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2019 DIGILAW 2732 (ALL)

Oriental Insurance Co. Ltd. v. Renu Gupta

2019-12-07

PRADEEP KUMAR SRIVASTAVA

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JUDGMENT : 1. Heard Shri Ramesh Singh, learned counsel for the appellant and Shri Ram Singh, learned counsel for the opposite parties. 2. This appeal has been filed against the judgment and award dated 30.11.2015 passed by Motor Accident Claims Tribunal /Additional District Judge, Court no. 5, Gorakhpur in MACP No. 764 of 2012 (Smt. Renu Gupta & others Vs. Prabhari Adhikari (Store) Nagar Nigam Gorakhpur & others) by which the learned Tribunal has awarded Rs. 1,54,000/-as compensation along with 7% simple interest per annum from the date of filing of this claim petition. 3. Aggrieved by the impugned award, this appeal has been filed on the ground that at the time of accident driver of the vehicle was not having a valid driving license to drive a transport vehicle and he was having a license of driving motorcycle or light motor vehicle. For plying transport vehicle, an endorsement was made on 29.12.2012 just after one day after the accident, which clearly proves that the vehicle was being driven in breach of insurance policy. Therefore the Insurance Company is not responsible to pay compensation and the impugned award is not sustainable under law and is liable to be set aside. 4. The respondent nos. 1 and 2 have filed a cross appeal against the impugned award stating that the awarded compensation is on lower side and is liable to be enhanced. The learned tribunal has passed the award on the basis of notional income of Rs. 15,000/-and it should be at least Rs. 36,000/- per month. The learned tribunal has omitted to consider the price rise while determining the notional income. At the time of death, the deceased was only 3 years old and the learned tribunal wrongly deducted 1/3 income against the personal expenses of the deceased. In the light of the decision of the Hon’ble High Court and Hon’ble Supreme Court the awarded amount is liable to be enhanced and the appeal of the Insurance Company is liable to be dismissed. 5. From the memo of appeal itself, it appears that the factual issues with regard to negligence and rash driving, insurance of offending vehicle and other aspect based on factual matrix have not been challenged by the appellant. The appeal is restricted to the only fact with regard to validity of the driving license to drive transport vehicle. 5. From the memo of appeal itself, it appears that the factual issues with regard to negligence and rash driving, insurance of offending vehicle and other aspect based on factual matrix have not been challenged by the appellant. The appeal is restricted to the only fact with regard to validity of the driving license to drive transport vehicle. In this regard, the only submission that has been advanced is that the accident took place on 28.12.2012 in the day time and the driver was not authorized to drive transport vehicle and after the accident, on the very next day, an endorsement was made in the license of the driver, authorizing him to drive transport vehicle and the validity of this authorization is from 29.12.2012 to 28.12.2015. Admittedly at the time of accident, the driver of the vehicle was authorized to drive a motor cycle and light motor vehicle. 6. From the perusal of the impugned judgment, it appears that the learned tribunal specifically framed a issue with regard to validity of the driving license and while disposing that issue, the learned tribunal has discussed the nature of the vehicle by which the accident took place. On record the learned tribunal found that the offending vehicle was light goods motor vehicle and when unloaded the weight of vehicle was 850 Kg and when loaded the vehicle was 1550 Kg. Learned tribunal has mentioned that under the Motor Vehicle Act unloaded light motor vehicle has been categorized up to the weight of 7500 Kg. The learned tribunal further found that in the motor vehicle, three wheeler passenger vehicle and four wheeler vehicle is also included and it also includes goods delivery vehicle. No otherwise evidence was given from the side of the appellant. That the offending vehicle was not heavy transport vehicle and therefore, it was decided by the learned tribunal on the basis of evidence, that the driver was very much authorized to drive the offending vehicle. This conclusion was further supported by the judgment in Kulwant Singh & others Vs. No otherwise evidence was given from the side of the appellant. That the offending vehicle was not heavy transport vehicle and therefore, it was decided by the learned tribunal on the basis of evidence, that the driver was very much authorized to drive the offending vehicle. This conclusion was further supported by the judgment in Kulwant Singh & others Vs. Oriental Insurance Company Ltd. 2014 (4) T.A.C. 676 (SC) in which the Supreme court has laid down that if the driver is authorized to drive light motor vehicle, even if there is no endorsement for driving commercial vehicle, it shall be inferred that the driver was authorized to drive light passenger carriage vehicle and light goods carriage vehicle and as such the Insurance Company cannot deny to pay the compensation. In view of the law laid down and as discussed above, the finding of the learned Tribunal on this point is justified and according to law which deserves no interference. 7. This claim petition involves death of a 3 years old child and the learned Tribunal has awarded only Rs. 154000/-as compensation which is in lower side by which the appellant should not be aggrieved. Nothing more has been argued by the appellant. 8. In view of the above discussions, I find no force in this appeal and the appeal is liable to be dismissed. 9. The appeal is dismissed. 10. The office is directed to send a copy of this judgment to the Court concerned for information and necessary compliance. 11. Stay if any shall stand vacated. Remit back the amount of Rs. 25000/-deposited by the appellant to the learned Tribunal to be adjusted against the awarded compensation.