Delhi District Court
Ashutosh vs Haider Ali on 23 January, 2016
IN THE COURT OF MS. GEETANJLI GOEL, PO: MOTOR ACCIDENT
CLAIMS TRIBUNAL2, PATIALA HOUSE COURTS, NEW DELHI
Suit No.D349/15
Date of Institution: 09.09.2015
IN THE MATTER OF:
Ashutosh
S/o Shri Chandra Prakash
R/o H.No.D32
Moti Bagh, New Delhi. ...Petitioner
Versus
1. Haider Ali
S/o Shri Mohd. M.A. Janko
R/o WZ70/79
THuts, Vikaspuri, Delhi.
2. Surrindera Tourist Transport Service
115, Yusuf Sarai
Gautam Nagar Road
Hauz Khas, New Delhi.
3. National Insurance Co. Ltd.
Sector18, Dharam Cinema Complex
Noida, Gautam Budh Nagar
U.P. ...Respondents
Final Arguments heard : 23.12.2015
Award reserved for : 23.01.2016
Date of Award : 23.01.2016
Suit No.D349/15
Ashutosh Vs Haider Ali & Ors. Page 1 of 28
AWARD
1. Vide this judgmentcumaward, I proceed to decide the DAR which is treated as petition u/s 166 and 140 of Motor Vehicle Act, 1988, as amended uptodate (hereinafter referred to as the Act) for grant of compensation in a road accident.
2. It is the case of the petitioner that on 18.07.2015 at about 11 PM in the night at Aradhna Enclave, R.K. Puram, the accident took place when the driver of the offending vehicle bearing No.DL1YC3084 was driving his Taxi in a very rash and negligent manner and hit the rear side of the scooter of the petitioner due to which the petitioner fell down on the road and sustained grievous injuries. It is stated that the offending vehicle was being owned and driven by the respondent No.1 in a rash and negligent manner. The petitioner was referred to AIIMS Trauma Centre where the petitioner was treated and the petitioner was suffering pain in the injuries sustained by him in the accident caused by the respondent No.1. It is contended that due to the accident the petitioner had suffered great mental pain, loss of income, loss of money, loss of work, loss of social activities. It is submitted that the petitioner had spent a huge amount on his treatment and was under treatment. It is averred that at the time of the accident the respondent No.1 was the driver and the respondent No.2 was the owner and the respondent No.3 was the insurance company of the offending vehicle hence all the respondents were jointly and severally liable to pay the compensation to the petitioner. It is submitted that Suit No.D349/15 Ashutosh Vs Haider Ali & Ors. Page 2 of 28 the petitioner is aged about 24 years and a final year student of engineering and also running tuition center and earning Rs.15,000/ per month. Due to the accident the petitioner had to close the tuition centre which resulted into huge financial losses to the petitioner. It is averred that a criminal case was registered vide FIR No.576/15, under sections 279/338 IPC and sections 3/181 and 5/180 of M.V. Act at PS R.K. Puram and the respondent No.1 was charge sheeted. It is contended that the petitioner and his family members had incurred expenses on the treatment as well as on special diet and traveling expenses and attendant expenses to the tune of more than Rs.1,50,000/. It is averred that all the respondents are jointly and severally liable to pay the compensation to the petitioner being the driver, owner and insurer of the offending vehicle. It is prayed that a sum of Rs.2,00,000/ be awarded as compensation in in favour of the petitioner and against the respondents.
3. Reasoned decision on behalf of the respondent No.3 was filed admitting the insurance policy bearing No.361300/31/14/6300007132 for the vehicle bearing No.DL1YC3084 (Taxi) in the name of M/s Surindera Tourist Transport Services for the period from 09.03.2015 to 08.03.2016, however, it was stated that the liability of the respondent No.3 was subject to the terms and conditions of the insurance policy. It is averred that as per the terms and conditions of the insurance policy, the driver of the alleged offending vehicle should possess a valid and effective driving license at the relevant time. In the present case, as per the report filed by the IO, the respondent No.1 was not Suit No.D349/15 Ashutosh Vs Haider Ali & Ors. Page 3 of 28 holding a valid and effective DL and he was charged under sections 3/181 of M.V. Act and the owner had been charged under sections 5/180. It is contended that the true fact was that the DL possessed by the respondent No. 1 had been for LMV (nontransport) whereas the vehicle alleged to be involved in the accident had been a commercial vehicle (Taxi). Moreover as per the report of the Authority, the DL was blacklisted/ suspended/ cancelled. It is submitted that there being a breach of the terms and conditions of the insurance policy, the respondent No.3 was not liable to pay any compensation and accordingly no offer was made.
