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2004 DIGILAW 266 (RAJ)

NEW INDIA ASSURANCE CO. LTD. v. JANINA DEVI

2004-02-24

PRAKASH TATIA

body2004
Judgment PRAKASH TATIA, J. ( 1 ) HEARD the learned counsel for the parties. ( 2 ) THIS appeal is against the award dated 6. 10. 1998 by which the Motor Accidents claims Tribunal, Nohar allowed the claim petition of the claimants and held the appellant insurance company liable to reimburse the awarded amount. ( 3 ) THE appellant insurance company preferred this appeal raising only dispute about the validity of the licence of the driver. According to learned counsel for the appellant, the driver of the vehicle at the relevant point of time was driving the heavy goods vehicle and he had no driving licence to drive the said vehicle. According to the learned counsel for the appellant, if the licence of the driver which was produced by the driver is taken to be valid then that licence was issued to ply the heavy passenger vehicle only. According to learned counsel for the appellant, the accident occurred on 17. 10. 1993 before coming into force of the amendment of the certain provisions of the Motor Vehicles act, which came into force on 14. 11. 1994. In the year 1993 as per clauses (g) and (h)of sub-section (2) of section 10, separate licences were required to be issued for the vehicle of the category of heavy goods vehicle and heavy passenger motor vehicle. According to learned counsel for appellant, as per the condition of the policy in case, the vehicle is handed over to a person, who had no valid driving licence of the category of the vehicle mentioned in the Act or the rules, the insurance company cannot be held liable to reimburse the insured. The learned counsel for the appellant relied upon the judgment of Madras High Court delivered in the case of Oriental Insurance co. Ltd. v. Petchi Muthu Asari, 2000 ACJ 1378 (Madras), wherein Madras High Court held that driver having licence to drive a heavy passenger vehicle, cannot drive a heavy goods vehicle. The same view was taken by the Karnataka High Court in the case of United India Insurance Co. Ltd. v. Dhanalakshmi, 1998 ACJ 715 (Karnataka ). Learned counsel for appellant further submits that mere possessing a valid driving licence is not sufficient, but the driver must also possess the driving licence of the category of the vehicle which he found driving to make insurance company liable. Ltd. v. Dhanalakshmi, 1998 ACJ 715 (Karnataka ). Learned counsel for appellant further submits that mere possessing a valid driving licence is not sufficient, but the driver must also possess the driving licence of the category of the vehicle which he found driving to make insurance company liable. It is vehemently submitted that when the law has divided the licence in separate categories and section 10 requires for obtaining the licence of a particular category then holding a licence of one category cannot be deemed to be a valid driving licence for the other category of the vehicle for which the authorities have not issued licence in favour of the driver. ( 4 ) LEARNED counsel for the respondents mr. Rajesh Panwar submits that the plea taken by the appellants in appeal cannot be permitted to be raised by the appellant because of the reason that the appellants in their reply to the claim petition did not raise any objection that the driver Pratap singh was not holding the valid driving licence, rather the appellants took a specific plea that at the time of accident Dilip s/o suraj Ram was driving the vehicle and the insurance companys plea was that Dilip had no valid licence to drive a heavy vehicle. The learned counsel for respondents further submits that even in case where a driver holds a valid driving licence for one category of vehicle, but met with accident while driving the other category of vehicle then it may be only technical breach of any condition on the basis of which, insurance company cannot be exonerated. Supporting the argument of learned counsel Mr. Panwar, learned counsel Mr. Sachin Acharya and Mr. Rajeev Purohit on behalf of the claimants vehemently submitted that the matter is no more res Integra in view of the decision of the Honble Supreme Court delivered recently in the case of National insurance Co. Ltd. v. Swaran Singh, 2004 acj 1 (SC ). Learned counsel appearing for the respondents further relied upon the judgment of this court delivered in the case of Dharma Ram v. Pema Ramji, 2000 acj 593 (Rajasthan ). ( 5 ) I considered the rival submissions and perused the relevant provisions of law. The category of the vehicles relevant for the purpose of decision of this appeal are heavy goods vehicle and heavy passengers motor vehicle. ( 5 ) I considered the rival submissions and perused the relevant provisions of law. The category of the vehicles relevant for the purpose of decision of this appeal are heavy goods vehicle and heavy passengers motor vehicle. The definition of heavy goods vehicle is given in subsection (16) of section 2 of the Act of 1988 whereas the definition of heavy passenger