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2008 DIGILAW 145 (JK)

National Insurance Co. Ltd. v. Manzoor Ahmad Bhat

2008-04-24

MANSOOR AHMAD MIR

body2008
1. By the medium of this appeal appellant - insurer has questioned the award dated 01.08.2006 passed by Motor Accident Claims Tribunal, Srinagar, whereby and whereunder the claim petition of claimants, Manzoor Ahmad Bhat & Mst. Dilshada, came to be allowed and Rs. 2,40,000/- came to be awarded as compensation. 2. One, Imtiyaz Ahmad Bhat aged 19 years was hit by a vehicle Tata Sumo Mini Bus bearing registration No. JK01B/1527 at Kadalbal, Pampore on 19th August, 2000, which was being driven rashly and negligently by its driver, Mohammad Yousuf Mir - respondent No.6, who sustained injuries and succumbed to injuries on spot. 3. Claimants - parents of the deceased filed claim petition and claimed compensation to the tune of Rs. 25,13,000/- as per the break up given in the claim petition. Driver and owners - respondents 3 to 6 have not appeared before the learned Tribunal and were set exparte. Insurer - appellant contested the claim petition and following issues came to be framed: "1. Whether on 19.08.2000 respondent No.4 Mohd. Yousuf Mir while driving a vehicle (TATA Mini-bus) bearing registration No. JK13-1527 rashly and negligently hit and injured one Imtiyaz Ahmad Bhat at Kadlabal Pampore who later oh succumbed to the injuries on spot? O.P.P. 2. Whether the driver of the offending vehicle was not holding a valid driving licence and as such the Insurance Company cannot be saddled with the liability? O.P.R-1 3. In case issue No.1 is proved in affirmative, to what amount of compensation are the petitioners entitled to, from whom and in what proportion? O.P.P. 4. Relief." 4. Claimants - petitioners besides themselves examined Mohammad Shafi Bhat, Nazir Ahmad Bhat, Nazir Ahmad Rather, Manzoor Ahmad - Inspector. 5. Respondents examined only two witnesses viz; Peerzada Nooruddin Licensing Clerk RTO, Srinagar, and Jung Bahadur Assistant Administrative Officer of the appellant company. Appellant - insurer also filed application under Section 170 of the Motor Vehicles Act before the tribunal - came to be allowed vide order dated 8th of November, 2005. Issue No.1: 6. Claimants as well as their witnesses have deposed that Mohammad Yousuf Mir - driver has driven the vehicle TATA Mini Bus bearing registration No.JK13/1521 offending vehicle rashly and negligently at Kadlabal Pampore and deceased sustained the injuries and succumbed to the injuries. Issue No.1: 6. Claimants as well as their witnesses have deposed that Mohammad Yousuf Mir - driver has driven the vehicle TATA Mini Bus bearing registration No.JK13/1521 offending vehicle rashly and negligently at Kadlabal Pampore and deceased sustained the injuries and succumbed to the injuries. FIR was lodged and Manzoor Ahmad - Inspector (Investigating Officer) conducted investigation and came to the conclusion that accident was outcome of rashness and negligence of the driver. I am of the considered view that claimants have proved by leading evidence that driver Mohammad Yousuf Mir has driven the vehicle rashly and negligently. Thus, issue No.1 came to be rightly decided by the tribunal. Issue No.2: 7. Admittedly, driver Mohammad Yousuf Mir was having valid driving licence for driving vehicles of `C Kind. The vehicles which fall within the category `C are LMV, LGV and HGV. Thus, driver was competent to drive the vehicles of the kind of LMV, LGV and HGV. It is beaten law of the land that Tata Mini Bus falls within the category of LMV vehicles and driver who is authorized to drive LMV is not required to have PSV endorsement in its licence. 8. This court in case titled National Insurance Co. Ltd. Vs. Irfan Sidiq Bhat, reported as 2004 (II) SLJ 623, has 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 held, that the authorization of having PSV endorsement in terms of Rule 4(1)(a) of the Rules is not required in the given circumstances. It is profitable to reproduce paras 13 and 17 of the judgment herein: "13. A combined reading of the above provisions leaves no room for doubt that by virtue of licence, about which there is no dispute, both Showkat Ahmad 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 and express authorization in terms of rule 4(l)(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 Noor-ud-Din 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 other words, the requirement of the State Rules stood satisfied................... 17. In the case of Mohammad Aslam Khan (CIMA No.87 of 2002) Peerzada Noor-ud-Din 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. Infact, there is no separate definition of passenger 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." 9. The Division Bench of this court has also taken the same view in case titled National Insurance Co. Ltd. Vs. Muhammad Sidiq Kuchey & Ors., 2008 (18) JKJ HC-422 [LPA No. 180/2002 decided on 27.09.2007]. It has held that where driving licence authorizes a person to drive LMV, there is no need to have authorization or endorsement in terms of Rule 4(1)(a) of State Rules. The state rules are to be read as compliment to the Act and not in derogation of it. Rule 4(1)(a) of the State Rules is to be read with Section 235 of Central Act. 10. The Apex Court also in a case National Insurance Company Ltd. V. Annappu Irappa Nesaria, 2008 AIR SCW 906 held that a driver having licence of light motor vehicle can drive "light passenger carriage vehicle" and "light goods carriage vehicle". Thus, driver cannot be said to be not possessing effective driving licence to drive a Matador. 11. Keeping in view the above discussion, the driver was competent to drive the offending vehicle and finding returned by the tribunal needs no interference. Issue No.3: 12. There is ample evidence on the file that deceased aged 19 years was a student and un-married. 11. Keeping in view the above discussion, the driver was competent to drive the offending vehicle and finding returned by the tribunal needs no interference. Issue No.3: 12. There is ample evidence on the file that deceased aged 19 years was a student and un-married. Deceased was 19 years of age and at the best could have been labourer and by guess work he could have been earning an amount of Rs.4500/- per month if taken as a labourer. However, he was a student and may be he would have earned more than that but unfortunately his life was cut short by the road accident and thereby has brought claimants on streets who have lost their source of hope, assistance and dependency during old age. The compensation awarded though being on lower side appears to be just but is not excessive or exorbitant. In the given circumstances, I am of the considered view that tribunal has awarded just compensation. However, the Tribunal has fallen in error while awarding the interest at the rate of 9%. Thus, I deem it proper to reduce the interest from 9% to 6%. 13. Impugned award is accordingly modified and, the appeal is disposed of. Registry to send down the record along with a copy of this judgment.