Himachal Pradesh High Court
Oriental Insurance Company vs Of on 5 December, 2016
Author: Dharam Chand Chaudhary
Bench: Dharam Chand Chaudhary
IN THE HIGH COURT OF HIMACHAL PRADESH, SHIMLA.
.
FAO No. 118 of 2008.
Decided on: 5.12.2016.
Oriental Insurance Company .. Appellant.
Versus
of
Kushla Devi & ors. .. Respondents.
Coram rt
The Hon'ble Mr. Justice Dharam Chand Chaudhary, Judge.
Whether approved for reporting?1 Yes.
For the appellant: Mr. Lalit K. Sharma, Advocate.
For the respondents: Mr. Ajay Sharma, Advocate, for
respondents No. 1 to 4.
Mr. Adarsh K. Vashisht, Advocate, for
respondent No. 5.
Dharam Chand Chaudhary, J (Oral).
Respondent No. 2, Oriental Insurance Company before learned Commissioner below, being aggrieved by the award dated 20.3.2006, passed in case No. 5/2000, is in appeal before this Court.
The perusal of the impugned award reveals that the learned Commissioner below while holding that Sh. Bikram Chand, the predecessor-in-interest of respondents No. 1 to 4 (hereinafter referred to as the claimants) was a workman and taking his monthly salary as 1 Whether reporters of Local Papers may be allowed to see the judgment?
::: Downloaded on - 15/04/2017 21:41:04 :::HCHP -2-Rs. 2500/- per month as well as applying 203.85 as relevant factor .
keeping in view the age of the deceased as 32 years, has awarded a sum of Rs. 2,03,850/- as compensation whereas Rs. 1,40,249/- towards pendente lite interest @ 12% as on 24.4.2006.
2. The deceased Bikram Chand, was admittedly deployed of by respondent No. 5 (hereinafter referred to as the insured) as driver with ill fated tractor bearing registration No. HP-53-0905. Although the rt petitioners have claimed his monthly salary at Rs. 3,000/- per month, yet as per the admission made by the insured respondent No. 5, he was paying Rs. 2,500/- as wages per month to the deceased. The tractor met with an accident on 2.6.2000 due to sagging of danga.
The deceased received multiple injuries on his person and later on succumbed to the injuries so received by him on his person.
3. The claimants, being his widow, minor children and widowed mother, hence dependent upon him had preferred the application under Section 22 of the Workmens' Compensation Act and claimed compensation to the tune of Rs. 5,00,000/- on account of loss they suffered in this accident.
4. The insured-respondent No. 1 before learned Commissioner below by way of preliminary objection has raised the objection qua maintainability of the petition, locus standi of the claimants to file the same as well as for non-joinder of necessary ::: Downloaded on - 15/04/2017 21:41:04 :::HCHP -3- parties. On merits, he, however, has admitted that deceased Bikram .
Chand was driver of his tractor bearing registration No. HP-53-0905.
When he was employed as driver, the deceased had valid driving licence and it is on the basis thereof, he was employed as driver. The accident, however, did not occur due to rash and negligent driving of on his part and rather due to sagging of kutcha danga (retaining wall). The monthly wages of the deceased according to the insured
5. The rt was Rs. 2500/- per month.
insurer-respondent No. 1, in addition to the preliminary objections raised by the insured, has also claimed in preliminary that the deceased driver was not holding valid and effective driving licence at the time of accident. Rejoinder was also filed. On the pleadings of the parties, the following issues were framed:
"1. Whether the deceased Bikram Chand was a workman as defined in the Workmen's Compensation Act, 1923? OPP.
2. Whether the deceased died during course of his employment with respondent No. 1?
OPP.
3. Whether the deceased was earning wages @ Rs.
3000/- per month? OPP. ::: Downloaded on - 15/04/2017 21:41:04 :::HCHP -4- 4. Whether the applicants are entitled for .
compensation under the Workmen's Compensation Act, 1923? OPP.
5. Whether the application is not maintainable in the present form? OPR.
6. Whether the deceased was not holding a valid and effective driving licence in the time of accident?
of OPR.
7. Relief."
6. rt Learned Commissioner below, while answering issues No. 1 to 3 has concluded that the deceased was working as driver with ill fated tractor and that his wages were Rs. 2500/- per month. He died during the course of his employment. Being so, while answering issue No. 4, the claimants were held entitled to the award of just and reasonable compensation. The question of maintainability of the petition as raised was rejected while answering issue No. 5 against the appellant. On issue No. 6, though it has been held that the driving licence was not renewed beyond 23.10.1997, however, interpreting Section 15(4) of the M.V. Act, 1988, which provides for renewal of a driving licence up to a period of 5 years, it was held that the same has not become ineffective during the period i.e. 23.10.1997 when its validity had expired till the accident of the tractor i.e. 2.6.2000. The insured-respondent No. 1 has not assailed the impugned award. The same, however, has been assailed on behalf ::: Downloaded on - 15/04/2017 21:41:04 :::HCHP -5- of insurer-respondent No. 1 on several grounds, however, mainly that .
since deceased was not holding a valid and effective driving licence at the time of accident of the tractor, therefore, the liability, if any, to pay the compensation is that of the insured who allowed the ill fated tractor to be driven by an unauthorised person.
of
7. The appeal, though has been admitted, however, not on any substantial question of law. Anyhow, as per the settled legal rt proposition, substantial question of law can be framed at any stage, including at the time of final hearing. Otherwise also, the substantial questions of law arises according to the appellant-insurer for determination are at page 4 of the memorandum of appeal.