motor vehicle is given in sub-section (17)of section 2 of the Act of 1988. Both definitions are quoted hereinbelow:" (16) heavy goods vehicle means any goods carriage the gross vehicle weight of which, or a tractor or a road-roller the unladen weight of either of which, exceeds 12000 kilograms; (17) heavy passenger motor vehicle means any public service vehicle or private service vehicle or educational institution bus or omnibus the gross vehicle weight of any of which, or a motor car the unladen weight of which, exceeds 12000 kilograms. "it will be worthwhile to mention here that there is one more relevant category of the vehicle, which is defined in sub-section (47) of the section 2 of the Act of 1988, i. e. , transport vehicle. The definition is quoted:" (47) transport vehicle means a public service vehicle, a goods carriage, an educational institution bus or a private service vehicle. "the section 10 of the Act of 1998 as it was in force before 14. 11. 1994 provides that the driving licence shall expressly entitle the holder of the licence to drive the motor vehicle of one or more of the classes mentioned in the sub-clauses of sub-section (2)of section 10. Section 10 is as under:"10. Form and contents of licences to drive.- (1) Every learners licence 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 learners 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 classes, namely: (a) motor cycle without gear; (b) motor cycle with gear; (c) invalid carriage; (d) light motor vehicle; (e) medium goods vehicle; (f) medium passenger motor vehicle; (g) heavy goods vehicle; (h) heavy passenger motor vehicle; (i) road-roller; (j) motor vehicle of a specified description. "by the amendment of 1994, which came into force on 14. 11. "by the amendment of 1994, which came into force on 14. 11. 1994, section 10 has been amended. The amended section 10 is as under:"10. Form and contents of licences to drive.- (1) Every learners licence 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 learners 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 classes, namely: (a) motor cycle without gear; (b) motor cycle with gear; (c) invalid carriage; (d) light motor vehicle; (e) transport vehicle; (i) road-roller; (j) motor vehicle of a specified description. " ( 6 ) A bare perusal of the definitions of the heavy goods vehicle and heavy passenger motor vehicle reveals that there is virtually no distinction so far as the weight of the vehicles are concerned and in addition to it, both the vehicles have been included in the definition of transport vehicle. Though there was separate category of the vehicles in the unamended provisions of sub-section (2) of section 10 of the Act of 1988, but by amendment of 1994 this distinction has been taken away. In the backdrop of these legal provisions, if the judgment delivered by the Honble Apex court in the case of National Insurance co. Ltd. v. Swaran Singh, 2004 ACJ 1 (SC), is carefully examined, it makes the breach as alleged by the appellant only a technical breach of the condition of the policy. The Apex Court very specifically considered such type of breaches. The honble Supreme Court held, which is as under:"a person possessing a driving licence for motor cycle without gear, [sic. may be driving a vehicle] for which he has no licence. Cases may also arise where holder of driving licence for light motor vehicle is found to be driving a maxicab, motor cab or omnibus for which he has no licence. In each case on evidence led before the Claims Tribunal, a decision has to be taken whether the fact of the driver possessing licence for one type of vehicle but found driving another type of vehicle, was the mainor contributory cause of accident. In each case on evidence led before the Claims Tribunal, a decision has to be taken whether the fact of the driver possessing licence for one type of vehicle but found driving another type of vehicle, was the mainor contributory cause of accident. If on facts, it is found that the accident was caused solely because of some other unforeseen or intervening causes like mechanical failures and similar other causes having no nexus with driver not possessing requisite type of licence, the insurer will not be allowed to avoid its liability merely for technical breach of conditions concerning driving licence. " (Emphasis supplied) ( 7 ) THE crux of the matter is that it is to be seen whether the fact of driver possessing the licence for one type of the vehicle, but found driving another type of vehicle, was the main contributory cause of accident. In this case, the driver was holding the driving licence of heavy passenger vehicle and was driving a heavy goods vehicle. There is no plea of the insurance company to suggest that driving licence meant for heavy passenger vehicle is so distinct that a person holding driving licence cannot be treated competent to drive heavy goods vehicle and driving of the two vehicles is so different that it may be reason for the accident. Not only this, but despite production of the driving licence by none else