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Jharkhand High Court · body

2019 DIGILAW 245 (JHR)

National Insurance Company Ltd. v. Suman Devi

2019-01-24

S.N.PATHAK

body2019
JUDGMENT : S.N. PATHAK, J. 1. This miscellaneous appeal has been preferred against the Judgment/Award dated 28.02.2015 passed by the learned District Judge-III cum MACT, Jamshedpur in Compensation Case No. 73 of 2012, whereby and whereunder the learned Tribunal awarded the applicants/respondents Rs. 5,58,400 along with interest @ 8 % per annum from the date of filing of the claim application till its realization, payable by the appellant herein Insurance Company after deducting the amount paid if any U/S 140 of M.V. Act, within a period of 30 days from the date of Judgment/Award. 2. The facts of the case as per the claim petition is that on 10.08.2010, when the deceased was returning to his home after completing his duty from L&T Company, at about 7:30 p.m. a Tempo dashed the cycle of the deceased and due to this accident the deceased was admitted in M.G.M. Hospital and from there the deceased was shifted to T.M.H for better treatment and in the course of treatment in said Hospital on 11.08.2018 at about 11.50, the deceased expired. The FIR was lodged by the father of the deceased in T.M.H. against unknown auto vehicle and after investigation the police caught offending Auto bearing Registration No. JH 05 R 1642. The deceased was only earning Member of his family. The opposite party has contested the case, by filing his written statement before the learned tribunal. 3. The parties appeared before the Tribunal and were heard. After examining the witnesses and perusing the evidences on record, the learned Tribunal framed the followings issues:- (i) Whether the case is maintainable in the present form or not? (ii) Whether the deceased died due to rash and negligent driving by driver of Tempo bearing Registration No. JH 05 F 1642? (iii) Whether the Vehicle was insured with the OP Insurance Company and whether O.P. Insurance Company is liable to make payment of compensation? (iv) Whether the owner of the vehicle has violated any terms and condition of the insurance policy? (v) Whether the driver of vehicle was having a valid driving license or not? (vi) Whether the applicants are entitled to get compensation, if so what would be quantum of compensation? (vii) Whether the applicants are entitled to get any other relief or reliefs? 4. (v) Whether the driver of vehicle was having a valid driving license or not? (vi) Whether the applicants are entitled to get compensation, if so what would be quantum of compensation? (vii) Whether the applicants are entitled to get any other relief or reliefs? 4. Learned Tribunal after perusal of the records and examining the evidences and after hearing learned counsel for the parties, came to a finding that the claimants are entitled to Rs. 5,58,400/- along with interest @ 8 % per annum from the date of filing of the claim application till its realization, payable by the appellant herein Insurance Company after deducting the amount paid if any U/S 140 of M.V. Act, within a period 30 days from the date of Judgment/Award. Further the applicants were directed to deposit half of the compensation amount in a fixed deposit scheme for a period of six years in a nationalized bank. The Insurance Company has challenged the same. 5. Mr. G.C. Jha, learned counsel appearing for the appellant-Insurance Company submits that the driver was not having a valid driving licence and as such, Insurance Company is not liable for any compensation as awarded by the learned Tribunal. However, since the learned Tribunal has awarded compensation and already 4 lacs of the above compensation amount has been deposited and same has been withdrawn by the respondent-claimants as per the direction of this Hon’ble Court, a direction may be given to the Insurance Company to recover the amount from the owner as per law. 6. Mr. Girish Mohan Singh, learned counsel appearing on behalf of the respondent No. 6 justifying the impugned Award/judgment submits that Insurance Company is liable to pay the entire amount as awarded by the learned Tribunal and the respondents No. 6 is not at all responsible to make the payment. 