4. From the pleadings of the parties, the following issues were framed vide order dated 23.10.2015:
1. Whether the petitioner sustained injuries in the accident which occurred on 18.07.2015 at about 23:00 hrs at Ring Road, in front of Aradhana Enclave, R.K. Puram, New Delhi, caused by rash and negligent driving of vehicle No.DL1YC3084 driven by respondent no.1, owned by respondent no.2 and insured with respondent no.3? OPP
2. Whether the petitioner is entitled for compensation? If so, to what amount and from whom?
3.Relief.
Suit No.D349/15 Ashutosh Vs Haider Ali & Ors. Page 4 of 28
5. The petitioner Shri Ashutosh himself appeared in the witness box as PW1 and led his evidence by way of affidavit which is Ex.PW1/1. Copy of residence proof is Mark PW1/A, copy of MLC is Mark PW1/B, copy of educational proof is Mark PW1/C, copy of FIR, RC and DL are Mark PW1/D. PE was closed on 18.11.2015.
6. On behalf of the respondent No.3 Shri Satyaprakash, LDC, Licensing Authority (West) Zone, Janakpuri was examined as R3W1 and he had brought the record pertaining to DL No.DL0420060156477 in the name of Haider Ali. As per record, the said license was not valid to drive a commercial vehicle/ taxi and the report is Ex.R3W1/1 issued by MLO Transport Deptt., New Delhi. He stated that the said license had been made for LMV (Non Transport) and motorcycle only. Moreover, the said license had been blacklisted/ canceled. He was not crossexamined.
7. Shri Sunil Kumar Nama, Administrative Officer, National Insurance Company was produced in the witness box as R3W2 and he led his evidence by way of affidavit which is Ex.R3W2/A. He deposed that the respondent No.3 had issued an insurance policy bearing No.361300/31/14/6300007132 in the name of M/s Surendra Tourist Transport Services for the vehicle bearing No.DL1YC3084 for the period from 09.03.2015 to 08.03.2016, however, the liability of the insurance company was subject to the terms and conditions of the insurance policy. The original insurance policy along with its terms and Suit No.D349/15 Ashutosh Vs Haider Ali & Ors. Page 5 of 28 conditions had been given to the insured. He stated that as per the terms and conditions of the insurance policy the driver of the vehicle should possess a valid and effective driving license to drive the vehicle. He stated that as per the verification report of the DL issued by Licensing Authority West Zone, Janakpuri, Delhi filed by the IO in DAR, the driver was not holding a valid and effective driving license to drive a commercial vehicle. The vehicle involved in the accident was a taxi/ commercial vehicle. As per the report of the authority filed by the IO, the DL was blacklisted/ suspended/ cancelled vide order dated 03.05.2013 of the Ld. MM Ms. Rajani Ranga, Rohini Courts, Delhi and the NOC had also not been issued. He stated that the driver had been charged under sections 3/181 M.V. Act and the owner had been charged under sections 5/180 of M.V. Act. He deposed that as the driver of the vehicle was not holding a valid and effective DL at the relevant time, there being breach of terms and conditions of the insurance policy, the respondent No.3 was not liable to pay any compensation. The respondent No.3 got issued a notice under Order 12 rule 8 CPC to M/s Surendra Tourist Transport Services through its proprietor/ partner to produce the original insurance policy, the permit of the vehicle and DL of the driver valid on the date of accident i.e. 19.07.2015. The copy of notice is Ex.R3W1/1 and the postal receipt is Ex.R3W1/2. Despite the notice, the driver and the owner did not supply the requisite documents. The office copy of the insurance policy is Ex.R3W1/3 and the verification report of the driving license issued by the licensing authority and filed by the IO in DAR is Ex.R3W1/4. RE was closed on Suit No.D349/15 Ashutosh Vs Haider Ali & Ors. Page 6 of 28 2.12.2015.
8. I have heard the Learned Counsel for the petitioner as well as the Learned Counsel for the respondent No.3 and perused the record.
9. My findings on the specific issues are as under:
Issue No. 1
10. As the case is U/s 166 M.V Act it was incumbent upon the petitioner to prove that he sustained injuries in an accident caused due to the rash and negligent driving by the driver of the offending vehicle. To determine the negligence of the driver of the offending vehicle it has been held in National Insurance Company Ltd. vs Pushpa Rana & Another 2009 Accident Claims Journal 287 as follows:
"The last contention of the appellant insurance company is that the respondents/claimants should have proved negligence on the part of the driver and in this regard the counsel has placed reliance on the judgment of the Hon'ble Apex Court in Oriental Insurance Company Ltd. V. Meena Variyal (supra). On perusal of the award of the Tribunal, it becomes clear that the wife of the deceased had produced: (i) certified copy of the criminal record of criminal case in FIR No.955 of 2004, pertaining to involvement of offending vehicle (ii) criminal record showing completion of investigation of police and issue of charge sheet under sections 279/304A, Indian Penal Code against the driver;
Suit No.D349/15 Ashutosh Vs Haider Ali & Ors. Page 7 of 28
(iii) certified copy of FIR, wherein criminal case against the driver was lodged; and (iv) recovery memo and mechanical inspection report of offending vehicle and vehicle of deceased.
