Madhya Pradesh High Court
Ram Bhagat Goutam vs Jethanand Harwani And Ors. on 1 May, 2007
Equivalent citations: 2007(3)MPHT193
Author: Arun Mishra
Bench: Arun Mishra, K.S. Chauhan
ORDER Arun Mishra, J.
1. This appeal has been preferred by the claimant for claiming higher compensation owing to the injuries sustained by him in an accident dated 7-10-2000 and for saddling liability on the Oriental Insurance Co Ltd. 1st Addl. Motor Accident Claims Tribunal, Katni as per award dated 19-12-02 passed in Claim Case No. 588/2000 has awarded compensation of Rs. 35,000 on account of fracture of clavicle bone sustained by the claimant along with interest at the rate of 7% per annum from the date of filing claim petition till realization.
2. Claimant Rambhagat, aged 25 years, filed a claim petition claiming compensation of Rs. 5,10,000. It was submitted that at about 11.30 PM on 7-10-2000 when claimant was going on Hero Puch (MP-21B/4642) to Katni, he was dashed by a motor cycle (MP21-B/7934), driven by Jethanand Harwani, owned by Kailash Poptani and insured with Oriental Insurance Co. Ltd. He sustained fracture of clavicle and incurred permanent disability. Claim petition was filed on 21-12-2000 after about two months of the accident.
3. Owner and driver remained ex parte before the Claims Tribunal. Insurer in the written statement contended that motorcycle was not involved in the accident, some unknown motorcyclist dashed Hero Puch as apparent from the documents of criminal case, report was lodged belatedly, only simple injuries were sustained, no disability certificate was filed with the claim petition. Jethanand was not having valid and effective driving licence, thus, insurer was not liable to make payment of compensation.
4. The Claims Tribunal has found that accident was caused by rash and negligent driving of motor cycle by its driver Jethanand, he was having the licence to drive Light Motor Vehicle with effect from 25-9-2000, it was valid upto 4-10-2018, he was not having the licence to drive motorcycle, thus, insurer has been exonerated. The Tribunal has awarded total compensation of Rs. 35,000 to claimant, consequently this appeal has been preferred by the claimant.
5. Shri Sharad Gupta, learned Counsel appearing for claimant/ appellant has submitted that owner has not violated any of the conditions of the policy, the person who drove motorcycle was holding the licence to drive Light Motor Vehicle. He has placed reliance on a decision of Apex Court in National Insurance Co. Ltd. v. Swaran Singh and Ors. , indicating that driver was an experienced driver. As driver was having licence to drive Light Motor Vehicle, he was sufficiently experienced to drive the motorcycle. Thus, it could not be said to be a substantial breach on part of owner.
6. Shri R.K. Samaiya, learned Counsel appearing for Insurer with Shri Rajroot Patel has submitted holder of the licence to drive Light Motor Vehicle cannot be said to be authorised to drive the motor cycle with or without gear, thus, Jethanand, a holder of Light Motor Vehicle driving licence, had no authority to drive the Motorcycle.
7. There appears to be cleavage of opinion as to whether a person holding driving licence of Light Motor Vehicle can drive motorcycle with gear. In United India Insurance Co. Ltd. v. Bharamappa Doddabirappa Pujari and Anr. , High Court of Karnataka has considered Section 10 and has held that in Section 10 of the Motor Vehicles Act vehicles from the category (a) to (j) have been mentioned in order of their laden weight of the vehicle. Thus, a person holding licence to drive a Light Motor Vehicle cannot be permitted to drive medium goods vehicle of higher category, but he can drive an invalid carriage or motor cycle with or without gear. Karnataka High Court has relied upon decision of Madras High Court in New India Assurance Co. Ltd. v. R. Jayalakshmi . The question has been considered by Karnataka High Court thus:
20. Now, we can look at Section 10 of the Motor Vehicles Act. It shows types of vehicles in respect of which licence to ride or drive has to be obtained. They are:
(a) motor cycle without gear;
(b) motor cycle with gear;
(c) invalid carriage;
(d) light motor vehicle;
(e) medium goods vehicle;
(f) medium passenger motor vehicle;
(g) heavy goods vehicle;
(h) heavy passenger motor vehicle; (i) road-roller;
(j) motor vehicle of a specified description.
Thus, it starts with a light vehicle and goes up in the order of laden weight. In other words, after listing the light ones, heavy vehicles have been listed. The listing clearly shows that the one lower down in the order requires something extra, something more than what the driver is to be equipped with for the previous one. So, in my view, a person who has a licence to drive motor cycle with gear cannot be permitted to drive an invalid carriage that is to say, a person having a licence to drive a motor cycle with gear can very well drive a motorcycle without gear and not that he cannot drive it. To construe otherwise will not be proper. Similarly, a person holding licence to drive a light motor vehicle cannot be permitted to drive a medium goods vehicle, but he can drive an invalid carriage or motor cycle with or without gear. Same view has been expressed by the High Court of Madras in the case of New India Assurance Co. Ltd. v. R. Jayalakshmi . This being so, the respondent No. 1, who had driving licence to drive a light motor vehicle could drive motorcycle with gear. In this view of the matter also, I do not find any force in the case of Insurance Company." In United India Insurance Co. Ltd. v. Parami Devi and Ors. 2006 ACJ 2584, Rajasthan High Court opined that person having licence to drive Light Motor Vehicle cannot drive two wheeler. In K. Venkatanarayanan v. Balaji and Ors. , similar view was taken by the Madras High Court.
