Rajasthan High Court - Jaipur
Bhagwan Sahai & Ors vs Kailash Chand & Ors on 11 September, 2012
Author: Mohammad Rafiq
Bench: Mohammad Rafiq
IN THE HIGH COURT OF JUDICATURE FOR RAJASTHAN BENCH AT JAIPUR. O R D E R 1) S.B. CIVIL MISC.APPEAL NO.2558/2003. Bhagwan Sahai & Anr. Vs. Kailash Chand Meena & Ors. 2) S.B. CIVIL MISC.CROSS OBJECTION NO.15/2012. Bhagwan Sahai & Anr. Vs. Kailash Chand Meena & Ors. Date of Order :- September 11, 2012. HON'BLE MR.JUSTICE MOHAMMAD RAFIQ Shri Sandeep Mathur for the claimant-appellants. Shri Kamlakar Sharma, Senior Advocate with Smt.Alankrita Sharma for respondents No.2 & 3 - owners/the cross-objectors. Shri Tripurari Sharma for respondent No.4 - The Oriental Insurance Company Ltd. ****** Reportable BY THE COURT:-
1) This appeal has been preferred by the claimant-appellants dissatisfied with the quantum of compensation of Rs.1,25,000/- that was awarded by the Motor Accident claims Tribunal, Jaipur (for short, the Tribunal) vide award dated 11/8/2003 seeking enhancement thereof. The Tribunal by the aforesaid award has granted compensation of Rs.1,25,000/- to the claimants with interest @9% per annum from the date of filing claim petition for the accidental death of their son Doongarsi Lal, aged 13 years. In the claim petition, it was averred that Doongarsi Lal while coming from Diggi Kalyanji was hit by Jeep No.RJ-14-G-2192, which was being driven by respondent No.1 in rash and negligent manner. The said jeep was insured with respondent No.4-Oriental Insurance Co.Ltd. Deceased was a student of 7th standard and was also earning Rs.2500/- per month by supply of milk. Ex-parte proceedings were drawn by the Tribunal against Respondent No.1-driver as well as Respondent No.2-owner because they despite service of notice failed to appear before the Tribunal. The Tribunal held that driver of the jeep was having license to drive light motor vehicle, whereas he was driving transport vehicle, therefore, this amounted to breach of condition of policy. It therefore required the respondent-insurance company to pay compensation to the claimants with right to recover the same from driver & owner of the vehicle.
2) Shri Sandeep Mathur, learned counsel for the claimant-appellants has argued that Tribunal has erred in law in not appreciating that even if the jeep was registered as transport vehicle, it would nevertheless fall within the purview of a 'light motor vehicle' as defined in Section 2(21) of the Motor Vehicles Act, 1988 (for short, the Act), according to which, any vehicle, unladen weight of which is less than 7500 kg., regardless of the fact whether it is transport vehicle or not, would be a light motor vehicle. Insertion of clause (e) in Section 10(2) of the Act by amendment to separately indicate unified category of transport vehicle would not make any difference. Unless unladen weight of the vehicle is more than 7500 kg., such vehicle would continue to be a light motor vehicle. In this connection, learned counsel relied on judgment of the Supreme Court in National Insurance Company Ltd. Vs. Annappa Irappa Nesaria & Ors. : MACD 2008 (SC) 83.
3) Shri Sandeep Mathur, learned counsel for the appellants in this connection then referred to the definition of 'motorcab' as defined in Section 2(25) of the Act and argued that vehicle in question would fall within the category of 'motorcab'. He argued that 'motorcab' and 'motorcycle' have been excluded from the purview of 'transport vehicle' by Section 3(1) of the Act. Counsel for appellants in support of his arguments has placed reliance judgment of the Supreme Court in National Insurance Co.Ltd. Vs. Swaran Singh and others : 2004 ACJ (1) 1. Learned counsel also relied on the judgments of Supreme Court in Sohan Lal Passi Vs. P. Sesh Reddy: 1996 ACJ 1044 (SC).
