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2012 DIGILAW 84 (HP)

National Insurance Company Ltd. v. Indra Devi

2012-03-07

SANJAY KAROL

body2012
JUDGEMENT Justice Sanjay Karol, J. (Oral) This appeal under Section 173 of the Motor Vehicles Act, 1988 (hereinafter referred to as the ‘Act’) has been filed by the insurer assailing the award dated 1.8.2005, passed by the Motor Accident Claims Tribunal, Bilaspur, H.P. in M.A.C. Case No. 89 of 2002, titled as Indra Devi versus Ramesh Kumar and others. 2.On 17.6.2002, motor cycle No. HP-33-7551 driven by Sh. Ramesh Kumar (respondent No. 2) which was owned by Sh. Narneet Singh Chandel (respondent No. 3) met with an accident. The vehicle hit a pedestrian Smt. Indra Devi (respondent No. 1) who sustained injuries. She filed a petition under Section 166 of the ‘Act’ claiming compensation. The claim petition was opposed by Sh. Ramesh Kumar and Sh. Narneet Singh, inter alia, on the ground that the vehicle was in fact being driven by Sh. Suresh Kumar (respondent No. 4) who was impleaded subsequently. The insurer (appellant herein) independently opposed the petition, inter alia, on the ground that the driver was not possessed with an effective driving licence and as such material terms and conditions of the insurance policy having been breached, they were not liable to indemnify the insured. 3.The Tribunal framed the following issues:-“1. Whether the petitioner had suffered injuries on account of rash and negligent driving of motor cycle No. HP-33-7551, as alleged? OPP2.If Issue No. 1 is proved to what amount of compensation and from whom is the petitioner entitled to ?OPP 3.Whether the driver of the vehicle No. HP-33-7551 had not been in possession of a valid and effective driving licence at the time of the accident, if so with what effect?OPR-3 4.Relief.” 4.The petition was adjudicated and the Tribunal held that at the time of the accident, in fact the vehicle was being driven by Sh. Ramesh Kumar and not Sh. Suresh Kumar, who was negligent, which caused the accident, in which claimant Smt. Indra Devi sustained injuries. On the question of compensation, Tribunal awarded a total sum of ! 1,47,000/- to the claimant. 5.Issue No. 3, which really is in issue before this Court, was decided by making the following observations:-“28. While deciding issue No. 1 it has beendecided that the vehicle in question was being driven by respondent No. 1 in rash and negligent manner and the petitioner suffered injuries because of this accident. 1,47,000/- to the claimant. 5.Issue No. 3, which really is in issue before this Court, was decided by making the following observations:-“28. While deciding issue No. 1 it has beendecided that the vehicle in question was being driven by respondent No. 1 in rash and negligent manner and the petitioner suffered injuries because of this accident. Now the question comes as to whether the respondent No. 1 was holding a valid and effective driving licence or not. No oral evidence has been led by the respondent No.3, the insurer of the offending vehicle except tendering documents and he has only produced on record Ext. RB copy of insurance cover note of the offending vehicle. However, RW-1 Ramesh Kumar while appearing as his own witness has placed on record learner licence Ext. RW-1/A, which is admittedly a learner licence and was valid from 9.5.2002 to 8.11.2002. The accident in question has admittedly taken place on 17.6.2002. Therefore, at the time of accident Ramesh Kumar, respondent No. 1 was definitely holding a learner licence. As per the decision of the Hon’ble Apex Court referred above, a person holding a learner licence is entitled to drive a vehicle. Therefore, in view of the settled law, I hold that the respondent No. 1 was holding a valid and effective driving licence to drive the vehicle. Therefore, this issue is decided against the respondent No. 3 and in favour of the petitioner.” 6.The claimant, the driver (Suresh Kumar or Ramesh Kumar) and the owner of the vehicle have not assailed the award and it is only the insurer who has come before this Court in terms of the present appeal. 7.On the question of compensation, I find that findings returned by the Tribunal are clearly borne out from the record, the pleadings and the evidence (documentary & oral). That the claimant sustained injuries and permanent physical disability to the extent of 15% stands established from the uncontroverted testimony of Dr. Amarjit Singh (PW-3) who has duly proved the disability certificate (Ext. PB) and the discharge slip (Ext. PC). Claimant (PW-1) has proved her income from tailoring work. She remained unemployed for about 26 months. She was hospitalized. She incurred some expenditure for medication. She underwent pain, agony and suffering. Amarjit Singh (PW-3) who has duly proved the disability certificate (Ext. PB) and the discharge slip (Ext. PC). Claimant (PW-1) has proved her income from tailoring work. She remained unemployed for about 26 months. She was hospitalized. She incurred some expenditure for medication. She underwent pain, agony and suffering. Consequently compensation of !78,000/- towards loss of income, !5000/- for medication and hospitalization, !54,000/- for loss of earning capacity and !10,000 towards pain and suffering cannot be said to be on the higher side. Hence no interference on this count is warranted. 