7. Be that as it may, having gone through submissions of the parties, this Court is of the considered view that no interference is required in the compensation amount as awarded by the learned Tribunal. As far as liability is concerned, the Hon’ble Apex Court in case of Mukund Dewangan vs. Oriental Insurance Company Limited, (2017) 14 SCC 663 has observed as under: “55. Sections 10(2)(a) to (j) lay down the classes of vehicles to be driven, not a specific kind of motor vehicles in that class. As far as liability is concerned, the Hon’ble Apex Court in case of Mukund Dewangan vs. Oriental Insurance Company Limited, (2017) 14 SCC 663 has observed as under: “55. Sections 10(2)(a) to (j) lay down the classes of vehicles to be driven, not a specific kind of motor vehicles in that class. If a vehicle falls into any of the categories, a licence-holder holding licence to drive the class of vehicle can drive all vehicles of that particular class. No separate endorsement is to be obtained nor provided, if the vehicle falls in any of the particular classes of Section 10(2). This Court has rightly observed in Nagashetty4 that in case submission to the contrary is accepted, then every time an owner of a private car, who has a licence to drive a light motor vehicle, attaches a roof carrier to his car or a trailer to his car and carries goods thereon, the light motor vehicle would become a transport vehicle and the owner would be deemed to have no licence to drive that vehicle. It would lead to absurd results. Merely because a trailer is added either to a tractor or to a motor vehicle it by itself does not mean that driver ceased to have valid driving licence. In our considered opinion, even if such a vehicle is treated as transport vehicle of the light motor vehicle class, legal position would not change and driver would still have a valid driving licence to drive transport vehicle of light motor vehicle class, whether it is a transport vehicle or a private car/tractor attached with trolley or used for carrying goods in the form of transport vehicle. The ultimate conclusion in Nagashetty4 is correct, however, for the reasons as explained by us. 58. “Transport vehicle” has been defined in Section 2(47) of the Act, to mean a public service vehicle, a goods carriage, an educational institution bus or a private service vehicle. “Public service vehicle” has been defined in Section 2(35) to mean any motor vehicle used or adapted to be used for the carriage of passengers for hire or reward and includes a maxi cab, a motor cab, contract carriage and stage carriage. “Public service vehicle” has been defined in Section 2(35) to mean any motor vehicle used or adapted to be used for the carriage of passengers for hire or reward and includes a maxi cab, a motor cab, contract carriage and stage carriage. “Goods carriage” which is also a transport vehicle is defined in Section 2(14) to mean a motor vehicle constructed or adapted for use solely for the carriage of goods, or any motor vehicle not so constructed or adapted when used for the carriage of goods. It was rightly submitted that a person holding licence to drive light motor vehicle registered for private use, who is driving a similar vehicle which is registered or insured, for the purpose of carrying passengers for hire or reward, would not require an endorsement as to drive a transport vehicle, as the same is not contemplated by the provisions of the Act. It was also rightly contended that there are several vehicles which can be used for private use as well as for carrying passengers for hire or reward. When a driver is authorised to drive a vehicle, he can drive it irrespective of the fact whether it is used for a private purpose or for purpose of hire or reward or for carrying the goods in the said vehicle. It is what is intended by the provision of the Act, and Amendment Act 54 of 1994. 59. 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 1989 Rules, other provisions and also the forms which are in tune with the provisions. 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 1989 Rules, 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 Sections 10(2)(e) to (h) and our conclusion is fortified by the syllabus and rules which we have discussed.” 8. As per the observations of the Hon’ble Apex Court in case of Mukund Dewangan vs. Oriental Insurance Company Limited (supra), I do not find any illegality or infirmity in the impugned Award. Accordingly, the instant appeal instant dismissed. 9. Since the Rs. 4 lacs have already been withdrawn by the claimant, I hereby direct the appellant-Insurance Company to deposit the rest of the amount as per the terms and conditions of the Award within a period of two months from the date of receipt of a copy of this order. Thereafter, the claimant is at liberty to withdrawn the entire amount as per the terms and conditions. 10. The statutory amount, if any, deposited by the appellant is directed to be transmitted to the Tribunal for its payment to the claimant and for that office/Registry shall do the needful. 11. Let the LCR be returned to the Court below concerned at the earliest.