Himachal Pradesh High Court
Oriental Insurance Company vs Smt. Achari Devi And Others on 7 April, 2017
Author: Mansoor Ahmad Mir
Bench: Mansoor Ahmad Mir
IN THE HIGH COURT OF HIMACHAL PRADESH, SHIMLA
FAOs No. 249 & 266 of 2011
.
Decided on: 07.04.2017
FAO No. 249 of 2011
Oriental Insurance Company ...Appellant.
of
Versus
Smt. Achari Devi and others ...Respondents.
.........................................................................................................
rt
FAO No. 266 of 2011
Achari Devi and others ...Appellants.
Versus
Smt. Savitri Devi and others ...Respondents.
Coram
The Hon'ble Mr. Justice Mansoor Ahmad Mir, Chief Justice.
Whether approved for reporting? Yes.
FAO No. 249 of 2011:
For the appellant: Mr. Deepak Gupta, Advocate.
For the respondents: Mr. Raman Sethi, Advocate, for
respondents No. 1 to 3.
Mr. G.S. Rathore, Advocate, for
respondents No. 4 to 9.
........................................................................................................
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2
FAO No. 266 of 2011:
For the appellant: Mr. Raman Sethi, Advocate.
.
For the respondents: Mr. G.S. Rathore, Advocate, for
respondents No. 1 to 6.
Mr. Deepak Gupta, Advocate, for
respondent No. 7.
of
Mansoor Ahmad Mir, Chief Justice. (Oral)
Since both these appeals are outcome of common rt award, the same are clubbed and being disposed of by this common judgment.
2. Subject matter of both these appeals is award, dated 30th March, 2011, made by the Motor Accident Claims Tribunal, Shimla (for short "the Tribunal") in M.A.C. Petition No. 33S/2 of 2008, titled as Smt. Achari Devi and others versus Smt. Savatri Devi and others, whereby compensation to the tune of ₹ 3,02,400/ with interest @ 8% per annum from the date of institution of the claim petition till its realization and costs assessed at ₹ 5,000/ came to be awarded in favour of the claimants and the insurer was saddled with liability (for short "the impugned award").
::: Downloaded on - 15/04/2017 22:07:49 :::HCHP 33. The insurer has called in question the impugned award by the medium of FAO No. 249 of 2011 on the ground .
that the Tribunal has fallen in an error in saddling it with liability as the owner/insuredcumdriver of the offending vehicle was not having a valid and effective driving licence at of the time of the accident.
4. The claimants have questioned the impugned rt award by the medium of FAO No. 266 of 2011 on the ground of adequacy of compensation.
5. In order to determine both these appeals, it is necessary to give a brief resume of the facts of the case, the womb of which has given birth to the appeals in hand.
6. The claimants filed claim petition before the Tribunal for grant of compensation, as per the breakups given in the claim petition, on the ground that they became the victims of the vehicular accident, which was caused by the owner/insuredcumdriver, namely Shri Keshav Ram Sharma, while driving Bolero Camper, bearing registration No. HP01 A3718, rashly and negligently on 6th January, 2008 at about 5.35. P.M. near Shilli Mor, in which Shri Parma Nand ::: Downloaded on - 15/04/2017 22:07:49 :::HCHP 4 sustained injuries and succumbed to the same. It is apt to record herein that the owner/insuredcumdriver of the .
offending vehicle also died in the said accident.
7. The claim petition was resisted by the respondents and the following issues came to be framed by the Tribunal:
of "i). Whether Sh. Parma Nand died due to rash and negligent driving of Maxi Cab No. HP01 A3718 by Sh. Keshav Ram?
