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2023 DIGILAW 82 (JK)

Raj Kumar v. Munshi Ram

2023-02-23

SANJAY DHAR

body2023
JUDGEMENT 1. Instant appeal has been preferred by the appellant/claimant against award dated 10.10.2009 passed by the Motor Accidents Claims Tribunal, Jammu (for short the Tribunal), whereby a sum of Rs. 2,70,000/- along with interest at the rate of 7.5% per annum has been awarded as compensation in favour of the appellant/claimant and against the owner of the offending vehicle i.e. Respondent No. 1 herein. It is pertinent to mention here that Respondent No. 3-insurer has been exonerated from its liability to pay the compensation. 2. It appears that on 03.05.2002 while appellant was proceeding on his Scooter, on reaching Last Morh, Gandhi Nagar, Jammu, a Matadoor bearing Registration No. JK02L 0168 came from behind and it collided against the Scooter of the appellant resulting in grievous injuries to him. The accident is alleged to have taken place due to rash and negligent driving of the Matadoor by its driver, Respondent No. 2 herein. The appellant/ injured filed a claim petition before the Tribunal wherein he claimed that due to the accident, he had suffered 20% permanent disability of his left lower limb and that he was earning Rs. 10,000/- per month by running a shop. The age of the appellant was stated to be 34 years. 3. The claim petition was contested only by the insurer whereas the owner and driver of the offending vehicle did not contest the claim petition. In its reply, the insurance company, while denying the occurrence, admitting the currency of the policy of the insurance during the period of the accident. It was further claimed that the driver of the offending vehicle was not holding a valid and effective driving licence at the time of the accident. The respondent-insurer was permitted to take up all defences as are available to an owner. 4. From the pleadings of the parties, the following issues came to be framed: (i) Whether an accident took place on 03.05.2002 at Last Morh, Gandhi Nagar, Jammu due to rash and negligent driving of offending Vehicle No. JK02L 0186 by its driver/Respondent No. 3 in which petitioner sustained grievous injuries? OPP (ii) If Issue No. 1 is proved in affirmative whether petitioner is entitled to the compensation; if so to what amount and from whom? OPP (iii) Whether driver of offending vehicle at the time of accident was not holding a valid and effective driving license? OPP (ii) If Issue No. 1 is proved in affirmative whether petitioner is entitled to the compensation; if so to what amount and from whom? OPP (iii) Whether driver of offending vehicle at the time of accident was not holding a valid and effective driving license? OPR-1 (iv) Whether petitioner has contributed to the accident; if so how? OPR-1 (v) Relief O.P. Parties. 5. Learned Tribunal after recording the evidence came to the conclusion that the accident had taken place due to rash and negligent act of the driver of the offending vehicle bearing Registration No. JK02L 0186 which resulted in grievous injuries to the appellant/claimant. It was also found that the driver of the offending vehicle at the time of the accident was not holding a valid and effective driving license inasmuch as he was driving a transport vehicle whereas his driving license was valid only for driving a light motor vehicle. On the question of quantum of compensation, the learned Tribunal assessed the income of the appellant as Rs. 5,000/- per month and computed the compensation in the following manner: For loss of future income: Rs. 1,80,000/- For pain and suffering: Rs. 40,000/- For loss of amenities of life: Rs. 40,000/- For medical expenses: Rs. 10,000/- Total: Rs. 2,70,000/- 6. As already noted, the Respondent No. 3-insurer was exonerated from its liability to satisfy the award and the amount was made payable by the owner of the offending vehicle. 7. The claimant has challenged the impugned award on the grounds that the amount of compensation awarded by the learned Tribunal in his favour is on lower side inasmuch as his income has been taken as Rs. 5,000/- per month though he was earning Rs. 10,000/- at the relevant time. It has further been contended that the compensation on account of loss of amenities of life is on lower side as the disability suffered by the appellant due to the accident has hampered him from undertaking most of the day-to-day activities. It has also been submitted that the compensation on account of medical expenses is also on lower side. It has further been contended that the compensation on account of loss of amenities of life is on lower side as the disability suffered by the appellant due to the accident has hampered him from undertaking most of the day-to-day activities. It has also been submitted that the compensation on account of medical expenses is also on lower side. It has further been contended that even if it is assumed that the driver of the offending vehicle was not holding a valid driving license at the time of the accident, still then the insurer could not have been exonerated of its liability to first to satisfy the award with a right to recover the same from the owner. 8. I have heard learned counsel for the parties and perused the record of the Tribunal. 9. Learned counsel appearing for the appellant has during the course of his arguments, reiterated the grounds urged in the appeal whereas learned counsel for the respondent-insurer has submitted that the appellant does not have any locus to file the instant appeal because the award of compensation has been passed in his favour and it is immaterial whether he has to recover the same from the owner or from the insurer. According to the learned counsel, the appeal is therefore, not maintainable. 