Judgment That, on 13.12.2006 when N.M.Rajaprakash (petitioner) was a pedestrian crossing Infantry Road, Bangalore, a Ford car bearing registration No.KA-01-B-528 driven by its driven by its driver rashly and negligently, dashed against him and as a result he sustained injuries such as Type-I compound fracture of both bones of right forearm and multiple abrasions. 2. The offending car belonged to one A.Somaiah (insured/owner). The car was insured with Bajaj Allianz General Insurance Co. Ltd. (insurer). On being informed of the accident, the Cubbon Park police registered a case against the driver of the offending vehicle – S.K.Shivanna Gowda (driver) for offences punishable under Sections 279 & 337 I.P.C. and prosecuted him. 3. A claim petition was filed in the MACT under Section 166 of Indian Motor Vehicles Act, 1988 (for short ‘the Act’) against the owner and insurer of the offending car, for awarding a compensation of Rs.5,00,000/-. The owner of the car did not appear and was placed exparte. The insurer filed its statement of objections. Issuance of policy of insurance in respect of passenger carrying commercial vehicle – taxi, was admitted. However, it was contended that the liability, if any, is limited to the terms and conditions of the policy and as per Section 147 of the Act and valid & effective driving licence of the driver to drive passenger carrying commercial vehicle. It was further contended that the driver of the said vehicle being not holder of a valid and effective driving licence, it is not liable to indemnify the insured. 4. Taking into consideration the material pleadings, MACT raised the issues. Petitioner deposed as PW-1. Doctor who treated him at Hosmat Hospital deposed as PW-2. Exs.P-1 to Ex.P-4 – the police records and Exs.P-5 to Ex.P-14 – the medical records, were marked. For the insurer, RW-1 deposed and Exs.R-1 to Ex.R-4, were marked. Considering the rival contentions, the Tribunal held that, the accident has taken place on account of actionable negligence on the part of driver of the offending car and as a result the petitioner sustained injuries and hence is entitled to be compensated. 5. For the insurer, RW-1 deposed and Exs.R-1 to Ex.R-4, were marked. Considering the rival contentions, the Tribunal held that, the accident has taken place on account of actionable negligence on the part of driver of the offending car and as a result the petitioner sustained injuries and hence is entitled to be compensated. 5. The contention of the insurance company regarding its non-liability based on the evidence of RW-1 and ExR-1 to Ex.R-4 has been considered by the MACT and it is held as follows: “Ex.R-4 discloses that driver of car was having driving licence as on the date of accident to drive light motor vehicle (NT) only. Though the policy Ex.R-1 describes the vehicle as commercial vehicle, but the fact that the said vehicle was a car is not in dispute. RW-1 in his cross-examination has admitted that car, which is involved in the accident is a passenger vehicle and car is a light motor vehicle. In view of this admission of RW-1, it is clear that under Ex.R-4 driver Shivanna Gowda was authorized to drive the car, which comes under light motor vehicle.” (underlining by me) 6. After referring to the two decisions on which reliance was placed by the learned counsel for the insurance company, the MACT has held as follows: “When the evidence on record establishes that the driver of the car had driving licence to drive light motor vehicle (NT) and when the car in question comes under light motor vehicle, the contention of second respondent as to its liability cannot be accepted. Ex.R-1 discloses that policy has been issued in respect of Ford Icon car and the same was valid as on the date of the accident. The description of the car as commercial vehicle under Ex.R-1 does not come in the way of holding the driver of the car possessing valid driving licence as the date of accident in question. Hence, respondent Nos.1 & 2 are jointly and severally liable to pay the compensation amount with interest to the petitioner.” (underlining by me) MACT assessed the compensation amount payable at Rs.90,700/- with interest and passed the award against both the insured and the insurer. Aggrieved, the insurer has filed the appeal. Petitioner has filed the cross objection. 7. Ex.R-1 is the certificate-cum-policy of insurance. The vehicle in question was insured for the period from 07.08.2006 to 06.08.2007. Aggrieved, the insurer has filed the appeal. Petitioner has filed the cross objection. 7. Ex.R-1 is the certificate-cum-policy of insurance. The vehicle in question was insured for the period from 07.08.2006 to 06.08.2007. The policy is a commercial vehicle package policy. The registration certificate and the motor vehicle taxation card of the vehicle in question in the relevant columns shows that it is a ‘luxury taxi’. The aid records contain an endorsement to the following effect: “The vehicle shall not be converted as a light motor vehicle – motor car for a period of three years from the date of registration’. 