Rajasthan High Court - Jodhpur
Roop Lal vs Surajmal And Ors on 1 April, 2021
Author: Devendra Kachhawaha
Bench: Devendra Kachhawaha
HIGH COURT OF JUDICATURE FOR RAJASTHAN AT
JODHPUR.
..
S.B. Civil Misc. Appeal No. 324/2016.
Roop Lal S/o Jetha Lal Jat, aged about 15 years, R/o Falichada, Tehsil Mavali, District Udaipur, through natural guardian father Jetha Lal S/o Sunda Ji, aged about 45 years, R/o Falichada, Tehsil Mavali, District Udaipur.
----Appellant (Claimant) Versus
1. Surajmal S/o Devji Gurjar, R/o Soniyana, Post Bhawa, District Rajasamand. Driver
2. Jeevan Nath S/o Sultan Nath Rajput, R/o Kajiyawas, Tehsil Nathdwara, District Rajsamand. Owner
3. HDFC IRGO General Insurance Company Limited, through Divisional Office Udaiupur. Insurer
----Respondents (Non-Claimants) For Appellant(s) : Mr. G.S. Rathore.
For Respondent(s) : Mr. Vipul Solanki.
Mr. Aditya Singhi.
HON'BLE MR. JUSTICE DEVENDRA KACHHAWAHA Judgment 01/04/2021 The instant appeal has been preferred under Section 173 of the Motor Vehicles Act, 1988 (for short, 'Act') on behalf of the appellant-claimant against the judgment and award dated 02.11.2015 passed by the Judge, Motor Accident Claims Tribunal No.1, Udaipur (for short, 'learned Tribunal') in Claim Case No. 172/2014 by which, the claim petition has been allowed, while exonerating the insurance company and the claimant has been awarded compensation in the sum of Rs.70,000/- along with (Downloaded on 05/04/2021 at 08:28:37 PM) (2 of 10) [CMA-324/2016] interest @ 9% per annum and at the same time, the respondent No. 2 - Owner of the offending vehicle has been directed to pay the amount of compensation.
Briefly put the facts leading rise to this appeal are that on the fateful day of 30.10.2013 at about 3:00 pm when the appellant-claimant going with his elder brother from Kunchloni to their village on cycle, near Bhojlai, a tractor rashly and negligently driven by its driver, came from the wrong side and hit the cycle, as a result of which, claimant received injuries.
The claim petition was presented before the learned Tribunal on 05.02.2014 stating, inter alia, that at the time of accident, he was 13 years of age and studying in class 8 th; that as a result of the accident, he received simple as well as grievous injuries and was permanent disable and was declared to unable to do the work; that a huge amount was incurred in treatment, medicines and healthy diet and it was also stated that during the treatment, incurred on transportation and attendant; that alleged loss of future income and suffered agony etc, held responsible the non- applicant No.1 (driver) who rashly and negligently driven the tractor, owned by the non-applicant No.2 (owner) and insured by the non-applicant No.3 (insurer); that a sum of Rs. 14,56,000/- was claimed as compensation.
The learned Tribunal, despite extending sufficient opportunities to the non-applicants No.1 & 2 to file their written statement, on 10.02.2015, their right to file written statement was closed.
In its written statement, the non-applicant No. 2 insurer has denied the averments alleged in the claim petition and stated that no accident was occurred from the tractor owned by the non- (Downloaded on 05/04/2021 at 08:28:37 PM)
(3 of 10) [CMA-324/2016] applicant No.2 and at the same time, it was alleged that the accident was occurred due to mistake and negligence of rider of the cycle, not by the mistake and negligence of the non-applicant driver; that the exaggerated compensation amount has claimed; that at the time of accident, the tractor was insured for agricultural works but was used for commercial purposes and the driver was not holding the valid and effective driving license to drive the tractor; that due to this reason, terms of the policy have been violated, therefore, insurance company was not liable to pay the compensation.
