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2005 DIGILAW 50 (KAR)

MOHAMMED SALAR v. SYED IBRAHIM

2005-01-18

MOHAN M.SHANTANAGOUDAR

body2005
SHANTHANAGOUDAR, J. ( 1 ) QUESTIONING the correctness of the judgment and award dated 18. 1. 2000 passed by the Motor accidents Claims Tribunal (hereinafter referred to as 'the Tribunal' for short) in m. V. C. No. 1649 of 1995, fixing the liability on him to pay the compensation awarded, the owner of the lorry bearing registration No. MYJ 6666 has preferred m. F. A. . No. 2563 of 2000. On the other hand, being dissatisfied with the quantum of compensation granted by the Tribunal, the claimants, who are the parents of the deceased Mujju, have preferred Cross- objection Petition No. 25 of 2002 for enhancement of compensation. ( 2 ) THE brief facts leading to this appeal as well as the cross-objections are as under: that on 20. 11. 1994 at about 6 p. m. on honnali-Shimoga Road, at Chilur village, on account of rash and negligent driving of the mini lorry bearing No. MYJ 6666 by its driver, belonging to the appellant herein, the son of respondent Nos. 1 and 2 who was aged about 7 years, studying in second standard sustained grievous injuries and consequently died on the same day at 9. 30 p. m. while undergoing treatment at hospital. Respondent Nos. I and 2 herein being the parents of the said boy filed the claim petition before the Tribunal claiming compensation of Rs. 4,22,000. To substantiate their claim, the claimant No. 1 examined himself as PW 1 apart from an independent eyewitness to the accident as pw 2 and got marked Exhs. P-1 to P-5. On the other hand, the driver of the offending vehicle got examined himself as RW 1 and got marked Exhs. R-1 to R-3. The insurer has not let in any evidence on its behalf. After appreciating the oral and documentary evidence adduced by the parties, the Tribunal has held that the accident had occurred solely due to rash and negligent driving of the driver of the lorry and the said finding is not assailed by the appellant in this appeal. The Tribunal has awarded total compensation of Rs. 51,500 with interest at 12 per cent per annum from the date of petition till the date of payment. Though the offending vehicle was insured with Oriental Insurance Co. The Tribunal has awarded total compensation of Rs. 51,500 with interest at 12 per cent per annum from the date of petition till the date of payment. Though the offending vehicle was insured with Oriental Insurance Co. Ltd. , Shimoga, the respondent No. 4 herein, the Tribunal has fixed liability to pay the compensation on the owner of the lorry, i. e. , the appellant in M. F. A. . No. 2563 of 2000 on the ground that the driver of the lorry did not have valid licence to drive the said lorry on the date of accident and consequently, has concluded that the insurance company is not liable to pay the compensation. Assailing the said findings of the Tribunal, the owner of the offending vehicle and the claimants are before this court. ( 3 ) I have heard Mr. S. V. Prakash, the learned counsel appearing for the owner of the vehicle appellant, Mr. G. Lakshmeesh rao, Advocate for claimants-respondent nos. 1 and 2 and Mr. M. Sowri Raju, the learned counsel appearing for the insurer, respondent No. 4. The respondent No. 3, the driver of the offending vehicle, though served with the notice remained unrepresented. Perused the material available on record. ( 4 ) MR. S. V. Prakash, learned counsel appearing on behalf of the appellant argued that the vehicle in question is a light motor vehicle ('lmv' for short) as the unladen weight of the said vehicle is 5385 kg. , i. e. , less than 7500 kg. ; that driver of the said mini lorry was having the driving licence to drive the LMV and consequently, there is no violation of condition of insurance policy and as such, the Tribunal is not justified in foisting the liability to pay the compensation on the owner of the vehicle. On these grounds, he argued that insurance company is liable to pay the compensation. Per contra, Mr. M. Sowri Raju, the learned counsel appearing on behalf of the insurance company vehemently contended that the gross registered laden weight of the offending vehicle, as could be seen from the Exh. R-3, the 'b' register extract pertaining to the vehicle in question, is 14625 kg. Thus, the vehicle in question is a heavy goods transport vehicle. Per contra, Mr. M. Sowri Raju, the learned counsel appearing on behalf of the insurance company vehemently contended that the gross registered laden weight of the offending vehicle, as could be seen from the Exh. R-3, the 'b' register extract pertaining to the vehicle in question, is 14625 kg. Thus, the vehicle in question is a heavy goods transport vehicle. He further contended that the driver of the lorry did not have a driving licence to drive the heavy goods transport vehicle; consequently, there is a breach of condition of insurance policy and that, therefore, the court below is justified in holding that the insurance