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2019 DIGILAW 1309 (KAR)

Channawwa v. Shridhar

2019-06-17

P.G.M.PATIL

body2019
JUDGMENT : P. G. M. PATIL, J. 1. The owner and the claimant being aggrieved by the judgment and award dated 20.03.2012 passed in MVC.No.685/2010 by the Presiding Officer, Fast Track Court-I , Dharwad, have filed these appeals. 2. The case of the claimant before the tribunal is that on 03.06.2008 at about 11.00 a.m. , when the petitioner along with her husband went to the market place of Alnavar to purchase vegetables, a driver of mini goods bearing registration No.KA.24/A7022 came in a rash and negligent manner and hit the petitioner and caused the accident. On account of the same, the petitioner sustained grievous injuries. She was taken to Alnavar Government Hospital and thereafter, she was shifted to Mayur Nursing Home and then to Guttal Medical College Hospital where she was treated as indoor patient and now also she is taking treatment. Prior to the accident she was earning Rs. 5,000/- per month and now she is not able to work. Respondent No.1 being the owner and respondent No.2 being the insurer of the of fending vehicle, both are jointly and severally liable to pay the compensation. 3. In response to the notice, respondents No.1 and 2 appeared before the tribunal . Respondent No.1 filed the statement of objection denying the rash and negligent driving of his driver. He has denied the age, occupation and monthly income of the claimant and that she has spent money towards medical expenses. He has further stated that his vehicle is duly insured with respondent No.2 and the insurance policy was also valid and therefore in case of any liability is fixed, the same has to be saddled against the respondent No.2 insurer. 4. Respondent No.2 filed the statement of objections denying the rash and negligent driving of the driver of the of fending vehicle. He has denied age, occupation and injuries sustained by the claimant. Respondent No.2 has also contended that his liability is subject to terms and conditions and limitations especial ly in respect of valid and effective driving license of the driver. 5. On the basis of the pleadings of the parties, the tribunal framed issues. In order to prove her claim, the claimant got examined herself as PW.1 and one witness as PW.2 and got marked 18 documents as Exs.P.1 to P.18. Respondent no.2 got examined its witness as RW.1 and got marked 2 documents as Exs.R.1 and R.2. 5. On the basis of the pleadings of the parties, the tribunal framed issues. In order to prove her claim, the claimant got examined herself as PW.1 and one witness as PW.2 and got marked 18 documents as Exs.P.1 to P.18. Respondent no.2 got examined its witness as RW.1 and got marked 2 documents as Exs.R.1 and R.2. The learned member of the tribunal, after hearing both the parties, passed the impugned judgment awarding compensation of Rs. 82,500/- with interest at 6% p.a. from the date of petition till its realization. Respondent No.1 the owner of the vehicle was directed to pay the compensation amount and claim against respondent No.2 insurance company was dismissed. 6. The owner of the vehicle being aggrieved by the impugned judgment has filed MFA No.101805/2015 on the grounds that the tribunal ought to have properly considered that the insurance policy was obtained by the appellant and the driver of the vehicle was not disqualified from holding valid driving license as provided under the provisions of the M.V.Act. Hence fastening of liability merely on the ground that the driver was not possessing valid driving license as on the date of accident is not just and proper. 7. The claimant being dissatisfied with the impugned judgment and award has filed MFA No.25351/2012 for enhancement of compensation on the grounds that the tribunal has not considered the disability of the claimant in order to award compensation towards loss of earning capacity and that the compensation awarded on other heads is on lower side. 8. Heard the learned counsels appearing for the parties. 9. A short question which arises for considered before this Court in these appeals is as to whether the appellant owner of the vehicle has made out grounds to saddle the liability to pay compensation on the insurer and whether the claimant has made out grounds for enhancement of compensation. 10. The learned counsel for the appellant owner of the vehicle vehemently submitted that the tribunal has erroneously exonerated the insurer and fastened the liability on the owner of the vehicle only on the ground that the driver of the offending vehicle was not possessing valid driving license as on the date of accident. The tribunal has not considered that the driver was not disqualified to hold the driving license. The tribunal has not considered that the driver was not disqualified to hold the driving license. The learned counsel further submitted that Ex.R.2 the insurance policy provides that "persons or class of persons enti tled to drive: any person including insured provided that a person driving holds an effective licence at the time of the accident and is not disqualified from holding or obtaining such a licence as required under Rule 3 of Central Motor Vehicle Rules, 1989". Therefore the learned counsel further submits that in the present case by using the word "and" the insurer has taken the responsibility of proving that the driver of the vehicle was holding an effective driving license and he was also not disqualified from holding such a licence. 