Jammu & Kashmir High Court
National Insurance Co. Ltd. vs Tsering Dolma And Ors. on 22 March, 2005
Equivalent citations: II(2005)ACC888, 2006ACJ2816, 2005(2)JKJ446
Author: Mansoor Ahmad Mir
Bench: Mansoor Ahmad Mir
JUDGMENT Mansoor Ahmad Mir, J.
1. By the medium of this appeal, appellant National Insurance Company has assailed the award dated 16th June, 2003 passed by Presiding Officer, Motor Accident Claims Tribunal, Leh in claim petition titled as Smt. Tsering Dolma and Anr. v. National Insurance Company and Ors.
2. The brief facts of the case are as under:-
The respondents 1 and 2 Smt. Tsering Dolma and Stanzin Dorjay filed a claim petition before Motor Accident Claims Tribunal, Leh on 7th December, 1996 with the prayer that compensation to the tune of Rs. 13,28,400/- be awarded to them because one Ishey Dorje was hit by a Swaraj Mazda bearing registration No. JK01/6893 which was. being plied by Mohammad Hashim, respondent 4 herein rashly and negligently on 6th April, 1996 at Spituk, Leh. The deceased sustained injuries and succumbed to injuries. The deceased was 27 years of age and was labourer by profession.
3. The respondents 4 and 5 filed objections and have admitted the fact that the vehicle in question was involved in the motor accident and also admitted the cause of death of Ishey Dorje/deceased.
4. The appellant resisted the claim petition on the ground that driver Mohammad Hashim respondent No. 4 herein was not holding a valid licence, because the driver was competent to drive only Light Motor Vehicles and also the said licence was to be renewed on 22nd day of June, 1995, which was not renewed and has denied the liability.
5. The issues were framed in the case and after framing issues, the petitioners have led evidence and respondents 3 and 4 herein have opted not to lead any evidence. The appellant/respondent No. 1 also lead evidence and has examined only one witness i.e. Ratan Lal, Assistant Manager.
6. The tribunal after hearing the arguments passed the award dated 16th June, 2003 (hereinafter referred to as impugned award) and appellant/National Insurance Company was saddled with the liability.
7. Aggrieved by the impugned award, the appellant filed the appeal in hand and assailed the award on the grounds; that driver/respondent No. 4 was not having valid licence; The driver was having licence to drive Light Motor Vehicles (Non-commercial) and the said license was also not renewed, which was to be renewed on 22nd June, 1995. The onus of issue No. 5 was on the claimants/respondents 1 and 2, they have failed to discharge onus. Thus the appellant/insurance company cannot be saddled with the liability and the compensation is not just.
8. The respondents have not caused appearance. They have been set exparte.
9. Mr. Kawoosa argued that the appellant has raised the plea that the driver/respondent No. 4 herein was not having the valid driving license because he was empowered to drive only light motor vehicles and even the said license has expired on 22nd of June, 1995. Thus the driver was not having valid licence at the time of accident. Further, he argued that onus should have been on the appellant in order to prove breach and the appellant would have led evidence in order to prove that the licence had expired at the time of accident and was not in force.
10. Mr. Kawoosa also argued that compensation in on higher side, thus is not just.
11. Considered. It is worth while to mention here that while going through the objections filed by respondents 3 and 4, the death of the deceased and involvement of the Swaraj Mazda is admitted. Even otherwise, the respondents 3 and 4 i.e. driver and owner and the appellant i.e. National Insurance Company have not challenged the said facts, thus following facts are admitted.
12. That the deceased Ishey Dorje died in the accident; the driver respondent No. 4 was driving the vehicle; the respondent No. 3 was the owner of the vehicle and the said vehicle was insured with the insurer National Insurance Company.
13. It is profitable to reproduce issue No. 5 herein, which reads as under:-
"Whether respondent No. 3 was driving the vehicle without valid D/L, as such respondent No. 1 is not entitled to pay the compensation and if the respondent Nos. 2 and 3 who are liable to pay the compensation? OPP"
14. While going through this issue, I am of the considered view that the onus should have been on the appellant/insurance company but the tribunal has asked the claimants to prove the said issue, which is not warranted. Because in terms of provisions of Motor Vehicles Act particularly as per the mandate of Section 149 of Motor Vehicles Act, it is for the insurer to prove that insured has committed breach and that breach was the cause of accident and thus the insurer was not liable. However, the claimants have lead evidence, the appellant/insurance company has also lead evidence in rebuttal. The appellant has examined only one witness Mr. Ratan Lal, Assistant Manager, National Insurance Company Branch Leh, who has deposed that driver/respondent No. 4 herein was driving Swaraj Mazda at the time of accident when the driver was competent to drive only light motor vehicles (non-commercial). Thus the driver was not having the valid license at the time of accident. The witness has nowhere deposed that licence was expired and it was not renewed. The appellant has not led any evidence in order to prove the certificate issued by the Superintendent Traffic.