4) Shri Sandeep Mathur, learned counsel for the claimant-appellants further argued that in the present case, age of the deceased was 13 years and this Court in Smt.Nana Devi and Others Vs. Gurumel Singh and Others : S.B. Civil Miscellaneous Appeal No.870/2001 decided on 2/11/2011 has awarded Rs.2,50,000/- for the accidental death of the children between the age group of 10-15 years. In the present case, only a sum of Rs.1,25,000/- has been awarded as compensation by the Tribunal, which ought to be therefore enhanced by atleast Rs.1,00,000/-.
5) Shri Kamlakar Sharma, learned Senior Counsel appearing for the respondent-owner has argued that owners of vehicle respondents No.2 & 3 have filed cross-objection with the prayer that insurance-company ought to be required to indemnify the owner for making payment of compensation to claimants. Vehicle in the present case is a light motor vehicle i.e. jeep and is fully covered by the definition of 'light motor vehicle' in Section 2(21) of the Act. Respondent No.1driver had valid driving licence to drive a light motor vehicle and therefore he was eligible to drive the jeep in question because unladen weight thereof was less than 7500 kg. Since accident in the present case also had taken place on 18/5/2000 i.e. prior to the amendment dated 28/3/2001 thereby clause (e) was inserted in Section 10(2) of the Act separately indicating transport vehicle, the jeep in the present case would also be covered within the definition of light motor vehicle being a 'light passenger carriage vehicle'. Tribunal has therefore erred in law in exonerating the insurance-company and granting right of recovery to it.
6) Shri Tripurari Sharma, learned counsel appearing for the respondent-insurance company argued that cross-objection filed by owner of the vehicle in appeal of the claimants would not be maintainable because if the owner wanted to avoid its liability, remedy for him was to file his own appeal against the award. Even otherwise, the owner has not deposited the necessary pre-deposit as per requirement of the first proviso to sub-Section (1) of Section 173 of the Act and therefore the cross-objection would not be maintainable. In support of his argument, the learned counsel placed reliance judgment of Madhya Pradesh High Court in Abhilasha Bai Vs. Arvind Kumar and others : 2003 ACJ 49, wherein it was held that cross-objections by owner would not be maintainable without making requisite pre-deposit as per the first proviso to sub-Section (1) of Section 173 of the Act. Even in the appeal filed by the claimants, prayer has been made only for enhancement of the compensation and not for holding the insurance company liable to pay compensation. Appeal to that extent therefore deserves to be dismissed, argued the learned Senior Counsel. It was argued that despite service of notice, driver and owner did not contest the claim petition before the Tribunal and therefore proceedings against them remained ex-parte. Owner of the vehicle cannot therefore either file cross-objection or otherwise assail any of findings in the appeal filed by the claimants.
7) Shri Tripurari Sharma, learned counsel for the insurance company has cited judgment of this Court in National Insurance Company Ltd. Vs. Kanhaiya & Ors. arising out of S.B. Civil Misc.Appeal No.1022/2000 decided vide order dated 26/10/2009 and argued that this Court in the aforesaid judgment while relying on judgment of the Madras High Court in Divisional Manager, United India Insurance Company Vs. Dulasi Ammal and Others : 1998(2) TAC 212 (Madras) held that cross objections at the instance of the claimants in appeal filed by the insurance-company questioning its liability, would not be maintainable. On the same, analogy, therefore the cross objection in the present case would also not be maintainable.
8) Shri Tripurari Sharma, learned counsel for the insurance-company has further relied on judgment of the Supreme Court in National Insurance Co.Ltd. Vs. Kusum Rai and others : 2006 ACJ 1336 and argued that Supreme Court in that case held that it was obligatory for the owner to see that the vehicle is being driven by a person having valid licence and if the driver was found having an invalid licence, it would be travesty of justice to require the insurance company to pay the amount and to face the difficulty in executing the decree for recovery of the same from the owner. In the present case, the driver was having licence to drive a light motor vehicle and was therefore not authorised to drive a jeep, which was being plied as a taxi. The accident in Kusum Rai supra also took place on 14/8/2000 prior to the date of amendment in Section 10(2) of the Act dated 28/3/2001.