11. Per contra, the learned counsel for the insurer submitted that admittedly there was no valid driving license as on the date of the accident and that it was subsequently renewed but the renewal has not taken place from the date of expiry, as the application was not filed within 30 days from the date of expiry. Therefore the question of proving that the driver was not disqualified does not arise. 12. The learned counsel for the appellant owner of the vehicle has relied upon the judgment of this Court in the case of Oriental Insurance Co. Ltd. , vs. Mohammed Sab AH Sab Kaladagi, (1999) ILR(Kar) 2100. In paragraph No.3 of the judgment, this Court has held as follows: 3. THE wording used as 'or' assumes much importance in this case. According to the construction of this section, the insurance company can succeed only if the person was not duly licensed or he was disqualified from holding or obtaining the driving license during the period of disqualification. According to the construction of the language either of the conditions has to be duly fulfilled. But in the policy issued the word 'and' is used as conjunction. By the use of word 'and' it goes to show that the insurance company has to prove that the driver was not only not duly licensed but was also disqualified for holding the licence. The word 'or' and the word 'and' used in the policy assumes much importance. There cannot be compromise between the word 'or' and 'and'. The plain language as it is read has to be understood. The word 'or' and the word 'and' used in the policy assumes much importance. There cannot be compromise between the word 'or' and 'and'. The plain language as it is read has to be understood. In this direction Mr.B.S.Patil , learned counsel for the respondents relied upon the observation as how the construction of the statute be understood. 13. Therefore the word "or" and "and" used in the policy was interpreted so as to make the insurer to establish that the driver was not holding a valid and effective driving license and also disqualified to hold such alicence. 14. This Court in the case of Hussain Peera @ Mulla Sab Gari vs. M.Venkateshulu and another in MFA No.20242/2013 C/w. MFA No.20978/2013, decided on 29.10.2018, has observed in paragraph No.21 as follows: 21. The next point is concerned, which deals with the liability of the insurer to satisfy the award passed by the Tribunal on account of the driver of the of fending vehicle not possessing a valid driving licence as on the date of the accident. The said point should not take us long to answer in the negative and as against the Insurance Company for the reason that the driver did possess a valid driving licence till 06.08.2010. The said licence had expired on the said date and on the date of the accident which was a few days thereafter i.e. on 10.09.2010, the driver did not possess a renewed driving licence. This is not a case where the driver of the vehicle did not at all possess alicence to drive the vehicle. Merely because there was no renewal of the driving licence as on the date of the accident, it cannot be construed or held that the driver of the of fending vehicle had lost his skill or did not have his qualification or expertise to drive the vehicle. In the circumstances, the said point is answered against the Insurance Company as this is not a case where there is a fundamental breach of terms and conditions of the policy regarding possession of driving licence, it is merely a case of non-renewal of the driving licence. Hence, the Insurance Company cannot be exonerated on that score. 15. Therefore in that case also the driver of the offending vehicle did not possess valid driving license as on the date of accident. Hence, the Insurance Company cannot be exonerated on that score. 15. Therefore in that case also the driver of the offending vehicle did not possess valid driving license as on the date of accident. He was also not disqualified to hold such a licence. On those grounds the Division Bench of this Court held that it is not a case where there are breach of terms and conditions of the policy regarding possession of driving license, it is merely a case of non renewal of the driving license. Hence he cannot be exonerated on that ground. 16. Learned counsel for the insurer has relied on the decision in the case of Ram Babu Tiwari vs. United Indian Insurance Co. Ltd. and Ors., in Civil Appeal No.4749 of 2008, decided by the Hon'ble Supreme Court on 1.8.2018. In this case the Hon'ble Supreme Court referring to Section 15 of the M.V.Act, held as follows: "9. From a bare perusal of the said provision, it would appear that the licence is renewed in terms of the said Act and the rules framed thereunder. The proviso appended to Section 15(1) of the Act in no uncertain terms states that whereas the original licence granted despite expiry remains valid for a period of 30 days from the date of expiry, if any application for renewal thereof is filed thereafter, the same would be renewed from the date of its renewal. The accident took place 28.4.1995. As on the said date, the renewal application had not been filed, the driver did not have a valid licence on the date when the vehicle met with the accident." 