Chattisgarh High Court
The Oriental Insurance Company Limited vs Laxmi Bai And Others on 25 November, 2010
Author: I.M. Quddusi
Bench: I.M. Quddusi
HIGH COURT OF CHATTISGARH BILASPUR
MAC No 364 OF 2010
The Oriental Insurance Company Limited
...Petitioners
VERSUS
Laxmi Bai and others
...Respondents
! Mr Hanuman Prasad Agrawal counsel for the appellant
^ Mr SC Verma counsel for respondent no1 Mr Shivendu Pandya counsel for respondent no 5
CORAM: HONBLE IM QUDDUSI & HONBLE NK AGRAWAL JJ
Dated: 25/11/2010
: Judgement
ORDER (ORAL)
(25.11.2010)
APPEAL UNDER SECTION 173 OF THE MOTOR VEHICLES ACT 1988
Per I.M. QUDDUSI, J
1. This appeal has been filed by the Insurance Company against impugned award dated 15.02.2010 passed by the learned First Additional Motor Accident Claims Tribunal, Raipur, in Claim Case No.10/2009 so far as the Tribunal has fixed the liability on the Insurance Company.
2. Brief facts of the case as per the version of the claimant are that on 11.09.2008 at about 7.30 a.m., Shyamlal Yadav (deceased) was driving his Auto-rickshaw bearing regn.no.C.G.04-T/2744 and at that time, respondent no.3 Harshchind who was rashly and negligently driving the Motorcycle bearing regn.No. C.G.04-CA/8007 owned by respondent no.4 Raj Engineering Works forcibly dashed the Auto-rickshaw and the said Auto- rickshaw was over turned, as a result of which, Shyamlal Yadav received grievous injuries and died. The deceased was a healthy man of aged about 50 years, he was owner and driver of the Auto-rickshaw and was earning Rs.10,000/- by driving the auto-rickshaw. The Claimants being dependents of the deceased filed claim petition seeking a compensation to the tune of Rs.13,60,000/- on different heads.
3. The Tribunal assessed the monthly income of the deceased as Rs.4500/- and the annual income as Rs.54,000/-. After deducting 1/3rd, the annual loss of dependency was worked out to Rs.36,000/- and by adopting multiplier 8, the total loss of dependency was worked out to Rs.2,88,000/-. Besides this, the Tribunal has also granted 12,500/- under other heads. Thus the Tribunal has awarded a total compensation of Rs.3,00,500/-.
4. We have perused the Lower Court Record as well as the finding given in the award on the basis of the evidence and the documents available on record. The Tribunal has framed issue no.3 to the effect that whether the motorcycle was being driven by its driver violating the conditions of the Insurance Policy and answered the same in negative. The insurance company has been able to prove that the driver of the motorcycle who was driving the vehicle owned by respondent no.4 was having only a learner's license that too authorizing him to drive the motorcycle without gear only. The date of birth was mentioned in the learner's license of the driver namely Harshchind as 02.01.1991. The license was issued on 10.09.2008, therefore, on the date of issuance of the learner license the driver was aged about 17 years and 8 months that is less than 18 years.
5. Chapter II of the Motor Vehicles Act, 1988 relates to Licensing of Drivers of Motor Vehicles. Section 4 of the Motor Vehicles Act which speaks about age limit which is relevant here and quoted below :
"4. Age limit in connection with driving of motor vehicles.-(1) No person under the age of eighteen years shall drive a motor vehicle in any public place:
Provided that a motor cycle with engine capacity not exceeding 50cc may be driven in a public place by a person after attaining the age of sixteen years.
(2) Subject to the provisions of section 18, no person under the age of twenty years shall drive a transport vehicle in any public place.
(3) No learner's licence or driving licence shall be issued to any person to drive a vehicle of the class to which he has made an application unless he is eligible to drive that class of vehicle under this section."
6. In view of the above quoted provisions, the driver in the instant case was issued learner's license to drive the motorcycle without gear only meaning thereby that he is entitled to drive a motorcycle with an engine capacity not exceeding 50cc which is the motorcycle of category L-1. Further, "Category L-1" has been defined in Rule 2(i) of the Central Motor Vehicles Rules, 1989 to the effect that "motor cycle with maximum speed not exceeding 45 Km. per hour and engine capacity not exceeding 50cc if fitted with a thermic engine or motor power not exceeding 0.5 kilo watt if fitted with electric motor. Therefore, it is beyond doubt that the driver of the motorcycle was less than 18 years of age at the time when the learner's license was issued to him authorizing him to drive the motorcycle without gear with an engine capacity not exceeding 50cc if fitted with a thermic engine or motor power not exceeding 0.5 Kilowatt if fitted with electric motor.
7. The appellant has been able to prove its insurance policy and conditions vide Ex.D-2 which clearly shows that the policy has been issued in the name of respondent no.4 - M/s. Raj Engineering Works; the motorcycle bearing regn.No.C.G.04-CA/8007 which is a Bajaj Eliminator of manufacturing year 2002 was covered under the said policy and the Engine Capacity was mentioned as "exceeding 150cc and not exceeding 350cc". Therefore, it is proved beyond any doubt that the said motorcycle was insured with the appellant which was having capacity exceeding 150cc and the driver of the vehicle namely Harshchind was authorized to drive the motorcycle without gear not exceeding 50cc that too in the capacity of learner. Hence, we are of the opinion that he was not having a valid and effective driving license on the date of accident.
8. In view of the above, the appellant Insurance Company cannot be held liable in any case for payment of compensation. Therefore, we discharge the insurance company from its liability to pay compensation. However, the liability of the insurance Company to satisfy the decree at the first instance and to recover the awarded amount from the owner or driver thereof has been holding the field for a long time. It is a well settled rule of law and should not ordinarily be deviated from. Hon'ble the Apex Court in case of National Insurance Co. Ltd., -Vs- Swarn Singh reported in (2004) 3 SCC 297 has laid down vide Para 83 as under :
"Sub-section (5) of section 149 which imposes a liability on the insurer must also be given its full effect. The Insurance Company may not be liable to satisfy the decree and, therefore, its liability may be zero but it does not mean that it did not have initial liability at all. Thus, if the insurance company is made liable to pay any amount, it can recover the entire amount paid to the third party on behalf of the assured. If this interpretation is not given to the beneficent provisions of the Act having regard to its purport and object, we fail to see a situation where beneficent provisions can be given effect to. Sub-section (7) of Section 149 of the Act, to which pointed attention of the Court has been drawn by the learned counsel for the petitioner, which is in negative language may now be noticed. The said provision must be read with sub-section (1) thereof. The right to avoid liability in terms of sub-section (2) of section 149 is restricted as has been discussed hereinbefore. It is one thing to say that the Insurance Companies are entitled to raise a defence but it is another thing to say that despite the fact that its defence has been accepted having regard to the facts and circumstances of the case, the Tribunal has power to direct them to satisfy the decree at the first instance and then direct recovery of the same from the owner. These two matters stand apart and require contextual reading".
(Emphasis supplied)
09. Therefore, at the first instance, the Insurance Company is directed to pay the compensation to the claimants and recover the same from owner.
10. In the result this appeal is allowed. The interim order dated 03.05.2010 stands discharged.
JUDGE