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2014 DIGILAW 805 (PNJ)

Oriental Insurance Company Limited v. Kulwant Kaur

2014-05-07

JITENDRA CHAUHAN

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JUDGMENT Jitendra Chauhan, J. 1. The present appeal has been filed by the Insurance Company, challenging the impugned Award dated 13.4.2006, passed by the learned Motor Accidents Claims Tribunal, Nawanshahar (for short the Tribunal). The claimant-respondent Nos. 2 and 3 have also filed cross-objections, seeking enhancement of the compensation. Learned counsel for the Insurance Company-appellant refers to report dated 17.2.2005, furnished by the Surveyor and submits that the driving licence held by the driver was for Scooter/ LMV only, whereas the offending vehicle i.e. TATA SUMO was registered as Transport Vehicle and therefore, to drive a transport vehicle, a special endorsement is required, which was not made on the driving licence of the driver possessed by him at the time of accident. The offending vehicle was insured as commercial vehicle. Therefore, the appellant is not liable to indemnify the award. 2. Despite service, none appeared on behalf of respondent Nos. 4 and 5, the owner and the driver. 3. Learned counsel appearing for the claimants/respondent Nos. 2 and 3, cross-objectors submits that the learned Tribunal erred in applying the multiplier of 13 instead of 17, as the deceased was 28 years old at the time of his death. He further submits that no amount has been awarded towards future prospects, loss of consortium and loss of love and affection to the mother. He prays for the enhancement of the compensation. 4. I have heard the learned counsel for the parties and perused the case file. 5. Section 3 of the Motor Vehicles Act reads as under:- 3. Necessity for driving licence –– (1) No person shall drive a motor vehicle in any public place unless he holds an effective driving licence issued to him authorising him to drive the vehicle; and no person shall so drive a transport vehicle [other than a motor cab 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 so to do. (2) The conditions subject to which sub-section (1) shall not apply to a person receiving instructions in driving a motor vehicle shall be such as may be prescribed by the Central Government. 6. From the perusal of the record, it emerges that the offending vehicle was a TATA Sumo and as per Mark 'B' the same was registered as a commercial vehicle. As per Ex. 6. From the perusal of the record, it emerges that the offending vehicle was a TATA Sumo and as per Mark 'B' the same was registered as a commercial vehicle. As per Ex. R-2, the Insurance Policy, the vehicle was insured as a Commercial vehicle. In the report dated 17.2.2005 from the office of DTO, Nawanshahar, Ex. R-1, it is mentioned that DL No. 122/Dup dated 21.7.2004, valid upto 23.3.2007 for scooter/LMV only in the name of Ashok Kumar S/o. Madan Lal. In his statement RW 1 Surender Mohan, office of DTO, Nawanshar has also corroborated Ex. R-1. In view of Section 3 of the Act, special endorsement is required to drive a transport vehicle, which was not mentioned on the driving licence possessed by driver Ashok Kumar. Thus, the driver and the owner of the offending vehicles are held liable to indemnify the award. 7. No doubt, the driving licence held by the driver was not valid and effective at the time of occurrence, but the vehicle was insured. Thus, in view of the law laid down by the Hon'ble Supreme Court in National Insurance Company Ltd. vs. Swaran Singh, 2004 (2) R.C.R. (Civil) 114: 2004 ACJ 1, the Insurance Company is directed to pay the compensation amount and then recover the same from the driver FAO-2914-2006 (O & M) 4 cum-owner of the offending vehicle. 8. The factum of accidental death of Nirmal Singh is not disputed. As per PMR Ex. PB, the deceased was 28 years of age at the time of his death. He left behind a widow, and parents. He was the sole beard winner of the family. In view of the law laid down in Smt. Sarla Verma and Others vs. Delhi Transport Corporation and Another, 2009 (3) RCR (Civil) 77, the multiplier is enhanced from 13 to 17. From the perusal of the award, it emerges that no amount has been awarded towards future prospects, loss of consortium and loss of love and affection to the mother. In view of Rajesh and Others vs. Rajbir Singh and Others, (2013) 9 SCC 54 , the claimants are entitled to get 50% increase towards future prospects. In view of Vimal Kanwar and Others vs. Kishore Dan and Others, 2013 (2) R.C.R. (Civil) 945: 2013 (3) Recent Apex Judgments (R.A.J.) 446: (2013-3) PLR 776, the widow is allowed a sum of Rs. In view of Vimal Kanwar and Others vs. Kishore Dan and Others, 2013 (2) R.C.R. (Civil) 945: 2013 (3) Recent Apex Judgments (R.A.J.) 446: (2013-3) PLR 776, the widow is allowed a sum of Rs. One lac towards loss of consortium and Rs. One lac to the mother towards loss of love and affection. 9. Accordingly, the total compensation comes to Rs. 11,28,000/- (4000 (monthly income) + 50% (future prospects) x 1/4th (deduction towards personal expenses of the deceased) x 12 x 17 (multiplier) + 1,00, 000 (loss of consortium) + 1,00,000 (loss of love and affection to the mother) + 10,000 (last rites expenses already awarded). The balance enhanced amount i.e. Rs. 6,50,000/- (11,28,000 - 4,78,000/- already awarded) shall be paid to the claimants, in the manner indicated in this judgment as well as in the impugned Award, within a period of 45 days from the date of the receipt of the certified copy of the judgment, failing which, they shall be entitled to get interest @ 7.5% per annum from the date of the filing of the cross-objections, till its realization. In view of the above, the present appeal as well as the cross-objections is partly allowed and the impugned Award is modified to the above extent. Appeal allowed.