Jammu & Kashmir High Court
United India Insurance Co.Ltd. vs Pawan Sumbly And Ors. on 19 July, 2016
1
HIGH COURT OF JAMMU AND KASHMIR AT
JAMMU
CIMA No. 42/2012
Date of order: 19.07.2016
United India Insurance Co. ltd. vs. Pawan Sumbly and ors.
Coram:
Hon'ble Mr. Justice Janak Raj Kotwal, Judge
Appearing counsel:
For appellant(s): Mr. Vishnu Gupta, Advocate
For respondent(s): Mr. Sudershan Sharma, Adv. for R-1
Nemo for R-2.
R-3 already set ex parte.
(i) Whether to be reported in
Press, Journal/Media : Yes/No
(ii) Whether to be reported in
Journal/Digest : Yes
1. This appeal by the Insurance Company is directed against the judgment and award dated 31.10.2011 rendered by the learned Motor Accident Claims Tribunal, Jammu (for short the Tribunal) in claim No. 702, whereby compensation of Rs. 3,60,000/- has been awarded in favour of the claimant, Pawan Sumbly, herein respondent No. 1, on account of personal injuries suffered by him in a road accident involving a Tanker bearing registration No. HR-51 GA-1261 on 15.08.2005. Liability of paying the compensation has been foisted on the appellant with whom the offending Tanker was insured for 3rd party risk.
2. Heard. I have pursed the record.
23. The claimant at the ill-fated time was driving his Tata Suma vehicle. When he reached near Batra Hospital, Sidhra, his vehicle was hit by the offending Tanker. He sustained grievous injuries in that accident.
4. Claimant lodged the claim for compensation under section 166 of the Motor Vehicle Act, 1988 (for short the Act). Learned Tribunal vide impugned judgment and award found that the accident had occurred due to rash and negligent driving by the driver of the offending Tanker, herein respondent No. 3, and awarded compensation in favour of the claimant under the following heads:
(1) loss of future income : Rs. 2,15,000/- (2) pain and sufferings : Rs. 50,000/-
(3) loss of amenities of life : Rs. 25,000/-
(4) Medical expenses : Rs.60,000/ (5) Transport and attendant charger: Rs.10,000/-
Total Rs. 3,60.000/-
5. The appellant's assail to the impugned judgment and award is on two scores, firstly, that it was proved before the learned Tribunal that the driver of the offending Tanker did not possess a licence authorizing him to drive the offending Tanker so breach of a condition of policy of insurance was duly proved and liability to pay the compensation should not have been 3 foisted on the Insurance Company and secondly, that the compensation awarded by the learned Tribunal is much on higher side.
6. Mr. Vishnu Gupta, learned counsel for the appellant, while referring to the finding recorded by the learned Tribunal in issue No. 3, submitted that the offending Tanker was being used for carrying inflammable gas, which is a hazardous substance. Learned Tribunal on appreciation of the evidence led by the appellant noticed that the driving licence of the driver admittedly was not bearing endorsement authorizing him to drive a vehicle of the said nature and held that such a licence did not authorize him to drive a vehicle carrying goods of dangerous or hazardous nature and therefore, his driving licence was not valid and effective as on the date of accident. Mr. Gupta placed reliance on a judgment of the Madras High Court in Nagamani and ors. v Singaravelu and anr. 2010 ACJ 1912 and argued that the learned Tribunal has fallen in error by taking it as a case of minor breach. Mr. Gupta argued further that the compensation under the head "loss of future income" has been wrongly assessed as the learned Tribunal has had regard only to 25 per cent disability to right upper limb suffered by the claimant ignoring the opinion of the Doctor that when compared with whole body, the percentage of 4 disability will decrease by about 60%.
7. Mr. Sudershan Sharma, learned counsel for respondent No. 1 (claimant), supported the impugned judgment and award. He argued that the breach said to have been committed by the insured is not of the nature that absolves the insurer of its liability to satisfy the award. Mr. Sharma mainly relied upon judgment of this Court in O.I.C vs. Darshana Devi and others, 2010 (2) SLJ 555.
8. There is no denial of the fact that the offending Tanker was a vehicle used for transporting gas. The driver of the offending Tanker, Respondent No. 3 in his evidence as appellant's witness before the learned Tribunal admitted that the gas being carried by him in the offending Tanker was highly inflammable, dangerous and hazardous substance. He also admitted that driving licence possessed by him was valid for driving a heavy good vehicle but did not possess endorsement for driving a vehicle carrying hazardous goods. He, however, stated in his cross-examination that he has undergone training for driving the vehicles for carrying hazardous and dangerous substances. On the basis of the evidence of the driver, learned Tribunal held that the driving licence possessed by the driver of the offending Tanker was not valid and effective as on the date of accident. There is no assail to the finding in 5 this regard by any of the parties.