than the driver of the vehicle himself to show that he was holding the driving licence for the heavy passenger vehicle, no suggestion was given to him that driving of these two vehicles is different. Even there is no suggestion that the driver holding the heavy passenger vehicle driving licence requires to do something more to possess the qualification to drive the heavy goods vehicle. Therefore, I do not find that the Tribunal has committed any illegality in holding the insurance company liable for the claim amount. ( 8 ) LEARNED counsel for the appellant tried to distinguish the reasons mentioned above by relying upon judgment delivered in the case of Swaran Singh, 2004 ACJ 1 (SC ). Therefore, I do not find that the Tribunal has committed any illegality in holding the insurance company liable for the claim amount. ( 8 ) LEARNED counsel for the appellant tried to distinguish the reasons mentioned above by relying upon judgment delivered in the case of Swaran Singh, 2004 ACJ 1 (SC ). According to learned counsel for the appellant, the Honble Supreme Court in the next lines of the same para observed that "if on facts, it is found that accident was caused solely because of some other unforeseen or intervening causes like mechanical failure and similar other causes having no nexus with driver not possessing requisite type of licence, the insurer will not be allowed to avoid its liability merely for technical breach of conditions concerning driving licence". The Honble Apex court gave two illustrations; one is that the finding is required to be recorded about whether the fact of driver possessing the licence for one type of vehicle, but found driving another type of vehicle was the main or contributory cause of accident. If driver possessing licence for one type of vehicle and he is found driving another type of vehicle is not main or even contributory cause of accident then the insurance company cannot avoid the liability. The reason is plain and simple. The nexus is required to be find out between the breach and cause of accident. If there is no nexus then the insurance company cannot avoid its liability under the contract as the breach can be said to be only a technical breach of condition and the accident is not result of that breach. In view of the above, the judgments of Madras High Court and Karnataka high Court relied upon by learned counsel for appellant have no application to the facts of this case in the light of the judgment of the Honble Apex Court. ( 9 ) LEARNED counsel Mr. Rajesh Panwar appearing on behalf of the owner of the vehicle has vehemently submitted that the award awarded by the Tribunal is shockingly high and, therefore, this court should interfere in the award so far as it relates to the total amount awarded to the claimants by exercising power under Order 41, rule 33, Civil Procedure Code. According to learned counsel Mr. Panwar the claimants tried their best to exaggerate the income of the deceased. According to learned counsel Mr. Panwar the claimants tried their best to exaggerate the income of the deceased. Though the Tribunal did not accept the income as claimed by the claimants, but nevertheless still awarded the huge amount of Rs. 20,44,500 in a case of death of a person of the age of 32 years and total claim amount have been awarded on the basis of the alleged loss of income which the deceased was getting from one truck only. ( 10 ) LEARNED counsel Mr. Acharya tried his best to defend the award and submitted that there is no evidence in rebuttal to the evidence produced by the claimants and there appears to be no reason for exercising power under Order 41, rule 33, Civil Procedure code by this court. ( 11 ) I perused the entire record. The claimants in their claim petition stated that the deceased had 9 acres of irrigated land. It is stated that the deceased was earning rs. 12,000 per month from this land. It is further submitted that the deceased was the owner of the truck and he himself used to drive the truck and by truck he was earning rs. 15,000 per month. The claimants claimed the total amount of Rs. 29,00,000. In support of the claim Jamna Devi w/o deceased Puran Singh, PW 1, stated that her husband had 10 to 12 killa land and her husband was earning Rs. 1,00,000 per annum from the land. The deceaseds son ajit Singh, AW 1, stated that his father had 8 to 9 killa land and his father was earning rs. 2,00,000 as net profit from the land. It is stated that at present his grandfather gave the land on contract basis. Deceaseds mother, Annkori Devi was also examined as PW 3, who also admitted that agriculture land have been given on contract basis and also admitted that when Puran Singh was alive, he used to give the land on contract basis to other persons. ( 12 ) FROM the statement of these witnesses, it is clear that none of the witnesses had any specific knowledge about the income of the deceased from the agriculture land. ( 12 ) FROM the statement of these witnesses, it is clear that none of the witnesses had any specific knowledge about the income of the deceased