Madhya Pradesh High Court
Pappu Dheemar vs Smt.Bhuribai Pal on 19 June, 2019
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The High Court of Madhya Pradesh
MA 1192/2014
Pappu Dheemar & Anr. vs. Smt. Bhuribai Pal & Ors.
AND
MA No. 118/2015
Smt. Bhuribai Pal & Ors. Vs. Pappu Dheemar & Ors.
Gwalior, dtd. 19/06/2019
Shri Deepak Kumar Gupta, Counsel for the Driver & owner.
Shri RP Gupta, Counsel for the Claimants.
Shri B. K. Agrawal, Counsel for the Insurance Company.
Miscellaneous Appeal No. 1192/2014 has been filed by the driver and owner
challenging the exoneration of Insurance Company, whereas Miscellaneous Appeal
No.118/2015 has been filed by the claimants for enhancement of compensation
amount. Both the Miscellaneous Appeals under Section 173 of Motor Vehicles Act,
1988 have been filed challenging the Award dated 27th October, 2014 passed by
Motor Accident Claims Tribunal, Datia in Claim Case No.06/2014.
Since the factum of accident has not been disputed by any of the parties,
therefore, it is suffice to say that deceased Kamal Kishore lost his life in a vehicular
accident, which took place on 10/09/2013. At the time of accident, the age of the
deceased was 9 years and 3 months. The Claims Tribunal has exonerated the
Insurance Company on the ground that the driver of the offending vehicle was
having a LMV-TT (Light Motor Vehicle with Tractor- Trolley) licence and thus, he
was only entitled to drive the Tractor-Trolley, whereas at the relevant time he was
driving a Scorpio four wheeler, thus, he was not having a valid licence to drive the
said offending vehicle. Accordingly, it was held by the Claims Tribunal that since the
conditions of Insurance Policy were violated by the driver and owner, therefore, the
Insurance Company is not liable to pay the compensation.
Challenging the exoneration of the Insurance Company, it is submitted by the
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Counsel for the appellants in MA No.1192 of 2014 (driver and owner) that Vibhu
Dutt Panda (DW2) had admitted that the licence for driving Tractor- Trolley can be
made only after obtaining licence of LMV and the holder of LMV licence can drive
any LMV four wheeler. This witness has further admitted that Scorpio four wheeler
falls within the category of LMV. Thus, the Claims Tribunal has ignored this
important piece of evidence which is binding on the Insurance Company, whereas
the Counsel for the Insurance Company has submitted that Gonpat Rao Lad (DW1)
was working in the Regional Transport Office, Datia and he has specifically stated
that the licence was issued only for driving the Tractor- Trolley and the licence was
not issued for any other four wheeler of LMV category and, thus, the Claims
Tribunal has rightly held that the Insurance Company is not liable to pay the
compensation because of violation of conditions of Insurance Policy.
It is submitted by the counsel for the Claimants that even if it is held that the
vehicle was being driven in violation of conditions of Insurance Policy, still then the
Claims Tribunal should have applied the principle of ''pay and recover''.
Heard the counsel for the parties.
The Insurance Company has examined Ganpat Rao Lad (DW1) and Vibhu
Dutt Panda (DW2), whereas appellant No.1 Pappu Dheemar has examined himself
as DW3. The evidence of Ganpat Rao Lad (DW1) and Vibhu Dutt Panda (DW2) are
contrary to each other. As per the evidence of Vibhu Datt Panda ( DW2), he was
working as a Law Officer in the Office of Insurance Company. Appellant No.1
Pappu Dheemar was having a valid licence to drive LMV and the offending vehicle
was of the category of LMV, whereas Ganpat Rao Lad (DW1) who was working in
the RTO Office, Datia has specifically stated the licence was issued for driving the
Tractor- Trolley only and not for driving LMV. In view of these two contrary
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evidences, this Court has considered the licence Ex.D1. Licence Ex.D1 was issued
for driving LMV- TT. Ganpat Rao Lad (DW1) is the best witness to depose about the
nature of licence as was working in the Office of RTO Datia. Vibhu Dutt Panda
(DW2) was working as a Law Officer in the Office of Insurance Company and his
evidence is based on his personal perception. It is the evidence of Ganpat Rao Lad
(DW1) that the licence was issued for driving Tractor- Trolley only. Under these
circumstances, this Court is of the considered opinion that the Claims Tribunal did
not commit any mistake in holding that the vehicle was being driven in violation of
conditions of Insurance Policy as the driver was not having any valid licence for
driving the LMV four wheeler.
Whether the Insurance Company is liable to pay the compensation amount
with liberty to recover the same or not, shall be considered by considering the appeal
filed by the claimants i.e. MA No. 118/2015.
MA No. 118/2015:-
Since the factum of vehicular accident has not been disputed by the
respondents and the liability of the Insurance Company has already been decided in
Miscellaneous Appeal No.1192/2014, therefore, it is suffice to say that deceased Kamal Kishore was aged about 9 years 3 months on the date of accident which took place on 10/09/2013. The Claims Tribunal has assessed the loss of income as Rs.2,25,000/- after applying multiplier of 15, which according to this Court, is in accordance with law. However, the Claims Tribunal has awarded Rs.5,000/- towards loss of love and affection and Rs.2,500/- towards funeral expenses, which according to this Court, is also on the lower side and accordingly, in the light of the judgment passed by the Supreme Court in the case National Insurance Company Ltd. Vs. Pranay Sethi, reported in (2017) 16 SCC 680, it is held that the claimants would be 4 entitled for Rs.15,000/- towards loss of estate, Rs.40,000/- towards loss of love and affection and Rs.15,000/- towards funeral expenses and thus, the amount awarded by the Claims Tribunal under conventional heads is enhanced to Rs.70,000/-. The enhanced amount shall carry interest of 6% from the date of filing of claim petition till its actual date of realization.
So far as the liability of the Insurance Company is concerned, this Court while deciding Miscellaneous Appeal No.1192/2014 has already upheld the findings given by the Claims Tribunal with regard to exoneration of the Insurance Company. However, in the light of the judgment passed by the Supreme Court in the case of Shamanna and Ors. Vs. The Divisional Manager, The Oriental Insurance Company Ltd. And Ors. reported in AIR 2018 SC 3726, the Claims Tribunal shall be under obligation to pay the compensation amount with liberty to recover the same from the driver of the vehicle.
Accordingly, it is held that although the Insurance Company is exonerated from its liability but it shall be liable to pay compensation to the claimants with liberty to recover the same from the driver and owner of the vehicle in question.
Miscellaneous Appeal No.1192/2014 filed by driver and owner is dismissed, whereas Miscellaneous Appeal No.118/2015 filed by the claimants is allowed to the extent mentioned above. The other terms and conditions of impugned Award shall remain the same.
Subject to the above-mentioned modifications, the Award dated 27th October, 2014 passed by Motor Accident Claims Tribunal, Datia in Claim Case No.06/2014 is hereby affirmed.
(G. S. Ahluwalia) Judge MKB Digitally signed by MAHENDRA KUMAR BARIK Date: 2019.06.24 15:47:39 +05'30'