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2018 DIGILAW 1405 (GAU)

Krishna Kanta Baruah v. Diganta Das

2018-09-20

RUMI KUMARI PHUKAN

body2018
JUDGMENT : Rumi Kumari Phukan, J. Heard learned counsel for the appellant Mr. A K Gupta. Also heard Mr. S Dutta, learned senior counsel for the respondent No. 3/Insurance Company as well as Mr. I A Talukdar, learned counsel for the respondent No. 1 & 2/owner and driver of the vehicle. 2. The appeal has been preferred against the judgment dated 30.05.2015 passed by learned Member -1, MACT, Tinsukia in MACT Case No. 32/2011. 3. Briefly stated the case of the claimant is that on 6.9.2010 at about 12:45 P.M on National Highway No. 38 near No. 1 Borbil under Digboi PS, Anima Baruah (since deceased) boarded into the Auto rickshaw bearing Registration No. AS-3-AC-3943 to go her residence. On the way the vehicle met with an accident due to rash and negligent driving by its driver namely Binay Borgohain/OP No. 2, as a result of which, she sustained grievous injury on her person. Although, she was taken to hospital for treatment but she succumbed to her injuries on 19.09.2010 in the hospital. The deceased left behind her husband, two unmarried daughters and a son. A police case was also registered at Digboi PS Case No. 302/2010 u/s 279/337/338/304-A/427 of the IPC against the driver of the said vehicle and case ended at charge-sheet. 4. Three claimants preferred an application u/s 166 of the Motor Vehicle Act praying for compensation on account of death of the wife/mother of the claimants. In the claim petition, it is stated that deceased was 58 years of age at the time of accident and she was a teacher at Kalibari School at Digboi, which is a Government run school. Her salary was stated to be Rs. 22,864/-. 5. On the basis of the aforesaid claim, the Tribunal issued notice to the driver, owner and the insurer of the aforesaid Auto rickshaw and in turn, all of them contested the case by filing their written statement. 6. The owner and the driver/OP No. 1 & OP No. 2 in their joint written statement admitted the accident but denied their fault towards the same. It is stated in the written statement that the driver had a valid driving licence and the vehicle was duly insured with the Insurance Company/OP No. 3 and as such they are not liable to pay any compensation and compensation, if any is to be indemnify by the Insurance Company. It is stated in the written statement that the driver had a valid driving licence and the vehicle was duly insured with the Insurance Company/OP No. 3 and as such they are not liable to pay any compensation and compensation, if any is to be indemnify by the Insurance Company. The OP No. 3/Insurance Company in their written statement stated that the liability to the insurer is restricted to the proof of having proper valid documents like driving licence, insurance policy and permit etc and they are not liable to pay any compensation for violation of any condition of the policy and permit etc. It was specifically pleaded that liability of the Insurance Company u/s 147 and 149 of the Act is limited subject to fulfillment of above condition. 7. Upon the pleadings, the learned Tribunal framed following issues. (i) Whether a motor vehicle accident took place on 06.09.2010 on N.H No. 38 near No. 1 Borbil under Digboi PS involving the vehicle bearing Registration No. AS-23-AC-3943 (Ape auto rickshaw)? (ii) Whether the deceased died in the accident ? (iii) Whether the claimants are entitled to compensation? If so to what extent and from whom ? 8. In course of the proceeding, the claimants as well as the Insurance Company adduced evidence in support of their respective claim. By adducing the evidence, the claimants and other witness they have categorically testified that due to the fault of driver the vehicle met with an accident for rash and negligent driving and subsequently she succumbed to her injuries. Several documents were also exhibited by the claimants side like Form No. 54 and medical prescription, salary certificate etc. From the oral and documentary evidence that was produced by the claimants side, the Tribunal come to a findings that due to fault of the said driver the accident took place, and taking into account the monthly income of the deceased as well as age etc, Tribunal assessed the dependency by using appropriate multiplier and after deduction of 1/3rd income etc., the Tribunal held that the claimants are entitled to get compensation to the tune of Rs. 16,07,775.90/- with 6 per cent interest from the date of filing of the claim petition. 9. 16,07,775.90/- with 6 per cent interest from the date of filing of the claim petition. 9. While deciding the issue as who is liable to pay the compensation, the Tribunal appreciated the evidence on record and arrived at a conclusion that there is violation of condition of permit on the part of the driver and owner of the vehicle. In this context, the Tribunal has taken note of the evidence that was produced by the Insurance Company. DW-1 & DW-2 by producing the relevant documents i.e. driving licence and permit issued to the said Auto rickshaw is proved. However, it has also been brought on record that as per the permit condition the said vehicle is required to be played within 10 KM radius in the Doomdooma town. Accordingly on the basis of the said evidence, couple with the statement of the claimant witnesses (in their cross examination) it was held that the vehicle was plying in a different place than that mentioned in the permit. The Tribunal was of opinion that as the vehicle was plying by violating the terms and conditions of road permit, so the driver and owner of the said vehicle are liable to pay compensation. 