National Insurance Co. Ltd. v. Bashir Ahmad Chopan & Ors.
2012-03-28
HASNAIN MASSODI
body2012
DigiLaw.ai
1. The Civil 1st Miscellaneous Appeal on hand is directed against the award of Motor Accident Claims Tribunal, Srinagar dated 16th December, 2008 in claim petition titled "Bashir Ahmed Chopan and anr. v. Syed Rafiq Ahmad and ors.", whereby learned Tribunal has awarded Rs.6,69,000/- (Rupees six lac and sixty nine thousands) as compensation to the claimants/respondents in the present appeal, on account of death of wife of claimant/respondent No.1 and mother of claimant/respondent no.2 in a vehicular accident on 21st August, 2003 at Umar-abad, Srinagar. The award is assailed on following two grounds:- i) That the driver of the bus bearing registration No.JK01D-4605 that hit the scooter on which the deceased was traveling from rear, was not having PSV endorsement on the driving license, that entitled him to drive a Light Motor Vehicle/Medium Goods Vehicle/Heavy Goods Vehicle (LMV/MGV/HGV) and, thus, was not competent to drive the offending vehicle; that the owner of the vehicle, by allowing its driver to drive the bus has committed breach of insurance contract releasing the appellant Insurance Company of liability to indemnify the owner. ii) That the compensation assessed by the Tribunal is excessive, unreal and exorbitant and is not "just compensation" within meaning of Section 168 of Motor Vehicles Act. 2. I have gone through the memorandum of appeal as also the record received from the Tribunal and have heard learned counsel for the parties. 3. The driver of the offending vehicle as evident from the material brought on the file including EXPR-3, was holding the driving license that declared him competent to drive a Heavy Goods Vehicle/Medium Goods Vehicle and Light Motor Vehicle. The offending vehicle is a bus having capacity of carrying 52 passengers. The offending vehicle, thus, falls within the definition of "Heavy Passenger Motor Vehicle" as defined under Section 2 (17) of the Motor Vehicles Act, 1988" inasmuch as its weight exceeds 12,000 Kilograms. Section 2 (21) of the Act defines a Light Motor Vehicle as a transport vehicle or omnibus the gross vehicle weight of either of which or a motor car or tractor or road-roller the un-laden weight of any of which, does not exceed 7,500 kilograms. The offending vehicle, thus, does not fall within the definition of "Light Motor Vehicle".
Section 2 (21) of the Act defines a Light Motor Vehicle as a transport vehicle or omnibus the gross vehicle weight of either of which or a motor car or tractor or road-roller the un-laden weight of any of which, does not exceed 7,500 kilograms. The offending vehicle, thus, does not fall within the definition of "Light Motor Vehicle". There is no question of the offending vehicle falling within the definition of "Medium Goods Vehicle" or "Heavy Goods Vehicle" inasmuch as the offending vehicle admittedly was a passenger vehicle. The driver of the offending vehicle was, therefore, not competent to drive a "Heavy Passenger Motor Vehicle" and his license was not effective as regards the vehicle he was driving at the time of tragic accident. Learned Tribunal has misread "Heavy Goods Vehicle" as "Heavy Transport Vehicle" and proceeding on such assumption held the offending vehicle to be a transport vehicle inasmuch as the Light Motor Vehicle included the transport vehicle. Reliance placed by the Tribunal on law laid down in "National. Insurance Company ltd. v. Irfan Sidiq Bhat" {2004(II) SLJ 623,2005 (1) JKJ HC-42} and "National Insurance Company v. Swaran Singh" ( AIR 2004 SC 1531 ) is, therefore, misplaced. The assumption made by the Tribunal is erroneous and so are the conclusions drawn. In the first place, "Light Motor Vehicle" defined under Section 2 (21) of the Act does not make reference to "transport vehicle" as it is defined under Section 2 (47). In the second place, the license held by the driver of the offending vehicle did not authorize him to drive a transport vehicle as was assumed by the Tribunal. The driving license, it may be said, at the cost of repetition authorized its holder to drive a Light Motor Vehicle, Medium Goods Vehicle and Heavy Goods Vehicle. The offending vehicle did not fall within the description of any of the aforesaid types of vehicles. The driving license did not have "PSV endorsement" recorded on it. There is, thus, merit in the stand taken by the appellant Insurance Company that the driver of the offending vehicle was not holding an effective driving license a t the time of accident.