8. Smt.H.R.Renuka, learned advocate appearing for the appellant contended that, in view of the fact that the registration certificate and also the policy of insurance (Ex.R-1) having clearly mentioned that the vehicle in question is a commercial vehicle and as the driver thereof, was not possessing a licence which was valid for driving a transport vehicle, the impugned judgment/award fastening the liability on the appellant is illegal. She contended that on the facts established & proved, the appellant/insurer has no liability to indemnify the insured. 9. Learned advocate appearing on behalf of the petitioner/cross objector, on the other hand, vehemently contended that, the driver of the car had effective driving licence for driving a light motor vehicle and it did not matter as to whether it was a transport vehicle – taxi. Learned counsel further contended that, the amount awarded by the Tribunal is not just compensation. He urged for re-appreciation of the evidence on record and to pass a just award. 10. Keeping in view the rival contentions, I have perused the records. The points for determination are: 1. Whether on the facts established, the MACT is justified in fastening the liability on the insurer to indemnify the insured? 2. Whether the compensation assessed and awarded by the MACT is just compensation? Re-point No.1: 11. Sections 2(10), 2(14) and 2(21) of the Act contain the meanings of the words ‘driving licence’, ‘goods carriage’ and ‘light motor vehicle’ respectively appearing in the Act. Section 2(21) brings within its umbrage both ‘transport vehicle’ or omnibus’. A distinction vehicle and passenger motor vehicle exists, to which a reference would be made infra. 12. Section 3 mandates the necessity for driving licence. Section 2(21) brings within its umbrage both ‘transport vehicle’ or omnibus’. A distinction vehicle and passenger motor vehicle exists, to which a reference would be made infra. 12. Section 3 mandates the necessity for driving licence. In terms of sub-section (1) thereunder, no person shall drive a motor vehicle in any public place unless he holds an effective driving licence issued to him authorizing him to drive the vehicle; and no person shall so drive a transport vehicle other than a motor car or motor cycle hired for his own use or rented under any scheme made under sub-section (2) of Section 75 unless his driving licence specifically entitles him to do so. 13. Section 9 is with regard to grant of driving licence. Section 10 prescribes the form and contents of licences to drive. Different classes of vehicle have been stated under different provisions of the Act. 14. A distinction between ‘light motor vehicle’ and ‘transport vehicle’ is, therefore, evident. A transport vehicle may be a light motor vehicle, but, for the purpose of driving the same, a district licence is required to be obtained in terms of the Statute. The distinction between ‘transport vehicle’ and ‘passenger vehicle’ can also be noticed from Section 14. Sub-section (2) thereof provides for duration of a period of three years in case of effective driving licence to drive ‘transport vehicle’ whereas in case of any other licence, it may remain effective for a period of 20 years. 15. Both the driver and the owner of the offending car did not examine themselves in the case. The driving licence of S.K.Shivanna Gowda – the driver, is at Ex.R-4. RW-1 deposed that, the car in question is registered as passenger carrying commercial vehicle (taxi) which can be driven by a driver holding licence to drive transport vehicle and that the driver, who was driving the car, had only light motor vehicle (NT) licence and as per the Act, he is termed as non-licencee. RW-1 deposed that, under the policy as at Ex.R-1 issued in favour of the insured, the driver who drives the car (taxi) shall have valid and effective driving licence to drive the said class of vehicle and if not, the insurer is not liable to indemnify the insured. RW-1 deposed that, under the policy as at Ex.R-1 issued in favour of the insured, the driver who drives the car (taxi) shall have valid and effective driving licence to drive the said class of vehicle and if not, the insurer is not liable to indemnify the insured. He deposed that, driver who caused the accident had licence (Ex.R-4) to drive light motor vehicle (NT) under licence No.13711/2002 valid from 26.11.2002 to 31.05.2021. RW1 further deposed that, since the insured by entrusting the car has consciously violated the terms and conditions of the policy, the insurance company is not liable to indemnify the insured for the violation of provisions of the Act and the terms & conditions of the policy. In the cross-examination of RW-1, it has been elicited that, the car which is involved in the accident, is a passenger vehicle and that it is a light motor vehicle. RW1 has rightly denied the suggestion that, in light motor vehicle there is no classification as transport and non-transport. He has pointed out that in EX.R-4 – driving licence, it is written as non-transport. Evidence of RW-1 is consistent with Ex.R-1 & Ex.R-4. Nothing material has been elicited in the cross-examination to discredit the evidence of RW-1. 