9) Shri Tripurari Sharma, learned counsel for the insurance company also relied on judgment of this court in National Insurance Company Ltd. Vs. Bhema and Others : 2010 (3) T.A.C. 366 (Raj.) in which case, driver had licence to drive light motor vehicle but he was driving a transport vehicle. This court exonerated the insurance-company of the liability. Learned counsel also relied on the judgment of Supreme Court in National Insurance Co. Ltd. Vs. Kanti Devi and others : 2005(3) T.A.C. 1 (S.C.) and argued that the Supreme Court had in that case despite the fact that accident took place on 4/10/1998, much prior to insertion of clause (e) in Section 10(2) w.e.f. 28/3/2001, held that driver having licence to drive a light motor vehicle is not authorised to drive a light transport vehicle.
10) Shri Tripurari Sharma, learned counsel for the insurance company further placed reliance on judgment of the Supreme Court in New India Assurance Co.Ltd. Vs. Roshanben Rahemansha Fakir and another : 2008 ACJ 2161 in which, the Supreme Court exonerated the insurance-company because the offending vehicle was autorickshaw delivery van, therefore, was a commercial transport vehicle, whereas driver was possessing licence to drive a light motor vehicle. The Supreme Court held that light motor vehicle would not include a light transport vehicle. Autorickshaw-Van is a three-wheeler and therefore it falls within the category of a 'transport vehicle'. Finding to the contrary by the Tribunal that it was a light motor vehicle was set-aside. Shri Tripurari Sharma, learned counsel for the insurance company therefore submitted that appeal as well as cross objections be dismissed.
11) I have given my anxious consideration to rival submissions, perused the material on record and respectfully studied the cited case law.
12) I shall first deal with the objection raised by the learned counsel for the insurance company that cross-objection filed by the owner in the appeal filed by the claimants to avoid his liability, would not be maintainable. First limb of the argument is that owner can seek to avoid his liability only in his own appeal because in the appeal filed by the claimants for enhancement, Insurance company is co-respondent with the owner. Reliance on judgment of the Madras High Court in Dulasi Ammal supra is wholly misplaced because that judgment was rendered in appeal filed by the insurance company, whereat the short question was only with regard to liability and the claimant-respondent wanted enhancement of compensation. In that context, Madras High Court held that the appeal be confined to the question of liability alone. The claimant cannot make claim for enhancement in the appeal, which is directed against the owner, who is his co-respondent in the appeal. No doubt, in the present appeal, insurance company is also co-respondent but herein, cross-objection is at the instance of the owner, both of whom were non-claimants/respondents in the claim petition and are also arrayed as co-respondent in the present appeal. Judgment of this court in Kanhaiya supra was also rendered in appeal filed by the insurance-company therefore on that analogy possibly cross objection of the owner in appeal filed by the claimants to avoid liability could not possibly be held not maintainable.
13) Second limb of arguments on this aspect deserves to succeed because even the Supreme Court in Trilochan Singh Vs. Kanta Devi and others (2009) 9 SCC 223 held that even if the insurer has paid full amount to claimants, the appeal challenging the right granted to the insurer to realize the amount from appellant-owner would be subject to condition of pre-deposit as required by first proviso to sub-Section (1) of Section 173 of the Motor Vehicles Act, 1988. Cross objection is therefore liable to be rejected. It is however clarified at this stage itself that rejection of cross-objection would not be a bar for examining correctness of the conclusion arrived at by the learned Tribunal exonerating the insurance company of its responsibility to indemnify the owner for payment of compensation to the claimant on the ground of alleged breach of condition of policy of the insurance company. That issue in any case is open to examination even in the present appeal, which has been filed by the claimants assailing the said finding.
