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2021 DIGILAW 192 (JK)

National Insurance Company Limited v. Mst. Fatima

2021-04-23

VINOD CHATTERJI KOUL

body2021
Judgment : Vinod Chatterji Koul, J. 1. Impugned in this appeal is the award dated 17.10.2016 passed by the Motor Accident Claims Tribunal Srinagar (for short “Tribunal”) in a claim petition bearing file no.63/2012 titled “Mst. Fatima and others Versus Mrs. Neelam Manzoor and others”, directing appellant-National Insurance Company Ltd. to pay compensation in the amount of Rs.16,99,200/- alongwith interest @ 6% per annum from the date of petition till final realization. 2. The claim petition was filed by the respondent nos.1 to 5 before the Tribunal on 06.03.2012 claiming compensation on account of death of Fayaz Ahmad Bafanda S/o Mohammad Yousuf Bafanda R/o Butshah Mohala, Lal Bazar, Srinagar, in a motor accident which took place on 29.11.2011 at Kirhama Ganderbal due to rash and negligent driving of vehicle Maruti Swift bearing registration No. JK01M 0088 which was being driven by respondent no.2 namely Sheikh Shabir Ahmad. The offending vehicle was insured with respondent no.3 i.e. National Insurance Company Ltd. Respondent nos.1 to 5 claimed that deceased was of the age of 40 years who was business man by profession earning Rs.20,000/- per month claimed compensation of Rs.1.08 crores. 3. Respondent no.1 (owner) did not contest the claim petition. It was the respondent no.2 (driver) and the appellant-respondent no.3 who contested the claim petition before the Tribunal. 4. Respondent no.2 resisted the claim on the ground that actually the accident took place due to rash and negligent driving of the deceased who was driving a motor cycle bearing registration no.JK01P 8204 and not because of his act whereas respondent no.3-National Insurance Company Ltd. resisted the claim on the ground that the offending vehicle driver was in breach of conditions of the Insurance Policy and that the respondent no.2- driver was not holding a valid driving license. The Tribunal framed following issues which are as under:- Issue No. 1 Whether on 29.11.2011 the deceased namely Fayaz Ahmad Bafanda while riding on his Pulsar motor cycle - bearing No. JKOIP 8204 coming from Kirhama towards Sumbal and on reaching near Zargud stop Kirhama another vehicle (Swift Maruti Car) bearing registration No. JKOIM 0088 driven by respondent No. 2 towards same direction hit the Motor bicycle of the deceased with the result the decease namely Fayaz Ahmad Bafanda fell down from the motor cycle and sustained fatal injuries to his head and other parts of his body and later on succumbed to his injuries in the hospital on 02.12.2011.OPP Issue No. 2 Whether the respondent No. I owner has permitted the driver of the offending vehicle to ply the said vehicle without valid, effective DL and other vehicular documents, if yes, the insured has committed breach of insurance contract absolved the respondent No. 3 Insurance company from its liability on account of petitioners claim.OPR3 Issue No. 3 In case issue No.1 is proved in affirmative, to what amount of compensation the petitioners are entitled to, from whom and in what proportion. ? OPP 5. Respondents/claimants in support of their claim have produced witnesses namely Yasmeena Jan (petitioner No. 2 in claim petition) Munir Ahmad Trumboo, Hilal Ahmad Bhat, Nazir Ahmad Mir, whereas appellant-National Insurance Company produced Bashir Ahmad Sheikh, Motor vehicle Inspector ARTO Pulwama, and Owais Nazir, Legal Assistant of the appellant company in support of their defence. The Tribunal after having considered the evidence produced by both the parties awarded the compensation of Rs.16,99,200/- in favour of claimants along-with interest and directed the respondent no.3-National Insurance Company Ltd. to satisfy the award by depositing the same within a period of one month along-with interest @ 6% per annum from the date of the petition till final realization. The compensation was awarded by the Tribunal in the following heads:- (a) On account of loss of dependency as well as loss of future prospects. Rs.14,74,200/- (b) On account of burial expenses Rs. 25,000/- (c) On account of loss of consortium Rs. 1,00,000/- (d) On account of loss of estate. Rs. 1,00,000/- (e) Total Rs. 16,99,200/- 6. Heard learned counsel for the parties and considered the record on file. 7. Rs.14,74,200/- (b) On account of burial expenses Rs. 25,000/- (c) On account of loss of consortium Rs. 1,00,000/- (d) On account of loss of estate. Rs. 1,00,000/- (e) Total Rs. 16,99,200/- 6. Heard learned counsel for the parties and considered the record on file. 7. While arguing the case learned counsel appearing for the National Insurance Company Ltd. submitted that he had no dispute with regard to finding on issue no.1 i.e. the death of deceased Fayaz Ahmad Bafanda has caused due to rash and negligent driving of driver of the vehicle in question (Maruti Swift). However, he restricted his argument with regard to validity of the license and the quantum of compensation. So far as the quantum of compensation is concerned the learned counsel has restricted his argument with regard to award of compensation on account of burial expenses, loss of consortium and loss of estate which in view of judgment rendered in “National Insurance Company Ltd. versus Pranay Sethi and others” cannot exceed Rs.15000/-, Rs.40,000/- and Rs.15,000/- respectively. The Tribunal has awarded Rupees one lac on account of loss of consortium to the respondent-Yasmeen Jan i.e. Widow of the deceased and an amount of Rs.25,000/- on account of funeral expenses which is not in tune with the judgment passed in “Sarla Verma versus Delhi Transport Corporation and others 2009 (6) SCC 121 ”; “Reshma Kumari and others Versus Madan Mohan and another 2009 (13) SCC 422 ”; “Santosh Devi Versus National Insurance Co. Ltd. (2012) 6 SCC 421 ”; and which has been reiterated in “National Insurance Company Ltd. versus Pranay Sethi and others, AIR 2017 SC 5157 ”. 