16. The licence granted in favour of the driver as at Ex.R-4 goes to show that the same was granted for a vehicle other than a transport vehicle. It is valid from 26.11.2002 to 31.05.2021. Section 14 (2) (a) provides that a driving licence issued or renewed under the Act shall in case of licence to drive a transport vehicle will be effective for a period of three years whereas in the case of any other vehicle it can be issued renewed for a period of 20 years from the date of issuance or renewal. The fact that the licence Ex.R-4 was granted for a period of about 20 years, thus, clearly shows that driver of the vehicle was not granted a valid licence for driving a transport vehicle. Ex.R-4 having been granted for a period of about 20 years, a presumption, therefore, arises that it was meant for the purpose of a vehicle other than a transport vehicle. Even otherwise with regard to column No.5 of Ex.R-4, authorization is to drive light motor vehicle (NT). The endorsement made by Licencing Authority in Ex.R4 is for light motor vehicle (NT) only. Even otherwise with regard to column No.5 of Ex.R-4, authorization is to drive light motor vehicle (NT). The endorsement made by Licencing Authority in Ex.R4 is for light motor vehicle (NT) only. Hence, the licence held by the driver of the offending car in question cannot be said to be valid and effective driving licence to drive a transport vehicle. Beach of conditions of the insurance policy is, therefore, apparent on the fact of the records. There is non appreciation of the material evidence of RW1 and Exs.R1 & R4 in the proper perspective with reference to the relevant provisions of the Act. Learned member of the MACT has filed to notice the material provisions of the Act and has erred in the matter of ordering the indemnification of the insured by the Insurance Company. 17. Smt.H.R.Renuka, is right in contending that, the Tribunal has committed a material error in holding that the ratio of the decision in the case of New India Assurance Co. Ltd, Vs. Prabhu Lal, [ (2008) 1 SCC 696 ], has no application to the instant case on hand. In the said decision, the effect of terms of licences granted in terms of the provisions of Section 2(14) and 2(47) has been noticed and held as under: “30. Now, it is the case of the Insurance Company that the vehicle of the complainant which met with an accident was a “transport vehicle”. It was submitted that the insured vehicle was a “goods carriage” and was thus a “transport vehicle”. The vehicle was driven by Ram Narain, who was authorized to drive light motor vehicle and not a transport vehicle. Since the driver had no licence to drive transport vehicle in absence of necessary endorsement in his licence to that effect, he could not have been driven Tata 709 and when that vehicle met with an accident, the Insurance Company could not be made liable to pay compensation. XXX XXX XXX 27. The argument of the Insurance Company is that at the time of accident, Ram Narain had no valid and effect licence to drive Tata 709. Indisputably, Ram Narain was having a licence to drive light motor vehicle. XXX XXX XXX 27. The argument of the Insurance Company is that at the time of accident, Ram Narain had no valid and effect licence to drive Tata 709. Indisputably, Ram Narain was having a licence to drive light motor vehicle. The learned counsel for the Insurance Company, referring to various provisions of the Act submitted that if a person is having licence to drive light motor vehicle, he cannot drive a transport vehicle unless his driving licence specifically entitles him to do so (Section 3). Clauses (14), (21), (28) and (47) of Section 2 make it clear that if a vehicle is “light motor vehicle”, but falls under the category of transport vehicle, the driving licence has to be duly endorsed under Section 3 of the Act. If it is not done, a person holding driving licence to ply light motor vehicle cannot ply transport vehicle. It is not in dispute that in the instant case, Ram Narain was having licence to drive light motor vehicle. The licence was not endorsed as required and hence, he could not have driven Tata 709 in absence of requisite endorsement and the Insurance Company could not be held liable. 38. We find considerable force in the submission of the learned counsel for the Insurance Company. We also find that the District Forum considered the question in its proper perspective and held that the vehicle driven by Ram Narain was covered by the category of transport vehicle under Clause (47) of Section 2 of the Act. Section 3, therefore, required the driver to have an endorsement which would entitle him to ply such vehicle. It is not even the case of the complainant that there was such endorsement and Ram Narain was allowed to ply transport vehicle. On the contrary, the case of the complainant was that it was Mohd. Julfikar who was driving the vehicle. To us, therefore, the District Forum was right in holding that Ram Narain could not have driven the vehicle in question.” The court distinguished its earlier judgment in Ashok Gangadhar Maratha V. Oriental Insurance Co. Ltd., [(1999) (6) SCC 6200] stating: “41. In our judgment, Ashok Gangadhar did not lay down that the driver holding licence to drive a light motor vehicle not have an endorsement to drive transport vehicle and yet he can endorsement to drive transport vehicle and yet he can drive such vehicle. Ltd., [(1999) (6) SCC 6200] stating: “41. In our judgment, Ashok Gangadhar did not lay down that the driver holding licence to drive a light motor vehicle not have an endorsement to drive transport vehicle and yet he can endorsement to drive transport vehicle and yet he can drive such vehicle. It was on the peculiar facts of the case, as the Insurance Company neither pleaded nor proved that