company is not liable to pay the compensation. He further submitted that the matter requires remand to the Tribunal to find out as to whether there is a nexus between the accident and the factum of non-holding of requisite licence by the driver of the lorry. On the other hand, Mr. G. Lakshmeesh rao, the learned counsel appearing for the claimants-respondent Nos. 1 and 2 contended that the amount of compensation awarded by the Tribunal is too meagre under the facts and circumstances of the case and that the same is required to be enhanced. ( 5 ) THE term 'light motor vehicle' (for short 'lmv'} is defined under section 2 (21) of Motor Vehicles Act, 1988 ('act' for short) which reads thus:"2 (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 road-roller the unladen weight of any of which, does not exceed 7500 kilograms. "the careful reading of the said provision discloses two points, viz. , (a) The light motor vehicle means, a transport vehicle or omnibus, the gross weight of either of which does not exceed 7500 kg. (b) A motor car or tractor or road- roller, the unladen weight of any of which does not exceed 7500 kg. Thus, as could be seen from the aforesaid definition, the unladen weight of less than 7500 kg. shall be taken into consideration only in respect of the motor car or tractor or road-roller to assess as to whether the said vehicle is LMV or not. But insofar as the transport vehicle or omnibus is concerned, the gross weight of said vehicle shall be taken into consideration to determine the nature of the vehicle. shall be taken into consideration only in respect of the motor car or tractor or road-roller to assess as to whether the said vehicle is LMV or not. But insofar as the transport vehicle or omnibus is concerned, the gross weight of said vehicle shall be taken into consideration to determine the nature of the vehicle. If the gross weight of such vehicle is less than 7500 kg. , then the vehicle can be termed as lmv. ( 6 ) IT is relevant to note the definition of heavy goods vehicle ('hgv' for short) as defined in section 2 (16) of the Act which reads thus:"2 (16) 'heavy goods vehicle' means any goods carriage the gross vehicle weight of which, or a tractor or a roadroller the unladen weight of either of which, exceeds 12000 kilograms. "the aforesaid definition again makes it clear that if any goods carriage, the gross weight of which exceeds 12000 kg. , is termed as HGV. On the other hand, if a tractor or a road-roller, the unladen weight of which exceeds 12000 kg. will be termed as HGV. ( 7 ) BOTH the aforesaid definitions make it amply clear that the goods carriage or the transport vehicles are characterised as lmv or HGV, only on the basis of the gross weight of the vehicle and not on the basis of the unladen weight of such vehicles. Whereas the tractor, road-roller or motor car are classified as LMV or HGV, as the case may be, on the basis of unladen weight. ( 8 ) THE 'gross weight of the vehicles' is defined under section 2 (15) of the Act which reads thus:"2 (15) 'gross vehicle weight' means in respect of any vehicle the total weight of the vehicle and load certified and registered by the registering authority as permissible for that vehicle. "thus, the gross weight of the vehicle means and includes load certified and registered by the registering authority, as permissible for that vehicle. ( 9 ) IN the case on hand, as could be seen from the document produced by the insurer, i. e. , Exh. R-3, the 'b' register extract of the vehicle in question, the registered laden weight of the vehicle is 14625 kg. As admittedly, the registered weight of the vehicle in question (Canter lorry) as defined in section 2 (15) of the Act is more than 12000 kg. R-3, the 'b' register extract of the vehicle in question, the registered laden weight of the vehicle is 14625 kg. As admittedly, the registered weight of the vehicle in question (Canter lorry) as defined in section 2 (15) of the Act is more than 12000 kg. , the vehicle in question can be safely termed as HGV. Under such circumstances, Mr. M. Sowri Raju, learned counsel appearing on behalf of respondent insurance company is justified in his submission that the vehicle in question is not a LMV but the same is a HGV. In view of the above, I hold that the vehicle in question is heavy goods transport vehicle and not light motor vehicle. ( 10 ) IT is also not in dispute that in the case on hand, the driver of the offending vehicle was authorised to drive only LMV. The same is clear from the document Exh. R-2, the history sheet of the driver issued by R. T. O. , Shimoga. However, the driver was subsequently authorised at the time of renewal of licence to drive the HGV with effect from 11. 10. 1996. The accident in question had occurred on 20. 11. 1994 and consequently, the subsequent licence obtained by the driver of the lorry to drive the HGV with effect from 11. 10. 