Madhya Pradesh High Court
Rajendra Sapre vs Janki Patel And Ors. on 1 August, 2005
Equivalent citations: 2007ACJ497
Author: Arun Mishra
Bench: Arun Mishra, U.C. Maheshwari
JUDGMENT Arun Mishra, J.
1. This appeal has been preferred by the owner aggrieved by an award dated 30.11.2000 passed by Ninth Addl. Motor Accidents Claims Tribunal, Jabalpur in M.V.C. No. 25 of 2000.
2. On 30.10.1997 late Ayodhya Prasad Patel was going on cycle to attend his office, when he reached near Police Station, Gohalpur, he was dashed by a truck No. MP 20-B 0964. Tikaram, respondent No. I, drove the truck in a rash and negligent manner. Truck was owned by Rajendra Sapre, respondent No. 2 and insured with Oriental Insurance Co. Ltd. In the accident deceased sustained severe injuries, he was taken to the hospital where he died. First information report was lodged, offence under sections 279 and 304A of Indian Penal Code was registered against the driver of the truck as Crime No. 653 of 1997, charge-sheet was filed in the court of Judicial Magistrate, First Class.
3. Deceased was working in Telecommunication Department in the capacity of Cable Joinder. It was alleged that he was aged 45 years, was earning salary of Rs. 5,000 per month and compensation of Rs. 25,00,000 was claimed.
4. The owner and driver in the reply contended that truck was not involved in the accident. However, liability if any, is that of insurer as the vehicle was insured and that excessive compensation has been claimed by the claimants.
5. The insurer in the written statement contended that driver Tikaram did not hold valid and effective driving licence, there was violation of terms and conditions of insurance policy, hence, insurer is not liable to make payment of compensation.
6. The Tribunal has found that accident was outcome of the negligent driving of Tikaram. Late Ayodhya Prasad sustained severe injuries, to which he succumbed. Income was determined at Rs. 4,480 per month, deducting 1/3rd amount towards self-expenditure of the deceased, total compensation has been worked out inclusive of other customary amount at Rs. 4,80,000 along with interest at the rate of 8 per cent per annum from the date of filing of claim petition. The insurer has been exonerated on the ground that driver was holding the licence to drive light motor vehicle and transport passenger vehicle whereas the vehicle in question was heavy goods vehicle, hence, insurer is not liable to make payment of compensation. Joint and several liability has been saddled on driver and owner to make payment of compensation.
7. The claimants have preferred cross-objections M.C.P. No. 2306 of 2002 for enhancement of compensation.
8. Mr. Ashish Rawat, learned counsel appearing for appellant has submitted that the unladen weight of vehicle in question was 6200 kg. Thus, it was a light motor vehicle. There is no distinction under the Motor Vehicles Act, 1988 in the licence to be issued for driving transport vehicle. He has further submitted that transport vehicle includes transport passenger vehicle and goods vehicle. No separate endorsement was necessary for driving goods vehicle. Endorsement for driving heavy goods vehicle was made on 8.9.1997. He has submitted that R.T.O. has not been examined in the case to prove that licence was not valid. Apart from that he has submitted that there is nothing on record to indicate that the accident was caused owing to the defect in endorsement, if any.
9. Mr. Shailendra Samaiya, the learned counsel appearing for insurer has supported the award and submitted that it is necessary that driver should possess valid and effective driving licence to drive the kind of vehicle which he was driving. As driver was not holding valid and effective driving licence to drive the goods vehicle, hence, insurer cannot be saddled with the liability to make payment of compensation.
10. First coming to question whether the driver was holding valid and effective driving licence. It is the finding recorded by the Claims Tribunal that endorsement was made on driving licence of the driver to drive heavy passenger service vehicle on 8.9.1997. Thus, driver was authorised to drive the heavy vehicle. Definition of 'transport vehicle' is given in Section 2(47) of Motor Vehicles Act, 1988 thus:
2. Definitions.-In this Act, unless the context otherwise requires-
xxx xxx xxx (47) 'transport vehicle' means a public service vehicle, a goods carriage, an educational institution bus or a private service vehicle;
Thus, the driver was authorised to drive a public service vehicle, a goods carriage, an educational institution bus or a private service vehicle as he had requisite endorsement of driving heavy transport vehicle. It was made on 8.9.1997 whereas accident took place on 30.10.1997.