the vehicle was transport vehicle by placing on record the permit issued by the Transport Authority that the Insurance Company was held liable.” (emphasis supplied by me) 18. It is established that the offending vehicle is a taxi and thus, a commercial vehicle. S.K.Shivanna Gowda drove the offending car on the date of accident. No doubt he had a driving licence. Driving licence, however granted to him was for driving a light motor vehicle (NT) only. The insurer raised the defence, which falls under the purview of sub-section (2) of S.149 of the Act. Since the vehicle in question is a commercial vehicle the driver was required to hold an appropriate licence to drive the car. S.K.Shivanna Gowda – driver, as noticed herein before, was holder of licence to drive a light motor vehicle (NT) 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 and hence, the appellant-insurer is not liable to indemnify the insured/award. Re-point No.2: 19. Ex.P-5 the would certificate discloses that, petitioner sustained Type I open fracture of both bones right forearm. PW-2 has deposed about the injuries. Ex.P-6 is the discharge summary. The medical records at Ex.P-13 and Ex.P-14 establish the sustaining of said fracture by the petitioner as a result of the accident. Petitioner took at Bowring & Lady Curzon Hospital and later as an inpatient at Hosmat Hospital. Considering the nature of injuries sustained, the pain and suffering undergone, the compensation which can be awarded under the head ‘pain and suffering’ is Rs.25,000/-. 20. Petitioner though has deposed that he spent Rs.40,000/- towards medical expenses and incidental charges, the bills produced, which are at Exs.P-9 and Ex.P-10, amount to Rs.3,300/- only. Petitioner being a Government servant had the facility of medical reimbursement by the employer. 20. Petitioner though has deposed that he spent Rs.40,000/- towards medical expenses and incidental charges, the bills produced, which are at Exs.P-9 and Ex.P-10, amount to Rs.3,300/- only. Petitioner being a Government servant had the facility of medical reimbursement by the employer. Though he has stated that he did not claim reimbursement, the very fact that he did not produce the original medical bills (except Exs.P9 & P10) indicates that he might have produced the same before his employer and might have obtained the reimbursement. Hence, other than the bills at Ex.P-9 and Ex.P-10 for Rs.3,300/- he is not entitled for reimbursement. He was an impatient for 4 days only at Hosmat Hospital. Considering the incidental expenses, he is entitled to incidental charges at Rs.4,700/-. Evidence of PW-2 shows that he had advised petitioner to undergo surgery for removal of implants. Hence, towards future medical expenses, there can be provision for payment of Rs.10,000/-. 21. Ex.P-8 is the salary slip which shows that petitioner was drawing salary of Rs.7,700/- per month. Ex.P-7 is the leave availment certificate. Petitioner has availed earned leave for 30 days. Though there is an admission regarding receiving of salary during leave period, the earned leave being encashable, having been made use of, there is loss of salary income of one month i.e., Rs.7,700/-, which he is entitled to be compensated. 22. Petitioner has deposed regarding permanent disability. PW-2, orthopaedic surgeon has assessed the permanent disability of petitioner at 36% to particular limb and 12% to the whole body. Petitioner is a Government servant. He continues to be in employment. Because of accidental injuries, petitioners service conditions are not in any way altered. There is no drop in his salary and other emoluments. Hence the disability cannot be considered as functional disability and there is no loss in the future earning capacity of the petitioner. 23. Evidence of PW-1 shows that, on account of sustaining of the injuries in the accident, he has difficulty to hold an article, lift weight, pull or push, since his right hand has become weak. Evidence of PW-2 shows that, the movements of forearm is restricted and is painful and that, there is healed surgical scar present at the fracture site, as a result of which, PW-1 cannot lift heavy object with right hand. Evidence of PW-2 shows that, the movements of forearm is restricted and is painful and that, there is healed surgical scar present at the fracture site, as a result of which, PW-1 cannot lift heavy object with right hand. Keeping in view the evidence of both PW-1 & PW-2, it can be held that, petitioner suffers from unhappiness to some extent while doing his normal activities. Hence, under the head loss of amenities, he is entitled to compensation of Rs.40,000/-. 24. Considering the evidence on record, the Tribunal has correctly assessed the loss. The just compensation which the petitioner is entitled to is Rs.90,000/-. No enhancement of compensation in the facts and circumstances of the case, is called for. For the foregoing reasons, appeal filed by the insurance company stands allowed and the liability cast on it in the impugned award stands set-aside. However, the owner of the car is liable to satisfy the award. The amount in deposit in MFA 492/09 be refunded to the appellant therein – Insurance Company. Cross –objection of the petitioner is devoid of merit and shall stand dismissed. In the circumstances, both the parties are directed to bear their respective costs.