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2017 DIGILAW 2218 (RAJ)

United India Insurance Co. Ltd. v. Gaurav Giri

2017-10-23

ARUN BHANSALI

body2017
JUDGMENT : Arun Bhansali, J. 1. These appeals filed by the appellant-Insurance Company as well as cross-objections filed by the claimant-Gaurav Giri, are directed against the judgment and award dated 07.04.2016 passed by the Motor Accident Claims Tribunal, Rajsamand (‘the Tribunal’) whereby the Tribunal has awarded various amounts of compensation to the claimants on account of injuries suffered by them. 2. The applications for compensation were filed by the three claimants with the averments that on 13.11.2014 at about 5 p.m. all the three claimants were riding on a motor cycle and were travelling from Dabok to Kankroli, when the insured vehicle-tempo being driven rashly and negligently by its driver came on the wrong side of the road, struck the motor cycle head on, resulting in, all the three claimants suffering grievous injuries. Based on the said allegations, various amounts of compensation were sought by the claimants. 3. The applications were contested by the Insurance Company, inter-alia, with the averments that as the driver of the tempo was not in possession of valid driving licence, the Insurance Company for violation of policy conditions cannot be held liable. Further contentions were raised that as three persons were riding on the motor cycle in violation of section 128 of the Motor Vehicles Act, 1988 (‘the Act’) the driver of the motor cycle had contributed to the accident and, therefore, the Insurance Company cannot be held liable for making payment of the amount of compensation. 4. The owner and driver of the tempo also contested the applications. 5. The Tribunal framed four issues and after hearing the parties, came to the conclusion that the accident occurred on account of rash and negligent driving by driver of the tempo. After discussing various judgments on the aspect of contributory negligence in a case where more than two persons were riding on the motor cycle, it came to the conclusion that the said aspect did not contribute to the said accident. While deciding the issue pertaining to the validity of licence, the Tribunal came to the conclusion that as the vehicle in question was a light goods vehicle and the driver was in possession of a driving licence authorizing him to drive a light motor vehicle, the plea raised by the Insurance Company could not be accepted. While deciding the issue pertaining to the validity of licence, the Tribunal came to the conclusion that as the vehicle in question was a light goods vehicle and the driver was in possession of a driving licence authorizing him to drive a light motor vehicle, the plea raised by the Insurance Company could not be accepted. Where after the Tribunal based on the material available on record assessed various amounts of compensation payable to the claimants. 6. It is submitted by learned counsel for the appellant that the Tribunal committed error in holding the appellant-Insurance Company liable for payment of compensation. It was submitted that the vehicle in question was a transport vehicle and the driver was in possession of driving licence authorizing him to drive light motor vehicle only and, therefore, for violation of policy conditions, the Insurance Company could not be held liable. Further submissions were made that the driver of the motor cycle, as he was driving the motor cycle with two pillion riders, the same was in violation of Section 128 of the Act, and therefore, for violation of provisions of the Act, the Insurance Company also could not be held liable for payment of compensation and, therefore, the award impugned deserves to be quashed and set aside. 7. Learned counsel appearing for the respondents supported the award impugned. It was submitted that the issue of liability of the Insurance Company based on the licence now stands covered by Larger Bench judgment of Hon'ble Supreme Court in the case of Mukund Dewangan vs. Oriental Insurance Company Ltd. and Others, Civil Appeal No. 5826/2011, decided on 3.7.2017 and, therefore, the plea raised in this regard deserves to be rejected. Further submissions made that from the material, which has come on record, it is apparent that it was only the tempo-driver, who was negligently driving the vehicle as it came on the wrong side of the road and struck the motor cycle head on, merely because more than one pillion rider was there on the vehicle, the same ipso facto cannot lead to a conclusion that the driver of the motor cycle was negligent in driving the motor cycle. Further submissions were made that in so far as the two pillion riders are concerned, qua them even if the driver of the motor cycle is held to be negligent, the same would a case of composite negligence and on that count also, the Insurance Company cannot escape its liability in making the payment of amount of compensation and, therefore, the appeals deserves to be dismissed. 8. So far as the cross-objections filed by the claimant-Gaurav Giri in SBCMA No. 1628/2016 is concerned, it is submitted by learned counsel for the claimant that the Tribunal committed error in coming to the conclusion that the claimant was not entitled to any amount towards loss of future income and towards future treatment, inasmuch as, looking to the nature of disability, wherein the claimant has suffered 20% disablement, it cannot be said that his future income would not be effected and that he would not require any treatment in future and, therefore, the amount under the said heads deserves to be enhanced adequately. 