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2002 DIGILAW 33 (PAT)

Oriental Insurance Company Limited v. Shanti Devi

2002-01-08

R.M.PRASAD

body2002
Judgment R.M.Prasad, J. 1. This miscellaneous appeal is directed against the judgment dated 19.5.1999 passed in Claim Case No. 18 of 1993 by the 1st Additional District Judge, Siwan, awarding compensation to the tune of Rs. 4,78,960 with the interest at the rate of 12 per cent per annum and on failure to pay the said amount within two months interest at the rate of 18 per cent per annum till the realisation of the amount from the date of filing of petition. 2. In short, the relevant facts are that the deceased aged about 43 years met with an accident and died on 18.2.1993. Admittedly, the vehicle was insured with the appellant company. However, it is contended that the insurance company is not liable to indemnify as the driver of the vehicle in question did not have valid licence to drive passenger carrying vehicle and, thus, there has been violation of the terms and conditions of the insurance policy. The learned counsel for the appellant has contended that the impugned judgment is also bad in law as the learned Tribunal has applied multiplier of 15 to determine the amount of compensation in terms of the provisions of the Schedule contained under the Act which came into force on 14.11.94, whereas the accident took place before that, i.e., on 18.2.1993. He also contended that the learned Tribunal has erred in law in fixing 18 per cent as the rate of interest on failure to pay the awarded amount within two months from the date of filing of the petition, when the Supreme. Court as well as this court has awarded such interest only after the judgment on appeal. 3. In support of first contention that the company is not liable to indemnify compensation as there has been violation of the terms and conditions of insurance policy he relied upon sec. 3 of the Motor Vehicles Act, hereinafter referred to as the Act, to show that the driver, who was driving the transport vehicle in question was required to hold valid driving licence to drive such vehicle, but in the present case the driver had a licence for light motor vehicle and heavy motor vehicle on the date of accident and not to drive a transport vehicle. 4. 4. Learned counsel appearing for the respondents has submitted that there is no substance in the said submission, more-so, because there was no such defence or pleading taken on behalf of the appellant that the driver did not have valid licence except producing certificate of District Transport Officer, Chapra, Exh. B, a xerox copy whereof has been annexed as Annex-ure-1. He also contended that there was no issue raised with respect to the above. As such, according to learned counsel for the respondents it is not open for the appellant now to raise such question. Moreover, in view of the admitted fact that the driver had a valid licence for light motor vehicle as well as heavy motor vehicle the contention on behalf of the appellant that there has been contravention of Sec. 3 or of the insurance policy is wholly misconceived and not tenable. 5. This court finds substance in She said submission of the learned counsel for the respondents. It is useful to quote sec. 3 hereunder: 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; 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-sec. (2) of sec. 75 unless his driving licence specifically entitles him so to do. (2) The conditions subject to which Sub-sec. (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. Under such provision no person can 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 can so drive a transport vehicle other than a motor cab or a motor cycle hired for his own use or rented under any scheme made under Sub-sec. (2) of sec. 75 unless his driving licence specifically entitles him so to do. (2) of sec. 75 unless his driving licence specifically entitles him so to do. u/s. 75 the Central Government may by notification in the Official Gazette, make a scheme for the purpose of regulating the business of renting of motor cabs or motor cycles to persons desiring to drive either by themselves or by drivers, motor cabs or motor cycles for their own use and for matters connected therewith. Sub-sec. (2) deals as to how such scheme is to be carried out. However, in the present case Section 3(1) of the Act is relevant and no person can drive a transport vehicle in any public place unless he holds an effective driving licence issued to him authorising him to drive the vehicle. The transport vehicle as defined under Sub-sec. (47) of sec. 2 means a public service vehicle, a goods carriage, an educational institution bus or a private service vehicle. It is true that the heavy motor vehicle for which the driver admittedly had the driving licence is not specifically