1996 will not help either the driver or the owner of the lorry to contend that the driver of the offending vehicle was authorised to drive the heavy transport vehicle at the time of accident. Thus, for the purpose of this case, it can be safely held that as on the date of accident, driver of the offending vehicle was having licence only to drive LMV and not HGV. ( 11 ) HOWEVER, the question still remains as to whether the insurance company can avoid its liability to pay the compensation under the facts and circumstances of this case? ( 12 ) THE learned Tribunal, after relying upon the judgment of this court in the case of United India Insurance Co. Ltd. v. Dhanalakshmi, 1998 ACJ 715 (Karnataka), has held that the person having driving licence to drive the LMV cannot drive the hgv and consequently, has come to the conclusion that the insurance company is not liable to pay the compensation awarded. Ltd. v. Dhanalakshmi, 1998 ACJ 715 (Karnataka), has held that the person having driving licence to drive the LMV cannot drive the hgv and consequently, has come to the conclusion that the insurance company is not liable to pay the compensation awarded. It is pertinent to note here itself that the aforesaid judgment of this court was overruled by the Division Bench-of this court in the case of National Insurance co. Ltd. v. CM. Siddu, 2005 ACJ 635 (Karnataka), wherein, the Division Bench of this court, following the dictum laid down by the Apex Court in the case of national Insurance Co. Ltd. v. Swaran singh, 2004 ACJ 1 (SC), observed thus:" (15) It is well settled in view of the above said decision of the Supreme court that the mere fact that the driver was not authorised to drive the type of vehicle which he was driving at the time of the accident would not be a defence to avoid liability of the award passed in favour of a third party in respect of a compulsorily insurable claim as the provisions of compulsory insurance indisputably have been made, inter alia, with a view to protect the right of a third party (para 14) and such a benefit to a third party was provided under the statute keeping in view the fact that the conditions in the insured's policy may be of no or little effect in relation to a claim by a person to whom an insured was under a compulsorily insurable liability (para 20) and any condition in the insurance policy, whereby the right of the third party is taken away, would be void (para 19 ). It has also been observed by the Supreme Court in the above said decision that having regard to the provisions of section 149 (2) of the Act and having regard to the fact that the words used in section 3 and section 149 (2) are different, words have to be interpreted in the context in which they are used. (36) We may also take note of the fact that whereas in section 3 the words used are 'effective licence', it has been differently worded in section 149 (2), i. e. , 'duly licensed'. (36) We may also take note of the fact that whereas in section 3 the words used are 'effective licence', it has been differently worded in section 149 (2), i. e. , 'duly licensed'. If a person does not hold an effective licence as on the date of the accident, he may be liable for prosecution in terms of section 181 of the Act but section 149 pertains to insurance as regard third party risks. (37) A provision of a statute which is penal in nature vis-a-vis a provision which is beneficent to a third party must be interpreted differently. It is also well- known that the provisions contained in different expressions are ordinarily construed differently. (38) The words 'effective licence' used in section 3, therefore, in our opinion cannot be imported for sub-section (2) of section 149 of the Motor Vehicles act. We must also notice that the words 'duly licensed' used in sub-section (2) of section 149 are used in past tense. (16) The above said principles laid down by the Apex Court in the case of national Insurance Co. Ltd. , 2004 ACJ 1 (SC), would clearly answer the question referred to the Division Bench. The decisions of this court, which are contrary to the principles laid down by the apex Court in the above referred case, would stand overruled. The decision of this court in United India Insurance Co. Ltd. v. Dhanalakshmi, 1998 ACJ 715 (Karnataka), has to be read in the light of the observations made by the Apex court in the case of National Insurance co. Ltd. , 2004 ACJ 1 (SC), referred to above. However, it is the duty of the tribunal to find out in each case as to whether the insurance company has been able to discharge its burden of proving breach of conditions of the policy in the light of the observations made by the Apex Court in the above referred case and it should not absolve the insurance company of its liability to satisfy the claim of a third party whose interest is compulsorily insurable under the Act and would only enable the insurance company in case it succeeds in proving the breach of conditions of the policy, to recover the amount from the insured as laid down by the Apex Court in the above referred decision. " it is also relevant to note the summary of