Rajasthan High Court - Jodhpur
N.I.C vs Smt.Nirmala Devi on 24 July, 2019
Author: Pushpendra Singh Bhati
Bench: Pushpendra Singh Bhati
HIGH COURT OF JUDICATURE FOR RAJASTHAN AT
JODHPUR
S.B. Civil Misc. Appeal No. 875/2000
National Insurance Company, Divisional Office, Residency Road,
Jodhpur - through its legally constituted authority.
----Appellant
Versus
1. Smt. Nirmala Devi @ Badu W/o Shri Girdhari, by caste -
Kumhar, Resident of - Raisinghpura, Tehsil - Nohar, District -
Hanumangarh.
2. Hanuman @ Sanjay Kumar S/o shri Sultan Singh Jat
3. Sultan S/o Shri Rupa Ram Ji,
4. Pala Ram S/o Shri Sultan Ji,
All residents of village - Nagrasari, Tehsil - Nohar, District -
Hanumangarh.
----Respondents
Connected With
S.B. Civil Misc. Appeal No. 872/2000
National Insurance Company, Divisional Office, Residency Road,
Jodhpur - through its legally constituted authority.
----Appellant
Versus
1. Smt. Sawitri W/o Shri Fakir Chand Ji, by caste - Kumhar,
Resident of - Rashampura, Tehsil - Nohar, District -
Hanumangarh.
2. Hanuman @ Sanjay Kumar S/o Shri Sultan Singh Jat
3. Sultan S/o Shri Rupa Ram Ji,
4. Pala Ram S/o Shri Sultan Ji,
All residents of village - Nagrasari, Tehsil - Nohar, District -
Hanumangarh.
----Respondents
S.B. Civ.Cros.Obj.Misc. App No. 26/2001
National Insurance Company, Divisional Office, Residency Road,
Jodhpur - through its legally constituted authority.
----Appellant
Versus
1. Smt. Nirmala Devi @ Badu W/o Shri Girdhari, by caste -
Kumhar, Resident of - Raisinghpura, Tehsil - Nohar, District -
(Downloaded on 01/09/2019 at 11:50:08 PM)
(2 of 7) [CMA-875/2000]
Hanumangarh.
2. Hanuman @ Sanjay Kumar S/o shri Sultan Singh Jat
3. Sultan S/o Shri Rupa Ram Ji,
4. Pala Ram S/o Shri Sultan Ji,
All residents of village - Nagrasari, Tehsil - Nohar, District -
Hanumangarh.
----Respondents
For Appellant(s) : Mr. Jagdish Vyas
For Respondent(s) : Mr. Akshay Nagori
Ms. Mamta Gupta
HON'BLE DR. JUSTICE PUSHPENDRA SINGH BHATI
Order 24/07/2019
1. Despite service, no one has put in appearance on behalf of the driver/owner.
2. The appellant has preferred these misc. appeals claiming in sum and substance, the following reliefs:
"It is, therefore, most respectfully prayed that the appeal may kindly be allowed and the impugned judgment and award dated 05.09.2000 may kindly be set aside as against the appellant company with costs throughout. Consequently the claim petition may kindly be dismissed as against the appellant company. Any other relief to which the appellant company may be entitled, may kindly be granted in its favour."
3. The appeals are heard together as they are arising out of the same set of questions.
4. Counsel for the appellant-Insurance Company does not challenge the award on merits but makes a limited submission that though the driver in question was having a valid driving license, as the same was issued on 28.04.1992 and was valid upto (Downloaded on 01/09/2019 at 11:50:08 PM) (3 of 7) [CMA-875/2000] 27.04.1997, and thereafter, the same was subsequently renewed on 04.11.1997 having its validity upto 03.11.2002, but the accident had happened on 30.10.1997. Thus, as per learned counsel for the appellant-Insurance Company on the date of accident, the driver in question was not having a valid driving license, as the same had expired on 27.04.1997 i.e. before the accident took place on 30.10.1997, and therefore, the liability maybe fastened upon the owner/driver.
5. Counsel for appellant-Insurance Company further submits that it was also held by the learned Tribunal that on the date of accident, the driving license of the driver had expired and was not renewed.
