down the record, forthwith, after placing a copy of this judgment.
36. Registry is directed to release the amount in favour of the claimants strictly, in terms of the conditions contained in the impugned award, through payee's cheque account.
May 22, 2015, (Mansoor Ahmad Mir)
(cm Thakur) Chief Justice.
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