Jammu & Kashmir High Court
United India Insurance Co. Ltd vs Kanchan Sharma And Others on 9 May, 2022
Author: Puneet Gupta
Bench: Puneet Gupta
Sr. No. 05
HIGH COURT OF JAMMU & KASHMIR AND LADAKH
AT JAMMU
(Through Virtual Mode Srinagar)
MA No. 156/2016
CM No. 8796/2021
CM No. 3005/2021
IA No. 1/2016
United India Insurance Co. Ltd. .....Appellant(s)/Petitioner(s)
Through: Mr. D. S. Chauhan, Advocate
Vs
Kanchan Sharma and others ..... Respondent(s)
Through: Mr. Waheed Choudhary, Adv. for R-1 to 4.
Mr. Meharban Singh, Advocate for R-5.
Coram: HON'BLE MR. JUSTICE PUNEET GUPTA, JUDGE
JUDGEMENT
01. The appeal stands preferred by the appellant against award dated 04.04.2016 passed by learned Presiding Officer, Motor Accident Claims Tribunal, Jammu, whereby the Tribunal has awarded Rs.39,68,948/- in favour of the respondents/claimants. The award is challenged by the appellant Insurance Company mainly on the ground that the insurance company is not liable to indemnify the claimants in the claim petition as the vehicle insured was petrol tanker bearing Registration No.JK02-E/4721 and the vehicle was being driven by the driver of the offending vehicle without valid and effective driving licence as on the date of accident. The provisions of 'The Motor Vehicles Act' read with the rules framed under the Act place the vehicle in question under the definition of public carrier goods carrying goods which are dangerous and hazardous in nature and 2 MA No. 156/2016 therefore the licence for driving vehicle had to be specifically for this purpose. The appellant has also challenged the quantum of compensation awarded in favour of the claimants. The learned counsel for the appellants has reiterated the submissions made in the appeal during the course of arguments.
02. The driving license of the driver of the offending vehicle was not valid one so as to entitle him to drive the vehicle of present nature and therefore the insurance company is not liable to pay the compensation awarded by the tribunal is the precise submissions made on behalf of the appellant-Insurance Company.
03. The learned counsel appearing for the respondents/claimants has argued that the tribunal has rightly awarded the compensation in favour of the claimant and that the appellant company being insurer of the vehicle is liable to compensate the claimants for the accident caused by the offending vehicle. The learned counsel for the owner and driver submits that the driver was holding the license as required under The Motor Vehicle Act, and there was no reason to fasten the liability of the compensation awarded by the tribunal against them instead of the appellant-company.
04. The vehicle in question is Heavy Goods Vehicle and type of body is petrol tanker and the same is evident from the Registration Certificate which is on the file and the insurance policy which was in enforce and valid as on the date of accident. There is no dispute on this factual aspect of the matter. The accident has taken place on 10.09.2013 3 MA No. 156/2016 which resulted into the death of Sat Paul. The claimants are legal heirs of the deceased. The accident took place due to the rash and negligent act of the driver of the vehicle No.JK02-AE/4271 is not the issue which requires any deliberation as the appellant has not in all fairness challenged the findings on this issue. The court is otherwise also satisfied that the tribunal has not erred in recording the finding of rash and negligent act of the driver of the tanker causing accident which resulted into the death of Sat Paul.
05. The vehicle was insured with the Insurance Company is not in question as stated above. The driver of the offending vehicle was having licence as on the date of accident which took place on 10.09.2013. The issue for determination in the appeal is if the driving licence of the driver of the offending vehicle, petrol tanker, had valid licence for driving the oil tanker which caused accident. Naresh Kumar was the driver of the vehicle and had licence having validity from 10.07.2006 to 09.07.2026. The licence was issued primarily for Light Motor Vehicle and Motor Cycle with Gear in favour of Naresh Kumar as per the driving licence issued by Motor Vehicle Authority, Rajouri. Another certificate dated 03.04.2014 issued by the Transport Authority, Rajouri, reveals that there is endorsement in the certificate where license for HGV (Heavy Goods Vehicle) is valid up to 05.10.2013. It is to be noticed that the respondent No.6 herein filed an application in appeal for bringing on record the certificate from licencing authority, M.V.D, Jammu mentioning endorsement for driving vehicle for carrying hazardous and dangerous 4 MA No. 156/2016 goods. The certificate shows such validity of licence from 08.06.2013 to 07.06.2014 and the certificate is issued on 10.03.2020. The certificate neither mentions the date when the endorsement was affected. The certificate cannot be entertained at this stage. The owner or driver did not produce the driving licence depicting endorsement on the licence for driving the vehicle carrying dangerous and hazardous goods.. The court is not otherwise apparently convinced with the certificate for the reasons that the certificate is issued by the Motor Vehicle Authority, Jammu, whereas the initial licence and the endorsement for Heavy Goods Vehicle have been issued by licencing authority, Rajouri. The endorsements for driving heavy motor Vehicle and for goods to carry hazardous and dangerous goods overlap the dates and as stated above are issued by two different licensing authorities. If the endorsement for Heavy Goods Vehicle was valid upto 05.10.2013, it does not mention the endorsement for carrying hazardous and dangerous goods. There is no doubt that the driver of the oil tanker at the relevant point did not possess the licence for transportation of dangerous or hazardous goods.