OPP rt ii) If issue No. 1 is proved in affirmative, to what amount of compensation the petitioners are entitled to and from whom? OPP
iii) Whether the petition is result of collusion between the petitioners and respondents No. 1 to 6? OPR7
iv). Whether the vehicle in question was being driven in contravention of the terms and conditions of the insurance policy? OPR7
v) Whether Sh. Keshav Ram was not holding valid and effective driving licence at the time of accident? OPR7
vi). Whether Sh. Parma Nand was a gratuitous/unauthorized passenger in the vehicle at the time of accident? OPR7
vii) Whether the petition is not maintainable? OPR1 to 6
viii) Relief."
::: Downloaded on - 15/04/2017 22:07:49 :::HCHP 58. Parties have led evidence.
Issue No. (i):
.
9. The Tribunal, after examining the evidence, oral as well as documentary, held that the owner/insuredcum driver of the offending vehicle had driven the same rashly and negligently at the time of the accident and caused the accident of in which deceasedParma Nand sustained injuries and succumbed to the injuries, thus, decided issue No. (i) rt accordingly.
10. There is no dispute vizaviz the findings recorded on issues No. (i). However, I have perused the impugned award and gone through the record and am of the considered view that the Tribunal has rightly determined issue No. (i), needs no interference. Accordingly, the findings recorded by the Tribunal on issue No. (i) are upheld.
11. Before dealing with issue No. (ii), I deem it proper to determine issues No. (iii) to (vii).
Issues No. (iii), (iv) and (vi):
12. It was for the insurer to prove these issues, have not led any evidence to prove the same, thus, has failed to ::: Downloaded on - 15/04/2017 22:07:49 :::HCHP 6 discharge the onus. Even otherwise, there is not even a single iota of evidence on record to prove the said issues. The .
Tribunal has rightly made the discussion and determined the said issues. Accordingly, the findings returned by the Tribunal on issues No. (iii), (iv) and (vi) are upheld.
of Issue No. (v):
13. It was for the insurer to prove that the rt owner/insuredcumdriver of the offending vehicle was not having a valid and effective driving licence to drive the same at the time of the accident, has failed to do so.
14. Learned counsel for the insurer argued that the driving licence of the owner/insuredcumdriver of the offending vehicle had expired on 17 th December, 2007 and the accident took place on 6th January, 2008, thus, the Tribunal has fallen in an error in saddling the insurer with liability.
15. The argument, though attractive, is devoid of any force for the reason that the proviso to Section 14 of the Motor Vehicles Act, 1988 (for short "MV Act") provides that every driving licence shall continue to be effective for a period of thirty days from the date of its expiry.
::: Downloaded on - 15/04/2017 22:07:49 :::HCHP 716. It is apt to reproduce the relevant portion of Section 14 of the MV Act herein:
.
"14. Currency of licences to drive motor vehicles.
............
PROVIDED that every driving licence shall, notwithstanding its expiry under of this subsection continue to be effective for a period of thirty days from such expiry."
17. rt In the instant case, admittedly, the accident has taken place within thirty days of the expiry of the driving licence, thus, it cannot lie in the mouth of the insurer that the owner/insuredcumdriver of the offending vehicle was not having a valid and effective driving licence.
18. At this stage, learned counsel for the insurer argued that there was no endorsement on the driving licence.
This argument is also not forceful for the following reasons:
19. Admittedly, the owner/insuredcumdriver was driving the offending vehicle, i.e. Bolero Camper, bearing registration No. HP01 A3718, at the relevant point of time, the gross vehicle weight of which is 2480 kilograms, as per the insurance policy, Ext. RW1/B, is a light motor vehicle.
::: Downloaded on - 15/04/2017 22:07:49 :::HCHP 820. I deem it proper to reproduce the definitions of "driving licence", "light motor vehicle", "private service vehicle"
.
and "transport vehicle" as contained in Sections 2 (10), 2 (21), 2(35) and 2 (47), respectively, of the MV Act herein:
"2. .................