Anyhow, it is only the substantial question of law at Sr. No. 3 which arises for determination in this appeal, which reads as follows:
"3. Whether, the Ld. Commissioner below is justified to pass the amount of compensation along with interest against the appellant who has proved on the record that the insured has committed the material breach of Insurance Policy w.r.t. driving clause as well as the use of tractor for non-agriculture purpose although the tractor was insured under Kisan Package Policy and no passenger could be carried on the tractor?
8. In order to decide the legal question as has arisen for determination in this appeal, it is desirable to take note of as to what ::: Downloaded on - 15/04/2017 21:41:04 :::HCHP -6- constitutes a legal and valid driving licence in legal parlance.
.
Reference can be made in this behalf to Section 3(1) of the M.V. Act, which reads as follows:
"3. Necessity for driving licence.--
(1) No person shall drive a motor vehicle in any public place unless he holds an effective driving licence issued to him authorising him to drive of the vehicle; and no person shall so drive a transport vehicle [other than 1[a motor cab or motor cycle] hired for his own use or rented under any scheme made under sub-section (2) of section 75] unless his driving rt licence specifically entitles him so to do.--(1) No person shall drive a motor vehicle in any public place unless he holds an effective driving licence issued to him authorising him to drive the vehicle; and no person shall so drive a transport vehicle [other than 1[a motor cab or motor cycle] 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."
9. It is thus safe to hold that no person can drive a vehicle in any public place unless he holds an effective driving licence issued by the competent authority. Similarly, no person can drive a transport vehicle unless and until the driving licence he holds entitles him to do so. Be it stated that here the vehicle is tractor. When it is a tractor alone, it can reasonably be believed that the same falls in the category of light motor vehicle (LMV). Reference in this behalf can be made to Section 2(21) of the Act. However, when trolley is attached and goods carried therein, the same becomes a transport vehicle and in that event only a person whose driving licence ::: Downloaded on - 15/04/2017 21:41:04 :::HCHP -7- authorizes him to drive the same can do so. In this regard, support .
can be drawn from the judgment of Punjab and Haryana High Court in M/S United India Insurance Co. Ltd. Chandigrh vs. Sh. Pritpal Singh, (1996-2) 113 P.L.R. 49. The relevant text of the judgment reads as follows:
of "6. Definition of "Motor Vehicle" or "vehicle" is comprehensive so as to include any mechanically propelled vehicle adapted for use upon roads rt irrespective of the source of power and includes a trailer.
"Trailer" has been defined separately but is also included in the definition of the "Motor Vehicle"/"Vehicle".
Therefore, even though a trailer may be drawn by a motor vehicle, it by itself is a motor vehicle and both the tractor and the trailer taken together would constitute a transport vehicle. If the trailer/trolley is not driven by a tractor, it does not become a vehicle and does not have any independent identity. The very fact that the trailer has been included within the definition of "motor vehicle" clearly shows that the legislature did not intend to exclude a tractor together with a trailer/trolley from the definition of the "motor vehicle" and in our opinion, the findings recorded by the Tribunal about the liability of the appellant do not suffer from any illegality."
10. Although the insured respondent No. 1 has not said anything about the use of the tractor at the relevant time yet the suggestion given to PW-2 Kushla Devi on behalf of insurer-respondent ::: Downloaded on - 15/04/2017 21:41:04 :::HCHP -8- No. 2 that at the time of accident, sand and grit was being carried in .
the trolley of the tractor, has been admitted by the said witness, therefore, it can reasonably be believed that the tractor was being used as a transport vehicle at the relevant time. Admittedly, the validity of the driving licence which was issued by Licensing Authority, of Mandi was between 24.10.1994 to 23.10.1997. The accident has occurred on 2.6.2000. As per the testimony of DW-3 Anuj Kumar, no rt application for renewal of the driving licence was received after 23.10.1997, meaning thereby that at the time of accident, the deceased driver was not holding a valid and effective driving licence. Learned Commissioner below has erroneously pressed into service the provision contained under Section 15(4) of the Act because the driving licence which ceases to be effective, no doubt, can be renewed, however, only subject to undergoing and passing out the test of competence to drive in terms of Section 9 of the M.V. Act, i.e. like at initial stage when an application for issuance of driving licence is made and the driving licence issued subject to qualifying the test of competence. In the case in hand, deceased driver has never approached the Licensing Authority for renewal of the driving licence till his death.
11. The licence could have been renewed within 30 days as provided under Section 15(3) of the M.V.Act. No application, ::: Downloaded on - 15/04/2017 21:41:04 :::HCHP -9- however, was made by the deceased driver within the prescribed .
period for renewal of the licence in question. Otherwise also, the licence admittedly issued for driving light motor vehicle, the deceased driver could not have driven the tractor loaded with sand and grit in its trolley. Therefore, there being breach of the contract of of insurance, no liability could have been fastened upon the insurer-
respondent No. 2. Since it is the insured who has allowed the tractor rt along with its trolley loaded with grit and sand to be driven by an unauthorized person, being responsible for breach of the contract of insurance, is liable to indemnify the claimants in the matter of payment of the compensation as awarded. The substantial question of law is answered accordingly.
12. Being so, the present appeal is allowed and the impugned award is though upheld, however, modified to the extent that the liability to pay the amount of compensation together with interest shall be that of the insured and not the insurer-appellant. The appeal is accordingly disposed of.
December 05, 2016. (Dharam Chand Chaudhary), (karan-) Judge.
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