11. In National Insurance Co. Ltd. v. Swaran Singh , Apex Court has considered the question when driver has been granted licence to drive one type of vehicle but at the relevant time he was driving another type of vehicle. The Supreme Court held that until and unless there is some nexus in the accident with the so-called endorsement on the driving licence, insurer cannot escape the liability. The Apex Court has held thus:
(81) Section 10 of the Act provides for forms and contents of licences to drive. The licence has to be granted in the prescribed form. Thus, a licence to drive a light motor vehicle would entitle the holder to drive the vehicle falling within that class or description.
(82) 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 Central Government to prescribe the 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) motor cycle without gear; (b) motor cycle 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', 'maxicab', 'medium goods vehicle', 'medium passenger motor vehicle', 'motorcab', 'motor cycle', '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. 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 holder of driving licence for 'light motor vehicle' is found to be driving a 'maxicab', 'motorcab' or 'omnibus' for which he has no licence. In each case on evidence led before the Claims 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 accident was caused solely because of some other unforeseen or intervening causes like mechanical failures 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.
(83) We have construed and determined the scope of Sub-clause (ii) of Sub-section (2)(a) of Section 149 of the Act. Minor breaches of licence conditions, such as want of medical fitness certificate, the 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.
(84) On all pleas of breach of licensing conditions taken by the insurer, it would be open to the Tribunal to adjudicate the claim and decide inter se liability of the insurer and insured; although where such adjudication is likely to entail undue delay in decision of the claim of the victim, the Tribunal in its discretion may relegate the insurer to seek its remedy of reimbursement from the insured in the civil court.
12. In the facts and circumstances of the instant case, we find that driver was holding valid and effective driving licence for the kind of motor vehicle which he was driving as endorsement was made on his licence to drive a 'transport vehicle' as defined in Section 2(47) of the Act which includes goods carriage. There is nothing on record to suggest that accident was caused owing to the fact that there was any defect in the endorsement. It is not in dispute that such an endorsement was made, thus, we find that insurer cannot escape the liability to make payment of compensation in the facts and circumstances of the instant case.
13. Coming to question of quantum of compensation raised by claimant in cross-objections M.C.P. No. 2306 of 2002.
14. It is submitted by claimant that dependency has not been worked out correctly, appropriate multiplier has not been applied. Deceased would have obtained promotion very soon, hence, compensation be enhanced.
15. Coming to the monthly salary of the deceased. Pay certificate, Exh. P3, is on record. Deceased was drawing total emolument of Rs. 4,750. However, this amount included travelling allowance of Rs. 75, HRA Rs. 85 and washing allowance of Rs. 15. These amounts cannot be included in the salary. Thus, we deduct Rs. 85 on account of HRA, Rs. 75 towards travelling allowance and washing allowance Rs. 15. We deduct Rs. 175 out of the total salary of Rs. 4,750. Thus, monthly salary for the purpose of computation of compensation comes to Rs. 4,575. 1/3rd amount deceased would have spent on himself had he been alive. Thus, monthly dependency comes to Rs. 3,050. Thus, the annual dependency comes to Rs. 3,050 x 12 = Rs. 36,600. Multiplier of 13 is applicable which we apply as age of deceased has been found to be 48 years on the basis of service record. Thus, total compensation comes to Rs. 36,600 x 13 = Rs. 4,75,800. In addition the widow is entitled for Rs. 5,000 on account of loss of consortium, claimants are entitled to Rs. 5,000 for loss of expectancy of life, Rs. 2,500 on account of loss to estate and Rs. 2,000 on account of funeral expenses. Thus, the total compensation comes to Rs. 4,75,800 + Rs. 5,000 + Rs. 5,000 + Rs. 2,500 + Rs. 2,000 = Rs. 4,90,300 (rupees four lakh ninety thousand and three hundred). Enhanced compensation to carry interest at the rate of 6 per cent per annum from the date of filing of claim petition.
16. Appeal is allowed. Liability is held to be joint and several of owner, driver and insurer. Cross-objections M.C.P. No. 2306 of 2002 are also allowed to the aforesaid extent. No costs.