These documents are sufficient proofs to reach the conclusion that the driver was negligent. Proceedings under the Motor Vehicle Act are not akin to proceedings in a civil suit and hence strict rules of evidence are not required to be followed in this regard. Hence, this contention of the counsel for the appellant also falls face down. There is ample evidence on record to prove negligence on part of the driver."
It is established law that in a claim petition under Motor Vehicle Act, the standard of proof to establish rash and negligent driving by the driver of the offending vehicle is not at par with the criminal case where such rashness and negligence is required to be proved beyond all shadow of reasonable doubt. In Kaushnamma Begum and others v. New India Assurance Company Limited, it was inter alia held by the Hon'ble Supreme Court that the issue of wrongful act or omission on the part of the driver of the motor vehicle involved in the accident has been left to a secondary importance and mere use or involvement of motor vehicle in causing bodily injury or death to a human being or damage to property would make the petition maintainable under Sections 166 and 140 of the Motor Vehicle Act.
11. The case of the petitioner is that on 18.07.2015 at about 11 PM in the night at Aradhna Enclave, R.K. Puram, the accident took place when the driver of the offending vehicle bearing No.DL1YC3084 was driving his Taxi in a very rash and negligent manner and hit the rear side of the scooter of the petitioner Suit No.D349/15 Ashutosh Vs Haider Ali & Ors. Page 8 of 28 due to which the petitioner fell down on the road and sustained grievous injuries. It was stated that the offending vehicle was being owned and driven by the respondent No.1 in a rash and negligent manner. The petitioner was referred to AIIMS Trauma Centre where the petitioner was treated and the petitioner was suffering pain in the injuries sustained by him in the accident caused by the respondent No.1. It was averred that a criminal case was registered vide FIR No.576/15, under sections 279/338 IPC and sections 3/181 and 5/180 of M.V. Act at PS R.K. Puram and the respondent No.1 was charge sheeted. The petitioner had also deposed to that effect.
12. The IO had filed Detailed Accident Report containing the criminal record consisting of copy of charge sheet; copy of tehrir, copy of FIR; copy of site plan; copy of MLC, copy of arrest memo and personal search memo, copy of seizure memos; copy of mechanical inspection report of the offending vehicle and of the scooty of the petitioner, copy of verification report of the RC of the offending vehicle with the copy of the RC, copy of the insurance policy of the offending vehicle and its verification report and verification report of DL of the respondent No.1 with a copy of the DL, copy of certificate of fitness, copy of verification report of the permit of the offending vehicle with a copy of the permit and copies of photographs. As per the FIR No.576/15 under sections 279/337 IPC, PS R.K. Puram the case was registered on the basis of complaint of the petitioner Ashutosh wherein he had stated about the manner of the accident. As per the charge sheet the respondent No.1 has been charge Suit No.D349/15 Ashutosh Vs Haider Ali & Ors. Page 9 of 28 sheeted for the offence under sections 279/338 IPC and 3/181 MV Act.
13. The respondents No.1 and 2 had not filed the written statement. During crossexamination by the learned counsel for the insurance company PW1 stated that he did possess a DL to drive a scooter. He stated that he had seen the offending vehicle i.e. Taxi for the first time only after it had hit his scooter. As such nothing material has come out in the crossexamination of PW1. The mechanical inspection report of the scooty of the petitioner shows that the rear side tail cover was broken and tail light was broken, headlight cover left side and body cover rear side were scratched. The mechanical inspection report of the offending vehicle shows that the front bumper left side was slightly broken and scratched. Thus the involvement of the offending vehicle in the accident cannot be disputed. The respondents No.1 and 2 who are the driver and owner of the offending vehicle have not adduced any evidence to dispute the version put forth by the petitioner or in the criminal record. The criminal record has been placed on record which shows that the respondent No.1 has been charge sheeted for the offence under Sections 279/338 IPC. In Basant Kaur and others v. Chattar Pal Singh and others 2003 ACJ 369 MP (DB) it was observed that registration of criminal case against the driver of the offending vehicle was enough to record a finding that the driver of the offending vehicle was responsible for causing the accident. The respondents have also not led any evidence to prove any other version of the accident. There is no evidence from the respondents to disprove the particulars of the accident or the Suit No.D349/15 Ashutosh Vs Haider Ali & Ors. Page 10 of 28 involvement of vehicle No.DL1YC3084. In view of the testimony of PW1 and the documents on record which have remained unrebutted, the negligence of the respondent No.1 has been prima facie proved.