06. Section 11 of MV Act permits the licence holder to apply for addition to drive the class or description of motor vehicles which the holder desires to be added to his licence but the driver in the present case failed to do so and drove the class of vehicle for which he had not requisite licence or permission.
5 MA No. 156/2016
07. The court finds force in the plea of the learned counsel for the appellant that the appellant could not be saddled with the liability to pay the compensation in favour of the claimants. The court is not impressed with the argument of the learned counsels arguing for the respondents that even if it is to be taken that the driver was not having valid licence for transporting goods of hazardous and dangerous nature yet the insurer company can be held liable to pay compensation to the claimants as the driver possessed the licence for driving Heavy Goods Vehicle. Every deficiency in the licence cannot escape the insurer to fulfil the obligation to compensate the claimants if they are otherwise entitled for the same. It depends upon facts and circumstances of the case as to what sort of violation committed by the driver of the vehicle can still fasten the liability upon the insurer and not the owner/driver of the vehicle. The present case is of such nature where the insurer company cannot be held liable to compensate the claimants as the driver of the vehicle can said to be driving the vehicle at the particular point of time which is fundamental breach of the driving licence possessed by him. The provisions of the Motor Vehicles Act and Rules thereunder do make out that the driver of the vehicle can drive the vehicle carrying 'hazardous or dangerous goods' if he has been granted license by the competent authority for the same. There is categorization for holding the license for different vehicles and it has purpose as different skill is required to drive the vehicle of different categories or class.
6 MA No. 156/2016
08. As far as the issue involved in the present appeal is concerned the court can take cue from the judgment passed by the Karnataka High Court in case titled Smt. H. Kumari Vs. B.C. Sridhara MFA No. 2482/2015 (MV-D) decided on 16.06.2020. In this case, the court took note of the fact that the driver of the oil tanker was holding driving license to drive Heavy Goods Vehicle but not for the oil tanker and therefore the vehicle was held to be driven by the driver of the offending vehicle in violation of the Act and the Rules made thereunder. The court after analysing provisions of the Act and specially Section 149 (2), 14(2)(a) of The Motor Vehicles Act which refers to the grant of licence to drive a transport vehicle to carry goods of hazardous or dangerous nature effective for a period of one year and the renewal is subject to the condition that the driver undergoes one day refresher course of the prescribed syllabus. The court also took notice of Rule 9 of the Rules framed under The Motor Vehicles Act pertaining to the conditions which are required to be satisfied before the driver can possess the licence for driving a transport vehicle carrying dangerous or hazardous nature of goods. The court while absolving the insurer company of its liability to pay compensation held the company entitled to recover the same from the owner of the Oil Tanker. The court finds that the judgment (supra) applies on all fours in the present case. The appellant cannot be held liable to pay the compensation in favour of the claimants. However, keeping in view the facts and circumstances of the case and applying ratio of the aforesaid judgement the appellant is directed to pay 7 MA No. 156/2016 the compensation to the claimants and is entitled to recover the same from the owner and driver of the vehicle.