findings, which are relevant for this case, arrived at by the Apex Court in the case of National Insurance Co. Ltd. v. Swaran singh (supra), which reads thus: " (iii) The breach of policy condition, e. g. , disqualification of driver or invalid driving licence of the driver, as contained in sub-section (2) (a) (ii) of section 149, have to be proved to have been committed by the insured for avoiding liability by the insurer. Mere absence, fake or invalid driving licence or disqualification of the driver for driving at the relevant time, are not in themselves defences available to the insurer against either the insured or the third parties. To avoid its liability towards insured, the insurer has to prove that the insured was guilty of negligence and failed to exercise reasonable care in the matter of fulfilling the condition of the policy regarding use of vehicles by duly licensed driver or one who was not disqualified to drive at the relevant time. (iv) The insurance companies, however, with a view to avoid their liability must not only establish the available defence (s) raised in the said proceedings but must also establish 'breach' on the part of the owner of the vehicle: the burden of proof wherefore would be on them. (vi) Even where the insurer is able to prove breach on the part of the insured concerning the policy condition regarding holding of a valid licence by the driver or his qualification to drive during the relevant period, the insurer would not be allowed to avoid its liability towards insured unless the said breach or breaches on the condition of driving licence is/are so fundamental as are found to have contributed to the cause of the accident. The Claims Tribunals in interpreting the policy conditions would apply 'the rule of main purpose' and the concept of 'fundamental breach' to allow defences available to the insurer under section 149 (2) of the Act. The Claims Tribunals in interpreting the policy conditions would apply 'the rule of main purpose' and the concept of 'fundamental breach' to allow defences available to the insurer under section 149 (2) of the Act. " ( 13 ) LOOKING to the aforesaid principles laid down by the Division Bench of this court and the Apex Court, it is clear that in each case, on appreciation of the evidence let in before the Tribunal, the decision has to be taken to find out as to whether the fact that the driver possessing licence to drive one type of vehicle but found driving another type of vehicle was the main or fundamental or contributory cause of the accident. If on facts, it is found that accident was caused solely because of some other unforeseen or intervening causes 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. It is also clear from the aforesaid judgments that the burden is on the insurance company to prove that there was wilful breach on the part of the insured in permitting the driver holding a licence to drive a particular type of vehicle to drive another type of vehicle for which he was not licensed and that has to be proved by leading evidence by insurance company. ( 14 ) IN the instant case, the insurance company has not let in any evidence either oral or documentary on their behalf to substantiate that there was a wilful breach on the part of the insured in permitting his driver to drive HGV, though was holding licence to drive only LMV. Even the statement of objections filed by the insurance company before the Tribunal does not disclose any allegation against the insured that he has wilfully permitted his driver to drive the heavy goods vehicle though he had licence to drive the LMV. The material on record also does not disclose that the non-possessing of HGV driving licence was the main or contributory cause for the accident. The accident in this case has not occurred because of the reason that the driver of the vehicle in question was not having the licence to drive the HGV. The material on record also does not disclose that the non-possessing of HGV driving licence was the main or contributory cause for the accident. The accident in this case has not occurred because of the reason that the driver of the vehicle in question was not having the licence to drive the HGV. There is nothing on the record to suggest that the driver was disqualified or incapacitated to drive the HGV at the relevant point of time. The insurer has not proved that the insured was guilty of negligence and failed to exercise reasonable care in the matter of fulfilling the conditions of the policy regarding use of the vehicle by a duly licensed driver. ( 15 ) THE evidence of RW 1 driver of the offending vehicle, in the examination-in- chief discloses that he is the son of the owner of the lorry in question, that he was transporting 10 tonnes of paddy in the said lorry on the date of accident; that he was driving the vehicle lorry slowly; he was driving the said lorry since 12 years prior to the accident; that the accident had happened because the deceased boy suddenly came in front of the