(10) "driving licence" means the licence of issued by a competent authority under Chapter II authorising the person specified therein to drive, otherwise than rt a learner, a motor vehicle or a motor vehicle of any specified class or description.
xxx xxx xxx (21) "light motor vehicle" means a transport vehicle or omnibus the gross vehicle weight of either of which or a motor car or tractor or roadroller the unladen weight of any of which, does not exceed 7,500 kilograms.
xxx xxx xxx (35) "public service vehicle" means any motor vehicle used or adapted to be used for the carriage of passengers for hire or reward, and includes a maxicab, a motorcab, contract carriage, and stage carriage.
xxx xxx xxx (47) "transport vehicle" means a public service vehicle, a goods carriage , an educational institution bus or a private service vehicle."::: Downloaded on - 15/04/2017 22:07:49 :::HCHP 9
21. Section 2 (21) of the MV Act provides that a "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. Section 2 (35) of the MV Act gives the of definition of a "public service vehicle", which means any vehicle, which is used or allowed to be used for the carriage of rt passengers for hire or reward and includes a maxicab, a motorcab, contract carriage and stage carriage. It does not include light motor vehicle (LMV). Section 2 (47) of the MV Act defines a "transport vehicle". It means a public service vehicle, a goods carriage, an educational institution bus or a private service vehicle.
22. At the cost of repetition, definition of "light motor vehicle" includes the words "transport vehicle" also. Thus, the definition, as given, mandates that the "light motor vehicle" is itself a "transport vehicle", whereas the definitions of other vehicles are contained in Sections 2(14), 2 (16), 2 (17), 2 (18), 2 (22), 2 (23) 2 (24), 2 (25), 2 (26), 2 (27), 2 (28) and 2 (29) of the MV Act. In these definitions, the words "transport vehicle" are ::: Downloaded on - 15/04/2017 22:07:49 :::HCHP 10 neither used nor included and that is the reason, the definition of "transport vehicle" is given in Section 2 (47) of the MV Act.
.
23. In this backdrop, we have to go through Section 3 and Section 10 of the MV Act. It is apt to reproduce Section 3 of the Act herein:
of "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 the vehicle;
rt and no person shall so drive a transport vehicle [other than 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.
(2) The conditions subject to which sub section (1) shall not apply to a person receiving instructions in driving a motor vehicle shall be such as may be prescribed by the Central Government."
24. It mandates that the driver should have the licence to drive a particular kind of vehicle and it must contain endorsement for driving a transport vehicle. In this section, the words "light motor vehicle" are not recorded. Meaning thereby, this section is to be read with the definition of other vehicles including the definition given in Section 2 (47) of ::: Downloaded on - 15/04/2017 22:07:49 :::HCHP 11 the MV Act except the definition given in Section 2 (21) of the MV Act for the reason that Section 2 (21) of the MV Act .
provides, as discussed hereinabove, that it includes transport vehicle also.
25. My this view is supported by Section 10 of the MV of Act, which reads as under:
"10. Form and contents of licences to drive. (1) Every learner's licence rt and driving licence, except a driving licence issued under section 18, shall be in such form and shall contain such information as may be prescribed by the Central Government.
(2) A learner's licence or, as the case may be, driving licence shall also be expressed as entitling the holder to drive a motor vehicle of one or more of the following cases, namely:
(a) motor cycle without gear;
(b) motor cycle with gear;
(c) invalid carriage;
(d) light motor vehicle;
(e) transport vehicle;
(i) roadroller;
(j) motor vehicle of a specified description."
26. Section 10 (2) (d) of the MV Act contains "light motor vehicle" and Section 10 (2) (e) of the MV Act, was substituted in terms of amendment of 1994, class of the ::: Downloaded on - 15/04/2017 22:07:49 :::HCHP 12 vehicles specified in clauses (e) to (h) before amendment stands deleted and the definition of the "transport vehicle"
.
stands inserted. So, the words "transport vehicle" used in Section 3 of the MV Act are to be read vizaviz other vehicles, definitions of which are given and discussed hereinabove.