from the agriculture land. The Claims Tribunal rightly did not take into consideration any income which was alleged to be income of the deceased from the agriculture land as the claimants are getting the complete monetary benefit of the land after the death of deceased. ( 13 ) THE question arises whether a person, who had his own agriculture land and who was owner of the truck could have earned Rs. 1,50,000 per annum from one truck only. The Tribunal held the income of the deceased from truck as Rs. 1,50,000 without there being any documentary evidence, evidencing such a huge income. The mother of the deceased in her statement stated that whenever deceased Puran singh used to drive the truck, he used to give the land on contract. If the statement is accepted, then it is clear that the deceased was not even driving the truck regularly. Therefore, there is no reason to believe these witnesses, who are the sole beneficiaries of the award and stated absolutely wrong facts about the income of deceased. Since the victim Puran Singh died in the accident and he himself was driving the truck, therefore, it can be held that he used to drive his own truck, but occasionally, when the land is given on contract basis to others. In absence of any documentary evidence, it is difficult to determine the exact income of deceased, but in any eventuality, it cannot be held that he might be earning anything even near about Rs. 1,50,000 per annum. When the claimants failed to disclose the true facts and failed to produce the material evidence about the income of the deceased, it implies that they wanted to suppress the true facts from the Tribunal for getting exorbitantly high compensation and which is apparent from the record as tribunal has awarded such exorbitantly high award of Rs. 20,44,000, that too after deducting 1/3rd of the annual income of the deceased. 20,44,000, that too after deducting 1/3rd of the annual income of the deceased. The finding of the Tribunal on issue No. 3 deserves to be set aside as the finding is absolutely perverse and has been recorded without proper appreciation of evidence and by blindly relying upon the statement of claimants and without drawing adverse inference for not producing any documentary evidence relating to the income of the deceased when the income of the deceased is claimed to be more than rs. 2,00,000 or Rs. 3,00,000 per annum. ( 14 ) WHEN there is no trustworthy evidence on record then this court is required to assess the income on the basis of the reasonable compensation, which can be awarded in a case of death of man of 32 years and who was earning from the truck at the relevant time, that too, when he used to drive the truck only occasionally. Since the oral evidence produced by the claimants is liable to be discarded, therefore, the income of the deceased is assessed as if it is a case of no evidence about the exact income of deceased, but had some income. The income of the deceased is assessed at rs. 3,000 per month only. If the future prospects of earning are taken into account, this income can be Rs. 4,500, but 1/3rd amount will be required to be deducted on account of expenditure which deceased would have incurred for himself. Therefore, loss to the claimants comes to Rs. 3,000 per month only, which comes to Rs. 36,000 per year. The multiplier applied by the tribunal is of 17. The multiplier appears to be applied as per the Second Schedule appended to the Motor Vehicles Act, 1988, therefore, this court is not inclined to interfere in the application of the multiplier. The total loss to the claimants comes to rs. 6,12,000. The claimant No. 1 is also entitled for Rs. 20,000 on account of loss of her matrimonial consortium, pain and suffering and mental agony to her. The claimants Ajit Singh and Prahlad Singh, the sons of the deceased are entitled for rs. 10,000 each. Mother and father of the deceased, claimant Nos. 4 and 5, are also awarded Rs. 10,000 each for their mental agony. The Tribunal awarded Rs. 2,000 for the funeral expenses and Rs. 2,000 for loss of property. The same is maintained. The claimants Ajit Singh and Prahlad Singh, the sons of the deceased are entitled for rs. 10,000 each. Mother and father of the deceased, claimant Nos. 4 and 5, are also awarded Rs. 10,000 each for their mental agony. The Tribunal awarded Rs. 2,000 for the funeral expenses and Rs. 2,000 for loss of property. The same is maintained. The total amount comes to Rs. 6,76,000. The claimant Jamna Devi w/o Puran Singh is entitled for 30 per cent of the award amount and Ajit Singh and Prahlad Singh, sons of the deceased are entitled for 15 per cent each of the award amount and annkori Devi and Bagdawat Ram, mother and father of the deceased are entitled for 20 per cent each of the awarded amount. The claimants shall be entitled for the interest of 9 per cent over the amount from the date of claim petition (15. 1. 1994 ). ( 15 ) HENCE, the appeal of the appellant is dismissed and the award is modified under Order 41, rule 33, Civil Procedure Code as mentioned above. Appeal dismissed.