9. Learned counsel appearing for the appellant-Insurance Company vehemently opposed the submissions. It was submitted that the Tribunal has awarded adequate amount towards the disablement suffered by the claimant, which does not require any interference. Further submissions were made that the Tribunal has awarded huge amount under the head of pain & suffering to the tune of Rs. 1,75,000/- which takes care of the just compensation, which is required to be awarded under Section 166 of the Act and on that count also the award impugned does not call for any interference qua the quantum. 10. I have considered the submissions made by learned counsel for the parties and have perused the material available on record. 11. In so far as the liability of the Insurance Company on account of alleged violation of policy conditions, whereby the driver of the tempo was in possession of driving licence authorized him to drive 'light motor vehicle' only is concerned, the issue now stands fully covered by the larger Bench judgment of Hon'ble Supreme Court in the case of Mukund Devangan (supra), wherein Hon'ble Supreme Court has laid down as under:- "46. Section 10 of the Act requires a driver to hold a licence with respect to the class of vehicles and not with respect to the type of vehicles. In one class of vehicles, there may be different kinds of vehicles. Section 10 of the Act requires a driver to hold a licence with respect to the class of vehicles and not with respect to the type of vehicles. In one class of vehicles, there may be different kinds of vehicles. If they fall in the same class of vehicles, no separate endorsement is required to drive such vehicles. As light motor vehicle includes transport vehicle also, a holder of light motor vehicle licence can drive all the vehicles of the class including transport vehicles. It was pre-amended position as well the post-amended position of Form 4 as amended on 28.3.2001. Any other interpretation would be repugnant to the definition of light motor vehicle in section 2(21) and the provisions of section 10(2)(d), Rule 8 of the Rules of 1989, other provisions and also the forms which are in tune with the provisions. Even otherwise the forms never intended to exclude transport vehicles from the category of light motor vehicles and for light motor vehicle, the validity period of such licence hold good and apply for the transport vehicle of such class also and the expression in Section 10(2)(e) of the Act "Transport Vehicle" would include medium goods vehicle, medium passenger motor vehicle, heavy goods vehicle, heavy passenger motor vehicle which earlier found place in section 10(2)(e) to (h) and our conclusion is fortified by the syllabus and rules which we have discussed. Thus we answer the questions which are referred to us thus: (i) Light motor vehicle as defined in section 2(21) of the Act would include a transport vehicle as per the weight prescribed in section 2(21) read with section 2(15) and 2(48). Such transport vehicles are not excluded from the definition of the light motor vehicle by virtue of Amendment Act No. 54/1994. (ii) A transport vehicle and omnibus, the gross vehicle weight of either of which does not exceed 7500 kg. would be a light motor vehicle and also motor car or tractor or a road roller, un-laden weight of which does not exceed 7500 kg. and holder of a driving licence to drive class of light motor vehicle as provided in section 10(2)(d) is competent to drive a transport vehicle or omnibus, the gross vehicle weight of which does not exceed 7500 kg. or a motor car or tractor or road-roller, the un-laden weight of which does not exceed 7500 kg. and holder of a driving licence to drive class of light motor vehicle as provided in section 10(2)(d) is competent to drive a transport vehicle or omnibus, the gross vehicle weight of which does not exceed 7500 kg. or a motor car or tractor or road-roller, the un-laden weight of which does not exceed 7500 kg. That is to say, no separate endorsement on the licence is required to drive a transport vehicle of light motor vehicle class as enumerated above. A licence issued under section 10(2)(d) continues to be valid after Amendment Act 54/1994 and 28.3.2001 in the form. (iii) The effect of the amendment made by virtue of Act No. 54/1994 w.e.f. 14.11.1994 while substituting clauses (e) to (h) of section 10(2) which contained "medium goods vehicle" in section 10(2)(e), medium passenger motor vehicle in section 10(2)(f), heavy goods vehicle in section 10(2)(g) and "heavy passenger motor vehicle" in section 10(2)(h) with expression transport vehicle as substituted in section 10(2)(e) related only to the aforesaid substituted classes only. It does not exclude transport vehicle, from the purview of section 10(2) (d) and section 2(41) of the Act i.e. light motor vehicle. (iv) The effect of amendment of Form 4 by insertion of "transport vehicle" is related only to the categories which were substituted in the year 1994 and the procedure to obtain driving licence for transport vehicle of class of light motor vehicle continues to be the same as it was and has not been changed and there is no requirement to obtain separate endorsement to drive transport vehicle, and if a driver is holding licence to drive light motor vehicle, he can drive transport vehicle of such class without any endorsement to that effect." 12. In view of the above categorical law laid down by Hon'ble Supreme Court, the plea raised in this regard by the appellant-Insurance Company cannot be accepted. 13. In so far as the plea pertaining to the contributory negligence of the driver of the motor cycle is concerned, the Tribunal under issue No. 1 has thoroughly considered the said aspect and has come to the conclusion that it was the driver of the tempo only, who was negligently driving the said vehicle. 