of
27. A Division Bench of the High Court of Jammu and Kashmir at Srinagar, of which I (Justice Mansoor Ahmad rt Mir, Chief Justice) was a member, in a case titled as National Insurance Co. Ltd. versus Muhammad Sidiq Kuchey & ors., being LPA No. 180 of 2002, decided on 27th September, 2007, has discussed this issue and held that a driver having licence to drive "LMV" requires no "PSV" endorsement. It is apt to reproduce the relevant portion of the judgment herein:
"The question now arises as to whether the driver who possessed driving licence for driving abovementioned vehicles, could he drive a passenger vehicle? The answer, I find, in the judgment passed by this court in case titled National Insurance Co. Ltd. Vs. Irfan Sidiq Bhat, 2004 (II) SLJ 623, wherein it is held that Light Motor Vehicle includes transport vehicle and transport vehicle includes public service vehicle and public service vehicle includes any motor vehicle used or deemed to be used for carriage of passengers. Further ::: Downloaded on - 15/04/2017 22:07:49 :::HCHP 13 held, that the authorization of having PSV endorsement in terms of Rule 41
(a) of the Rules is not required in the given circumstances. It is profitable to .
reproduce paras 13 and 17 of the judgment hereunder: "13. A combined reading of the above provisions leaves no room for doubt that by virtue of licence, about which there is no dispute, of both Showkat Ahamd and Zahoor Ahmad were competent in terms of section 3 of the Motor Vehicles Act to drive a public service vehicle without any PSV endorsement rt and express authorization in terms of rule 4(1)(a) of the State Rules.
In other words, the requirement of the State Rules stood satisfied.
..........................
17. In the case of Mohammad Aslam Khan (CIMA no. 87 of 2002) Peerzada NoorudDin appearing as witness on behalf of Regional Transport Officer did say on recall for further examination that PSV endorsement on the licence of Zahoor Ahmad was fake.
In our opinion, the fact that the PSV endorsement on the licence was fake is not at all material, for, even if the claim is considered on the premise that there was no PSV endorsement on the licence, for the reasons stated above, it would not materially affect the claim. By virtue of "C to E" licence Showkat Ahmad was competent to drive a passenger vehicle. In fact, there is no separate definition of passenger ::: Downloaded on - 15/04/2017 22:07:49 :::HCHP 14 vehicle or passenger service vehicle in the Motor Vehicles Act. They come within the ambit of public service vehicle under section 2(35).
.
A holder of driving licence with respect to "light Motor Vehicle" is thus competent to drive any motor vehicle used or adapted to be used for carriage of passengers i.e. a public service vehicle."
of In the given circumstances of the case PSV endorsement was not required at all."
28. The mandate of Sections 2 and 3 of the MV Act rt came up for consideration before the Apex Court in a case titled as Chairman, Rajasthan State Road Transport Corporation & ors. versus Smt. Santosh & Ors., reported in 2013 AIR SCW 2791, and after examining the various provisions of the MV Act held that Section 3 of the Act casts an obligation on the driver to hold an effective driving licence for the type of vehicle, which he intends to drive. It is apt to reproduce paras 19 and 23 of the judgment herein:
"19. Section 2(2) of the Act defines articulated vehicle which means a motor vehicle to which a semitrailer is attached; Section 2(34) defines public place; Section 2(44) defines 'tractor' as a motor vehicle which is not itself constructed to carry any load; Section 2(46) defines `trailer' which means any ::: Downloaded on - 15/04/2017 22:07:49 :::HCHP 15 vehicle, other than a semi trailer and a sidecar, drawn or intended to be drawn by a motor vehicle. Section 3 of the Act provides for necessity for driving license;
.
Section 5 provides for responsibility of owners of the vehicle for contravention of Sections 3 and 4; Section 6 provides for restrictions on the holding of driving license; Section 56 provides for compulsion for having certificate of fitness for transport vehicles; Section 59 of empowers the State to fix the age limit of the vehicles; Section 66 provides for necessity for permits to ply any vehicle for any commercial purpose; Section 67 empowers the State to control road rt transport; Section 112 provides for limits of speed; Sections 133 and 134 imposes a duty on the owners and the drivers of the vehicles in case of accident and injury to a person; Section 146 provides that no person shall use any vehicle at a public place unless the vehicle is insured. In addition thereto, the Motor Vehicle Taxation Act provides for imposition of passenger tax and road tax etc.
