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2018 DIGILAW 36 (GAU)

United India Insurance Co. Ltd. v. Anil Nath

2018-01-08

KALYAN RAI SURANA

body2018
JUDGMENT : Kalyan Rai Surana, J. Heard Mrs. R.D. Mozumdar, the learned counsel for the appellant. None appears on call for the respondents although notices have been duly served in a substituted manner by publishing the same in one English and one Assamese daily circulating in the State. Therefore, the appeals are heard ex-parte against the respondent in both the appeals. 2. These two appeals under Section 173 of the MV Act, 1988, are preferred against the common judgment and award dated 16.05.2011, passed by the learned Member, M.A.C. Tribunal, Kamrup (M), Guwahati in MAC Case No. 2104/2008 and MAC Case No. 2105/2008. 3. The case of the respondent No. 1/claimant in both the cases is that on 08.02.2008, while the respondent No. 1(in MAC Appeal No. 167/2011)/claimant, namely, Anil Nath was riding on a motorcycle bearing registration No. AS-13-9875 as a pillion rider from Mazbat towards Batabari, the motorcycle which was being given by Amit Rava (since deceased) hit against a tree. As a result of the accident, both the rider of the motorcycle as well as the respondent No. 1 sustained grievous injury. On way to hospital, the rider of the offending vehicle had died. The appellant, who was the opposite party No. 3 in the claim petition, contested the case by filing written statement and took a plea that the rider of the motorcycle was responsible for the accident and the onus of proving the claim was put on the respondent No. 1. The respondent No. 2 who is the owner of the vehicle did not contest the case and the case had proceeded ex-parte against him. The claim case filed by the mother of the rider of the motorcycle, was numbered as MAC Case No. 2104/2008, which is the subject matter of MAC Appeal No. 167/2011. The analogous appeal in respect of the aforesaid MAC Case No. 2104/2008, is numbered as MAC Appeal No. 168/2011. 4. The records reveal that by an order dated 22.10.2008, it was ordered by the learned Tribunal that MAC Case No. 2104/2008 would not be taken up analogously and it was separated because of the reason that while MAC Case No. 2104/2008 was filed under Section 163-A of the M.V. Act, the other case i.e. MAC Case No. 2105/2008 was instituted under Section 166 of the M.V. Act. However, while delivering the judgment impugned herein, it appears that both cases i.e. MAC Case No. 2104/2008 and MAC Case No. 2105/2008 was analogously heard by merging both the cases together and it was disposed of by a common judgment. 5. Upon pleading of the parties, the following issues were framed for adjudication: (i) Whether the victim, Amit Rava, died and the claimant, Sri Anil Nath, sustained injuries in the alleged accident dated 08.02.2008 involving vehicle No. AS-13-9875 and whether the said accident took place due to sue of the vehicle/rash and negligent driving of the driver of the offending vehicle ? (ii) Whether the claimants are entitled to receive any compensation if yes, to what extent and by whom amongst the opposite parties, the said compensation amount will be payable? 6. In support of the claim, the respondent No. 1/claimant, namely, Anil Nath (in MAC Appeal No. 167/11) and Smt. Diperi Rabha (in MAC Appeal No. 168/11) examined themselves as PW.1 in their respective cases and in case of Anil Nath, he also examined one Dipankar Das stated to be an eye witness of the accident as PW.2. In case of Smt. Diperi Rabha, one Bapen Rabha was examined as PW.2. In support of the defence, the appellant herein had examined two witnesses one Himangshu Das as DW.1 and one Kanak Chandra Saharia as DW.2. 7. In respect of issue No. 1, the learned Tribunal held that the accident occurred due to lack of proper care and attention in driving the vehicle and in other words, it was held that the negligence was thereon part of the driver of the motor vehicle. Hence, the learned Tribunal arrived at a finding that the accident causing injury to Anil Nath (respondent No. 1 in MAC Appeal No. 167/11) and death of the victim, Amit Rava occurred due to rash and negligent driving of the offending vehicle. 