Bombay High Court
Vitthal Balaji Landge vs Shrihari Tukaram Shrirame & 4 Ors on 12 June, 2019
Author: A.S. Chandurkar
Bench: A.S. Chandurkar
1 FA184.08
IN THE HIGH COURT OF JUDICATURE AT BOMBAY
NAGPUR BENCH : NAGPUR
FIRST APPEAL NO. 184 OF 2008
Vitthal S/o Balaji Landge
Aged about 74 years,
Occ.: Owner,
R/o. Thakur Ward, Chirmur,
Tal. Chimur, District - Chandrapur.
......APPELLANT
VERSUS
1. Shrihari Tukaram Shrirame
Aged about 83 years,
Occ.: Cultivator
2. Bayabai W/o Shrihari Shrirame
Aged about 68 years, Occ.:Household
3. Tulsa Wd/o Rambhau Shrirame
Aged about 43 years, Occ.: Household
4. Varsha D/o Rambhau Shrirame
Aged about 24 years, Occ.: Student
All R/o. Shedgaon, Post-Kadsanghi,
Tal. Chimur, District - Chandrapur.
5. United India Insurance Company Ltd.
Branch Office, "Abhishek", Iind Floor,
Mul Road, Chandrapur.
.......RESPONDENTS
__________________________________________________________________________
Shri Rohit Joshi, Advocate for appellant.
Shri M.P. Khajanchi, Advocate for the respondent Nos. 1 to 4.
Shri Milind Kalar, Advocate for respondent No.5.
_________________________________________________________________________
CORAM : A.S. CHANDURKAR,J.
DATED : 12th JUNE, 2019.
ORAL JUDGMENT:-
. This appeal filed under Section 173 of the Motor Vehicles Act, 1988 ::: Uploaded on - 20/06/2019 ::: Downloaded on - 21/07/2019 05:33:17 ::: 2 FA184.08 (hereinafter for short 'the said Act') has been preferred by the owner of the tractor bearing Registration No. MH-F-34-1805. The said tractor was insured with the respondent No. 5 herein and was being driven by one Shri Rambhau. On 17.11.2000 when said Rambhau was proceeding on the said tractor as an employee of the owner of the tractor, the same met with an accident as a result of which Rambhau sustained injuries and succumbed to the same. The claimants filed claim petition under Section 166 of the said Act seeking compensation of an amount of Rs. 1,50,000/-. Reply was filed on behalf of the owner of the vehicle. It was admitted that the accident occurred when the tractor was being driven by said Rambhau. It was further admitted that the vehicle was duly insured with the respondent No. 5 herein.
2. The Insurance Company in its reply took a stand that the accident took place on account of negligent driving by said Rambhau and therefore no compensation could be awarded nor could liability be saddled on the Insurance Company. The Claims Tribunal after considering the evidence on record came to the conclusion that the accident occurred when the tractor was being driven by said Rambhau. The Claims Tribunal proceeded to refer to the provisions of the Employees Compensation Act, 1923 (hereinafter referred to as 'the Act of 1923') and determined the compensation to be awarded to the claimants. It held that the claimants were entitled to receive compensation of Rs. 2,29,213/-. However, the Insurance Company was exonerated of its liability to satisfy the claim on the ground that Rambhau was not holding a ::: Uploaded on - 20/06/2019 ::: Downloaded on - 21/07/2019 05:33:17 ::: 3 FA184.08 valid licence when the accident occurred. Being aggrieved by the said judgment, the owner of the tractor has filed the present appeal.
3. Shri Rohit Joshi, learned counsel for the appellant submitted that though the Light Motor Vehicle license issued in favour of Rambhau was for the period from 30.01.1997 to 29.01.2000 and the accident took place on 17.11.2000, the same would not be a factor to hold that Rambhau was not holding a valid license on the date of the accident. Referring to the provisions of Section 2(21), 2(47), Section 10 (2) and Section 14 of the said Act, it was submitted that the tractor in question was a Light Motor Vehicle having weight less than 7500 kg and therefore the licence as issued would effective till holder attains the age of 50 years. The restricted duration of renewal would not be applicable to Light Motor Vehicles. By referring to the decision in (2017) 14 SCC 663 Mukund Dewangan Versus Oriental Insurance Company Limited) it was submitted that the aforesaid aspect has been considered in the said decision and it has been held in clear terms that when the weight of the vehicle in question is less than 7500 kg and the license as issued is for driving a Light Motor Vehicle, the aforesaid provisions would apply and the licence has to be treated as being in force till the holder attains the age of 50 years. It was submitted that the aforesaid was the only reason for exonerating the Insurance Company and in view of the ratio laid down in the said decision, there was no basis for excluding the liability of the Insurance Company. He referred to the evidence on record to substantiate the aforesaid submission. ::: Uploaded on - 20/06/2019 ::: Downloaded on - 21/07/2019 05:33:17 :::
4 FA184.08 According to him, the Claims Tribunal was justified in relying upon the provisions of Section 167 of the said Act while awarding compensation.
