Research › Search › Judgment

Allahabad High Court · body

2022 DIGILAW 1717 (ALL)

Reliance General Insurance Co. Ltd. v. Kamla Devi

2022-11-01

AJAY BHANOT

body2022
JUDGMENT : 1. Heard Shri S.K.Mehrotra, learned counsel for the appellant, Shri Shrish Chandra Kesarwani, learned counsel for the claimants-respondents and Shri. Pradyumn Kumar, learned counsel for the respondent No.7. 2. This first appeal from order arises out of the award dated 29.05.2015 handed down by the Motor Accident Claims Tribunal/District Judge, Etah in M.A.C.P. No.169/2011 (Smt. Kamla Devi and others v. Jagjeet Singh and another) awarding the compensation of Rs.10,76,000/-with a simple interest at the rate of 9% per-annum from the date of filing of the petition till actual payment. 3. The instant appeal has been filed by the insurance company assailing the award. 4. Briefly the case of the claimants before the learned tribunal was that the deceased died of injuries sustained in an accident which occurred on 26.03.2011 and was caused by the rash and negligent driving of the driver of Truck No. HR-55/J-8295. The claimants were dependent on the deceased. The insurance company resisted the claim by filing a written statement. Both parties adduced evidence in the trial. 5. In the proceedings before the learned Tribunal, the application of the insurance company under Section 170 of the Motor Vehicles Act was allowed. Thus the insurance company was permitted to contest the proceedings on behalf of the owner. The burden of proving the validity or otherwise of the driving licence shifted on the insurance company. 6. The owner had also entered appearance before the Tribunal and had admitted to the ownership of the offending vehicle, and confirmed the identity of the driver of the said vehicle. The claimants had filed the driving licence of the driver of the offending vehicle before the court below. The owner of the vehicle had affirmed the validity of the aforesaid driving license. 7. In the instant appeal three grounds of challenge have been laid against the impugned award by Shri S.K.Mehrotra, learned counsel for the appellant. 8. Firstly, the driving license was not valid and effective at the time of the accident. Secondly, the compensation was granted, inasmuch as, excessive amounts were provided under the conventional heads and interest rate of 9% was not permissible in law. Thirdly, the driver was a necessary party but was not impleaded. 9. 8. Firstly, the driving license was not valid and effective at the time of the accident. Secondly, the compensation was granted, inasmuch as, excessive amounts were provided under the conventional heads and interest rate of 9% was not permissible in law. Thirdly, the driver was a necessary party but was not impleaded. 9. The learned Tribunal found against the insurance company and upheld the validity and effectiveness of the driving licence by finding as under: "Further, it is found the truck in question was being plied by the owner through driver Desh Raj Singh having a driving license which was valid from 14.06.2005 to 13.06.2025. It is also found that said driving license was initially issued only to drive LMV (NT) which was later on endorsed with an entry of driving Transport vehicle from 21.10.2013 to 20.10.2016 though the photocopy made available on record of same D.L. Number paper No.7C1/13 bears an endorsement for transport vehicle w.e.f. 07.09.2006 also, on the basis of which the owner had given appointment to Desh Raj Singh as a driver on the offending vehicle. Owner of the offending truck, Jagjeet Singh as O.P.W.2 has also deposed the fact before the tribunal that he had seen the driving license of driver Desh Raj Singh which was valid for driving a transport vehicle." 10. It is contended on behalf of the appellant insurance company that the driving license was valid only for light motor vehicle but the offending was a truck and hence a heavy motor vehicle. 11. The definition of light motor vehicle provided under Section 2(21) of the Motor Vehicles Act, 1988 is extracted below:- "Section 2(21). "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." 12. The appellant-insurance company failed to discharge its burden to establish before the learned Tribunal that the unladen weight of the offending vehicle exceeded 7500 Kgs and that the vehicle was not a “light motor vehicle” as defined in the Motor Vehicles Act, 1988. Even before this Court no evidence in the record was pointed out from the record that the weight of the offending unladen vehicle (truck) exceeded 7500 Kgs. Even before this Court no evidence in the record was pointed out from the record that the weight of the offending unladen vehicle (truck) exceeded 7500 Kgs. The mere fact that the offending vehicle is referenced as a truck in the proceedings before the learned tribunal is of no avail to the appellant. The weight of the vehicle is the sole and decisive factor to determine the category of vehicle under the Motor Vehicles Act, 1988. Popular name or nomenclature used to describe a vehicle is not relevant in deciding its category as per the Motor Vehicles Act, 1988. 13. In this wake, the challenge to the validity of the driving licence cannot be sustained. There is no infirmity in the finding of the learned Tribunal. 14. To ensure the uniformity in determination of compensation under conventional heads. The Supreme Court in National Insurance Company Limited v. Pranay Sethi and others, reported at (2017) 16 SCC 680 held as under: "59.8. 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. The aforesaid amounts should be enhanced at the rate of 10% in every three years." 15. The petitioners accordingly entitled to Rs.15,000, 40,000/-and 15,000/- towards loss of estate, loss of consortium and funeral expenses respectfully. The impugned award, in so far as it is inconsistent with Pranay Sethi (supra), is set aside. 16. Secondly, there is merit in the contention that the interest rate of 9% is high. The interest payable is reduced to 7%. 17. The award is modified accordingly. 18. The last issue regarding the joinder of the necessary party as driver will now be considered. The owner had appeared before the learned Tribunal and contested the matter on merits. The owner admitted to the involvement of the vehicle as well as his driver in the mishap. 19. The burden to prove collusion between the owner and the claimant or the driver, was on the insurance company to prove the same. The insurance company failed to discharge its burden. The insurance company did not get the driver summoned as a witness. Moreover, in the facts of the case, the aforesaid deficiency does not go to the root. The challenge fails. 20. It is contended that the entire awarded amount has been deposited by the insurance company. 21. The insurance company failed to discharge its burden. The insurance company did not get the driver summoned as a witness. Moreover, in the facts of the case, the aforesaid deficiency does not go to the root. The challenge fails. 20. It is contended that the entire awarded amount has been deposited by the insurance company. 21. The learned Tribunal is directed to calculate the compensation amount consistent with the observations made in this judgment and release the remaining amount in favour of the claimant The excess amount shall be refunded to the insurance company. 22. The matter is remanded to the Tribunal. The Tribunal shall determine the compensation payable to the claimants afresh in the light of the observation made above. 23. The entire exercise shall be completed within a period of three months from the date of receipt of copy of this order. 24. The first appeal is partly allowed to the above extent.