14. It was stated that due to the accident the petitioner fell down on the road and sustained grievous injuries. The petitioner was referred to AIIMS Trauma Centre where the petitioner was treated and the petitioner was suffering pain in the injuries sustained by him in the accident caused by the respondent No.1. The MLC of the petitioner is on record which shows the injuries sustained by the petitioner. Thus it stands established that the petitioner had sustained injuries in the alleged accident. This issue is accordingly decided in favour of the petitioner and against the respondents.
Issue No.2
15. Since issue No.1 has been decided in favour of the petitioner he would be entitled to compensation as per the provisions of the Act. The law is well settled that the compensation has to be awarded in personal injury cases under the following heads: (1) for loss of earnings during the period of treatment (2) loss of future earnings on account of permanent disability (3) expenses suffered by him on his treatment, hospitalization, medicines, transportation, nourishing food etc. In addition, he is further entitled to non pecuniary damages/general damages which include (1) damages for pain, Suit No.D349/15 Ashutosh Vs Haider Ali & Ors. Page 11 of 28 suffering and trauma as a consequence of injuries and (2) loss of expectation of life.
MEDICINES AND MEDICAL TREATMENT
16. The case of the petitioner is that due to the accident on 18.7.2015 the petitioner fell down on the road and sustained grievous injuries. The petitioner was referred to AIIMS Trauma Centre where the petitioner was treated and the petitioner was suffering pain in the injuries sustained by him in the accident caused by the respondent No.1. It was contended that due to the accident the petitioner had suffered great mental pain, loss of income, loss of money, loss of work, loss of social activities. It was submitted that the petitioner had spent a huge amount on his treatment and was under treatment. It was contended that the petitioner and his family members had incurred expenses on the treatment as well as on special diet and traveling expenses and attendant expenses to the tune of more than Rs.1,50,000/. The petitioner had also deposed to that effect. Copy of MLC is Mark PW1/B. The MLC of the petitioner is on record which shows the injuries sustained by the petitioner and as per the same the nature of injuries was opined to be grievous. The documents placed on record also show that the petitioner had sustained fracture of lateral end of clavicle right. Thus the injuries were grievous in nature. However there is nothing to show that the petitioner had got any disability due to the accident. Suit No.D349/15 Ashutosh Vs Haider Ali & Ors. Page 12 of 28
17. During crossexamination by the learned counsel for the insurance company PW1 stated that he had not placed on record any bills pertaining to his medical treatment. He denied the suggestion that no amount was spent as medical expenses. He denied the suggestion that he had placed on record fake and procured documents along with his affidavit. Thus PW1 stated that he had not placed on record any bills pertaining to his medical treatment. It cannot be disputed that the petitioner had sustained injuries and underwent treatment for the same. The petitioner had stated that he and his family members had incurred expenses on the treatment as well as on special diet and traveling expenses and attendant expenses to the tune of more than Rs. 1,50,000/. However the petitioner has not filed any bills. At the same time the petitioner would have incurred some expenses on his treatment. Accordingly an amount of Rs.2,000/ is awarded towards medical treatment and expenses. PAIN AND SUFFERING AND LOSS OF AMENITIES OF LIFE
18. It has been held in Divisional Controller, K. S. R. T. C v Mahadeva Shetty and another AIR 2003 Supreme Court 4172 as under:
13."The damages for vehicular accidents are in the nature of compensation in money for loss of any kind caused to any person. In case of personal injury the position is different from loss of property. In the later case there is possibility of repair or restoration. But in the case of personal injury, the possibility of repair or restoration is practically nonexistent. In Parry V. Cleaver (1969 1 All. E. R. 555) Lord Morris stated as follows:
Suit No.D349/15 Ashutosh Vs Haider Ali & Ors. Page 13 of 28 "To compensate in money for pain and for the physical consequences is invariably difficult, but...... no other process can be devised than that of making monetary assessment." The case of the petitioner is that due to the accident on 18.7.2015 the petitioner fell down on the road and sustained grievous injuries. The petitioner was referred to AIIMS Trauma Centre where the petitioner was treated and the petitioner was suffering pain in the injuries sustained by him in the accident caused by the respondent No.1. It was contended that due to the accident the petitioner had suffered great mental pain, loss of income, loss of money, loss of work, loss of social activities. It was submitted that the petitioner was under treatment. The MLC of the petitioner is on record which shows the injuries sustained by the petitioner and as per the same the nature of injuries was opined to be grievous. The documents placed on record also show that the petitioner had sustained fracture of lateral end of clavicle right. Thus the injuries were grievous in nature. However there is nothing to show that the petitioner had got any disability due to the accident. Looking at the nature of injuries and extent of treatment and that the accident pertains to the year 2015, the petitioner is awarded Rs.25,000/ (Rs.Twenty Five Thousand only) for pain and suffering.