8. In respect of issue No. 2, the learned Tribunal relied on the case of United India Insurance Co. Ltd. Vs. 8. In respect of issue No. 2, the learned Tribunal relied on the case of United India Insurance Co. Ltd. Vs. H. Lalhmingliana, (2006) 2 GauLT 538 , and it was held that the rider of the vehicle, namely, Amit Rava, being a minor was not qualified to hold a driving licence that was issued to him on 08.11.2002 because as per driving licence (Exbt.3), school certificate (Exbt.A) and HSLC pass certificate (Exbt.E), the licence was issued to the deceased when he was only 12 years old. However, it was held that the appellant would be required to satisfy the award and recover the same from the owner of the vehicle. In connection with the MAC Case No. 2105/2008, the compensation was assessed as under: Medical expenditure - Rs. 78,000/- Pain, shock and suffering etc. - Rs. 25,000/- Incidental expenses during treatment - Rs. 15,000/- Total - Rs. 1,18,000/- 9. Relying on the evidence, in respect of MAC Case No. 2104/2008, it was held that the claim petition was filed under Section 163-A of the M.V. Act. Accepting the age of the deceased, namely, Late Amit Rava to be less than 20 years, the multiplier was taken as 16 for computing the loss of dependency. Income of the deceased was accepted as Rs. 3,000/- per month. Deducting one-third on account of personal expenses, the loss of dependency was calculated at Rs. 24,000/- and compensation was computed as under:- Loss of dependency - Rs. 24,000/- X 16 = Rs. 3,84,000/- Funeral expenses - Rs. 2,000/- Total - Rs. 3,86,000/- 10. The learned counsel for the appellant submits that in connection with MAC Case No. 2105/2008, by examining the two DWs, the appellant had not only successfully proved violation of the contract of insurance, they had also established by proving Exbt.A, which was an age certificate given by the Mazbat H.S. School, issued on 27.12.2009 that according to his HSLC Examination/2007, the date of birth of Late Amit Rava, son of Sri Tapeswar Rabha was 01.11.1990 and, as such, on 08.02.2008, the date of accident, he was about 17 years 3 months old. It is submitted that the copy of High School Leaving Certificate Examination, 2007 was produced and marked as Exbt.D, which shows that as per the said certificate, the date of birth of the deceased, Amit Rava was 01.11.1990, which is confirmed by the Headmaster's Certificate marked as Exbt.E. Therefore, it is submitted that the driving licence was issued on 08.11.2002, Amit Rava when he was about 12 years of age. It is further submitted that even on the date of the accident, the rider i.e. Late Amit Rava, the deceased was a minor and the said issue had been raised before the learned Tribunal. Under the circumstances, the learned counsel for the appellant submits that as the motorcycle was being driven in violation of the contract of the insurance, no liability could have levied upon the appellant in both the MAC cases, viz., MAC Case No. 2104/2008 and MAC Case No. 2105/2008. 11. In support of her contention, the learned counsel for the appellant has relied on the following cases, (i) United India Insurance Co. Ltd. Vs. Rakesh Kumar Arora & Ors., (2008) 13 SCC 298 , (ii) Ishwar Chandra and Ors. Vs. Oriental Insurance Co. Ltd. and Ors., (2007) 10 SCC 650 , (iii) Oriental Insurance Co. Ltd. Vs. Nanjappan and Ors., (2004) 13 SCC 224 (iv) Rajo Devi Vs. Kailash Giri Bus Service Society and Ors., (2010) ACJ 572 and (v) United India Insurance Co. Ltd. Vs. Anjali Kalita and Ors., MAC Appeal No. 149/2012 decided by this Court on 29.08.2017. 12. Considered the submission made by the learned counsel for the appellant. Perused the materials on record. 13. On perusal of the cross-examination of PW.2, who was examined in MAC Case No. 2105/2008, the said witness Dipankar Das had stated in his cross examination that the motor bike came in very high speed and hit the tree. In his evidence on affidavit in paragraph 4 also he had deposed to the effect that the accident had occurred due to rash and negligent driving of the motorcycle bearing registration No. AS-13-9875. Therefore, there is no infirmity in the finding recorded by the learned Tribunal on issue No. 1 that the accident occurred due to rash and negligent driving of the offending vehicle. Therefore, there is no infirmity in the finding recorded by the learned Tribunal on issue No. 1 that the accident occurred due to rash and negligent driving of the offending vehicle. Therefore, the only issue which survives for adjudication by this Court is whether the appellant/insurer was liable to pay any compensation in MAC Case No. 2104/2008 and 2105/2008. 14. The un-impeached evidence of DW.1 and DW. 2 shows that Late Amit Rava who was driving the offending vehicle and on whose death MAC Case No. 2104/2008 was registered, he was born on 01.11.1990 as per the HSLC certificate (Exbt.D), Headmaster's certificate (Exbt.A) and Exbt.E. Therefore, on the date of accident i.e. on 08.02.2008, Late Amit Rava, the deceased was not qualified to hold a licence for driving the motor vehicle. On a perusal of the driving licence which is found on record and marked as Exbt.3 by PW.2, namely, Bapen Rabha, it appears that the deceased was entitled to drive a transport vehicle and, as such, as per endorsement at internal page-7 of the said licence, the licence was initially valid from 08.11.2002, the date of issue of to 07.11.2005. As per the endorsement made in page-12 thereon, the said licence was renewed w.e.f. 01.03.2006 to 28.02.2009. As per the provisions of Section 4(2) of the