Chattisgarh High Court
Oriental Insurance Co Ltd vs Ali Khan 2 Sushil Kumar 3 Mohd Fazal on 18 August, 2010
HIGH COURT OF CHATTISGARH AT BILASPUR
MAC No1084 of 2009
Oriental Insurance Co Ltd
...Petitioners
Versus
1 Ali Khan 2 Sushil Kumar 3 Mohd Fazal
...Respondents
! Mrs Chitra Shrivastava counsel for the appellant
^ Shri Abhishek Sharma counsel for respondent No1 & Shri Gautam Khetrapal counsel for respondent No2 & 3
CORAM: Honble Shri Justice R L Jhanwar
Dated: 18/08/2010
: Judgement
ORDER
(Passed on 18.08.2010) APPEAL UNDER SECTION 173 OF THE MOTOR VEHICLES ACT This is insurance appeal directing against the impugned award dated 29.04.2009 passed in claim case No. 55/2008 by the 1st Additional Motor Accidents Claims Tribunal, Rajnandgaon (in short `the Tribunal) whereby the Tribunal has awarded a sum of Rs.80,200/- as compensation in an injury case.
2. Brief facts, in a nutshell, are that respondent No.1 - Ali Khan is a bangle seller. On 21.01.2008 at 6.00 p.m. at Rampur Bus Stand the respondent No.2 was driving the Matador bearing registration No.C.G.07 C/6392 (for short `the offending vehicle') in a rash and negligent manner and hit the Luna on which respondent No.1, who was at the same time returning to his village Rampur from village Dharoda Bazar after selling bangles. As a result of such accident, respondent No.1 fell down from Luna and received injuries on his right hand and sustained fracture on his right leg. Respondent No.1 was referred to Government Hospital at Basantpur, Rajnandgaon where he was admitted for three days.
3. Seeking compensation of Rs.8,40,000/- on various heads, claim petition was filed wherein respondent No.1 pleaded that looking to the serious injuries sustained in the motor accident, he was admitted in Chandulal Chandrakar Hospital where after taking treatment for long period, the injuries sustained by respondent No.1 could not be cured, due to which, he has become permanently disabled; unable to work in future and has incurred much amount in treatment.
4. Respondents No.2 & 3 by filing their written statement denied all pleadings averred in the claim petition whereas the appellant (respondent No.3 before the Tribunal) has specifically denied that the offending vehicle was being driven in violation of terms and conditions of the insurance policy; on the date of accident, the driver of offending vehicle was not holding valid licence but was holding L.M.V. licence which is not an effective licence to run the commercial vehicle. On these premises, the insurance company stated that it is not responsible to pay compensation.
5. After affording opportunity to adduce evidence and hearing the parties and after appreciating the evidence and documents available on record, the learned Tribunal has awarded a sum of Rs.80,200/- as compensation as against the compensation of Rs.8,40,000/- claimed by the claimant.
6. Learned counsel for the appellant vehemently argued that compensation of Rs.80,200/- awarded by the Tribunal is on higher side; on the date of accident the driver of offending vehicle i.e. Metador was holding licence of L.M.V. which is not permissible to run a commercial vehicle like Metador. Reliance in the matter of Oriental Insurance Co. Ltd. V. Angad Kol, 2009 ACJ 1411, Bajaj Allianz General Insurance Co. Ltd. V. Kamalbai and others, 2010 ACJ 858 and New India Assurance Co. Ltd. V. Prabhu Lal, 2008 ACJ 627 was placed by the learned counsel for the appellant in support of her arguments.
7. On the other hand, learned counsel for respondents No.2 & 3 argued that the compensation awarded by the Tribunal is just and proper compensation and on the point of effective and valid driving licence, Metador is a light motor vehicle, therefore, the licence which was holding at the time of accident was valid licence. According to him, The Tribunal has rightly recorded finding that the driver of the offending Metador was holding an effective and valid licence. He placed reliance in the matter of National Insurance Company Ltd. V. Annappa Irappa Nesaria & Others, 2008 (1) T.A.C. 812 (S.C.).
8. I have heard leaned counsel for the parties at length, perused the record of the Claims Tribunal and impugned order including the citations furnished by the parties.
9. So far as the rash and negligence driving on the part of driver of offending vehicle is concerned, the learned Tribunal dealt with in paragraph 6 and 7 of the impugned order wherein the Tribunal observed that the claimant was going on Luna towards Rampur Bus Stand, at that time, the driver of offending vehicle dashed the claimant from rear side by driving the offending vehicle in a rash and negligent manner. The driver of Metador has also not entered his appearance in witness box to defend himself. On the basis of document Ex.P.6 produced by the claimant, the Tribunal has come to conclusion that the driver of offending vehicle admitted his guilt under Section 279 and 338 of the I.P.C. and paid fine of Rs.2000/-. On the report of claimant for this incident before the Police Station, Lalbagh a case was registered against respondent No.2 in which charge sheet was filed against him before the Chief Judicial Magistrate, Rajnandgaon where he admitted his guilt and paid fine, therefore, the learned Tribunal found him that he was on the date of incident rashly and negligently driving the offending vehicle and dashed the claimant. Against this, nothing has been proved by the respondents, therefore, this finding has attained finality.