After hearing the learned counsel for the parties, the learned Tribunal has framed the following issues:-
^^1- vk;k fnukad 30-10-2013 dks 3-00 ih-,e- ij HkkstykbZ xkao ds ikl jksM ij vizkFkhZ la-1 }kjk vizkFkhZ la- 2 ds LokfeRo o vizkFkhZ la-3 }kjk chfer okgu VªsDVj la[;k vkj-ts-27@vkj&868 dks xQyr o ykijokgh ls pykus ds dkj.k dkfjr gqbZ nq?kZVuk esa izkFkhZ :iyky pksVxzLr gqvk \ 2- vk;k chek ikWfylh dh "krksZa dh vogsyuk gksus ds dkj.k vizkFkhZ chek daiuh {kfriwfrZ vnk;xh gsrq mRrjnk;h ugha gS \ 3- vk;k izkFkhZ dksbZ izfrdj jkf"k izkIr djus dk vf/kdkjh gS \ ;fn gka rks fdlls o fdruh \ 4- lgk;rk \^^ After detailed discussion, the issue No.1 regarding liability, this issue was decided by the learned Tribunal in favour of the claimant. The burden to prove issue No.2 was on the insurance (Downloaded on 05/04/2021 at 08:28:37 PM) (4 of 10) [CMA-324/2016] company regarding violation of terms of the insurance policy and thereby seeking exoneration from paying the compensation. This issue was decided in favour of the insurance company and on the basis of findings on this issue, the insurance company was exonerated from its liability to pay the compensation. The burden to prove issue No.3 regarding determination of amount of compensation was on the applicant-claimant. This issue was decided by the learned Tribunal in the manner that, it assumed the notional income of the claimant as Rs.15,000/- per annum, as he was 13 years of age; while taking the multiplier of 15, the learned Tribunal assumed 12% loss of income and awarded Rs.27,000/- to the claimant (Rs.15,000/- x 15 x 12%); considering the medical expenses, the learned Tribunal proceeded to award Rs.7,000/- to the claimant; the learned Tribunal proceeded to award Rs.6,000/- towards dietary expenses, attendant and transportation for the purpose of follow-up check- ups; that the Tribunal further observed that due to accident, the claimant has received 12% permanent disability and considering his difficulties in walking, sitting, in working, the learned Tribunal has awarded a sum of Rs.30,000/-. In total, Rs.70,000/- was awarded as compensation by the learned Tribunal to the claimant, while holding the non-applicant No.2 (owner of the offending tractor) liable to satisfy the award. In issue No.4, the learned Tribunal has proceeded to allow interest @ 9% per annum on Rs.70,000/- from the date of filing claim petition, i.e., 05.02.2014 till realisation of the awarded amount.
For ready reference, the order passed by the learned Tribunal is reproduced here as under:-
(Downloaded on 05/04/2021 at 08:28:37 PM)
(5 of 10) [CMA-324/2016]
^^&& vkns"k &&
32- izkFkhZS }kjk izLrqqr izkFkZuk i= fo:} vizkFkhZ la- 2 /kkjk 166 eksVjokgu vf/kfu;e Lohdkj fd;k tkrk gS fd izkFkhZ] vizkFkhZ la- 2 ls {kfriwfrZ ds :i esa dqy 70]000@& :i;s izkIr djus dk vf/kdkjh gSa ! IzkFkhZ mDr vokWMZ jkf"k ij rkjh[k izkFkZuk i= 5-2-2014 ls rkjh[k olwyh rd 09 izfr"kr okf'kZd nj ls C;kt Hkh izkIr djus dk vf/kdkjh gSA 33- vizkFkhZ la- 2 }kjk {kfriwfrZ dh jkf"k o C;kt tek djok;s tkus ij izkFkhZ :iyky ds uke fdlh jk'Vªh;d`r cSad esa cpr [kkrk esa tek djokbZ tkosa! 34- vizkFkhZ la- 3 chek daiuh ds fo:} izkFkZuki= [kkfjt fd;k tkrk gSA vokWMZ tkjh gksA^^ Learned counsel for the appellant-claimant has submitted that the learned Tribunal committed a grave mistake in deciding issue No. 2 against the claimant and in favour of insurance company. It is an admitted case that at the time of the accident, the respondent No.1 was holding a valid and effective driving license to drive tractor. It cannot be said that the person authorized to drive a LMV is barred to drive LTV of same capacity and of same type of vehicle. Learned counsel also submitted that the learned Tribunal has further committed a grave mistake in holding that the vehicle in question was commercial vehicle because tractor was attached with trolley and carrying stone. Learned counsel further submitted that it is clearly on record that due to the injuries caused in the accident, the claimant developed permanent disability and has restricted physical movements. The (Downloaded on 05/04/2021 at 08:28:37 PM) (6 of 10) [CMA-324/2016] mental pain and sufferings and loss of the amenities of the life are enormous especially in the case of this child claimant. The learned Tribunal has also erred in not passing the award by incorporating the element of future prospectus and as per the various pronouncements of Hon'ble the Apex Court, substantial amount under the head of future prospectus may also be awarded. Lastly, learned counsel for the appellant-claimant prayed for suitable modification for enhancing the amount of compensation as awarded by the learned Tribunal.