8. Learned counsel for the appellant has also submitted that the driver of the offending vehicle was not holding a valid driving license to drive a light motor vehicle (private car) but was holding a license for driving MPMV and taxi car and was not having authorization to drive light motor vehicle (private car), as such, Insurance Company is not liable to pay compensation and, in case National Insurance Company is burdened to pay compensation it must be given right to recover the same from the owner. 9. 9. Having considered the arguments with regard to validity of license to drive a vehicle in question by the respondent no.2-driver, the position of law is settled that “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 section 2 (15) and 2 (48). Such transport vehicles are not excluded from the definition of the light motor vehicle by virtue of Amendment Act No.54 of 1994. This proposition of law has been held in “Mukund Dewangan Versus Oriental Insurance Co. Ltd. (2016)4 SCC 298 . Relevant port of the judgment is reproduced as under:- “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 section 2(15) and 2 (48). Such transport vehicles are not excluded from the definition of the light motor vehicle by virtue of Amendment Act No.54 of 1994. 60.02 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 road roller, ‘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 road-roller, 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 54/1994 and 28.3.2001 in the form. 60.3 The effect of the amendment made by virtue of Act No.54/1994 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. 60.04 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.” The fact that the driver had a license to drive a light motor vehicle which was valid on the date of the accident is not in dispute. The MACT returned a finding that the LMV license was valid from 16th August 1994 to 18th May 2013. The insurer has not urged anything in the course of the present proceedings to dispute this finding of fact. We have therefore proceeded on the basis that the driver had a valid LMV license on the date of the accient. Section 2(21) of the Motor Vehicles Act, 1988 defines the expression “light motor vehicle” as follows:- “Light Motor Vehicle” means a transport vehicle or omnibus the gross vehicle weight of either of which or a motor car or tractor or road-roller the unladen weight of any of which, does not exceed 7,500 kilograms,”. The above provision has been interpreted by the three Judge Bench of this Court in Mukund Dewangan (supra). The conclusions have been extracted earlier. It is not disputed by the insurer in the course of these proceedings that the gross weight of the vehicle was conformity with Section 2(21). 10. Therefore, the argument of the learned counsel for the appellant that the driver of the offending vehicle was not having a valid driving license is without basis and force. It is not in dispute that he was having valid license of MPMV and taxi car, meaning thereby he was professional driver who could carry passengers while driving taxi car, as such, was having valid driving license even to drive the light motor vehicle (private car). It is not in dispute that he was having valid license of MPMV and taxi car, meaning thereby he was professional driver who could carry passengers while driving taxi car, as such, was having valid driving license even to drive the light motor vehicle (private car). It appears that the learned counsel for the appellant has not gone through the judgment referred to above otherwise he would not have made such an argument. A license to drive the passenger vehicle would ordinarily be issued to a person having license to drive light motor vehicle and after having experience to drive the same, would be entitled to get the license to drive light motor passenger vehicle as is evident from the judgment rendered in “Oriental Insurance Co. Ltd. Versus Angad Kil, (2009)11 SCC 356 ”. Relevant portion of the judgment is reproduced hereunder:- “10. The distinction between a ‘light motor vehicle’ and a ‘transport vehicle’ is, therefore, evident. A transport vehicle may be a light motor vehicle but for the purpose of driving the same, a distinct license is required to be obtained. The distinction between a ‘transport vehicle’ and a ‘passenger vehicle’ can also be notice from Section 14 of the Act Sub-Section (2) of Section 14 provides for duration of a period of three years in case of an effective license to drive a ‘transport vehicle’ whereas in cay of any other license, it may remain effective for a period of 20 years. 11. Therefore in view of aforesaid discussion the argument of learned counsel appearing for the appellant that the driver was not holding a valid driving license, is rejected. So far as the argument of learned counsel for the appellant regarding the excess compensation awarded under the heads on account of burial expenses, loss of consortium and loss of estate, there is substance in the same. Award of compensation on these heads has been discussed in threadbare in judgment rendered by Five Judge Bench of the Supreme Court in case (supra) wherein it has been held that reasonable figures on conventional heads, namely, loss of estate, loss of consortium and funeral expenses should be Rs.15,000/-, Rs.40,000/- and Rs.15,000/- respectively. Therefore, in view of above judgment, the amount of compensation awarded under these heads is reduced to Rs. Therefore, in view of above judgment, the amount of compensation awarded under these heads is reduced to Rs. 15,000/, Rs.40,000/- and Rs.15,000/- respectively and therefore the respondent-claimant nos.1 to 5 are entitled to compensation as under:- (a) On account of loss of dependency as well as loss of future prospects. Rs.14,74,200/- (b) On account of burial expenses Rs. 15,000/- (c) On account of loss of consortium Rs. 40,000/- (d) On account of loss of estate. Rs. 15,000/- (e) Total Rs. 15,44,200/- 12. The award passed by the Tribunal is, accordingly, modified to the extent indicated above. 13. Disposed of. 14. Record of the Trial Court be sent back.