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2015 DIGILAW 1659 (HP)

Gurmail Singh v. Kamla Devi

2015-11-06

MANSOOR AHMAD MIR

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JUDGMENT : Mansoor Ahmad Mir, Chief Justice (oral) This appeal is directed against the award, dated 22nd August, 2014, passed by the Motor Accident Claims Tribunal-III, Kangra at Dharamshala, (for short, “the Tribunal”), in MAC RBT No.82-J/13/09, titled Kamla Devi and others vs. Gurmail Singh and others, whereby compensation to the tune of Rs.8,36,200/-, with interest at the rate of 7% per annum, came to be awarded in favour of the claimant and the owner and the driver (appellants herein) were saddled with the liability, (for short the “impugned award”). 2. The claimants and the insurer have not questioned the impugned award on any count. Thus, the same has attained finality so far it relates to them. 3. The owner and the driver have questioned the impugned award on the ground that the Tribunal has fallen in error in saddling them with the liability. Thus, the only issue needs to be answered in this appeal is – Whether the Tribunal has rightly exonerated the insurer from the liability? Brief facts: 4. Claimants filed the claim petition on the ground that on 11.3.2009, at about 8.15 p.m., at a place known as Patta Jatiyan, a Jeep (Mahindra Pick Up), bearing registration No.HP54-4861, being driven by its driver Gagan Singh rashly and negligently, hit the motor-cycle bearing No.HP-54-1427, on which the deceased was traveling, as a result of which he received multiple injuries and succumbed to the same. Thus, the claimants filed the claim petition claiming compensation to the tune of Rs.12.00 lacs, as per the break-ups given in the Claim Petition. 5. The claim petition was resisted by the respondents by filing replies. On the pleadings of the parties, the Tribunal framed the following issues: “1. Whether the respondent No.2 on 11-03-2009 about 8.15 P.M. near Patta Jatian drove bus No.HP-54-4861 of which respondent No.1 was owner in a rash and negligent manner and collided with vehicle No.HP-57-1427 coming from the opposite side being driven by Ravinder Singh, who sustained injuries and ultimately died due to said injuries as alleged? OPP 2. If issue No.1 is proved, to what amount of compensation the petitioner is entitled and from whom? OPP 3. Whether the petition against respondents No.1 & 2 is not maintainable as the vehicle of respondent No.1 was not involved in the alleged accident? OPR-1 & 2. 4. OPP 2. If issue No.1 is proved, to what amount of compensation the petitioner is entitled and from whom? OPP 3. Whether the petition against respondents No.1 & 2 is not maintainable as the vehicle of respondent No.1 was not involved in the alleged accident? OPR-1 & 2. 4. Whether the driver of the offending vehicle was not holding valid and effective driving licence as alleged? OPR-3 5. Whether the vehicle was being driven in breach of terms and conditions of Insurance Policy? OPR-3 6. Relief.” 6. In order to prove the above issues, parties have led their respective evidence. The Tribunal held that the claimants have proved issue No.1. 7. In view of fact that issue No.3 came to be decided in favour of the claimants, it was further held that the owner had committed willful breach of the terms and conditions of the insurance policy for the reason that the driver was not having a valid and effective driving licence to drive the vehicle in question. Accordingly, the Tribunal saddled the owner and the driver (appellants before this Court) with the liability. 8. Thus, the only controversy needs to be settled in this appeal is regarding issues No. 4 and 5 - whether the driver of the offending vehicle was having a valid and effective driving licence at the relevant point of time. 9. Admittedly, the driver of the offending vehicle I.e. Mahindra Pick UP, was competent to drive a light motor vehicle and the vehicle in question was also a light motor vehicle. 10. 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. Further held that Mahindra Pick Up is a Light Motor Vehicle. 11. Further held that Mahindra Pick Up is a Light Motor Vehicle. 11. The Apex Court in latest decision, in Kulwant Singh and others vs. Oriental Insurance Company Limited, (2015) 2 Supreme Court Cases 186, has held that the driver who is having valid and effective driving licence to drive a Light Motor Vehicle is not required to have endorsement to drive a light 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.” 12. The insurer has failed to prove, by leading cogent evidence, that the owner has committed willful breach of the terms and conditions contained in the insurance policy and has, thus, failed to discharge the onus in order to seek exoneration. 13. Having said so, the Tribunal has wrongly decided issues No.4 and 5. 14. In view of the above discussion, the appeal is allowed, the impugned award is modified and the insurer is fastened with the liability. 13. Having said so, the Tribunal has wrongly decided issues No.4 and 5. 14. In view of the above discussion, the appeal is allowed, the impugned award is modified and the insurer is fastened with the liability. The insurer is directed to deposit the amount of compensation alongwith interest, as awarded by the Tribunal, within eight weeks from today and on deposit, the Registry is directed to release the said amount in favour of the claimants forthwith, as per the terms and conditions contained in the impugned award. In addition to that, the statutory amount of Rs.25,000/-, deposited by the insured/owner, is awarded in favour of the claimants as litigation cost throughout. The Registry is directed to release the said amount in favour of the claimants forthwith. 15. The appeal stands disposed of accordingly.