M.V. Act, 1988, it is provided that subject to provisions of Section 18, no person under the age of 20 years shall drive a transport vehicle in any public place. As per the entries made in the said licence, there nothing on record to show that insofar as the licence for driving a motorcycle is concerned, the same was not covered by the said professional licence or transport vehicle licence, rather the licence is a composite licence for M/C i.e. motorcycle, LMV i.e. light motor vehicle and PSV i.e. public service vehicle, bearing licence No. 3802/NB/02. Ex-facie, the licence was issued on 08.11.2002, when as per the Board of Secondary Education Certificate (Exbt.D), the deceased Late Amit Rava was born on 01.11.1990, as such, he was 12 years of age when the licence was issued to him and he had not attained the age of majority on the date of the accident. Ex-facie, the licence was issued on 08.11.2002, when as per the Board of Secondary Education Certificate (Exbt.D), the deceased Late Amit Rava was born on 01.11.1990, as such, he was 12 years of age when the licence was issued to him and he had not attained the age of majority on the date of the accident. Hence, the appellant is found to be entitled to repudiate the claim on the ground that the insured motorcycle was being driven in violation of the terms of contract of insurance, which is a ground available for defence under Section 149 of the M.V. Act. It is held that the deceased Late Amit Rava was disqualified from holding a valid licence as on the date of the accident because as per the HSLC certificate issued by the Board of Secondary Education, Assam (Exbt.D) as well as the Headmaster's Certificate (Exbt.A and Exbt.E), the deceased was born on 01.11.1990. 15. Relying on the ratio of the case of Rakesh Kumar Arora & Ors., and Rajo Devi, this Court has no hesitation to hold that as the licence issued to the deceased Late Amit Rava is not in consonance with the provisions of the M.V. Act, the said licence is ipso facto void and the appellant has right to be exempted from any liability which arise out of the act of driving motor vehicle by a minor who was not qualified to hold a driving licence to drive any vehicle as on 08.11.2002, i.e. the date of accident because of his minority. 16. In light of the above discussion, insofar as MAC Case No. 2104/2008 is concerned, the said claim was for the deceased Amit Rava, who as indicated above, was not qualified to hold any driving licence because of his minority. Hence, the claim under Section 163-A for payment of compensation of structured formula basis cannot be awarded against the appellant. Therefore, the liability to pay the compensation is shifted to the owner of the vehicle, namely, Sri Ramdhan Rajowar (respondent No. 2 herein). Accordingly, the appeal being MAC Appeal No. 167/2011 stands allowed. As the award dated 16.05.2011 passed by the learned Member, M.A.C., Tribunal, Kamrup (M), Guwahati in MAC Case No. 2105/2008 stands modified by allowing the respondent No. 1 to be entitled to compensation of Rs. Accordingly, the appeal being MAC Appeal No. 167/2011 stands allowed. As the award dated 16.05.2011 passed by the learned Member, M.A.C., Tribunal, Kamrup (M), Guwahati in MAC Case No. 2105/2008 stands modified by allowing the respondent No. 1 to be entitled to compensation of Rs. 1,18,000/- from the said owner of the offending motorcycle, namely, Sri Ramdhan Rajowar, in terms of the award, which is for the payment of the awarded sum together with interest @ 6% per annum from the date of the order. The appellant i.e. the United India Insurance Co. Ltd. is exonerated from the liability of satisfying the award. 17. Insofar as the MAC Appeal No. 168/2011 is concerned, the same arise out of MAC Case No. 2104/2008. Following the same ratio, the appeal being MAC Appeal No. 167/2011 stands allowed. As the award dated 16.05.2011 passed by the learned Member, M.A.C., Tribunal, Kamrup (M), Guwahati in MAC Case No. 2104/2008 stands modified by allowing the respondent No. 1 to be entitled to compensation of Rs. 3,86,000/- from the said owner of the offending motorcycle, namely, Sri Ramdhan Rajowar, in terms of the award, which is for the payment of the awarded sum together with interest @ 6% per annum from the date of the order. The appellant i.e. the United India Insurance Co. Ltd. is exonerated from the liability of satisfying the award. 18. Accordingly, this appeal stands allowed on terms as indicated above. 19. The Registry may permit the appellant to withdraw the deposit sum of Rs. 59,000/-, deposited before the Registry of this Court along with the refund of statutory deposit of Rs. 25,000/- in connection with MAC Appeal No. 167/2011. 20. Moreover, the Registry may permit the appellant to withdraw the statutory deposit of Rs. 25,000/- in connection with MAC Appeal No. 168/2011. 21. Let the LCR be returned forthwith.