Madhya Pradesh High Court
National Insurance Co. vs Prem Narain Sahu on 8 January, 1996
Equivalent citations: AIR1997MP66, 1996(0)MPLJ399, AIR 1997 MADHYA PRADESH 66, (1996) MPLJ 399, (1997) 1 TAC 869, (1996) 2 CIVLJ 222
ORDER T.S. Doabia, J.
1. Jeep bearing No. C.P.C. --3776 and Tempo bearing No. MKH-654 were involved in an accident on 13th June, 1988. This accident took place at about 11.30 p.m. Claimant respondent No. 1 Prem Narain was travelling in the tempo. It is said that Jeep was being driven rashly and negligently. It is stated that it was this Jeep which dashed into the Tempo in question. This Jeep was insured with National Insurance Co. Injuries were caused on the person of respondent Prem Narain. He claimed compensation amounting to Rs. 6,44 lacs. The Motor-Accident Claims Tribunal came to the conclusion that accident took place on account of rash and negligent driving of the jeep in question. It quantified the amount of compensation at Rs. 27,500/-. The findings which have been recorded by the Motor-Accident Claims tribunal are as under:--
(i) claimant was admitted in J. A. Hospital;
(ii) he was so admitted in the hospital for 28 days;
(iii) an artificial rod has been planted in the right feet;
(iv) injuries were also there on face and on right thigh;
it has been held that nasal bone has been permanently damaged;
(v) that when the claimant was discharged he was under bandage;
(vi) there was shortening of his feet and this has disabled the claimant from walking swiftly. A finding has also been recorded that he may not be able to drive a vehicle as his feet may not be able to generate the requisite pressure when brakes are to be applied;
2. The earning capacity of the claimant was found to be Rs 800/-. A sum of Rs. 35,000/- was found to be sufficient compensation. Interest at the rate of 12% was also allowed.
3. The learned counsel appearing for the claimant pointed out that cross-objections have been preferred. The valuation was fixed at Rs. 5 lacs: However, on 4th January, 1995. the counsel for the claimant made a statement that he is restricting his claim regarding the cross-objections to Rs. 90,000/- only. Thus this appeal was taken up for hearing along with the cross-objections.
4. The learned counsel appearing for the insurance company has argued that driver of the jeep was not having a valid licence. It has also been argued that the amount awarded is excessive.
5. The Insurance Company cannot escape liability merely on the ground that the vehicle was being driven without a valid licence. Reliance in this regard be placed on a decision given by Supreme Court in the case reported as Skandia Insurance Co. Ltd. v. Kokilaben Chandra Vadan, AIR 1987 SC 1184. In this case the vehicle was under the control of the cleaner when the accident took place. He had no driving licence. It was held that an exclusion clause in policy prohibiting driving by a person other than one holding the driving licence would not absolve an insurance company when an accident takes place. The insurance company was accordingly held liable. In Suresh Mohan Chopra v. Lakhi Prabhu Dayal, AIR 1990 SC 1979 the Insurance Company failed to bring on record, (record from the transport authority) which could indicate that the driver had no valid licence. In this case the driver claimed that he had a licence; this was however not produced. The insurance company was held liable.
6. In Champa Devi v. Ramsarup, 1994 Acc CJ 635 (Punj & Har) a claimant was held entitled to compensation and it was observed that he is not to be so deprived merely because the driver was found to be without a licence. Again in National Insurance Ltd. v. Sucha Singh, 1994 Acc LJ 374 (Punj & Har) a fake licence was got renewed. It was held that this would fasten liability on the insurance company. In Oriental Insurance Co. v. Tirath Kaur, 1992 Acc CJ 913 (J & K) insurance company failed to prove by leading positive evidence that the driver had no valid licence. It was held that insurance company would be liable. It is for the insurance company to prove that the driver had no valid licence.
Such is a view expressed in Lalchand v. Kanta, 1992 Acc CJ 469 (Madh Pra). Again in New India Assurance Co. v. Heera Singh, 1995 Aec CJ 529 (Madh Pra) the argument raised was that the driver of a vehicle was a minor and therefore, he could not be deemed to be holding a valid licence. Interim award was passed against such driver. In New India Assurance Co. Ltd. v. K. N. Bhatnagar, 1995 Acc CJ 323 (Punj & Har) the driver of the vehicle did not take the ignition key with him. He left the vehicle in control of the cleaner. The insurance company was held liable when accident took place when vehicle was put in motion. In Oriental Insurance Co. Ltd. v. Abdul Sahid Khan, 1995 Acc CJ 624 (Orissa) the insurance company wanted to avoid Us liability by taking a plea that the driver had no licence at the time of accident. The first information report indicated that the helper without the permission of driver had moved the vehicle. This caused the accident. The insurance company was held liable. In view of the aforementioned decisions the conclusion to be drawn is that merely because a driver is without a valid licence the insurance company cannot escape liability. In the present case the driver had a licence but all that has been stated is that this was not meant for a commercial vehicle. In para No. 16, of the award given by the Tribunal it has been categorically stated that there was authorisation to drive a vehicle and merely because there was some insertion or deletion prohibiting the driver from driving a transport vehicle would not absolve the insurance company. In any case, a jeep is not be considered a transport vehicle in the sense in which the insurance company wants it to be read. The conclusion arrived at by the Tribunal that insurance company is liable cannot be faulted.
7. Coming to the merits of the controversy, it be been that P. W. 2, in para No. 5, of his statement had stated that there is shortening of the limbs and there is permanent disability. The finding recorded by Motor Accident Claims Tribunal in para 22, have already been noticed above. There is shortenting of foot by an inch. A steel rod had been embedded. The claimant was an engineer. He was unable to attend to his duties for a period of eleven months. The compensation which has been awarded to the claimant is Rs. 35,000/-. I am of the view that this is on the lower side. See Union of India v. Sudhir Khanna, 1990 Acc CJ 215 (Him Pra) and New India Assurance Company Ltd. v. C. S. Ouseph, 1993 ACC CJ 203 (Kerala). In Brij Lal v. Mangal Lal, 1987 ACC CJ 572 (Orissa) for a fracture in tibia compensation was fixed at Rs. 70,000/-. The injured had remained in the hospital for 25 days. On Mangilal v. Pramod, 1988, Acc CJ 307 (Madh Pra) for commuted fracture of left tibia and lacarated wounds, the quantum of compensation was fixed at Rs. 50,000/-. In Ebrahim Fakir Anasari v. Sitaram Kamalakasha Kamat, 1990 Acc CJ 465 (Bombay), for fracture in leg compensation amount was fixed at Rupees 60,000/-. The fact that the petitioner-claimant had suffered permanent injury and would not be unable to drive his own vehicle cannot be ignored. It will be just and proper to enhance the compensation to Rs. 70,000/-.
In view of the above discussion the appeal is dismissed and the cross-objections are allowed. The claimant respondent would be entitled to interest at the rate of 12% on the enhanced amount.
When this miscellaneous appeal was posted
for orders, the learned counsel appearing for
the Insurance Company has pointed out that
the liability of the company is limited.
According to him, compensation cannot be
more than Rs. 50,000/-. He is placing reliance
on a Division Bench decision of this Court
reported as Vimala Gangotia v. National
Insurance Co., 1995 Jab LJ 103. The learned
counsel appearing for the claimant was also
heard on this point. He has not controverted
the legal position. As such, in the proposed
order instead of the amount of RS. 70,000/-
the amount has been substituted as Rupees
50,000/-.