The driving license did not have "PSV endorsement" recorded on it. There is, thus, merit in the stand taken by the appellant Insurance Company that the driver of the offending vehicle was not holding an effective driving license a t the time of accident. It is nobody's case that the owner of the vehicle had made such verification as is expected of a man or ordinary prudence to verify whether the driver he employed to drive offending vehicle was having a valid and effective driving license. The owner of the offending vehicle, in the circumstances, is held to have committed breach of the Insurance Contract while entrusting the vehicle to driver, who was not having an effective driving license. The appellant Insurance Company, thus, has a right to escape its liability to indemnify the owner of the vehicle. However, the respondents/claimants cannot, almost ten years after the tragic accident took place and the claim petition was laid, be asked to chase the owner of the offending vehicle. The right course in such case is to ask the appellant Insurance Company, to pay the compensation assessed to the respondents/claimants and recover it from the owner of the vehicle by approaching the Tribunal, without instituting the suit. Such a course has found approval of the Supreme Court and Superior Courts of the Country. The latest in the point is the judgment reported as "Kusum Lata v. Satbir" AIR 2011 SC 1234 . In the said case, the Supreme Court pleased to observe; "13. In respect of the dispute about licence, the Tribunal has held and, in our view rightly, that the Insurance Company has to pay and then may recover it from the owner of the vehicle. This Court is affirming that direction in view of the principles laid down by a three-judge Bench of this Court in the case of National Insurance Company Limited v. Swaran Singh and others, reported in (2004) 3 SCC 297 : ( AIR 2004 SC 1531 )". 4. The deceased as per the evidence brought on file was 25 years of age on the date of accident. In view of the law laid down in "Sarla Verma v. Delhi Transport Corporation and anr.", AIR 2009 SC 3104 , the Tribunal was to apply a multiplier of 18 to workout loss of dependency.
4. The deceased as per the evidence brought on file was 25 years of age on the date of accident. In view of the law laid down in "Sarla Verma v. Delhi Transport Corporation and anr.", AIR 2009 SC 3104 , the Tribunal was to apply a multiplier of 18 to workout loss of dependency. The Tribunal instead has applied a multiplier of 17 to compute the loss of income. The Tribunal has taken monthly income of the petitioner as Rs.4,000/-per month. The ground urged in the appeal that the Tribunal ought not to have taken into account the income claimed to have been generated by the shop, inasmuch as the shop that the deceased was said to have been running before her death was registered in the name of her husband — respondent/claimant No.1 is preposterous and better to be ignored. The ground is set up unmindful of the contribution made by a lady to the household. It has been emphasized, time and again that even where a woman is not employed or shown to have been running any business, still her contribution to the household and to the family coffers is in no case to be down played. A woman though unemployed in the eyes of all those around her, performs multiple roles and in each role, she makes significant contribution to the household. She, as a wife takes care of her husband, as a mother takes care of her child(ren) and as a daughter-in-law serves her parents-in-law and above all, works as a cook to cook for the family, a washer woman - to wash clothes of the family, a care taker—to take care of the household and may at times, lend a helping hand to male members of her family in agricultural activities, where her husband is an agriculturalist. 5. So viewed, the Tribunal cannot be faulted for having taken Rs.4,000/- as income of the deceased. The Tribunal has rightly deducted 1/3rd of the income on account of personal expenses, computed loss of dependency as Rs.5,44,000/-. However, the Tribunal has erred while awarding Rs.50,000/- on account of pain and agony caused to the respondents/claimants and again Rs.50,000/- on account of loss of love and affection. The loss on said counts is to be taken to get internalized in loss of dependency workout by the Tribunal.
However, the Tribunal has erred while awarding Rs.50,000/- on account of pain and agony caused to the respondents/claimants and again Rs.50,000/- on account of loss of love and affection. The loss on said counts is to be taken to get internalized in loss of dependency workout by the Tribunal. The objections raised by the appellant Insurance Company as regards award of Rs.50,000/- on account of pain and agony and further an amount of Rs.50,000/- on account of loss of love and affection is to be sustained. However, the Tribunal acted within its powers while awarding Rs.20,000/- on account of loss of consortium to the claimant/respondent No.1 and Rs.5,000/- on account of funeral expenses. The "just compensation", in the circumstances, would be Rs.5,69,000/-. There is no merit in the contention that the interest allowed on the awarded amount is excessive or without jurisdiction. 6. For the reasons discussed above, the award impugned in the appeal is modified as under; The appellant Insurance Company shall pay an amount of Rs.5,69,000/- to the respondents/claimants in lieu of all the claims under the impugned award. The rate of interest and other conditions subject to which the award has been made shall remain unaltered. The appellant Insurance Company shall be at liberty to recover the award amount together with interest thereon from the owner of the vehicle. 7. The appeal is disposed of accordingly along with connected CMP(s).