6. Counsel for the appellant-Insurance Company has relied upon the precedent law laid down by the Hon'ble Apex Court in National Insurance Company Limited Vs. Vidhyadhar Mahariwala & Ors. reported in (2008) 12 Supreme Court Cases 701. The relevant portion of which, reads as follows:
"9. In Kusum Rai's case (supra) it was held as follows:
14. This Court in Swaran Singh 2004 (3) SCC 297 clearly laid down that the liability of the Insurance Company vis-`a-vis the owner would depend upon several factors. The owner would be liable for payment of compensation in a case where the driver was not having a licence at all. It was the obligation on the part of the owner to take adequate care to see that the driver had an appropriate licence to drive the vehicle. The question as regards the liability of the owner vis-`a-vis the driver being not possessed of a valid licence was considered in Swaran Singh stating: (SCC pp. 336-37, para
89)
89. Section 3 of the Act casts an obligation on a driver to hold an effective (Downloaded on 01/09/2019 at 11:50:08 PM) (4 of 7) [CMA-875/2000] 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 the 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', `maxi-cab', `medium goods vehicle', `medium passenger 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 (Downloaded on 01/09/2019 at 11:50:08 PM) (5 of 7) [CMA-875/2000] liability merely for technical breach of conditions concerning driving licence.'
10. Nanjappan's case (supra) was referred to in Kusum Rai's case (supra).
11. In Ishwar Chandra's case (supra) the three decisions referred to by the High Court were considered and it was held that the insurance company would have no liability in the case of this nature. We are in agreement with the view. The appeal deserves to be allowed which we direct. The impugned order of the High Court is set aside. It is open to the claimant to recover the amount from respondent No. 2.
7. Counsel for claimants however submits that the claimants namely Smt. Nirmala Devi and Smt. Sawitri were pregnant and were carrying unborn child.
8. Counsel for claimants has shown that there was a sufficient medical evidence on record which reflected that both the ladies have undergone abortion due to the accident.
9. The relevant portion of the issue No.2 deciding the same reads as follows:
"eSaus nksuksa i{kksa ds mDr rdksZa ij xkSj fd;k vkSj i=koyh dk voyksdu fd;kA ,-M- 1 lkfo=h us ;s crk;k gS fd nq?kZVuk ds le; mlds xHkZ esa djhc 9 ekg dk f'k'kq Fkk vkSj fueZyk ml le; xHkZorh FkhA ;s Hkh crk;k x;k fd xHkZLFk f'k'kqvksa dks nq?kZVuk esa e`R;q gks xbZA ,-M- 2 fueZyk nsoh us Hkh ;s crk;k fd mlds pksV yxus ls mlds xhkZ esa iy jgk f'k'kq [kRe gks x;k vkSj fljlk vLirky esa mlds xHkZ ls ejs gq, cPps dks fudkyk tks cPpk FkkA bl izdkj bl ckcr bu nksuksa xokgku dh tqckuh 'kgknr gSA bu nksuksa ds xHkZLFk f'k'kqvksa dks e`R;q ckcr fdlh fpfdRlkf/kdkjh dks 'kgknr esa is'k ugha fd;k x;k gS] ysfdu lkfo=h dh vksj ls chdkusj vLirky esa HkrhZ djokus o fMLpktZ djus dk izek.k i= izn'kZ 8 ds voyksdu ls ;s izdV gksrk gS fd mldk xHkZikr fd;k x;k vkSj e`r Hkwz.k ckgj fudkyk x;kA fueZyk us ;s crk;k fd caly uflZax gkse fljlk ds fpfdRld dk dsl ekseks o izek.k i= izn'kZ 56 gSA izn'kZ 56 ds voyksdu ls ;s izdV gksrk gS fd mlds xHkZikr ij 16 lIrkg dk e`r uj f'k'kq fudyk tks xHkZLFk f'k'kq e`r gksus ds ckcr tks mi;qZDr 'kgknr tqckuh