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Madhya Pradesh High Court · body

2019 DIGILAW 274 (MP)

Prabhulal Rajak v. Vijay Kumar Sharma

2019-04-02

G.S.AHLUWALIA

body2019
ORDER 1. This Misc. Appeal under section 173 of Motor Vehicles Act, 1988 has been filed against the award dated 7.12.2012, passed by IVth Additional Motor Accident Claims Tribunal, Gwalior in Claim Case No. 91/2011 for enhancement of compensation amount. 2. Since, the factum of accident has not been disputed, therefore, it is not necessary to consider the facts of the case in detail. It is sufficient to mention that the appellant had suffered fracture of left Tibia bone. Further, since, the driving license of the driver was not having endorsement of Transport vehicle therefore, the Insurance Company has been exonerated. It is further submitted that the amount awarded by the Claims Tribunal is on a lower side. 3. Heard the learned Counsel for the parties. Exoneration of Insurance Company 4. The Supreme Court in the case of Mukund Dewangan v. Oriental Insurance Company Ltd,. reported in (2017) 14 SCC 663 has dealt with this aspect and has held as under : "60. Thus, we answer the questions which are referred to us thus : 60.1. "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 sections 2(15) and 2(48). Such transport vehicles are not excluded from the definition of the light motor vehicle by virtue of Amendment Act 54 of 1994. 60.2. 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 roadroller, "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 roadroller, 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 of 1994 and 28.3.2001 in the form. 60.3. 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 of 1994 and 28.3.2001 in the form. 60.3. The effect of the amendment made by virtue of Act 54 of 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. 60.4. 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." 5. It has been held that the legal position was not appreciated correctly in the case of Oriental Insurance Company Limited v. Angad Kol and others, as reported in (2009) 11 SCC 356 and as the vehicle was of light motor vehicle class, thus the decision in the case of Angad Kol (supra) was overruled and it was held that though the vehicle was a transport vehicle but since it was being driven by a person having licence to drive the light motor vehicle and it may be a transport vehicle and lacuna of endorsement will not take a right of the driver to drive a light motor vehicle. In the above terms, learned counsel prays that the exoneration of the Insurance Company is liable to be quashed. 6. The Counsel for the Insurance Company, submitted that this judgment in the case of Mukund Dewangan (supra) has already been placed for reconsideration in the case of M/s Bajaj Alliance General Insurance Co. In the above terms, learned counsel prays that the exoneration of the Insurance Company is liable to be quashed. 6. The Counsel for the Insurance Company, submitted that this judgment in the case of Mukund Dewangan (supra) has already been placed for reconsideration in the case of M/s Bajaj Alliance General Insurance Co. Ltd. v. Rambha Devi and others (SLP (C) No. 27787/2017) vide order date 31.10.2017. 7. To this, the Counsel for the Owner submits that law is very clear that merely placing a judgment for reconsideration will not take away the rights which have already been accrued in terms of the existing judgment as has been held by the Full Bench of this Court in the case of Oriental Insurance Company Ltd. v. Sanju Bai and others, as reported in 2016 ACJ 1000 , wherein the ratio is that even if the correctness of view expressed in the judgment has been doubted and the question is referred to the larger Bench of the Supreme Court. Nevertheless, it is well settled position that so long as the decision of the Supreme Court on the point is in force, the same will be binding on all the subordinate Courts. The fact that the issue has been referred to a larger Bench of the Supreme Court, that can not be the basis to ignore the decision of the Supreme Court cited on the subject, which is still holding the field and will be, therefore, binding precedent until overturned by the larger Bench of the Supreme Court. 8. In view of such decision of the Full Bench of this Court in the case of Sanju Bai (supra), the judgment rendered by the Hon'ble Supreme Court in the case of Mukund Dewangan (supra) is a binding precedent for this Court notwithstanding the fact that it has been placed for reconsideration. Accordingly, the Insurance Company is held jointly and severally liable to pay compensation amount along with owner and driver. 9. So far as the quantum is concerned, the Claims Tribunal has held that the appellant had suffered fracture of Left Tibia bone, and has awarded Rs. 5000/- towards mental pain and suffering and has awarded Rs. 6000/- towards loss of income and Rs. 2000/- for special diet. 9. So far as the quantum is concerned, the Claims Tribunal has held that the appellant had suffered fracture of Left Tibia bone, and has awarded Rs. 5000/- towards mental pain and suffering and has awarded Rs. 6000/- towards loss of income and Rs. 2000/- for special diet. This Court is of the considered opinion that since, the appellant was 54 years of age at the time of accident, and had suffered fracture of Left Tibia bone, therefore, he is entitled for Rs. 25,000/- towards mental pain and suffering and is entitled for Rs. 5000/- towards special diet. Accordingly, the award dated 7.12.2012, passed by IVth Additional Motor Accident Claims Tribunal, Gwalior in Claim Case No. 91/2011 is modified and it is held that the appellant is entitled for Rs. 25,000+6000+5000 = Rs. 36,000/-. The enhanced amount shall carry the interest @ 6% from the date of filing of the claim petition. 10. The respondents No. 1 to 3 shall be liable to pay compensation amount either jointly or severally. 11. With aforesaid modifications, the appeal is Allowed.