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2008 DIGILAW 267 (MP)

NATIONAL INSURANCE CO LTD v. SANJAY

2008-02-19

P.K.JAISWAL

body2008
Judgment ( 1. ) APPELLANT by Mr. R. V. Sharma, Advocate. Respondent Nos. 2 and 3 by Mr. Mahesh Goyal, Advocate. Heard on admission. ( 2. ) THIS appeal is filed by the insurance company under section 173 of the Motor vehicles Act, 1988 (in short the Act)challenging the award dated 16. 5. 2003, passed in Claim Case No. 51 of 2002, whereby learned Tribunal awarded a sum of Rs. 50,000 to the claimant, respondent no. 1 and also directed the appellant insurance company to indemnify the insured. Other findings pertaining to the involvement of vehicle and terms and conditions of the insurance policy and the date of insurance of the offending vehicle is not under challenge. ( 3. ) THE learned counsel for the appellant submits that the learned Tribunal committed error in not exonerating the insurance company in indemnifying the insured. He submitted that as per section 2 (47) and section 3 of the Act, the driver, respondent no. 2, was not having valid driving licence to drive Tata 407 vehicle which is registered as a goods carriage. In support of the said contention he drew my attention to the statement of A. K. Singh, NAW 1 and ramesh Chandra Sharma, NAW 2, employees of the R. T. O. , Gwalior. These two witnesses in their statement very specifically stated that though the respondent No. 2 was having driving licence to drive light motor vehicle and motor cycle but he was not permitted to drive light commercial vehicle, i. e. , the offending vehicle. He also drew my attention to the insurance policy, exh. D1 and submitted that the offending vehicle is registered as goods carriage vehicle and on the date of accident the driver was not having valid driving licence to drive goods vehicle. In support of the said contention he drew my attention to the decision of the Division Bench at Indore in the case of Mahesh Kumar v. Hari Shanker patel, 2001 ACJ 2071 (MP), wherein it was held that driver was driving Matador which is a light motor vehicle and driver had a licence to drive light motor vehicle but the vehicle was being used as a public service vehicle for carrying passengers. Endorsement of professional licence was made after the date of accident and on the date of accident the driver was not having licence to drive professional commercial vehicle and, therefore, insurance company is not liable to indemnify the insured. He further submitted that the Supreme Court in the case of National Insurance Co. Ltd. v. Kusum Rai, 2006 ACJ 1336 (SC), had taken the similar view. The relevant paras 9 and 17 read as under: " (9) It has not been disputed before us that the vehicle was being used as a taxi. It was, therefore, a commercial vehicle. The driver of the said vehicle, thus, was required to hold an appropriate licence, therefor. Ram Lal who allegedly was driving the said vehicle at the relevant time as noticed hereinbefore, was holder of a licence to drive a light motor vehicle only. He did not possess any licence to drive a commercial vehicle. Evidently, therefore, there was a breach of condition of the contract of insurance. The appellant, therefore, could raise the said defence. (17) Although, thus, we are of the opinion that the appellant was not liable to pay the claimed amount as the driver was not possessing a valid licence and the High Court was in error in holding otherwise, we decline to interfere with the impugned award, in the peculiar facts and circumstances of the case, in exercise of our jurisdiction under Article 136 of the Constitution of India but we direct that the appellant may recover the amount from the owner in the same manner as was directed in Nanjappan s case, 2004 ACJ 721 (SC ). " The Apex Court further held that driver had licence to drive light motor vehicle but he was driving a jeep which was being plied as a taxi, a commercial vehicle and there was breach of conditions of contract of insurance by the insured and the insurance company is exempted from liability. ( 4. ) CONSIDERING these facts and circumstances of the case and in view of oral and documentary evidence it is an admitted fact that respondent No. 2 was not having valid driving licence to drive light commercial vehicle and in licence, Exh. ( 4. ) CONSIDERING these facts and circumstances of the case and in view of oral and documentary evidence it is an admitted fact that respondent No. 2 was not having valid driving licence to drive light commercial vehicle and in licence, Exh. D3, no endorsement was made to drive commercial vehicle and, therefore, in view of law laid down by the Apex Court and Division bench of this court the driver was driving the vehicle contrary to the terms and conditions of the insurance policy and, therefore, insurance company is not liable to indemnify the insured, but in view of law laid down by the Apex Court, it is directed that the insurance company shall pay the amount and recover it from the owner of the vehicle, respondent No. 2, by initiating execution proceedings in accordance with law and as per the decision of the Apex court in the case of National Insurance co. Ltd. v. Swaran Singh, 2004 ACJ 1 (SC), recover the amount from the owner in the case of Oriental Insurance Co. Ltd. v. Nanjappan, 2004 ACJ 721 (SC ). ( 5. ) LEARNED counsel for the appellant further submitted that the amount awarded by the Claims Tribunal is on the higher side. On the other hand, learned counsel for the claimant, respondent No. 1 drew my attention to the cross-objection filed by him and submitted that looking to the nature of injuries received by the respondent no. 1, who was at the time of accident 11 years of age, learned Tribunal committed error in holding that the claimant has not suffered any permanent disability, he also drew my attention to the medical papers and documents filed in Claim Case No. 51 of 2001. It is not in dispute that treating doctor Dr. Vijay Kumar Chauhan, NAW 4, who is private medical practitioner, in para 5 of his cross-examination admitted he was not the treating doctor nor he examined the respondent No. 1 at the time of accident. He first time examined the claimants on 26. 2. 2003 and on the basis of discharge ticket he issued the certificate. ( 6. ) CONSIDERING these facts and circumstances of the case the Claims Tribunal has not committed any error in holding that the claimant has not suffered from any permanent disability. He first time examined the claimants on 26. 2. 2003 and on the basis of discharge ticket he issued the certificate. ( 6. ) CONSIDERING these facts and circumstances of the case the Claims Tribunal has not committed any error in holding that the claimant has not suffered from any permanent disability. No receipt of medical expenses has been filed by the claimant and, therefore, the Claims Tribunal after considering the oral and documentary evidence on record in para 24 of the impugned award has held that the respondent No. 1 spent around Rs. 20,000 towards medical expenses and awarded the said amount to him. In respect of pain and suffering the claims Tribunal awarded Rs. 10,000 which is just and proper. In respect of disability the Claims Tribunal looking to the age of respondent No. 1 awarded Rs. 20,000. On perusal of the material available on record i am of the considered view that the impugned award passed by Claims Tribunal is just and proper and it cannot be said that the award is on the lower side. ( 7. ) WITH the above-mentioned reasons the appeal filed by the appellant is partly allowed to the extent as indicated hereinabove. Cross-objections filed by I. A. No. 1016 of 2008 has no merit and is accordingly dismissed, but without any order as to costs. Appeal partly allowed.