13. In so far as the plea pertaining to the contributory negligence of the driver of the motor cycle is concerned, the Tribunal under issue No. 1 has thoroughly considered the said aspect and has come to the conclusion that it was the driver of the tempo only, who was negligently driving the said vehicle. The submissions made by counsel for the appellant-Insurance Company that as the provisions of Section 128 of the Act have been violated, the same would lead to a presumption that the driver of the motor cycle had contributed to the accident as on account of having more than two pillion riders, the same effects the balance of the motor cycle/two wheeler and contributes to the accident. 14. This Court in United India Insurance Company Ltd. vs. Smt. Santosh Devi and Others, S.B. Civil Misc. Appeal No. 324/2010 decided on 15.04.2013 after considering the available law on the subject came to the conclusion that the deceased would not be guilty of contributory negligence unless the violation has casual connection with the damage caused to the deceased or pillion rider, which could be termed as contributory negligence on his part. 15. In the present case, it has come on record that the insured tempo came on the wrong side of the road and struck the motor cycle head on and in those circumstances even if more than one pillion rider were riding on the motor cycle at the relevant time, it cannot be said that the said aspect resulted in the contribution to the accident and, therefore, the plea raised in this regard also cannot be accepted. 16. There is also substance in the submissions of the learned counsel for the respondents that in so far as the two pillion riders are concerned, the same would be composite negligence, however, as the driver himself has not been held to be negligent, the said plea need not be adjudicated upon. 17. In so far as the cross-objections filed by the claimant-Gaurav Giri are concerned, it would be noticed that the claimant suffered injuries in his left hand, shoulder, elbow, wrist and left femur-bone and remained hospitalized for about ten days at Udaipur and Ahemadabad and spent a sum of Rs. 3,00,000/- towards the treatment. 17. In so far as the cross-objections filed by the claimant-Gaurav Giri are concerned, it would be noticed that the claimant suffered injuries in his left hand, shoulder, elbow, wrist and left femur-bone and remained hospitalized for about ten days at Udaipur and Ahemadabad and spent a sum of Rs. 3,00,000/- towards the treatment. The Tribunal awarded the amount as spent on the treatment as well as the hospitalization expenses, transport expenses, for nutritious diet as well as pain & suffering along with the loss of income for the period the claimant remained confined to bed. Further while assessing the amount of compensation towards loss of future income, it was held that as the Doctor was not examined and the fact that the disablement would continue in future has also not been established, the claimant was not entitled for any amount of compensation. Qua the future treatment also it was held that as no evidence was led, the claimant was not entitled to any amount under the said head. 18. It would also be noticed that the Tribunal though accepted the disability certificate, wherein it was indicated that the claimant suffered 20% disablement, for the purpose of assessing the compensation under other heads, however, for the purpose of assessing future loss of income, the same was rejected as the Doctor was not examined. 19. The said determination by the Tribunal does not appear to be just in the circumstances of the case. Once the certificate has been produced, indicating the disability and the oral evidence in this regard has been led, it cannot be said that the certificate, which has been accepted for other heads deserves to be totally rejected qua the assessment of future loss of income. 20. In the present case, the disability certificate (Ex.-16) indicates 20% disablement, however, the same did not indicate as to whether the same pertained to a particular part of the body or functional disability of the entire body and in those circumstances the disability is assessed at 10%. 21. In so far as assessment of compensation for the functional disability of the whole body is concerned, the Tribunal assessed the income of the claimant based on the minimum wages at Rs. 5,670/- per month and based on the said income, loss of future income is assessed at Rs. 5,670 x 10% = Rs. 567 x 12 x 18 = Rs. 5,670/- per month and based on the said income, loss of future income is assessed at Rs. 5,670 x 10% = Rs. 567 x 12 x 18 = Rs. 1,22,472/- which is rounded off to Rs. 1,22,500/-. 22. There is substance in the submissions made by learned counsel for the appellant- Insurance Company that while assessing the amount of pain & suffering, the Tribunal has awarded the amount taking into consideration the future treatment also and in those circumstances, independent claim in this regard in absence of any evidence before the Tribunal cannot be accepted. 23. Though submission has been made in the cross-objections regarding filing on application under Section XLI, Rule 27 CPC for producing additional evidence regarding the future treatment, no such application has been filed by the claimant and in those circumstances, the submissions made in this regard cannot be accepted. 24. In view of the above discussion, as there is no substance in the appeals filed by the appellant-Insurance Company, the same are dismissed, the cross-objection filed by the claimant-Gaurav Giri is partly allowed. The claimant would be entitled to a further sum of Rs. 1,22,500/- along with interest @ 7% per annum from the date of application i.e. 18.02.2015 on the said enhanced amount of compensation. 25. The said amount of Rs. 1,22,500/- along with interest shall be paid to the claimant- Gaurav Giri in his saving bank account within a period of six weeks from the date of this judgment by the appellant-Insurance Company.