9. Having held that the driver of the offending Tanker was not possessing a valid and effective driving licence, learned Tribunal, however, foisted the liability of paying compensation on the appellant/insurer by taking the view that the violation was of very minor nature, particularly because offending driver was entitled to get his driving licence endorsed on the basis of refresher course undergone by him and that the minor violation will not absolve the insurer of its liability to indemnify the insured for the reason that there was nothing on record to show that accident had taken place due to this minor violation in regard to driving licence. In taking this view, learned Tribunal found support in the judgment of Hon'ble Supreme Court in the case of National Insurance Co. ltd. vs. Swarn Singh, AIR 2004 SC 1531 and also relied upon judgment of this Court in OIC vs. Darshana Devi's case (supra).
10. Section 14 of the Act deals with currency of the licence to drive motor vehicles. Proviso to sub-section (2) of section 14 provides that a licence to drive a transport vehicle carrying goods of dangerous or hazardous nature shall be effective for a period one year and its renewal shall be subject to the condition that the driver undergoes one day refresher course of 6 prescribed syllabus.
11. There is no denial of the fact that the offending Tanker is a Tanker designed for carrying dangerous and hazardous goods. As at the time of accident admittedly it was carrying inflammable gas, which is dangerous and hazardous goods, but the driving licence possessed by the offending driver did not bear any endorsement authorizing him to drive a vehicle used for carrying dangerous or hazardous substances. Observation of the learned Tribunal that an endorsement in this regard would have been made simply because the driver had undergone driving training to drive a vehicle meant for carrying such substances is a speculation only, which cannot be taken as a substitute for fulfillment of the requirement.
12. Section 3 read with section 4 of the Act costs obligation on a driver to hold an effective driving licence for a type of vehicle which he intends to drive and likewise, section 5 costs duty on the owner to engage a driver who possesses a licence authorizing him to drive a vehicle of that type.
13. On examining the record on the file of the learned Tribunal I have found that the appellant-Insurance Company had taken a specific plea in its reply that the driver of the offending Tanker-respondent No. 3 was 7 not possessing a valid and effective driving licence and the act of the owner in plying his Tanker through respondent No. 3 was a breach of policy of insurance.
In this regard say of the owner-respondent No. 2 in its reply before the Tribunal was that the driver of the offending Tanker possessed a valid and effective driving licence. It is, thus, clear that the owner was aware of the nature of licence possessed by the driver engaged by him. As against this, the driver in his statement as appellant's witness before the Tribunal has admitted that the driving licence possessed by him did not bear endorsement for driving a vehicle carrying dangerous and hazardous goods. The owner, however, did not lead any evidence before the learned Tribunal to prove his plea that the driver engaged by him possessed a valid and effective driving licence, in particular that driver was authorized to drive a Tanker, which was designed to carry highly inflammable gas. This in turn shows that the owner of the offending Tanker was aware that the driver engaged by him for driving the offending Tanker was not authorized to drive a vehicle used for carrying dangerous and hazardous goods.
14. Learned Tribunal seems to have acted too liberally in taking the view that the breach was of very minor nature, particularly because the driver was entitled to 8 get his driving licence endorsed on the basis of refresher course undergone by him. The ratio of Swarn Singh's case was not properly applied by the learned Tribunal. Key to determine as to whether the breach relating to the driving licence is minor or otherwise, is available in the judgment (para 83) itself as Their Lordships have stated that breaches like 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.
15. Even reliance on judgment in Darshana Devi's case by the learned Tribunal is not strictly well placed. It is not a case of merely driving a vehicle of the type other than the one for which licence had been issued. It rather is a case of driving a special type of vehicle, which is meant for carrying dangerous and hazardous gas. Bringing out vehicle carrying dangerous and hazardous goods on public places involves a great element of risk to life and property of public at large. Owners of such vehicles must exercise special care to ensure that such vehicles are entrusted for driving and given in the charge of persons, who are duly trained and specifically authorized to take charge of such vehicles. No lenient view is justified if breach in this regard is proved by the insurer.
916. Respectfully and in my considered view the ratio of judgment in Darshana Devi's case cannot be applied to the fact situation of this case for the reason that it is not a case of driving a vehicle of a type other than for which licence has been issued. Here the breach relates not to the type of vehicle but to the kind of goods for which the vehicle is meant for.
17. Viewed thus, appeal succeeds on the above discussed score and appellant-Insurance Company cannot be held liable to indemnify the owner (insured). The other ground of assail to the impugned judgment and award would not arise for consideration for the reason that insurer after having been exonerated of the liability loses locus standi to assail the judgment and award on any other ground.
18. For all that said and discussed above, appeal is allowed to the extent of exonerating the appellant from satisfying the award. Award and judgment rendered by the learned tribunal is modified by providing that the award shall be satisfied by the owner of the offending Tanker-respondent No. 2.
19. Amount deposited by the appellant in this Court, whatsoever available, be returned to the appellant along with interest accrued on that. Recovery from the 10 claimant of the amount released in his favour, if any, shall not be effected. It shall remain open for the appellant to claim recovery of any such amount from the owner (insured) on the strength of this judgment.
20. Record of Tribunal be remitted back along with a copy of this order.
(Janak Raj Kotwal) Judge Jammu:
19 .07.2016 Karam Chand 11