On the contrary, learned counsel appearing on behalf of the respondent-non-applicant No.3 (insurer) stated that the learned Tribunal has erred in awarding interest @ 9% from the date of filing of the claim petition. Learned counsel also stated that at the time of accident, the driver of the tractor was not holding the valid and effective license, as he was holding the license to drive LMV only.
In reply, learned counsel for the appellant-claimant stated that in regard to interest aspect of the matter, the insurer has not filed any appeal before this Court. Learned counsel further stated that so far as holding of valid and effective driving license is concerned, the issue is res integra with the pronouncement of judgment by Hon'ble the Supreme Court in the case of Mukand Dewangan Vs. Oriental Insurance Company Limited, reported in 2017 (2) R.A.R. 41 (SC).
I have heard learned counsel for the parties and perused the material available on record, including the above cited judgment in the case of Mukund Dewangan (supra).
Upon examining the judgment in case of Mukund Dewangan (supra), there remains no quarrel that a transport vehicle, as per (Downloaded on 05/04/2021 at 08:28:37 PM) (7 of 10) [CMA-324/2016] weight prescribed in Section 2(21) read with Section 2(15) & 2(48) includes an "omnibus", as the gross weight of either of which does not exceed 7500 kg. The Court further held that holder of a driving licence to drive the class of "light motor vehicle" as provided in Section 10(2)(d) would be competent to drive a transport vehicle or omnibus, the "gross vehicle weight" of which does not exceed 7500 kg, or a motor car or tractor or roadroller, the "unladen weight" of which does not exceed 7500 kg. The Court held:-
"Prior to amendment in 1994 licence for transport vehicle was clearly covered as per Section 10(2)in five categories, i.e., Section 10(2)
(d) light motor vehicle, Section 10(2)(e) medium goods vehicle, Section 10(2)(f) medium passenger motor vehicle, Section 10(2)(g) heavy goods vehicle and Section 10(2)(h) heavy passenger motor vehicle. The licence for 'light motor vehicle' has been provided in section 10(2)(d). The expression 'transport vehicle' has been inserted by virtue of Amendment Act 54/1994 in Section 10(2)
(e) after deleting four categories or classes of vehicles, i.e. medium goods vehicle, medium passenger motor vehicle, heavy goods vehicle, and heavy passenger motor vehicle. Earlier Section 10 did not contain the separate class of transport vehicles.