17. In the present case, there is no evidence on record as to when the driver of the vehicle applied for renewal of the driving license. However, it is admitted that subsequently the licence was renewed. Under these circumstances, it is held that the evidence of RW.1 is not sufficient to prove that the driver of the offending vehicle was not holding valid licence and he was also disqualified for holding such a driving license. On the other hand, the words used in Ex.R.2 are sufficient to hold that the burden is on the insurer to prove that the driver was not holding valid and effective driving license at the time of accident and was also disqualified to hold such a driving license. On the other hand, the words used in Ex.R.2 are sufficient to hold that the burden is on the insurer to prove that the driver was not holding valid and effective driving license at the time of accident and was also disqualified to hold such a driving license. Under these circumstances the finding recorded by the tribunal that the driver was not holding driving license and therefore respondent No.2 insurer is not liable to pay compensation and that respondent No.1 is liable to pay compensation cannot be accepted. 18. The learned counsel for the insurer further submitted that the order for pay and recover may be passed in view of the judgment of the Hon'ble Supreme Court in the case of Shamanna and another vs. Divisional Manager, Oriental Insurance Company Limited and others, (2018) 9 SCC 650 . In the present case, since the insurer has not proved that the driver of the offending vehicle was disqualified from holding the licence and there is no breach of fundamental terms and conditions of the policy, such an order cannot be passed. Therefore the finding recorded by the tribunal fastening the liability on the owner is liable to be set aside and the liability has to be fastened on both the owner and the insurer. The insurer has to be directed to satisfy the award and therefore the appeal filed by the owner deserves to be allowed. 19. The learned counsel for the appellant/claimant submitted that the tribunal has not considered the disability of the claimant and has not awarded any compensation towards loss of future earning capacity. The claimant has got examined herself as PW.1 and also the doctor who has issued the disability certificate is examined as PW.2. He has deposed as to the examination of the claimant and issuance of certificate stating that the petitioner is suffering from permanent disability of 47% to both the lower limbs and pelvis and it comes to 16% to the whole body. He has been cross examined. It is deposed by this witness that the claimant had sustained fracture of both superior and inferior pubic ramie of both pubic bones on both sides. Therefore it is proved that the claimant is suffering from permanent disability to some extent. Considering the material on record in this regard, it appears, it is just and necessary to award compensation towards loss of future earning capacity. 20. Therefore it is proved that the claimant is suffering from permanent disability to some extent. Considering the material on record in this regard, it appears, it is just and necessary to award compensation towards loss of future earning capacity. 20. On the basis of evidence of PW.2, it is held that the claimant is suffering from permanent disability of 10% of the whole body and she is entitled for compensation towards loss of earning capacity to this extent. The income of the claimant is considered as Rs. 3,000/- per month in the absence of any material to prove her income. Accordingly, compensation towards loss of future income is awarded at Rs. 61,200/- (Rs. 3,000/- x 12 x 17 x 10%). The compensation awarded by the tribunal under other heads is retained. Thus, the claimant is entitled for a total compensation of Rs. 1,43,700/- as against the compensation awarded by the tribunal at Rs. 82,500/-. Hence, the point for consideration is answered accordingly. 21. In the result, this Court proceed to pass the following: ORDER The appeal in MFA No.101805/2015 is allowed. The judgment and award dated 20.3.2012, passed in MVC No.685/2010, by the Fast Track Court-I , Dharwad, so far as saddling the liability on respondent No.1 owner of the vehicle and exonerating respondent No.2 insurer is set aside. It is ordered that the owner and insurer i.e. , respondents No.1 and 2 are jointly and severally liable to pay the compensation awarded in the case and the respondent No.2 insurer is directed to deposit the compensation amount. The appeal in MFA No.25351/2012 is partly allowed. The appellant/claimant is awarded compensation of Rs. 1,43,700/- with interest at 6% p.a. from the date of petition till its realization. The amount of compensation deposited by the appellant in MFA No.101805/2015 shall be refunded to him. Respondent No.2 insurer is directed to deposit the compensation amount before the tribunal within eight weeks.