10. Although, a plea was taken on the part of the respondent/Insurance Company that the driver has no effective license to ply the Auto rickshaw which is light motor vehicle in terms of the condition of licence but there being no specific evidence of violation of condition of license. In Mukund Dewangan Vs. Oriental Insurance Co. Ltd., (2017) 14 SCC 663 , it was held that light motor vehicle would include a transport vehicle. It was further held that there was no requirement to obtain separate endorsement to drive transport vehicle, and if a driver is holding licence to drive light motor vehicle, he can driver transport vehicle of such class without any endorsement to that effect. 11. In Bajaj Alliaz General Insurance Company Limited Vs. Devappa, 2013 KantMAC 420 (Kant) it was held that basically a light motor vehicle is transport vehicle and one the RTP grants licence to drive LMV without any endorsement, it is deemed to be a licence to drive a LMV and other types of vehicles like Auto rickshaw coming within that definition. 12. Devappa, 2013 KantMAC 420 (Kant) it was held that basically a light motor vehicle is transport vehicle and one the RTP grants licence to drive LMV without any endorsement, it is deemed to be a licence to drive a LMV and other types of vehicles like Auto rickshaw coming within that definition. 12. I have heard the submission of learned counsel for the appellant as well as learned counsel for the Insurance Company as well as learned counsel for the respondent No. 1 & 2/owner and driver. 13. It is the prayer of the learned counsel for the appellant while making the calculation, the Tribunal escaped the amount that was deposited in the GPF which should have been calculated by the learned Tribunal as well as 15 per cent of the future prospect as per the prevalent law in National Insurance Company Ltd. Vs. Pranay Sethi and Others, (2017) AIR SC 5157. Similarly, the amount under the funeral expenses and loss of estate, loss of consortium should also be given in terms of the aforesaid decision. Further, it is also submitted that the deceased being a third party to the incident, so the Insurance Company should indemnify the award and that can be recovered from the insured. 14. Learned counsel for the owner of the vehicle has however submitted that there is no conclusive proof that the owner has violated the policy condition to the permit and played the vehicle beyond the radius of 10 KM as mentioned in the permit. Accordingly it has been contended that as the violation of condition of permit is not specifically proved, so the insurer is liable to pay the compensation. 15. On the other hand, learned counsel for the Insurance Company has drawn the attention of the Court to the evidence and document that has been adduced before the Tribunal as has been mentioned above. 15. On the other hand, learned counsel for the Insurance Company has drawn the attention of the Court to the evidence and document that has been adduced before the Tribunal as has been mentioned above. The Insurance Company has adduced their evidence and brought on record the permit that was issued to the owner of the vehicle, which goes to show as per the condition of the permit, the owner is to ply the vehicle within the radius of 10 KM of Doomdooma town but the witness of the claimants in their cross examination has specifically admitted that the distance between Digboi to Doomdoom is more than 15 to 20 K.M. That apart, in the Form No. 54 itself the same aspect regarding condition of permit is also reflected. Accordingly it has been submitted that the evidence of claimants side as well as in view of the evidence from defence, there is ample proof that the owner of the vehicle has violated the condition of permit which is violative of the statutory provision of Section 66 of the MV Act. 16. Referring to the place of occurrence in the present case, and the evidence on record, it reveals that the place of occurrence is at Borbil under Digboi PS which is far away from Doomdooma and as it appears that the deceased boarded in the said vehicle which was stationed in that said Borbil area. Despite specific averment in the Form No. 54 itself and the claim petition, the respondent/owner failed to dispute the said vital aspect that he has not violated the condition of permit. Nothing mentioned regarding permit in their written statement despite having the opportunity to explain the same, which has strengthened the case of the Insurance Company that yes, indeed there is a violation of condition of permit. The submission of learned counsel for the owner/respondent No. 2 is that for the violation of such simple condition of the road permit, the owner should not be saddled with the burden of paying compensation otherwise he has the permit and driving licence on the part of the driver. The said submission cannot be sustained as there is an apparent violation of Section 66 of the MV Act. The liability of the Insurance Company is always subject to condition of valid documents like insurance policy, driving licence and road permit etc. The said submission cannot be sustained as there is an apparent violation of Section 66 of the MV Act. The liability of the Insurance Company is always subject to condition of valid documents like insurance policy, driving licence and road permit etc. and liability of the Insurance Company cannot be fastened whenever there is a violation of the condition. As the driver and owner of the vehicle measurably failed to discharge their burden to proof that they have not violated the condition of permit while plying the vehicle, so this Court is of opinion that they are certainly liable to pay the compensation as has been directed by the Tribunal. 17. However, as per the mandate of the law and the guideline given in the Mukund Dewangan, the Insurance Company is to pay compensation and the same will be recovered from owner in due course. 18. Accordingly the Insurance company is hereby directed to deposit the awarded amount before the Registry within 2 (two) months from today, with the 6 per cent interest as has been indicated above in the award and the same will be recovered from the owner of the said offending vehicle in due course. The claimants can withdraw the amount on due identification of their engaged counsel. Return the LCR.