10. So far as the compensation awarded by the Tribunal is concerned, after perusal of impugned order and record of the Claims Tribunal, it is clear that the learned Tribunal has taken the notional income of Rs.3000/- per month and on the basis of which, the learned Trbunal has fixed the amount of Rs.6000/- for non-attending his work for two months. Considering the 20% disability suffered by the claimant, the learned Tribuanl further assessed Rs.2400/- towards the loss of earning capacity and taking the age of claimant at 55 years, the Tribunal used the multiplier of 8 and come to conclusion that the total loss of income due to disability would come to Rs.19,200/-. The Tribunal further awarded a sum of Rs.20,000/- towards pain and suffering; Rs.15,000/- towards medical expenses and diet and Rs.20,000/- towards non-pecuniary damages. In this way, the Tribunal awarded total compensation of Rs.80,200/-. I am of the opinion that the compensation of Rs.80,200/- awarded by the Tribunal in sum and substance is just and proper compensation and does not call for interference.
11. So far as holding of driving licence of driver of offending vehicle is concerned, it is evident from the evidence of Panchram Kurre N.A.W.1 that the driver of offending vehicle was holding motor cycle licence and L.M.V. licence which was effective from 31.07.2003 to 30.07.2023. At the time of accident, the driver was driving the Metador which is goods transport vehicle. It is also evident from the evidence of Panchram Kurre that the licence which was issued to the driver of offending vehicle was only to drive light motor vehicle, private vehicles and non-transport vehicles. He also admitted in his cross-examination that there is another category for transport vehicle and in that category licence can be issued only for three years. In this way, according to his statement, it is clear that the licence which was possessed by the driver of offending vehicle was not valid and effective licence to ply the transport vehicle. In Oriental Insurance Co. Ltd. V. Angad Kol (supra), the Apex Court observed in paragraph 10 as under:
"10. The distinction between a `light motor vehicle' and a `transport vehicle' is therefore, evident. A transport vehicle may be a light motor vehicle but for the purpose of driving the same, a distinct licence is required to be obtained. The distinction between a `transport vehicle' and a `passenger vehicle' can also be noticed from section 14 of the Act. Sub-section (2) of section 14 provides for duration of a period of 3 years in case of an effective licence to drive a `transport vehicle' whereas in case of any other licence, it may remain effective for a period of 20 years."
12. According to evidence of Panchram Kurre N.A.W.1, it is clear that Ex.D.2 shows the licence issued to Sushil Kumar (driver of offending vehicle), S/o Sitaram was for motor cycle + L.M.V. only and not for transport vehicle. The respondents did not dispute that licence is not for L.M.V. and thus accepted that licence issued was for L.M.V. It is also clear from the evidence and Ex.D.2 that there is no endorsement of Licensing Authority to drive the heavy motor vehicle or transport vehicle. It is also clear that the licence was granted for 20 years. In Oriental Insurance Co. Ltd. V. Angad Kol (supra) and New India Assurance Co. Ltd. v. Roshanben Rahemansha Fakir and another, 2008 ACJ 2161, the Apex Court held that licence having been granted for a period of twenty years, a presumption, therefore, arises that it was meant for the purpose of a vehicle other than a transport vehicle.
13. In Oriental Insurance Co. Ltd. V. Angad Kol (supra), the Apex Court has also discussed about its judgment rendered in the matter of National Insurance Company Ltd. V. Annappa Irappa Nesaria & Others (supra) and found that driver should always be held with effective and valid driving licence, according to type of vehicle and then only it can be said that driver is holding valid and effective licence.
14. After relying upon the aforesaid judgment of the Apex Court and for the foregoing discussion, it is clear that the driver - Sushil Kumar was having only driving licence for motor cycle + L.M.V. and the same was granted to him w.e.f. 31.07.2003 till 30.07.2023. There is no endorsement in his licence to ply transport vehicle and it is only for non-transport vehicle. At the time of accident, the said driver was driving the vehicle i.e. Metador, which is a transport vehicle. According to Section 3 of the Motor Vehicles Act, no person shall drive a motor vehicle in any public place unless he holds an effective driving licence issued to him authorizing him to drive the vehicle; and no person shall so drive a transport vehicle other than a motorcab hired for his own use or rented under any scheme made under sub-section (2) of section 75 unless his driving licence specifically entitles him so to do. Thus, it is clear that the driver in this case was holding licence of L.M.V. + motor cycle which disentitles him to drive transport vehicle. On the date of accident, the driver of the offending vehicle was driving the vehicle without having valid and effective driving licence in breach of insurance policy, therefore, the insurance company, appellant herein, is not liable to pay compensation, resulting into, the insurance company is hereby exonerated.
15. In view of the facts and circumstances mentioned above, since the insurance company is exonerated from its liability to pay compensation, the compensation of Rs.80,200/- awarded by the Tribunal, which is just and proper compensation, therefore, shall be paid by the owner of the offending vehicle - Mohammad Fazal Hussain, respondent No.2 along with interest as fixed by the Tribunal. If the insurance company has already paid any amount of compensation, then the insurance company can recover the same from the owner. Accordingly, the impugned award in so far as it relates to pay first and recover later is set aside and modified to the extent indicated above. The appeal is partly allowed. No order as to costs.
Judge