lkfo=h o fueZyk dks vkbZ gS] mlds [kaMu esa fojks/kh i{kdkjku }kjk is'k (Downloaded on 01/09/2019 at 11:50:08 PM) (6 of 7) [CMA-875/2000] fd, x, xokgku esa ls ,u-,-M- 1 izoh.k dqekj us rks dqN ugha dgk vkSj fojks/kh i{kdkjku la-1 ,u-,-M-2 guqeku mQZ lat; us eq[; ijh{k.k esa dqN ugha dgkA ftjg esa mlus crk;k gS fd mls /;ku ugha fd cjoDr nq?kZVuk lkfo=h o fueZyk nksuksa xHkZorh Fkh vkSj nq?kZVuk esa yxh pksVksa ds dkj.k nksuksa ds xHkZLFk f'k'kqvksa dh ekSr gks xbZA bl izdkj blus bl ckr ls badkj ugha fd;k fd mDr nksuksa efgyk,a nq?kZVuk ds le; xHkZorh ugha gks vkSj muds yxh pksVksa ds dkj.k nksuksa ds xHkZLFk f'k'kqvksa dh ekSr ugha gqbZ gksA bl izdkj bl rudh ds ckcr mDr lkfo=h o fueZyk ds dFkuksa ds [kaMu esa fojks/kh i{kdkjku dhs dksbZ 'kgknr ugha gSA blfy, muds dFkuksa dh iqf"V] tks izek.k i= fpfdRlkf/kdkjh dk vkSj tks fMLpktZ fVdV lkfo=h dk is'k gqvk gS] mlls gksrh gSA blfy, ;s ckr lkfcr gS fd mDr nq?kZVuk esa fueZyk vkSj lkfo=h ds xHkZLFk f'k'kqvksa dh e`R;q gks xbZ vkSj ,slh e`R;q ds ckcr nkos ij ;gh vlj gksxk fd ;s lkfo=h o fueZyk nsoh eka cuus ls oafpr gksus vkSj blds fy, ekufld osnuk ds fy, {kfr iwfrZ ikus dks vf/kdkjh gksxhA bl izdkj ;s rudh nkosnkjku ds i{k esa fu.khZr dh tkrh gSA"
10. Counsel for the claimants however, submits that only compensation granted in lieu of the death of unborn child is Rs.22,000-/ in the case of Smt. Nirmala Devi and Rs.42,000/- in the case of Smt. Sawitri.
11. Counsel for the claimants has relied upon the judgment in Hemraj Vs. Ramdhan reported in 2013 (1) RLW (Raj.) 381.
12. In light of the aforesaid submissions, the appeal and cross appeal are being decided.
13. The law laid down by the Hon'ble Apex Court in National Insurance Company Limited Vs. Vidhyadhar Mahariwala & Ors.(supra), is absolutely clear that a person not having the valid driving license on the date of the accident cannot escape the liability.
14. Thus, in light of the aforementioned precedent laid down by the Hon'ble Apex Court, the appellant-Insurance Company, which has already paid the claim amount is permitted to (Downloaded on 01/09/2019 at 11:50:08 PM) (7 of 7) [CMA-875/2000] make the necessary recovery from the driver/owner, strictly in accordance with law, and as far as the submission for enhancement of the compensation awarded in lieu of death of unborn child is concerned, this Court goes by the judgment of this Hon'ble Court in Santosh Bai and Anr. Vs. Mohammed Anish reported in 2012 R.A.R. 150 (Raj.), whereby the compensation for unborn child has been given as Rs.1,00,000/-. Thus, this Court deems it appropriate to enhance the compensation to the claimants to the extent of Rs.1,00,000/- in totality in each case. The enhanced amount shall be paid after calculating the interest thereon @ 3% per annum from the date of filing the claim petition till the actual payment is made. Such enhanced amount shall be paid by the appellant-Insurance Company within two months from today, failing which the due amount shall carry interest @ 6% per annum for the subsequent period (i.e. after two months from today) till actual payment is made. However, it shall be open for the appellant-Insurance Company to pay and recover such amount from the owner/driver.
15. The present appeals stand disposed of accordingly.
(DR. PUSHPENDRA SINGH BHATI), J.
151-Zeeshan/-
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