8. In National Insurance Co. Ltd. v. Swaran Singh and Ors. (supra), the Apex Court has laid down that Section 3 of the Act casts an obligation on a driver to hold an effective driving licence for the type of vehicle which he intends to drive. Various types of vehicles have been enumerated in Section 10. In claims for compensation for accidents, various kinds of breaches with regard to the conditions of driving licenses arise for consideration before the Tribunal as a person possessing a driving licence for "motorcycle without gear", for which he has no licence. Cases may also arise where a holder of driving licence for "light motor vehicle" is found to be driving a "maxi-cab", 'motor-cab" or "omnibus" for which he has no licence. In each case, on evidence led before the Tribunal, a decision has to be taken whether the fact of the driver possessing licence for one type of vehicle but found driving another type of vehicle, was the main or contributory cause of accident. If on facts, it is found that the accident was caused solely because of some other unforeseen or intervening causes like mechanical failures and similar other causes having no nexus with the driver not possessing requisite type of licence, the insurer will not be allowed to avoid its liability merely for technical breach of conditions concerning driving licence. Apex Court held thus:
89. Section 3 of the Act casts an obligation on a driver to hold an effective driving licence for the type of vehicle which he intends to drive. Section 10 of the Act enables the Central Government to prescribe forms of driving licences for various categories of vehicles mentioned in Sub-section (2) of said section. The various types of vehicles described for which a driver may obtain a licence for one or more of them are : (a) motorcycle without gear, (b) motorcycle with gear, (c) invalid carriage, (d) light motor vehicle, (e) transport vehicle, (f) road roller, and (g) motor vehicle of other specified description. 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", "motor-cab", "motorcycle", "omnibus", "private service vehicle", "semi-trailer", "tourist vehicle", "tractor", "trailer" and "transport vehicle". In claims for compensation for accidents, various kinds of breaches with regard to the conditions of driving licences arise for consideration before the Tribunal as a person possessing a driving licence for "motorcycle without gear", (sic : may be driving a vehicle) for which he has no licence. Cases may also arise where a holder of driving licence for "light motor vehicle" is found to be driving a "maxi-cab", "motor-cab" or "omnibus" for which he has no licence. In each case, on evidence led before the Tribunal, a decision has to be taken whether the fact of the driver possessing licence for one type of vehicle but found driving another type of vehicle, was the main or contributory cause of accident. If on facts, it is found that the accident was caused solely because of some other unforeseen or intervening causes like mechanical failures and similar other causes having no nexus with the driver not possessing requisite type of licence, the insurer will not be allowed to avoid its liability merely for technical breach of conditions concerning driving licence.
90. We have construed and determined the scope of Sub-clause (ii) of Sub-section (2) of Section 149 of the Act. Minor breaches of licence conditions, such as want of medical fitness certificate, requirement about age of the driver and the like not found to have been the direct cause of the accident, would be treated as minor breaches of inconsequential deviation in the matter of use of vehicles. Such minor and inconsequential deviations with regard to licensing conditions would not constitute sufficient ground to deny the benefit of coverage of insurance to the third parties.
The Apex Court has emphasized that in the case of minor and inconsequential deviations in the user of vehicle with regard to licensing condition would not constitute sufficient ground to deny the benefit of coverage of insurance to the third parties. In the instant case, insurer has not adduced any evidence to show that the fact of driver possessing licence under one type of vehicle but found driving other type of vehicle was contributory cause of accident. Motor cyclist had the licence to drive Light Motor Vehicle, which requires more responsibility while driving, Light Motor Vehicle is more hazardous as per its unladen weight as compared to the vehicle in question. In the absence of evidence having been adduced by insurer as laid down by Apex Court in National Insurance Co. Ltd. v. Swaran Singh and Ors. (supra), we are of the opinion that it could not be said to be a substantial breach on part of owner. Vehicle was owned by Kailash Poptani, there was reason for him to believe that Jethanand was competent to drive as he was holder of licence to drive even Light Motor Vehicle. Thus, it could not be said to be a substantial breach on part of owner in the instant case. Thus, we hold that liability to make payment of compensation to be saddled jointly and severally upon driver, owner and insurer.
9. Coming to question of quantum of compensation, fracture of clavicle bone was sustained in the accident by the claimant, he was admitted for three days in the hospital and thereafter he took the treatment for one month as deposed by him. Disability certificate (P-11) has been issued by Medical Officer, Community Health Centre, Vijayraghavgarh not by disability board. However, Dr. B.K. Sahu, Medical Officer, Community Health Centre has deposed that there was no proper union of the bone towards the right side. We are of the opinion that some kind of disability may remain, but we are unable to accept the percentage of 20% permanent disability as deposed by Dr. Sahu as he has not stated that what kind of tests he has performed in order to arrive at the figure of 20% permanent disability. Considering the facts and circumstances of the case, expenditure involved, physical pain and mental suffering, expenditure on attendant, special diet and conveyance, we deem it appropriate to enhance the compensation by another Rs. 20,000, that would be sufficient to meet the ends of justice. We are not applying the multiplier method considering the reason that claimant could still work and earn his livelihood. Claimant is also entitled for interest at the rate of 7% per annum from the date of filing of claim petition till realization.
10. In the circumstances, appeal is partly allowed to the aforesaid extent. We leave the parties to bear their own costs as incurred of this appeal.