14) Adverting now to the question whether a driver possessing license to drive a light motor vehicle can drive a passenger vehicle if it is found to be motor cab, as defined in Section 2(25) of the Act, it should be noted that a three-Judge bench of the Supreme Court in Swaran Singh supra categorically held that where holder of driving license for 'light motor vehicle' is found to be driving a 'maxicab', 'motorcab' or 'omnibus' for which he has no licence, 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 contributory cause of accident. If on facts, it is found that accident was caused solely because of some other un-forseen or intervening causes like mechanical failure and similar other causes having no nexus with 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. In this connection, reference may also be made to the discussion in para 83 of the aforesaid judgment wherein scope of sub-clause (ii) of sub-Section (2)(a) of Section 149 of the Act was discussed and it was held that 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 or 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 party. Breach of policy condition with regard to disqualification of driver or invalid driving licence of the driver, as contained in sub-Section 2(a)(ii) of Section 149, have to be therefore proved to have been committed by the insured for avoiding liability by the insurer. A third party cannot be made to suffer even if any breach of such condition of policy has been made by the insured because contract of insurance is between insurer and insured and third party would have no say in the matter.
15) Even if therefore above referred to judgment of the Supreme Court in Swaran Singh supra has been subsequently watered down on other aspects of the disqualification or invalid licence of the driver, may be by two-judge benches of the Supreme Court, but there is no judgment to the contrary dealing with the exclusion of 'maxicab', which issue continues to remain governed by Swarn Singh supra to date.
16) It must therefore be held that if a passenger vehicle, excluding driver, carries six or less passengers, would be a maxicab, which is eventually used as a passenger carriage vehicle. Such vehicle would qualify being a motorcab and would thus be excluded from the purview of a transport vehicle. A person having driving licence of light motor vehicle would be fully competent to drive such vehicle. He would not be required to possess license of heavy motor vehicle or for a light motor vehicle with endorsement of 'transport vehicle' as per Scheme of Section 3(1) of the Act. It is because exclusion of the 'motorcab' has been specifically made from the purview of 'transport vehicle' for requirement of license to drive such a transport vehicle in Section 3(1). Necessity of a driving license either authorising a person to drive a heavy motor vehicle or if license is of light motor vehicle, endorsement of a 'transport vehicle', would stand obviated by virtue of the specific exclusion made thereabout in Section 3 of the Act itself.
17) Having held so, now question comes to whether quantum of compensation deserved to be enhanced. In the present case, deceased was 13 years and this Court in Smt.Nana Devi supra while relying on the various judgments of Supreme Court in R.K. Malik and Another Vs. Kiran Pal and Others : (2009) 14 SCC 1 and Lata Wadhwa Vs. State of Bihar : (2001) 8 SCC 197 etc.etc., has enhanced amount of compensation to Rs.2,50,000/- for the accidental death case of children between the age group of children of 10-15 years. This issue in my view is fully covered by judgment of a three Judge bench of the Supreme Court in Swaran Singh supra, which still holds field and has not been overruled by other judgment of a bench of either equal or greater strength.
18) In the light of the view that I have taken of the matter, the insurance-company is held liable to indemnify the owner for payment of entire compensation to the claimant-appellants and shall therefore liable to pay the entire compensation to the claimant-appellants.
19) In the result, the appeal is allowed. However, cross-objection is dismissed. Insurance-company is held liable to indemnify the owner for payment of compensation to the claimants. The award passed by the Motor Accident Claims Tribunal, Jaipur dated 11/8/2003 is modified and the compensation of Rs.1,25,000/- is enhanced to Rs.2,50,000/-. Claimant-appellants shall be entitled to interest over the enhanced amount of compensation @7.5% from the date of filing claim petition. Compliance of the order shall be made within a period of three months from the date of submission of certified copy of this order before the insurance-company.
(MOHAMMAD RAFIQ), J.
anil/143-144 All corrections made in the judgment/order have been incorporated in the judgment/order being e-mailed Anil Kumar Goyal Sr.P.A. Cum J