8.Noticeably, Sh. Ramesh Kumar produced only one driving licence (Ext. RW-1/A) before the Tribunal which is a learner’s licence and valid for a period from 9.5.2002 to 8.11.2002. The accident took place on 17.6.2002. This licence did not authorize him to drive motorcycle. It was valid only for light motor vehicles (L.M.V.) category. Consequently, keeping in view the ratio of law laid down by this Court in National Insurance Company Ltd. versus Ghanshayam and others, Latest HLJ 2010 (HP) 443, that person holding a licence for L.M.V. category is not authorized to drive a motor cycle, it cannot be said that Sh. Ramesh Kumar was duly authorized to drive the vehicle in question at the relevant point in time. Hence the insurer was not duty bound to indemnify the insured as material terms and conditions of the insurance policy (Ext. RB) stood breached. To this extent Tribunal wrongly decided Issue No. 3 and such findings need to be reversed. 9.The matter however does not end here. Before this Court, Sh. Ramesh Kumar filed an application (CMP No. 932 of 2009) for leading additional evidence. The same was allowed. 10. Alongwith the application Sh. Ramesh Kumar placed on record certificate (Ext. AX) to the following effect:- “Verification Certified that the Learner License No. 215/CIIT/2001 Dated 21.6.2001 has been issued by this office for Motor cycle & LMV only in favour of Shri Ramesh Kumar s/o Lal Man R/o Bani P.O.Chail Chowk, Tehsil Chachyot Distt. Mandi, H.P. This license was valid up to 20.12.2001 and Learner License No. 68/CIIT/2002 dated 09/05/2002 has been issued by this office for Driving LMV (NTPT) & Motor Cycle only in favour of Ramesh Kumar S/o Lal Man R/o Bani P.O. Chail Chowk, Tehsil Chachyot Distt. Mandi, H.P. This license was valid up to 08/11/2002. Sd/- Motor Registering & Licensing Authority Gohar, Distt. Mandi, H.P.” 11. Mandi, H.P. This license was valid up to 08/11/2002. Sd/- Motor Registering & Licensing Authority Gohar, Distt. Mandi, H.P.” 11. Significantly Sh. Ramesh Kumar has been taking mutually contradictory pleas. His plea that Sh. Suresh Kumar was driving the vehicle was found to be false. Even though he did not disclose existence of another licence before the Tribunal, but in these proceedings he wanted to establish existence thereof. Noticeably the original of even this licence has not been placed on record. 12.Be that as it may be, to prove the aforesaid certificate, Sh. Suneel Sharma, Sub Divisional Magistrate-cum-RLA, Chachyot at Gohar, Distt. Mandi stepped into the witness box as AW-1. Noticeably he placed on record and duly proved the Register on the basis of which the said certificate was issued. At place Mark-X it is seen that there appears to be an interpolation and the word “motorcycle” has been written in a different ink above the word “LMV only”. In fact insertion of this entry has not been initialed by any authorized officer. 13. Admittedly driving licence sought to be proved through this certificate was not placed before the Tribunal by Sh. Ramesh Kumar. Noticeably Sh. Ramesh Kumar has tried to prove that he was possessing two driving licences issued by different licensing authorities with respect to the same period. Why is it that he did not place the second driving licence before the Tribunal, or disclose existence thereof, has not been explained by him. It appears that Sh. Ramesh Kumar did not possess a valid driving licence for driving vehicle in question i.e. motor cycle and only by interpolating the records he has tried to prove existence thereof before this Court. He could have conveniently placed the same before the Tribunal. Also there is evidence of Sh. Harmeet Singh Kalsi (RW-1), surveyor and loss assessor, who has been examined by the insurer before this Court, who in no uncertain terms has deposed that entry in the register which is now sought to be proved by Sh. Ramesh Kumar was in fact verified by him and at that time, entry found in the register was only with regard to L.M.V. category. 14. Consequently it cannot be said that Sh. Ramesh Kumar has been able to establish that he was possessed with a valid driving licence to drive the vehicle i.e. motor cycle as on the date of the alleged accident. 14. Consequently it cannot be said that Sh. Ramesh Kumar has been able to establish that he was possessed with a valid driving licence to drive the vehicle i.e. motor cycle as on the date of the alleged accident. 15. The findings in the award thus being perverse warrants interference with regard to Issue No. 3. Findings returned by the Tribunal with respect to the same are set aside and it is held that the driver Sh. Ramesh Kumar was not possessed with a valid driving licence and as such material terms and conditions of the insurance policy (Ext. RB) stood breached. It is also held that appellant-insurer is not entitled to indemnify the insured of the compensation awarded in favour of the claimant. 16. However, considering the ratio of law laid down by the Apex Court in Kusum Lata and others v. Satbir and others, (2011) 3 SCC 646 it is directed that the amount, if already not paid/disbursed to the claimant, shall be paid by the insurer to the claimant, with liberty to the insurer to recover the same from the insured and driver Sh. Ramesh Kumar. 17. As such, the present appeal is partly allowed and the impugned award dated 1.8.2005 is modified to the aforesaid extent. Appeal stands disposed of, so also the pending application(s), if any.