19. Notice can be taken of the fact that on account of the injuries sustained by him the petitioner may not have been able to perform his day to day duties towards his family and on account of the injuries suffered by him the petitioner Suit No.D349/15 Ashutosh Vs Haider Ali & Ors. Page 14 of 28 may not have been able to enjoy the amenities of life. In the circumstances the petitioner is awarded a sum of Rs.10,000/ (Rs.Ten Thousand only) for loss of amenities of life. The petitioner cannot however be held to be entitled to any amount towards loss of expectation of life or towards disfiguration. CONVEYANCE AND SPECIAL DIET
20. The petitioner in para 8 of his affidavit Ex.PW1/1 had stated that he and his family members had incurred expenses on the treatment as well as on special diet and traveling expenses and attendant expenses to the tune of more than Rs.1,50,000/. Although the petitioner has not filed any document on record in order to prove the expenditure on conveyance however, notice can be taken of the fact that after the accident the petitioner was taken to AIIMS and that after discharge from hospital he might have hired the services of private conveyance as he would not have been able to drive of his own or to use public conveyance. In the circumstances a sum of Rs.5,000/ (Rs.Five Thousand only) would be just and proper towards conveyance charges.
21. The petitioner in para 8 of his affidavit Ex.PW1/1 had stated that he and his family members had incurred expenses on the treatment as well as on special diet and traveling expenses and attendant expenses to the tune of more than Rs.1,50,000/. Although the petitioner has not proved that he was advised special diet but looking at the nature of injuries sustained by the Suit No.D349/15 Ashutosh Vs Haider Ali & Ors. Page 15 of 28 petitioner notice can be taken of the fact that the petitioner might have taken diet rich in protein, vitamins and minerals for speedier recovery. In the circumstances the petitioner is awarded a sum of Rs.3,000/ (Rs.Three Thousand only) for special diet.
22. The petitioner in para 8 of his affidavit Ex.PW1/1 had stated that he and his family members had incurred expenses on the treatment as well as on special diet and traveling expenses and attendant expenses to the tune of more than Rs.1,50,000/. Although the petitioner has not produced any evidence to show that he incurred any expenses towards attendant charges, however looking to the nature of injuries the petitioner would have incurred some expenditure on attendant charges and a sum of Rs.12,000/ is awarded towards attendant charges.
LOSS OF INCOME
23. It is the case of the petitioner that due to the accident he had suffered great mental pain, loss of income, loss of money, loss of work, loss of social activities. It was submitted that the petitioner is aged about 24 years and a final year student of engineering and also running tuition center and earning Rs.15,000/ per month. Due to the accident the petitioner had to close the tuition centre which resulted into huge financial losses to the petitioner. The petitioner had also deposed to that effect. However the petitioner has not Suit No.D349/15 Ashutosh Vs Haider Ali & Ors. Page 16 of 28 placed on record any document to show what he was doing or how much amount he was earning and only the education certificate was placed on record which is Mark PW1/2. During crossexamination by the learned counsel for the insurance company PW1 stated that he had not placed on record any document in support of his income or in support of the averments that he was giving tuitions. He denied the suggestion that he did not earn any amount from any avocation. Thus PW1 himself stated that he had not placed on record any document in support of his income or in support of the averments that he was giving tuitions and even the names and addresses of any of the students have not been stated. As such there is nothing on record to show that the petitioner was taking tuitions at the time of the accident or earning any amount therefrom.
24. The petitioner has also not produced any document to show that he remained on bed rest for any particular period and there is nothing to show that he was advised bed rest for any particular period or that on account of the injuries sustained in the accident he was unable to work or to show the period for which he was not able to work. During crossexamination by the learned counsel for the insurance company PW1 stated that he had not placed on record any doctor advise advising therein bed rest for any period of time. He had not placed on record any leave record availed by him from his college for any period of time. He denied the suggestion that he did not undergo bed rest for any period and he did not remain on leave from the college for any period Suit No.D349/15 Ashutosh Vs Haider Ali & Ors. Page 17 of 28 of time on account of the injuries sustained by him in the alleged accident. Thus PW1 stated that he had not placed on record any doctor advise advising therein bed rest for any period of time nor any leave record availed by him from his college for any period of time. In the absence of any medical advice notice can be taken of the fact that the petitioner may not have been able to perform his avocation for some period. Considering the facts and circumstances of the case the petitioner is held entitled to an amount of Rs. 20,000/ consolidated on account of loss of income.
25. There is also nothing to show that the petitioner had suffered any disability on account of the injuries. The petitioner has not proved that he acquired any disability on account of the accident or that he is likely to suffer future loss of income on account of the injuries sustained in the accident and that the injuries would reduce his efficiency to work and thereby he would suffer loss of future income. Accordingly the petitioner cannot be held entitled to any amount on account of loss of future prospects.