4. Shri M.P. Khanjanchi learned counsel for the respondent Nos. 1 to 2 supported the stand that was taken by the claimants. He submitted that the Claims Tribunal was not justified in exonerating the Insurance Company from its liability. Shri M. Kalar learned counsel for the respondent No. 5 however, supported the impugned judgment. According to him, the deceased himself was responsible for driving the tractor in rash and negligent manner and therefore the claimants were not entitled to raise any claim against the Insurance Company. He relied upon the decision in (2008) ACJ 1280 HDFC Chubb General Insurance Co. Ltd., Vs. Shantidevi Rajbalsingh Thakur and another) in that regard. It was further submitted that in view of the negligence of the deceased even if the compensation is awarded under the Act of 1923, the Insurance Company would not be liable to satisfy the same.
5. The following point arises for adjudication :
Whether the Insurance Company is liable to be exonerated of its liability?
6. I have heard the learned counsel for the parties at length and I have also perused records of the case. As per the Claims Tribunal the deceased was issued a driving license at Exhibit 63 which was valid for the period from 30.01.1997 to 29.01.2000 with regard to a Light Motor Vehicle. The ::: Uploaded on - 20/06/2019 ::: Downloaded on - 21/07/2019 05:33:17 ::: 5 FA184.08 deceased was not holding a valid licence on the date of accident which was 17.11.2000. As per the said licence at Exhibit 63 the endorsement thereon is for driving a Light Motor Vehicle. As per the cover note as well as the papers of the registration of the said tractor, it can be seen that it was weighing less than 7500 kg. Its unladen weight was shown as 1875 kg. In Mukund Dewangan (supra) while considering various provisions of the said Act it has been held by the Hon'ble Supreme Court that a Light Motor Vehicle as defined under Section 2(21) of the said Act would include a tractor whose unladen weight does not exceed 7500 kg. After referring the provisions of Section 10 of the said Act it has been further observed that a Light Motor Vehicle can be driven for a period of 20 years or till the person to whom it is issued attains the age of 50 years. In the light of the aforesaid decision the endorsement as made on Exhibit 63 that the licence would be effective only for a period of three years would not be so relevant. The licence would have to be construed in the light of the aforesaid decision. It has also come on record that the age of the deceased was 41 years when the accident took place and thus being below the age of 50 years the licence would operate till the age of 50 years. It is thus held that on the date of the accident the deceased was legally entitled to drive the tractor in question which was a Light Motor Vehicle as defined by Section 2(21) of the said Act. The finding recorded that the deceased was not having a valid licence is set aside.
7. The Claims Tribunal has taken into consideration the provisions ::: Uploaded on - 20/06/2019 ::: Downloaded on - 21/07/2019 05:33:17 ::: 6 FA184.08 of Section 167 of the said Act and has awarded the compensation accordingly. When compensation under the Act of 1923 is being awarded, the question of negligence would not be relevant. The requirement as contemplated under the Act of 1923 is that the accident in question has occurred during the course of employment of the deceased. It is not disputed that the accident in question occurred when the deceased was engaged by the appellant and while he was proceeding for the work of the appellant. The ratio of the decision in HDFC (supra) relied upon by the learned counsel for the respondent No. 5 cannot apply to the case in hand as the adjudication in that case was under the said Act, while in the present case compensation is being awarded by applying provisions of the Act of 1923. Hence, the award of compensation is liable to be maintained.
8. In the light of the aforesaid discussion the point as framed is answered by holding that the Claims Tribunal was not justified in exonerating the respondent No. 5 from its liability. The judgment in MACP No. 01/2001 is partly modified and it is held that the appellant - owner of the vehicle as well as the insurer - respondent No. 5 are jointly and severally liable to satisfy the claim for compensation. Subject to said modification the award stands confirmed. The First Appeal is allowed in aforesaid terms with no order as to costs.
9. During the pendency of the appeal, the appellant has deposited an amount of Rs. 2,29,213/-. This amount of compensation with accrued ::: Uploaded on - 20/06/2019 ::: Downloaded on - 21/07/2019 05:33:17 ::: 7 FA184.08 interest shall be paid to the respondent Nos. 1 to 4 in the manner as stated in the award. Similarly, the statutory amount of deposit of Rs. 25,000/- with accrued interest shall also be paid to the respondent No. 1 to 4. The claimants are at liberty to recover the balance amount of compensation in terms of the said award in execution proceedings if need so arises. The respondent No. 5 shall pay to the appellant the amount of compensation as stated above. The amount of statutory deposit of Rs. 25,000/- if paid to the respondent Nos. 1 to 4 shall also be adjusted in the total amount of compensation.
JUDGE Prity G. ::: Uploaded on - 20/06/2019 ::: Downloaded on - 21/07/2019 05:33:17 :::