defined, but the definition of transport vehicle itself is a very wide connotation and includes private service vehicle which, according to its definition, as contained in Sub-sec. (33) of sec. 2 means a motor vehicle constructed or adapted to carry more than six persons excluding the driver and ordinarily used by or on behalf of the owner of such vehicle for the purpose of carrying persons for, or in connection with, his trade or business otherwise than for hire or reward, but, does not include a motor vehicle used for public purpose. Moreover, the appellant never specifically raised any objection that the driver did not possess any valid driving licence to drive the vehicle in question. In para 12 of the written statement it is vaguely and in general terms stated that the company will be liable to pay the compensation if the driving licence of the driver of the vehicle involved in the accident is found genuine and authorising the driver to drive the vehicle involved in the accident in verification. No issue was framed in regard to the said question. The issues framed in the case are as follows: (1) Is the claim case maintainable? (2) Is the case time-barred? (3) Is the petitioner entitled for the claim and if so, to what extent? (4) Who is liable for compensation? No issue was framed in regard to the said question. The issues framed in the case are as follows: (1) Is the claim case maintainable? (2) Is the case time-barred? (3) Is the petitioner entitled for the claim and if so, to what extent? (4) Who is liable for compensation? (5) To what relief and reliefs, if any, the petitioner is entitled? Under such circumstances, it has rightly been contended on behalf of the respondents that the appellant company cannot be permitted to raise such defence in appeal for the first time, as it would prejudice the case of the claimants and the other non-claimants. In this regard, reference can be made to the decision of Madhya Pradesh High Court in Oriental Insurance Co. Ltd. V/s. Kunti 2001 ACJ 504 (MP). However, even in appeal it is not pleaded as to what was the capacity of the transport vehicle and whether the vehicle was not covered by the definition of private service vehicle. Under such circumstances, this court finds it difficult to accept the contention raised on behalf of the appellant that Exh. B (Annexure-1 herein) shows that the driver did not have the authorisation to drive a transport vehicle, public service vehicle, passenger carrying vehicle. 6 A Division Bench of the Punjab and Haryana High Court in a case in Pratap Singh V/s. Sharmila 1997 ACJ 558 (P&H), held that non-mentioning the category of transport vehicle in the driving licence of the driver cannot lead to a conclusion that on the date of accident driver was not holding a valid driving licence. It was held that the driving licence was issued for heavy motor vehicle which covered the offending vehicle and the Tribunal grossly erred in exonerating the insurance company. Accordingly, this court does not find any substance in the first contention advanced on behalf of the appellant company that there has been violation in the terms and conditions of the insurance policy by allowing the driver to drive passenger carrying vehicle. 7. There may be some substance in the submission of learned counsel for the appellant that the learned Tribunal has wrongly applied multiplier of 15 to determine the amount of compensation in terms of the provisions contained in Second Schedule which came into force on 14.11.1994 as the accident took before that, i.e., on 18.2.93, but the Supreme Court in the case of U.P. State Road Trans. Corporation V/s. Trilok Chandra 1996 ACJ 831 (SC), has held that the Second Schedule suffers from several defects and neither Tribunal nor the court can go by the ready reckoner. It can only be used as a guide. Thus, if the learned Tribunal has taken the aid of multiplier to assess the compensation amount, the impugned judgment cannot be vitiated merely on that count. However, having regard to the age and the dependency, this court does not feel inclined to interfere with the mode adopted for awarding of compensation. 8. This court does not find any substance in the last submission as well. The Tribunal has awarded interest only at the rate of 18 per cent per annum from the date of filing of the petition only to ensure that the claimant is not unnecessarily harassed and deprived of the due payment. However, as the limitation for filing appeal as prescribed is three months, this court considers it expedient to modify the impugned judgment by substituting three months instead of two months as the period for payment and on failure thereof to pay interest at the rate of 18 per cent. 9. Accordingly, this appeal is disposed of by modifying the period of two months to three months for payment of awarded amount.