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2014 DIGILAW 1826 (HP)

Oriental Insurance Company Ltd. v. Asha Devi Gosain

2014-12-05

MANSOOR AHMAD MIR

body2014
JUDGMENT : Mansoor Ahmad Mir, J. Insurer-appellant has questioned the award, dated 29th August, 2007, passed by the Motor Accident Claims Tribunal, Fast Track Court, Solan, H.P. (for short, the Tribunal), in MAC Petition No.33FTC/2 of 2005/06, titled Asha Devi Gosain and others vs. Deepa and others, whereby compensation to the tune of Rs.9,60,000/- alongwith interest at the rate of 7.5% per annum from the date of filing of the petition till its realization, was awarded in favour of the claimants (respondents No.1 to 5 herein) and against the insurer, (for short, the impugned award). 2. The claimants, five in number, filed a Claim Petition for grant of compensation to the tune of Rs.30.00 lacs, as per the break-ups given in the Claim Petition. 3. Respondents i.e. the insurer, the insured/owner and the driver appeared and resisted the Claim Petition and have filed replies. On the pleadings of the parties, the following issues came to be framed: 1. Whether the deceased had died in the accident caused by the taxi No.HP-01-S-0250 on account of rash/negligent driving by respondent No.2? OPP. 2. If issued No.1 is proved in affirmative, to what amount of compensation, the petitioners are entitled and from whom? OPP 3. Relief. 4. Claimants have examined Padam Dev, Padam Singh, Vinod Rana and Ishwar Dutt, as PW-1, PW-3, PW-4 and PW-5, respectively, while claimant Asha Devi appeared in the witness box as PW-2, in support of the assertions made in the Claim Petition. 5. On the other hand, respondents No.1 and 2 i.e. the owner and the driver examined Kamal Kishore as RW-1, while the insurer examined Bal Krishan Thakur, Junior Assistant, RLA, Solan as RW-2. 6. The claimants, the insured/owner and the driver have not questioned the impugned award, thus, the same has attained finality so far as it relates to them. 7. The insurer has questioned the impugned award on the ground that the compensation awarded by the Tribunal is on the higher side; and that the insured has committed breach. 8. The insurer has not questioned the findings recorded by the Tribunal on issue No.1. 7. The insurer has questioned the impugned award on the ground that the compensation awarded by the Tribunal is on the higher side; and that the insured has committed breach. 8. The insurer has not questioned the findings recorded by the Tribunal on issue No.1. However, I have gone through the record and am of the considered view that the claimants have proved, by leading evidence, that the driver had driven the vehicle i.e. taxi No.HP-01-S-0250 rashly and negligently on 5th June, 2005 near Mangoti Mor, Dharampur and has caused the accident in which the deceased, namely, Jagjit Singh sustained injuries and succumbed to the same. Thus, the findings recorded on Issue No.1 are upheld. 9. Admittedly, the driver was having the driving licence to drive Light Motor Vehicles and the offending vehicle was a taxi. The documents i.e. route permit, registration certificate and the statement of RW-2 Bal Krishan Thakur, Junior Assistant, from the office of Registering and Licencing Authority, Solan, do disclose that the taxi/offending vehicle is a Light Motor Vehicle. 10. The learned counsel for the insurer argued that since the driving licence of the driver does not bear endorsement, therefore, the driver was not competent to drive the offending vehicle, is devoid of any force for the following reasons. 11. This Court in series of cases i.e. FAO No.320 of 2008, titled Dalip Kumar and another vs. New India Assurance Company Ltd. & another, decided on 6th June, 2014, FAO No.306 of 2012, titled Prem Singh and others vs. Dev Raj and others, decided on 18th July, 2014 and FAO No.54 of 2012, titled Mahesh Kumar and another vs. Smt.Priaro Devi and Others, decided on 25th July, 2014, has discussed the issue and held that the driver having driving licence to drive Light Motor Vehicle is not required to have endorsement of ?PSV? i.e. public service vehicle. 12. The Apex Court in latest decision in Civil Appeal Nos.9929-30 of 2014, titled Kulwant Singh & Ors. vs. Oriental Insurance Company Ltd., decided on 28th October, 2014, has held that the driver of Light Motor Vehicle is not required to have endorsement to drive Commercial Vehicle. It is apt to reproduce paragraphs No.10 and 11 hereunder: ?10. 12. The Apex Court in latest decision in Civil Appeal Nos.9929-30 of 2014, titled Kulwant Singh & Ors. vs. Oriental Insurance Company Ltd., decided on 28th October, 2014, has held that the driver of Light Motor Vehicle is not required to have endorsement to drive Commercial Vehicle. It is apt to reproduce paragraphs No.10 and 11 hereunder: ?10. In S. Iyyapan (supra), the question was whether the driver who had a licence to drive =light motor vehicle' could drive =light motor vehicle' used as a commercial vehicle, without obtaining endorsement to drive a commercial vehicle. It was held that in such a case, the Insurance Company could not disown its liability. It was observed : ?18. In the instant case, admittedly the driver was holding a valid driving licence to drive light motor vehicle. There is no dispute that the motor vehicle in question, by which accident took place, was Mahindra Maxi Cab. Merely because the driver did not get any endorsement in the driving licence to drive Mahindra Maxi Cab, which is a light motor vehicle, the High Court has committed grave error of law in holding that the insurer is not liable to pay compensation because the driver was not holding the licence to drive the commercial vehicle. The impugned judgment (Civil Misc. Appeal No.1016 of 2002, order dated 31.10.2008 (Mad) is, therefore, liable to be set aside.? No contrary view has been brought to our notice. 11. Accordingly, we are of the view that there was no breach of any condition of insurance policy, in the present case, entitling the Insurance Company to recovery rights.? 13. Having said so, the argument of the learned counsel for the appellant is turned down and the findings returned by the Tribunal are upheld. 14. Admittedly, the age of the deceased is given as 42 years in the Claim Petition. As per schedule 2 appended with the Motor Vehicles Act, 1988 and as also as per the ratio laid down by the Apex Court in Sarla Verma (Smt.) and others vs. Delhi Transport Corporation and another, (2009) 6 SCC 121 , which decision was also upheld by the larger Bench of the Apex Court in Reshma Kumari and others vs. Madan Mohan and another, 2013 AIR (SCW) 3120, multiplier 13 was applicable. Thus, the Tribunal has fallen in error in applying the multiplier 15. 15. Thus, the Tribunal has fallen in error in applying the multiplier 15. 15. The claimants have pleaded that the deceased was running a Canteen and was earning Rs.20,000/- per month. The Tribunal, after scanning the evidence and the documents Exts.PW4/A to PW-4/C, held that the net income of the deceased was not less than Rs.7,600/- per month and after making deductions towards his personal expenses, held that the claimants lost source of dependency to the tune of Rs.4,800/- per month, which appears to be just and appropriate, thus is upheld. 16. Accordingly, it is held that the Claimants are entitled to compensation to Rs.4800 x 12 x 13 = Rs.7,48,800/-. In addition to it, the Claimants are also held entitled to Rs.10,000/- each under the heads =loss of estate', =loss of love and affection' and =loss of consortium'. The above amount of compensation i.e. Rs.7,78,000/-, (Rs.7,48,000 + Rs.30,000/-), shall carry interest at the rate of 7.5% per annum from the date of the Claim Petition till realization. 17. Appeal is allowed and the impugned award stands modified, as indicated above. The Registry is directed to release the compensation amount in favour of the claimants, strictly in terms of the conditions contained in the impugned award and the excess amount, if any, alongwith up-to-date interest, be released in favour of the insurer through payees account cheque.