Madhya Pradesh High Court
Smt. Meera Bai Koshta vs Ambika Patel Judgement Given By: ... on 11 November, 2013
MA No. 3773 / 2012.
11.11.2013.
Ms. Devika Singh, Advocate for the appellant.
Mr. H. Gupta, Advocate for the respondent no.1.
Mr. Gulab Sohane, Advocate for the respondent no. 2. Case is listed for final hearing at motion stage. Arguments heard.
Appellant / claimant has filed this appeal challenging liability to pay compensation amount and also quantum of compensation for the injuries sustained by her under section 173 of the Motor Vehicles Act against the award dated 7.9.2012 passed by learned VIII Additional Motor Accident Claims Tribunal, Jabalpur in MVC No. 277/11.
Learned counsel for the appellant has submitted that the appellant/ claimant has been awarded an amount of Rs.37,614/- as compensation for the injuries sustained by her in the accident resulting in deformity of left hand, due to which, she has become incapable of making Papad.
Learned counsel for the appellant has submitted that the income of the appellant should have been considered more than Rs.150/- per day considering minimum wages for the work. But on perusal of evidence of appellant / claimant Smt. Meera Koshtha (PW-1) it is clear that she herself has stated that she was earning Rs.100/- per day by making Papad for the company. Therefore, there is no evidence of permanent disability resulting in incapacity to work. On the other hand, the claimant in her cross-examination has admitted that now, she is fully healthy. Therefore, the Tribunal is justified in assessing loss of income due to the injuries sustained by her which includes expenses of medicines and compensation of grievous injuries sustained by her. No specific amount for pain and suffering was needed to be awarded looking to the nature of the injuries, overall compensation of Rs.15,000/- is sufficient to meet the requirement of law relating to compensation.
2Learned counsel for the appellant has submitted that the respondent no. 2 / Insurance Company has been exonerated by the learned Tribunal on the ground of breach of conditions of the policy as the respondent no. 1 was not having driving licence for driving vehicle involved in the accident. He was having licence of Light Motor Vehicle.
Learned counsel for the appellant has submitted that at least pay and recover direction should have been given by the learned Tribunal as the appellant / claimant being a third party is ignorant of conditions of insurance settlement between insurer and insured.
Learned counsel for the appellant has further submitted that insurance company has failed to prove the factum of holding valid driving licence as the witnesses who came to prove the licence have not brought on record the original licence issued in the year 1988. But on perusal of evidence of Tulsidas (DW-2) it is clear from his re-examination that driving licence No. MP20R-2007-0022660 contains all the entries of original licence No.P 825 JBP 98. Therefore, non-production of record of original licence does not affect the case of insurance company.
Learned counsel for the respondent no. 2 has submitted that a separate licence of LMV and Motorcycle with gear was required according to section 10 of the Motor Vehicles Act. He has cited a judgment of Hon'ble Apex court passed in the matter of Oriental Insurance Co. Ltd. Vs. Zaharulnisha & Ors, dated 29th April, 2008 in Civil Apopeal No. 3055 of 2008 in which it has been held that where a person driving scooter was not having valid licence for driving the scooter and was having licence for driving LMV, the insurance company cannot be held liable to pay compensation.
So far as liability to pay compensation is concerned, the judgment cited by learned counsel for the respondent is applicable to the present case but in the same judgment, pay and recover direction has also been passed by the Hon'ble Apex Court on the ground that the claimant is a third party.
3Learned counsel for the appellant has also cited a judgment of this court passed in the matter of Shakuntala Jain vs. Vinod and others, 2010 ACJ 276 in which following the judgment of Hon'ble Apex court passed in the matter of National Insurance Co. Ltd. v. Swaran Singh, 2004 ACJ 1 (SC) it has been held that motor cycle is a vehicle of light responsibility, therefore, driver had licence to drive a light motor cycle but he was driving a motor cycle, the Insurance company is liable to pay compensation."
But, looking to later judgment of Hon'ble Apex court passed in the matter of Oriental Insurance Co. Ltd. Vs. Zaharulnisha & Ors. (Supra), the judgment cited by learned counsel for the appellant is not applicable to the present case.
Therefore, considering the judgment cited above viz Oriental Insurance Co. Ltd. Vs. Zaharulnisha & Ors, this appeal is partly allowed. By maintaining the amount of compensation, Insurance company is directed to pay the amount of compensation to the appellant/claimant and then recover from the respondent no. 1.
Certified copy as per rules.
(Anil Sharma) Judge Parouha/-