20. ..........................
21. .........................
22. ........................
23. Section 3 of the Act casts an obligation on a driver to hold an effective driving license for the type of vehicle which he intends to drive. Section 10 of the Act enables the Central Government to prescribe forms of driving licenses for various categories of vehicles mentioned in subsection (2) of the said Section. The definition clause ::: Downloaded on - 15/04/2017 22:07:49 :::HCHP 16 in Section 2 of the Act defines various categories of vehicles which are covered in broad types mentioned in subsection (2) of Section 10. They are 'goods .
carriage', 'heavy goods vehicle', 'heavy passenger motor vehicle', 'invalid carriage', 'light motor vehicle', 'maxi cab', 'medium goods vehicle', 'medium passenger motor vehicle', 'motorcab', 'motorcycle', 'omnibus', 'private service vehicle', 'semi trailer', 'tourist vehicle', of 'tractor', 'trailer' and 'transport vehicle'."
29. The Apex Court in another case titled as rt National Insurance Company Ltd. versus Annappa Irappa Nesaria & Ors., reported in 2008 AIR SCW 906, has also discussed the purpose of amendments, which were made in the year 1994 and the definitions of 'light motor vehicle', 'medium goods vehicle' and the necessity of having a driving licence. It is apt to reproduce paras 8, 14 and 16 of the judgment herein:
"8. Mr. S.N. Bhat, learned counsel appearing on behalf of the respondents, on the other hand, submitted that the contention raised herein by the appellant has neither been raised before the Tribunal nor before the High Court. In any event, it was urged, that keeping in view the definition of the 'light motor vehicle' as contained in Section 2(21) of the Motor vehicles Act, 1988 ('Act' for ::: Downloaded on - 15/04/2017 22:07:49 :::HCHP 17 short), a light goods carriage would come within the purview thereof.
A 'light goods carriage' having not been .
defined in the Act, the definition of the 'light motor vehicle' clearly indicates that it takes within its umbrage, both a transport vehicle and a nontransport vehicle.
Strong reliance has been placed in this of behalf by the learned counsel in Ashok Gangadhar Maratha vs. Oriental Insurance Company Ltd., [1999 (6) SCC 620].
rt
9. .....................
10. ..................
11. ..................
12. .................
13. .................
14. Rule 14 prescribes for filing of an application in Form 4, for a licence to drive a motor vehicle, categorizing the same in nine types of vehicles.
Clause (e) provides for 'Transport vehicle' which has been substituted by G.S.R. 221(E) with effect from 28.3.2001. Before the amendment in 2001, the entries medium goods vehicle and heavy goods vehicle existed which have been substituted by transport vehicle. As noticed hereinbefore, Light Motor Vehicles also found place therein.
15. .............................
::: Downloaded on - 15/04/2017 22:07:49 :::HCHP 1816. From what has been noticed hereinbefore, it is evident that 'transport vehicle' has now been substituted for 'medium goods vehicle' and 'heavy .
goods vehicle'. The light motor vehicle continued, at the relevant point of time, to cover both, 'light passenger carriage vehicle' and 'light goods carriage vehicle'.
A driver who had a valid licence to drive of a light motor vehicle, therefore, was authorised to drive a light goods vehicle as well."
30. rt The Apex Court in the latest judgment in the case titled as Kulwant Singh & Ors. versus Oriental Insurance Company Ltd., reported in JT 2014 (12) SC 110, held that PSV endorsement is not required.
