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2012 DIGILAW 708 (MP)

Mohan Singh v. Mohd. Aklaq Faruki

2012-07-13

N.K.MODY

body2012
Judgment N.K. Mody, J.- This order shall also govern the disposal of M.A.No.1976/2009 as both the appeals are arising out of the award dated 06.04.2009 passed by 18th MACT, Indore in claim Case No. 95/2007, whereby claim petition filed by the appellant was allowed and compensation of Rs. 97,063. 00/was awarded. 02. In M.A.No.1941/2009, which is the appeal filed by the appellant/claimant the grievance is that the amount awarded is inadequate and the same be enhanced. In M.A.No.1976/2009, which is the appeal filed by the respondent No.3 the grievance is that learned Tribunal committed error in holding the respondent No.3 liable for payment of compensation as the respondent No.1 was not possessing valid driving licence. 03. Short facts of the case are that claim petition was filed by the appellant alleging that on 15.07.2007 when the appellant was going on his foot at that time motorbike bearing registration No.MP-09-MP-5435, which was being driven by respondent No.2, owned by respondent No.1, dashed the appellant as a result appellant sustained injuries. It was alleged that M.A. No. 1941/2009, Decided on 13.7.2012 since the offending vehicle was insured with respondent No.3, therefore, compensation be awarded. 04. The claim petition was contested by the respondents No.2 & 3. The defence of respondent No.3 was that since the respondent No.1 was not possessing the valid driving licence, therefore, respondent No.3 cannot be held liable. After framing of issues and recording of evidence claim petition was allowed and the compensation of Rs.97,063/- was awarded, breakup which is as under: Towards permanent disability 54,000/ Towards pain and sufferings 10,000/ Towards medical expenses 33,063/ 05. Learned counsel for the appellant submits that permanent disability assessed by the learned tribunal was to the extent of 10%, therefore, amount awarded towards permanent disability is on lower side. Similarly, on number of heads amount awarded is grossly inadequate. It is submitted that on number of heads, no amount has been awarded. It is submitted that appellant was hospitalized from 16.07.2007 to 25.07.2007. It is submitted that income assessed by the learned Tribunal was @ Rs.3,000/per month, which is on lower side, which ought to have been assessed @ Rs.5000/per month. 06. Shri S.S. Chawla, learned counsel for the respondent No.3 submits that looking to the injuries sustained by the appellant the amount awarded by the learned tribunal is just and proper and no further enhancement can be made. 06. Shri S.S. Chawla, learned counsel for the respondent No.3 submits that looking to the injuries sustained by the appellant the amount awarded by the learned tribunal is just and proper and no further enhancement can be made. Learned counsel placed reliance on a decision in the matter of National Insurance Co.Ltd. Vs. Parvathneni reported in MACD 2009 (SC)552, wherein Hon'ble Apex Court has observed that in a case where there was no valid insurance coverage on the date of accident, the insurance company cannot be held liable for payment of compensation. It is submitted that appeal filed by the appellant be dismissed and the appeal filed by the respondent No.3 be allowed and respondent No.3 be exonerated. 07. Learned counsel for the appellant submits that since the respondent No.2 was possessing licence for driving auto-rickshaw, while accident occurred by the motorbike, therefore, it can not be said that respondent No.2 was not possessing driving licence. In the circumstances learned Tribunal committed error in exonerating the respondent No.3 from payment of compensation. It is submitted that appeal be allowed and the impugned award be set aside. 08. From perusal of the record, it is evident that in the appeal filed by the respondent No.3 interim stay was granted vide order dated 29.07.2009 subject to depositing a sum of Rs.50,000/. So far as the amount awarded by learned Tribunal is concerned, it appears that the same is on lower side. Income assessed is also on lower side, on number of heads no amount has been awarded. In view of this appellant is entitled for the following amount: Towards permanent disability Rs. 60,000/ Towards pain and sufferings Rs. 10,000/ Towards medical expenses Rs. 35,063/ Towards special diet Rs. 5,000/ Towards transportation Rs. 5,000/ Towards attenders Rs. 5,000/ Towards loss of Income Rs. 10,000/ Total Rs. 1,30,063/ 09. Thus, the appellant shall be entitled for a sum of Rs. 1,30,063/-, instead of Rs.97,063/-. The enhanced amount of Rs. 33,000/- shall carry interest @ 8% per annum from the date of application. So far as liability of respondent No.3 is concerned, it is true that burden was on respondent No.3 to prove that offending vehicle was driven by respondent No.2 who was possessing driving licence of auto-rickshaw while offending vehicle was the motorcycle, thus was not possessing valid driving licence. In the matter of National Insurance Co.Ltd. Vs. So far as liability of respondent No.3 is concerned, it is true that burden was on respondent No.3 to prove that offending vehicle was driven by respondent No.2 who was possessing driving licence of auto-rickshaw while offending vehicle was the motorcycle, thus was not possessing valid driving licence. In the matter of National Insurance Co.Ltd. Vs. Swaran Singh 2004 ACJ 1 the Hon'ble Apex Court has observed that: 82. Section 3 of the Act casts an obligation on a driver to hold an effective driving licence for the type of vehicle which he intends to drive. Section 10 of the Act enables Central Government to prescribe the forms of driving licences for various categories of vehicles mentioned in sub-section (2) of said section. The various types of vehicles described for which a driver may obtain a licence for one or more of them are (a) motor cycle without gear; (b) motor cycle with gear; (c) invalid carriage; (d) light motor vehicle; (e) transport vehicle; (f) road-roller; and (g) motor vehicle of other specified description. The definition clause in section 2 of the Act defines various categories of vehicles which are covered in broad types mentioned in sub-section (2) of section 10. They are 'goods carriage', heavy goods vehicle', 'heavy passenger motor vehicle', invalid carriage', 'light motor vehicle', "maxicab', 'medium goods vehicle', 'medium passenger motor vehicle', 'motorcab', motorcycle,', 'omnibus' 'private service vehicle', 'semi-trailer', 'tourist vehicle', 'tractor', 'trailer' and 'transport vehicle'. In claims for compensation for accident, various kinds of breaches with regard to the conditions of driving licenses arise for consideration before the Tribunal. A person possessing a driving licence for 'motorcycle without gear' for which he has no licences. Cases may also arise where holder of driving licence for 'light motor vehicle' is found to be driving a 'maxicab' 'motocylce' or 'omnibus' for which he has no licence. In each case on evidence led before the Claims Tribunal, a decision has to be taken whether the fact of the driver possessing licence for one type of vehicle but found driving another type of vehicle, was the main or contributory causes of accident. In each case on evidence led before the Claims Tribunal, a decision has to be taken whether the fact of the driver possessing licence for one type of vehicle but found driving another type of vehicle, was the main or contributory causes of accident. If on facts, it is found that accident was caused solely because of some other unforeseen or intervening causes like mechanical failures 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. 10. From perusal of the record, it is evident that it was not a case where the respondent No.2 was having no licence. On the contrary respondent No.2 was having one type of licence while vehicle, which was driven by the respondent No.2 was of another type. In the circumstances, at the most respondent No.3 is entitled for right of recovery. In view of this appeal filed by the appellant and appeal filed by the respondent No.3 are disposed of by enhancing the amount as stated above. So far as liability of respondent No.3 is concerned, it is made clear that respondent No.3 shall be at liberty to recover the amount from respondents No.1 & 2 after making payment. With the aforesaid observations, both the appeals stands disposed of. Let copy of the order be placed in the connected appeal.