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2018 DIGILAW 1654 (RAJ)

Banwari Lal v. Rameshwari Devi

2018-08-07

ARUN BHANSALI

body2018
JUDGMENT Arun Bhansali, J. At the request of learned counsel for the parties, the matter has been finally heard. 2. This appeal is directed against the judgment and award dated 18.7.2017 passed by the Motor Accident Claims Tribunal, Sriganganagar ('the Tribunal'), whereby, the Tribunal has awarded a sum of Rs. 24,40,625/- as compensation alongwith interest @ 7.5% per annum from the date of application i.e. 2.1.2014, however, the Insurance Company has been exonerated from the liability to pay compensation. 3. The application for compensation was filed by the mother, wife and children of one Jai Prakash, inter alia, with the averments that at about 10:50 pm, he was riding on his motorcycle at Sriganganagar when a pick-up being driven rashly and negligently by its driver, struck the motorcycle, resulting in Jai Prakash falling down, suffering grievous injuries to which he ultimately succumbed. It was claimed that the deceased was aged about 29 years and was working for M/s. Nain Construction Company and used to earn Rs. 1,50,000/- per annum. 4. The application was contested by the owner & driver. It was denied that the accident occurred from the vehicle in question. It was also submitted that the deceased suddenly came on the national highway from the side road and though the vehicle in question was plying on its correct side, despite efforts being made by the driver, the same resulted in the accident. 5. The Insurance Company contested its liability on the ground that the driver was not in possession of a valid driving licence. Based on the pleadings of the parties, the Tribunal framed four issues. On behalf of the claimants two witnesses were examined and on behalf of the non-claimants also two witnesses were examined. 6. After hearing the parties, the Tribunal came to the conclusion that the accident occurred on account of rash and negligent driving by the driver of the pick-up. While considering the issue of liability of the Insurance Company, the Tribunal came to the conclusion that the driver was in possession of licence authorized to drive 'light motor vehicle' and the vehicle in question was a 'light transport vehicle' and there was violation of policy condition and as such the Insurance Company was not liable and exonerated the Insurance Company. While assessing the quantum of compensation, the Tribunal based on the Income-Tax Return, assessed the income of the deceased at Rs. While assessing the quantum of compensation, the Tribunal based on the Income-Tax Return, assessed the income of the deceased at Rs. 1,25,000/- per annum, added future prospects at 50%, deducted 1/4th towards personal expenses and awarded a sum of Rs. 23,90,625/- towards loss of income, further awarded a sum of Rs. 50,000/- towards loss of love & affection and funeral expenses and in all awarded a sum of Rs. 24,40,625/- alongwith interest as noticed hereinbefore. It is submitted by learned counsel for the appellants that the finding of the Tribunal is contrary to the law laid down by Hon'ble Supreme Court in the case of Mukund Dewangan v. Oriental Insurance Company Ltd. & Ors, (2017) 14 SCC 663 , wherein Hon'ble Supreme Court has held that a person holding licence to driver 'light motor vehicle', was entitled to drive 'light transport vehicle' as well and, therefore, the award passed by the Tribunal to the extent that it has exonerated the Insurance Company, is liable to be set aside. 7. Learned counsel for the respondent Insurance Company submitted that the issue regarding the liability of the Insurance Company based on the judgment in the case of Mukund Dewangan is still at large as Hon'ble supreme Court subsequently in Bajaj Alliance General Insurance Co. Ltd. v. Rambha Devi & Ors.: Civil Appeal No.841/2018, a two judges' Bench of Hon'ble Supreme Court has referred the matter to a three judges Bench for considering the issue raised therein and, therefore, the judgment in the case of Mukund Dewangan for the present case, cannot be relied on by the appellants. 8. Further submissions were made that the Tribunal has awarded excessive compensation contrary to the principles laid down by a constitution Bench of Hon'ble Supreme Court in the case of National Insurance Company Ltd. v. Pranay Sethi & Ors, (2017) AIR SC 5157 and, therefore, the compensation deserves to be reduced appropriately. 9. Learned counsel appearing for the claimants supported by the submissions made by learned counsel for the appellants and opposed the prayer made by learned counsel for the Insurance Company. It was submitted that the Insurance Company has not challenged the finding of Tribunal regarding compensation and, therefore, it is not entitled to make prayer as has been made now. I have considered the submissions made by learned counsel for the parties and have perused the material available on record. 10. It was submitted that the Insurance Company has not challenged the finding of Tribunal regarding compensation and, therefore, it is not entitled to make prayer as has been made now. I have considered the submissions made by learned counsel for the parties and have perused the material available on record. 10. It is not in dispute that the driver was in possession of driving licence authorized to drive 'light motor vehicle' and the vehicle in question was a 'light transport vehicle'. 11. Hon'ble Supreme Court in the case of Mukund Dewangan, inter alia, 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. 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. 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, 'unladen 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 "unladen 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. The circumstances of the present case are covered by judgment of Hon'ble Supreme Court in the case of Mukund Dewangan. 13. The circumstances of the present case are covered by judgment of Hon'ble Supreme Court in the case of Mukund Dewangan. 13. So far as the submissions made by learned counsel for the respondent-Insurance Company regarding the pendency of the issue again before a three judges' Bench in the case of Rambha Devi is concerned, the fact that the matter is pending cannot detain the Court from deciding the issue based on the judgment, which is presently holding the field, specially in view of the fact that for the present, the appellants alone, contrary to the judgment of Hon'ble Supreme Court, cannot be directed to make payment and as the Insurance Company has been exonerated, the result would be that the claimant would be left without any compensation. 14. So far as the quantum of compensation is concerned, the same apparently on the issue of future prospects is contrary to the judgment in the case of Pranay Sethi, whereby, Hon'ble Supreme Court has laid down that in case of a self employed person having the future prospects upto the age of 40 would be 40%, whereas, the Tribunal has awarded 50%, however, the amount awarded towards funeral expenses as well as other conventional heads is on the lower side, which would be Rs. 70,000/- instead of Rs. 50,000/- as awarded by the Tribunal. In view thereof, on recalculating the compensation based on the judgment in the case of Pranay Sethi, the claimants would be entitled to compensation of Rs. 1,31,250 x 17 = Rs. 22,31,250 + 70,000 = Rs. 23,01,250/-. 15. So far as the submission made by learned counsel for the claimants regarding non-filing of appeal by the Insurance Company pertaining to quantum of compensation is concerned, as the Tribunal has dismissed the claim against the respondent Insurance Company, there was no occasion for the Insurance company to file the appeal and as in the meanwhile on account of the Larger Bench judgment the law has changed, the Insurance Company once is being held liable, it can make submissions pertaining to the quantum of compensation under Order XLI Rule 22 CPC. 16. In view of the above, the appeal filed by the appellants is partly allowed. 16. In view of the above, the appeal filed by the appellants is partly allowed. The award dated 18.7.2018 passed by the Tribunal is modified to the extent that alongwith the appellants, Insurance Company respondent No.5 would also be jointly and severally liable for making payment of compensation, however, the compensation awarded is modified to Rs. 23,01,250/-, which shall be paid to the claimants in terms of the award alongwith interest from the date of application i.e. 2.1.2014. 17. The Insurance Company would make payment of the amount of compensation to the claimants within a period of six weeks.