The total compensation is assessed as under:
Medicines and Medical treatment Rs.2,000/
Pain and suffering Rs.25,000/
Loss of Amenities of life Rs.10,000/
Conveyance Rs.5,000/
Special Diet Rs.3,000/
Suit No.D349/15
Ashutosh Vs Haider Ali & Ors. Page 18 of 28
Attendant charges Rs.12,000/
Loss of Income Rs.20,000/
TOTAL Rs.77,000/
Thus the total compensation would be Rs.77,000/.
RELIEF
26. The petitioner is awarded a sum of Rs.77,000/ (Rs.Seventy Seven Thousand only) along with interest @ 9% per annum from the date of filing of the DAR till its realization including, interim award, if any already passed against the respondents and in favour of the petitioner. The respondent No.3 is directed to deposit the award amount directly in the bank account of the claimant in UCO Bank, Patiala House Court, New Delhi within 30 days of the passing of the award failing which it is liable to pay interest at the rate of 12% per annum for the period of delay.
APPORTIONMENT OF LIABILITY:
27. The respondent No.1 is the driver, the respondent No.2 is the owner and the respondent No.3 is the insurer of the offending vehicle. It is the case of the respondent No.3 that the driver of the offending vehicle i.e. the respondent No.1 was not holding a valid driving license to drive the vehicle which he was driving on the date of the accident which amounted to Suit No.D349/15 Ashutosh Vs Haider Ali & Ors. Page 19 of 28 fundamental breach of condition of policy and as such the insurance company was not liable to pay the compensation. In support of its case the respondent No.3 had produced R3W2 in the witness box who deposed that the liability of the insurance company was subject to the terms and conditions of the insurance policy. He stated that as per the terms and conditions of the insurance policy the driver of the vehicle should possess a valid and effective driving license to drive the vehicle. He stated that as per the verification report of the DL issued by Licensing Authority West Zone, Janakpuri, Delhi filed by the IO in DAR, the driver was not holding a valid and effective driving license to drive a commercial vehicle. The vehicle involved in the accident was a taxi/ commercial vehicle. As per the report of the authority filed by the IO, the DL was blacklisted/ suspended/ cancelled vide order dated 03.05.2013 of the Ld. MM Ms. Rajani Ranga, Rohini Courts, Delhi and the NOC had also not been issued. He stated that the driver had been charged under sections 3/181 M.V. Act and the owner had been charged under sections 5/180 of M.V. Act. He deposed that as the driver of the vehicle was not holding a valid and effective DL at the relevant time, there being breach of terms and conditions of the insurance policy, the respondent No.3 was not liable to pay any compensation. The respondent No.3 got issued a notice under Order 12 rule 8 CPC to M/s Surendra Tourist Transport Services through its proprietor/ partner to produce the original insurance policy, the permit of the vehicle and DL of the driver valid on the date of accident i.e. 19.07.2015. The copy of notice is Ex.R3W1/1 and the postal receipt is Ex.R3W1/2. Despite the notice, the driver and the owner Suit No.D349/15 Ashutosh Vs Haider Ali & Ors. Page 20 of 28 did not supply the requisite documents. The office copy of the insurance policy is Ex.R3W1/3 and the verification report of the driving license issued by the licensing authority and filed by the IO in DAR is Ex.R3W1/4. During cross examination by the learned counsel for the petitioner R3W2 stated that he had not brought the original copy of the order which blacklisted the DL of the offending vehicle. He did not have any authorization letter to depose in the Court. Thus R3W2 had not brought the original copy of the order which blacklisted the DL, however the verification report of the DL filed with the DAR also mentions the same.