09. The claimants have been awarded Rs.39,68,948/- along with interest at the rate of 7.5 per annum from the date of filing of the claim petition till realization of the amount. The deceased was Sr. Lecturer in the Education Department at the time of accident. The main argument raised on behalf of the appellant in the appeal is that the Tribunal ought to have taken into consideration the pensionary benefits which were to be received by the petitioners/claimants for a period of seven years in terms of the provisions Jammu and Kashmir Civil Service Regulations, 1956. The court is not an agreement with the argument raised by the learned counsel for the appellant as the pension, if any, to which the claimants may be entitled to cannot be deducted while assessing the compensation in favour of the claimants. The Tribunal has referred to the judgment reported in AIR 1998 SC 3191 in this regard. This court in case titled National Insurance Company Ltd. Vs. Purna Devi and others in Appeal No.231/2016 decided on 18.07.2020 has dealt with this aspect of the matter and held as under:-
"As far as deduction on account of financial benefits in terms of the family pension etc. from the amount payable for loss of dependency is concerned, in the instant case, nothing has come on record as to the benefits that were received or were payable to the claimants on account of the unfortunate death of Sadhu Ram. It may be noted that the wife of the deceased was cross-examined by the insurer before the Tribunal, but no question was put to her by the insurer with regard to the financial benefits which had been received by her on account of untimely death of her husband. In the absence of any material on 8 MA No. 156/2016 record, the discussion on the issue raised would be pointless. Otherwise also, as is rightly contended by Mr. Butt that the Government scheme providing for full salary of seven years of the deceased employee to his family has since ceased to exist and, in its place, the family of the Government employee dying in harness is now entitled to enhanced pension at the rate of 50%. This is amply clear from Rule 20(bb) inserted in the CSR vide SRO 391 dated 15th July 1983. The enhanced pension, it is submitted, is payable for a period of ten years.
Relying upon the judgment rendered in the cases of Reliance General Insurance Company vs. Shashi Sharma and others, 2016 (9) SCC 627, Sebastiani Lakra and others vs. National Insurance Company Limited and another, AIR 2018 SC 5034 and National Insurance Company Ltd vs. Mannat Johal and others, AIR 2019 SC 2079, it is urged that the issue, whether the pensionery benefits can be deducted by calculating the loss of income is no longer res integra. It is, thus, urged that the family pension received by the family of the deceased employee cannot be deducted from calculating the loss of income. As already noted, the issue in the absence of clear evidence on record does not call for determination in this case.---------------------------
-------------------------------------
Similarly, other benefits extended to the dependents of the deceased Government employee in terms of sub-rule (2) to sub-rule (5) of Rule 5 including family pension, Life Insurance, Provident Fund etc., that must remain unaffected and cannot be allowed to be deducted, which, any way would be paid to the dependents of the deceased Government employee, applying the principle expounded in Helen C.Rebello and Patricia Jean Mahajan‟s cases (supra)".
The legal position as enunciated in the aforesaid Judgment, to put it precisely, is that the pecuniary advantage, to be deducted from the loss of income while assessing the compensation claimed under the Motor Vehicles Act must be from a source which correlates to the injury or death arising out of a motor vehicle accident. The pecuniary advantage which is payable or derivable on account of death of an employee in harness whether or 9 MA No. 156/2016 not such death is result of motor vehicle accident is not to be deducted from the loss of income. This principle has been followed by the Hon‟ble Supreme Court in its later judgments and also by this Court consistently.
In the instant case, 50% enhanced pension payable to the family of a Government employee dying in harness is not co-related to the death arising out of motor vehicle accident. The amount would be payable under the relevant SRO even in case of a natural death of an employee in harness. In that view of the matter, the enhanced benefit of pension payable to the Government employee, dying in harness, including those dying in motor vehicle accidents cannot be deducted while calculating the loss of income in motor accident claims".
10. In view of the above position of law as enunciated by the Apex Court and followed by this Court in Purna Devi (supra) case the court does not find any reason to take into consideration the pensionary benefits that may accrue to the claimants on the demise of Sat Paul, who died in harness while assessing the compensation.
11. As far as awarding of compensation on account of other heads as mentioned in the award is concerned the court is of the view that the same also does not require any interference by the court keeping in view the judgment of Hon'ble Apex Court in 'Magma General Insurance Company Limited case reported (2018) 18 SCC 130' wherein the court granted compensation on account of loss of love and affection and also held that the claimants can be entitled to spousal consortium and filial consortium. The multiplier and deduction on account of personal expenses of the deceased have been applied as per accepted principle of law by the Tribunal and no interference is again required from the court in appeal. 10 MA No. 156/2016
12. Keeping in view the discussion made above, the appeal is disposed of with the direction that the appellant Insurance Company shall pay compensation to the claimants/respondent Nos.1 to 4 herein to the tune of Rs.39,68,948/- along with interest as awarded by the Tribunal and is entitled to recover the same from the owner and driver of the offending vehicle as per law. The amount, if any, received by the claimants before the passing of the judgment by this Court shall stand adjusted accordingly. The interest shall also be calculated as per amount awarded and, if any, received by the claimants.
13. This petition is, accordingly, disposed of.
(Puneet Gupta) Judge Jammu 09.05.2022 Shammi Whether the order is speaking: Yes Whether the order is reportable: Yes