The definition of 'light motor vehicle' makes it clear that for a transport vehicle or omnibus, the gross vehicle weight of either of which or a motor car or tractor or road-roller the unladen weight of any of which, does not exceed 7500 kgs. 'Gross vehicle weight' has been defined in section 2(15). (Downloaded on 05/04/2021 at 08:28:37 PM)
(8 of 10) [CMA-324/2016] The motor car or tractor or road roller, the unladen weight of any of which does not exceed 7500 kgs. as defined in Section 2(48) of the Act, are also the light motor vehicle. No change has been made by Amendment Act of 54/94 in the provisions contained in Sections 2(21) and 10(2)(d) relating to the light motor vehicle. The definition of 'light motor vehicle' has to be given full effect to and it has to be read with Section 10(2)(d) which makes it abundantly clear that 'light motor vehicle' is also a 'transport vehicle', the gross vehicle weight or unladen weight of which does not exceed 7500 kgs. as specified in the provision. Thus, a driver is issued a licence as per the class of vehicle i.e. light motor vehicle, transport vehicle or omnibus or another vehicle of other categories as per gross vehicle weight or unladen weight as specified in Section 2(21) of the Act. The provision of Section 3 of the Act requires that a person in order to drive a 'transport vehicle' must have authorization. Once a licence is issued to drive light motor vehicle, it would also mean specific authorization to drive a transport vehicle or omnibus, the gross vehicle weight or motor car, road roller or tractor, the unladen weight of which, as the case may be, does not exceed 7500 kg. The insertion of 'transport vehicle' category in Section 10(2)(e) has no effect of obliterating the already defined category of transport vehicles of the class of light motor vehicle. A distinction is made in the Act of heavy goods vehicle, heavy passenger motor vehicle, medium goods vehicle and medium passenger motor vehicle on the basis of 'gross vehicle weight' or 'unladen weight' for heavy passenger motor vehicle, heavy goods vehicle, the weight, as the case may be, exceed 12000 kg. Medium goods vehicle shall mean any goods carriage other than a (Downloaded on 05/04/2021 at 08:28:37 PM) (9 of 10) [CMA-324/2016] light motor vehicle or a heavy goods vehicle; whereas 'medium passenger motor vehicle' means any public service vehicle or private service vehicle or educational institution bus other than a motorcycle, invalid carriage, light motor vehicle or heavy passenger motor vehicle.
Thus, the newly incorporated expression 'transport vehicle' in section 10(2)(e) would include only the vehicles of the category as defined in Section 2(16) - heavy goods vehicle, Section 2(17)
- heavy passenger motor vehicle, Section 2(23) - medium goods vehicle and Section 2(24) medium passenger motor vehicle, and would not include the 'light motor vehicle' which means transport vehicle also of the weight specified in Section 2(21)."
In a later judgment rendered by Supreme Court dated 06.03.2018 (Jagdish Kumar Sood V/s. United India Insurance Co. Ltd. & Ors. - Civil Appeal No.240/2017) same view is reiterated.
Thus, relying on the judgment in Mukund Dewangan (supra), impugned award to the extent of finding on issue No.2 absolving insurance company is set aside.
As a result of the discussion above, this Court is of the opinion that the award passed by the learned Tribunal deserves to be modified. As per guidelines issued by the Rajasthan State Legal Services Authority, the noitional income of the claimant is treated to be Rs. 25,000/- per annum + adding Rs. 4,000/- per month (Rs. 48,000/- per annum) towards future prospectus, the total amount comes to Rs.73,000/- while taking 12% permanent disability [Rs.25,000/- + Rs. 48,000/- (Rs.4000/- x 12)]; Rs. (Downloaded on 05/04/2021 at 08:28:37 PM)
(10 of 10) [CMA-324/2016] 7,000/- is awarded towards medical expenses; Rs. 6,600/- towards hospital expenses; Rs. 19,900/- towards pain and sufferings (Rs.73,000/- + Rs. 6,600/- x 25%). Thus, total modified compensation to Rs. 1,06,500/- (Rs.73,000/- + Rs.7,000/- + Rs. 6,600/- + Rs. 19,900/-) along with interest @ 6% per annum from the date of filing of the claim petition, i.e., 05.02.2014. The claimant is held entitled for modified compensation to the tune of Rs. 1,06,500/- along with interest @ 6% per annum from the date of filing of claim petition, after adjusting the amount, already received so far, if any.
In view of the discussion forgoing, this appeal is partly allowed in the manner indicated above.
(DEVENDRA KACHHAWAHA),J 76-Mohan/ (Downloaded on 05/04/2021 at 08:28:37 PM) Powered by TCPDF (www.tcpdf.org)