31. The same principle has been laid down by this Court in a series of cases.
32. The owner/insuredcumdriver was having a driving licence to drive 'LMV', as has been stated by RW2, Smt. Sheela Shyam, the Licence Clerk from the office of SDM Theog, thus, was having a valid and effective driving licence to drive the offending vehicle.
33. Having said so, the Tribunal has rightly determined issue No. (v) and saddled the insurer with liability.
::: Downloaded on - 15/04/2017 22:07:49 :::HCHP 19Accordingly, the finding returned by the Tribunal on issue No.
(v) are upheld.
.
Issue No. (vii):
34. It was for respondents No. 1 to 6 in the claim petition to prove how the claim petition was not maintainable, of have not led any evidence to this effect, thus, have failed to discharge the onus. Accordingly, the findings returned by the rt Tribunal on the said issue are also upheld.
Issue No. (ii):
35. The claimants have sought enhancement of the awarded amount. I have gone through the impugned award and the record and am of the considered view that the Tribunal has rightly assessed the amount of compensation and no ground for interference is made out. However, the Tribunal has fallen in an error in not awarding compensation under the heads 'loss of consortium', 'funeral expenses', 'loss of love and affection' and 'loss of estate'. Accordingly, the claimants are also held entitled to compensation to the tune of ₹ 10,000/ each under the heads 'loss of consortium', 'funeral expenses', 'loss of love and affection' and 'loss of estate'.
::: Downloaded on - 15/04/2017 22:07:49 :::HCHP 2036. The Tribunal has also committed a legal mistake while awarding interest @ 8% per annum, which was to be .
awarded as per the prevailing rates.
37. It is a beaten law of the land that the rate of interest should be awarded as per the prevailing rates, in view of of the judgments rendered by the Apex Court in cases titled as United India Insurance Co. Ltd. and others versus rt Patricia Jean Mahajan and others, reported in (2002) 6 SCC 281; Santosh Devi versus National Insurance Company Ltd. and others, reported in 2012 AIR SCW 2892; Amrit Bhanu Shali and others versus National Insurance Company Limited and others, reported in (2012) 11 SCC 738; Smt. Savita versus Binder Singh & others, reported in 2014 AIR SCW 2053; Kalpanaraj & others versus Tamil Nadu State Transport Corpn., reported in 2014 AIR SCW 2982; Amresh Kumari versus Niranjan Lal Jagdish Pd. Jain and others, reported in (2015) 4 SCC 433; and Mohinder Kaur and others versus Hira Nand Sindhi (Ghoriwala) and another, reported in ::: Downloaded on - 15/04/2017 22:07:49 :::HCHP 21 (2015) 4 SCC 434, and discussed by this Court in a batch of FAOs, FAO No. 256 of 2010, titled as Oriental Insurance .
Company versus Smt. Indiro and others, being the lead case, decided on 19.06.2015.
38. Having said so, I deem it proper to reduce the rate of of interest from 8% per annum to 7.5% per annum from the date of filing of the claim petition till its realization.
39. rt Having glance of the above discussions, compensation to the tune of ₹ 3,02,400/ + ₹ 10,000/ + ₹ 10,000/ + ₹ 10,000/ + ₹ 10,000/ = ₹ 3,42,400/ with interest @ 7.5% per annum alongwith costs assessed at ₹ 5,000/ is awarded in favour of the claimants and the insurer is saddled with liability.
40. In view of the above, the impugned award is modified, as indicated hereinabove, and both the appeals are disposed of accordingly.
41. The enhanced amount of compensation be deposited before the Registry within eight weeks. On deposition, the same be released in favour of the claimants strictly as per the terms and conditions contained in the ::: Downloaded on - 15/04/2017 22:07:49 :::HCHP 22 impugned award through payee's account cheque or by depositing the same in their respective bank accounts.
.
42. Send down the record after placing copy of the judgment on Tribunal's file.
(Mansoor Ahmad Mir) Chief Justice of April 07, 2017 ( rajni ) rt ::: Downloaded on - 15/04/2017 22:07:49 :::HCHP