lorry as he wanted to cross the road while playing with the ball. The aforesaid evidence of the driver of the lorry clearly discloses that he had the long experience of driving the said lorry since 12 years. The same confirms that he is a seasoned driver and capable to drive the said vehicle. According to him, the deceased boy suddenly crossed the road. If it is so, the accident has not occurred due to the incapacity of the driver of the lorry to drive the said vehicle. There is no nexus between the accident and the factum of not possessing requisite type of licence by the driver. Under such circumstances, as has been held by the Supreme Court in Swaran Singh's case, 2004 ACJ 1 (SC), the insurance company shall not be allowed to avoid its liability to pay the compensation mainly on technical grounds of breach of condition by the driver of the offending vehicle. Thus, the finding arrived at by the tribunal that the insurance company is not liable to pay the compensation cannot be sustained and the same is liable to be set aside. Thus, the finding arrived at by the tribunal that the insurance company is not liable to pay the compensation cannot be sustained and the same is liable to be set aside. ( 16 ) THUS, it takes me to the next question as to whether compensation awarded by the Tribunal is just and proper? admittedly, deceased Mujju was 7 years old boy and was studying in second standard on the date of accident. He suffered grievous injuries in the said accident on account of rash and negligent driving of the driver of the mini lorry and died on the same day at 9. 30 p. m. while undergoing treatment in the hospital. This finding of fact is not assailed in this appeal either by the owner of the vehicle or by the insurer. The Tribunal, in addition to the grant of lump sum compensation of Rs. 50,000 awarded a sum of Rs. 1,000 for funeral expenses and Rs. 500 towards medical expenses. Thus, in all, it has awarded total compensation of Rs. 51,500. By now it is well settled that in the event, the person who lost his life in a motor accident had no income, notional income of Rs. 15,000 per annum can be taken as gross income of such person, as indicated in the Second schedule to the Motor Vehicles Act, 1988, to arrive at just and reasonable compensation. The Apex Court in the case of Haji zainullah Khan (dead) by L. Rs. v. Nagar mahapalika Allahabad, 1994 ACJ 993 (SC), has held that the Tribunal ought to have awarded compensation of at least rs. 1,50,000 for loss of child to the family. In the instant case, as the deceased Mujju was non-earning member of the family, notional income for the purpose of assessing the just compensation shall be taken as Rs. 15,000 per annum, out of which, if 1/3rd is deducted for notional personal expenses, the net income would come to rs. 10,000 per annum. The multiplier for the children aged up to 15 years has been set out as 15. Thus, applying the same, the compensation payable to the parents of the deceased is assessed at Rs. 1,50,000. The compensation of Rs. 1,500 awarded by the tribunal under other conventional heads, i. e. , funeral expenses and medical expenses does not call for interference by this court. Thus, applying the same, the compensation payable to the parents of the deceased is assessed at Rs. 1,50,000. The compensation of Rs. 1,500 awarded by the tribunal under other conventional heads, i. e. , funeral expenses and medical expenses does not call for interference by this court. Thus, this court is of the considered view that the claimants-respondent Nos. 1 and 2 in M. F. A. . No. 2563 of 2000 are entitled to receive compensation of Rs. 1,51,500 which can be rounded off to Rs. 1,52,000. ( 17 ) CONSEQUENTLY, M. F. A. . No. 2563 of 2000 filed by the owner of the vehicle as well as the cross-objections filed by the claimants-respondent Nos. 1 and 2 are entitled to be allowed. Hence, the following order is made: (A) The appeal as well as the cross- objections are allowed. (b) The amount of compensation is enhanced from Rs. 51,500 to Rs. 1,52,000. (c) The claimants-respondent Nos. 1 and 2 in M. F. A. . No. 2563 of 2000 are entitled to the enhanced compensation of Rs. 1,00,500 (rupees one lakh five hundred only) with interest at the rate of 6 per cent per annum from the date of petition till the date of receipt of the amount. However, the interest at 12 per cent per annum awarded by the Tribunal on Rs. 51,500 shall remain unaltered. (d) The insurer, i. e. , Oriental Insurance co. Ltd. , the respondent No. 4 in M. F. A. . No. 2563 of 2000 is liable to pay the entire compensation. (e) The amount of Rs. 25,000 deposited by the owner of the vehicle is said to have been withdrawn by the claimants during the pendency of this appeal. The insurance company shall deposit the entire compensation as determined above within eight weeks and out of the said amount, the amount of Rs. 25,000 shall be refunded to the owner of the vehicle (appellant in M. F. A. . No. 2563 of 2000 ). Orders accordingly. --- *** --- .