15. It is beaten law of the land that when the parties are alive about their cases and have lead evidence, it is immaterial whether the issue is framed or not but here issue has been framed but only onus was on claimants, that makes no difference, because the respondent 1, appellant herein has lead evidence, so he cannot claim any prejudice. The appellant insurer has not lead any evidence in order to prove that the license of the driver/respondent No. 4 has expired at the time of accident. Thus the appellant cannot, be permitted to raise this plea at this stage that onus was on claimants. The appellant has not carved out a case for remanding the case in order to allow the insurer to lead evidence. If in is allowed, that will amount to depriving the victims of vehicular accident from getting the justice and that will be against the concept, aim and object of granting of compensation to the victims of vehicular accident, which is aimed at to ameliorate the sufferings of the victims in order to safeguard them from destitution, vagrancy and social evils.
16. If the case is remanded at this stage, that will cause delay and which is against the concept of granting compensation to the victims of vehicular accident and more so delay takes away the sitting out of law.
17. The court should not succumb to the technicalities, niceties and maybe's as they have no role to play.
18. The Act being social legislation rather than a welfare legislation, the technicalities and niceties cannot be allowed to be raised in order to defeat the said purpose.
19. Thus the argument of Mr. Kawoosa that case be remanded on said technicality fails.
20. Now coming to the questions, whether driver was having a valid driving license at the time of accident?
21. I am of the considered view that Swaraj Mazda is a vehicle which falls within the definition of Light Motors. It is profitable to reproduce the definition of Light Motor Vehicles herein, which reads as under :-
"Light Motor vehicle, means 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) kilograms;"
22. While going through this provision of law, it is crystal clear that which vehicles are light motor vehicles. The question whether, Swaraj Mazda is a vehicle falling under the definition of Light Motor Vehicles or Heavy Motor Vehicle, this point stands set at rest by the Apex Court in a judgment reported in AIR 1995 SC 3182. It is profitable to reproduce para-10, 11 and 14 of the said judgment herein, which read as under:-
"10. Definition of "light motor vehicle" as given in clause (21) of Section 2 of the Act can apply only to a "light goods vehicle" or a "light transport vehicle". A "light motor vehicle" otherwise has to be covered by the definition of "motor vehicle" or "vehicle" as given in clause (28) of Section 2 of the Act. A light motor vehicle cannot always mean a light goods carriage. Light motor vehicle can be non-transport vehicle as well.
1. To reiterate, since a vehicle cannot be used as transport vehicle on a public road unless there is a permit issued by the Regional Transport Authority for that purpose, and since in the instant case there is neither a pleading to that effect by any party nor is there any permit on record, the vehicle in question, would remain a light motor vehicle. The respondent also does not say that any permit was granted to the appellant for plying the vehicle as a transport vehicle under Section 66 of the Act. Moreover, on the date of accident, the vehicle was not carrying any goods, and thought it could be said to have been designed to be used as a transport vehicle or goods carrier, it cannot be so held on account of the statutory prohibition contained in Section 66 of the Act.
14. Now the vehicle in the present case weighed 5,920 kilograms and the driver had the driving licence to drive a light motor vehicle. It is not that, therefore, that insurance policy covered a transport vehicle which meant a goods carriage. The whole case of the insurer has been built on a. wrong premise. It is itself the case of the insurer that in the case of a light motor vehicle which is a non-transport vehicle, there was no statutory requirement to have specific authorization on the licence of the driver under Form 6 under the Rules. It had, therefore, to be held that Jadhav was holding effective valid licence on the date of accident to drive light motor vehicle bearing Registration No. KA-28-567."
23. Thus, while going through this provision of law, it is hereby held that Swaraj Mazda is a Light Motor Vehicle.
24. While going through the provisions of Motor Vehicles Act. it is nowhere prescribed that the licence for driving light motor vehicle should bear the endorsement that driver is competent to drive PSV (Passenger Service Vehicle).
25. Viewed, thus the respondent No. 4 herein driver was having a valid driving licence in order to drive Swaraj Mazda bus. Thus this argument of Mr. Kawoosa also fails.
26. It is beaten law of the land that insurer cannot challenge the quantum of compensation. No doubt, the Apex Court has held in a judgment that insurer can challenge the quantum of compensation but the said judgment stands over-ruled by Apex Court in a judgment . Thus the insurer cannot challenge the quantum of compensation. The Apex Court has returned the same finding in a judgment (New India Insurance Co. Ltd. v. Karan Singh and Ors.) Thus this argument of Mr. Kawoosa also fails.
27. Having glance of the aforesaid discussion, I am of the considered view that the compensation has been rightly awarded. The impugned award is upheld. The appeal is dismissed. Send down the record.