28. The respondent No.3 had also examined R3W1 who had brought the record pertaining to DL No.DL0420060156477 in the name of Haider Ali. As per the record, the said license was not valid to drive a commercial vehicle/ taxi and the report is Ex.R3W1/1 issued by MLO Transport Deptt., New Delhi. He stated that the said license had been made for LMV (Non Transport) and motorcycle only. Moreover, the said license had been blacklisted/ canceled. He was not crossexamined. Thus the record produced by R3W1 also showed that the license was not valid to drive a commercial vehicle/ taxi and that the said license had been blacklisted/ cancelled and the respondents No.1 and 2 have not appeared to rebut the same. It is not in dispute that the offending vehicle is a tourist taxi and a perusal of verification report of the RC of the offending vehicle shows that the class of vehicle was Tourist Taxi. The verification report of the DL of the respondent No.1 placed with the DAR shows Suit No.D349/15 Ashutosh Vs Haider Ali & Ors. Page 21 of 28 that it was valid for LMVNT and motorcycle and as such it was specifically valid only for LMVNT and not for transport vehicle. The effect of a person possessing a DL to drive an LMV driving a vehicle of another category was gone into at length by the Hon'ble High Court of Delhi and it was observed by the Hon'ble High Court of Delhi in IFFCO Tokio General Insurance Co. Ltd. v. Parsan & Ors. MAC. APP. 532/2012 decided on 20.5.2015 as under:
"As far as driving licence is concerned, although no driving licence was produced by the Respondents, but a copy of the driving licence No.3119/F/97 which was valid for motorcycle and LMV only was available on record. The same was got verified from the Transport Authority. The validity of this driving licence is not disputed by the learned counsel for the Appellant. At the same time, it is urged that on the strength of this driving licence, Respondent Paramjit Singh was not competent to drive TSR which is a transport vehicle. It is also urged that the Claims Tribunal erred in relying on the report of the Transport Authority to say that since gross weight of the vehicle was less than 7,500/ kg., the driver was competent to drive a transport vehicle. This question was gone into at great length by this Court in Shashi Bhushan & Ors. v. National Insurance Co. Ltd. & Ors., MAC APP.517/2007, decided on 31.05.2012. Para 9 to 11 of the report are extracted hereunder: "9. In National Insurance Co. Ltd. v. Annappa Irappa Nesaria, (2008) 3 SCC 464, His Lordship Mr. Justice S.B. Sinha (as he then was) drew a distinction between the validity of a licence for LMV, to drive a light goods carriage or a light passenger vehicle before amendment in form 4 prescribed under Rule 2 (e) in the Central Motor Vehicles Rules, 1989 (the Rules). Before the amendment in 2001 the entries Medium Goods Vehicle and Suit No.D349/15 Ashutosh Vs Haider Ali & Ors. Page 22 of 28 Heavy Goods Vehicle existed which have been substituted by a "transport vehicle". It was held that a person holding a licence for Light Motor Vehicle after 28.03.2001 would not be competent to drive a "transport vehicle". In the aforesaid case, the accident occurred on 09.12.1999. It was in that context that it was held that the driver by holding a valid licence for LMV was authorized to drive a Light Goods Vehicle as well. In this case, the accident took place on 21.04.2005 and thus the driver who was holding a driving licence to drive a Light Motor Vehicle was not competent to drive a transport vehicle. Paras 12 to 17 of the report are extracted hereunder: "12. The Central Government has framed Rules known as The Central Motor Vehicles Rules, 1989.
13. The word "Form" has been defined in Rule 2(e) to mean a Form appended to the rules.
"I Apply for a licence to enable me to drive vehicles of the following description:
(d) Light motor vehicle
(e) Medium goods vehicle
(g) Heavy goods vehicle
(j) Motor vehicles of the following description:...."
After amendment the relevant portion of Form 4 reads as under:
"I Apply for a licence to enable me to drive vehicles of the following description:
(d) Light motor vehicle
(e) Transport vehicle
(j) Motor vehicles of the following description:...."
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 Suit No.D349/15 Ashutosh Vs Haider Ali & Ors. Page 23 of 28 the amendment in 2001, the entries "medium good vehicle" and "heavy goods vehicle" existed which have been substituted by "transport vehicle". As noticed hereinbefore, "Light Motor Vehicles" also found place therein.
15. "Light Motor Vehicle" is defined in Section 2(21) and, therefore, in view of the provision, as then existed, it included a light transport vehicle. Form 6 provides for the manner in which the licence is to be granted, the relevant portion whereof read as under:
"Authorisation to drive transport vehicle Number.... Date....
Authorised to drive transport vehicle with effect from.... Badge number....
Signature.... ...
Designation of the licensing authority Name and designation of their authority who conducted the driving test."
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. The amendments carried out in the Rules having a prospective operation, the licence held by the driver of the vehicle in question cannot be said to be invalid in law."
10. In National Insurance Co. v. Kusum Rai, (2006) 4 SCC 250 a driver holding a driving licence to drive a Light Motor Vehicle was held to be not entitled to drive a taxi. Subsequently, in New India Assurance Company Limited v. Roshanben Rahemansha Fakir & Anr., (2008) 8 SCC 253; the Supreme Court differentiated between a transport vehicle and non transport vehicle and held that a driver who had a valid licence to drive a Light Motor Vehicle was not authorized to drive a light goods vehicle. It was Suit No.D349/15 Ashutosh Vs Haider Ali & Ors. Page 24 of 28 further held that the person must possess the licence for the class of vehicle involved in the accident."
8.Since the driving licence which was available on the record was valid for driving LMV only and not LMV (Transport) and no other licence was produced by the insured, it has to be held that the driver possessed valid driving licence to drive Light Motor Vehicle (LMV) only and not a transport vehicle. Thus, in view of the judgment in Shashi Bhushan & Ors. v. National Insurance Co. Ltd. & Ors., MAC APP.517/2007, decided on 31.05.2012; National Insurance Co. v. Kusum Rai, (2006) 4 SCC 250; and New India Assurance Company Limited v. Roshanben Rahemansha Fakir & Anr., (2008) 8 SCC 253, the driver was not competent to drive the vehicle involved in the accident.
9.The owner has not come forward with any explanation as to under which circumstances the vehicle was entrusted to the driver. The Appellant discharged the initial onus of proving conscious and willful breach on the part of the insured and is, therefore, entitled to recover the amount of compensation paid from the insured in view of the judgment of this Court in Oriental Insurance Company Limited v. Rakesh Kumar & Ors., MAC APP. 329/2010, decided on 29.02.2012.
Thus it was held that the driving license which was available on the record was valid for driving LMV only and not LMV (Transport) and no other license was produced by the insured, it had to be held that the driver possessed valid driving license to drive Light Motor Vehicle (LMV) only and not a transport vehicle and similar is the position in the present case.
29. In the above case where the driver was not competent to drive the vehicle involved in the accident recovery rights were given. In Civil Appeal No. Suit No.D349/15 Ashutosh Vs Haider Ali & Ors. Page 25 of 28 4834 OF 2013 (Arising out of Special Leave Petition (Civil) No.5091 of 2009) S. IYYAPAN v. M/S UNITED INDIA INSURANCE COMPANY LTD. AND ANOTHER, a plea was raised by the insurance company that the driver was holding a valid driving license to drive light motor vehicle but not a taxi i.e. a commercial vehicle so it was not liable to pay the compensation but the same was negatived observing:
"Hence, in our considered opinion, the insurer cannot disown its liability on the ground that although the driver was holding a license to drive a light motor vehicle but before driving light motor vehicle used as commercial vehicle, no endorsement to drive commercial vehicle was obtained in the driving license."
As such the insurance company cannot escape its liability to pay the compensation to the petitioner. However in S. Iyyapan's case (supra) the Hon'ble Supreme Court had also observed that it was for the insurer to proceed against the insured for recovery of the amount in the event there had been violation of any condition of the insurance policy. It is now well settled that in such cases the insurance company would first have to satisfy the liability towards third party though it may subsequently recover the amount from the insured. In the instant case as well the DL of the respondent No.1 was valid only for an LMV NT and motorcycle whereas at the time of the accident he was driving a taxi. The insurance company had also given notice to the driver and owner but no other license was produced. In view of the Suit No.D349/15 Ashutosh Vs Haider Ali & Ors. Page 26 of 28 settled law the insurance company is liable qua third party though it shall be vested with the right to recover the amount of liability from the insured after depositing the compensation awarded to the third party. Since the respondent No.1 did not produce a valid license to drive a taxi on the date of the accident the respondent No.3 shall have the right to recover the amount of compensation from the respondent No.2 who is the owner of the offending vehicle. Accordingly the respondent No.3 shall deposit the amount of compensation for which the respondent No.2 would be liable and after depositing the same shall have the right to recover the same from the respondent No.2. The respondent No.3 being the insurer is directed to deposit the award amount in the bank account of the claimant in UCO Bank, Patiala House Court within 30 days of the passing of the award with interest at the rate of 9% from the date of filing of the DAR till its realization failing which it is liable to pay interest at the rate of 12% per annum for the period of delay.
30. Nazir to report in case the cheque is not deposited within 30 days of the passing of the award/judgment. Nazir is directed to note the particulars of the award amount in the register today itself. The petitioner shall file two sets of photographs along with his specimen signatures, out of which one set to be sent to the Nodal Officer, UCO Bank, Patiala House Court Complex, New Delhi along with copy of the award by Nazir and the second set be retained to the court for further reference. The photographs be stamped and sent to the bank. The petitioner shall also file the proof of residence and furnish the Suit No.D349/15 Ashutosh Vs Haider Ali & Ors. Page 27 of 28 details of the bank account with the Nazir within a week. The petitioner shall file his complete address as well as address of his counsel for sending the notice of deposit of the award amount. The insurer shall deposit the award amount along with interest upto the date of notice of deposit to the claimant with a copy to his counsel and the compliance report shall be filed in the court along with proof of deposit of award amount, the notice of deposit and the calculation of interest on 22.4.2016.
An attested copy of the award be given to the parties (free of cost) and a copy be also sent to the Nodal Officer, UCO Bank, Patiala House Court, New Delhi. File be consigned to record room.
Announced in open court
on this 23rd day of January, 2016 (GEETANJLI GOEL)
PO: MACT2
New Delhi
Suit No.D349/15
Ashutosh Vs Haider Ali & Ors. Page 28 of 28