10. Before dealing with the merits of the appeal, it would be apt to first deal with the objection raised by the learned counsel for the insurer with regard to the maintainability of the appeal. In this regard, it is to be noted that the appellant has filed the appeal not only for modification of the award to the extent that compensation should be made payable by the insurer in the first instance with a right to recover the same from the owner, but he has also sought enhancement of the compensation. Therefore, it cannot be stated that the present appeal is not maintainable. Even otherwise the appellant has every right to challenge the direction of the learned Claims Tribunal whereby the award has been made payable by the owner and the insurance company has been exonerated. This is so because the appellant has contended that the insurer has a statutory duty to satisfy the award passed against the owner of the offending vehicle. The objection to the maintainability of the appeal is, therefore, without any merit. 11. This is so because the appellant has contended that the insurer has a statutory duty to satisfy the award passed against the owner of the offending vehicle. The objection to the maintainability of the appeal is, therefore, without any merit. 11. Now coming to the merits of the appeal, it has been contended by the learned counsel for the appellant that the learned Tribunal has, while calculating the compensation, taken the monthly income of the appellant as Rs. 5,000/- though he was earning Rs. 10,000/- per month. A perusal of the evidence and the material produced before the learned Tribunal reveals that the claimant/appellant has failed to produce any cogent and convincing evidence to show that he was earning a sum of Rs. 10,000/- per month. He has not produced any document to show that he was running a shop nor has he produced any documentary proof with regard to his income. In these circumstances, the learned Tribunal has rightly assessed the income of the appellant as Rs. 5,000/- per month by resorting to guess work. 12. So far as the award of compensation on account of loss of amenities of life is concerned, the same does not appear to be on a lower side. Once the claimant has been awarded compensation on account of loss of future income, he is entitled only to a nominal sum on account of loss of amenities of life, which in the instant case has been assessed by the learned Tribunal as Rs. 40,000/-. The same, having regard to the nature of disability suffered by the appellant, cannot be termed as insufficient. 13. Coming to the medical expenses awarded by the learned Tribunal in favour of the appellant, it appears that the appellant had produced medical bills before the learned Tribunal. The cost of medicines mentioned in those bills also comes to around to Rs. 10,000/-. Therefore, the learned Tribunal has rightly awarded a sum of Rs. 10,000/- as medical expenses in favour of the appellant. 14. In the above circumstances, the award of the learned Tribunal so far it pertains to the assessment of compensation in favour of the appellant is concerned, does not call for any interference. 15. That takes us to other contention raised by the appellant which relates to the exoneration of the insurer from its liability to satisfy the award. 14. In the above circumstances, the award of the learned Tribunal so far it pertains to the assessment of compensation in favour of the appellant is concerned, does not call for any interference. 15. That takes us to other contention raised by the appellant which relates to the exoneration of the insurer from its liability to satisfy the award. It is a settled position of law that in the circumstances envisaged and enumerated in Sections 149(4) and 149(5) of the Motor Vehicle Act, the insurer, even after succeeding in its defence, can be asked to pay the amount to the claimant and thereafter, recover the same from the owner. The principle of pay and recover has been statutorily recognized in Sections 149(4) and 149(5) of the Motor Vehicles Act. The Supreme Court in the cases of [1]National Insurance Co. Ltd. v. Swaran Singh, (2004) 3 SCC 297 , Mangla Ram v. Oriental Insurance Co. Ltd., (2018) 5 SCC 656 , [2]Rani & Ors. v. National Insurance Co. Ltd. & Ors., (2018) 8 SCC 492 and [3]Manuara Khatun v. Rajesh Kumar Singh, (2017) 4 SCC 796 has recognized the power of the learned Tribunal to direct the award in the first instance be satisfied by the insurer with a right to recover the same from the insured. In all these cases, the issue involved was whether the direction for pay and recover can be passed in the circumstances when it is found that the driver of the offending vehicle was not holding a valid and effective driving license. 16. In S. Iyyapan v. United India Insurance Company Limited & Anr., (2013) 7 SCC 62 , the Supreme Court held that the compensation has to be paid by the insurer to the third party even in a case where there has been a breach of policy condition with a liberty to the insurer to proceed against the owner for recovery of the said amount. The relevant portion of the judgment is reproduced as under:- "Reading the provisions of Sections 146 and 147 of the Motor Vehicles Act, it is evidently clear that in certain circumstances the insurer's right is safeguarded but in any event the insurer has to pay compensation when a valid certificate of insurance is issued notwithstanding the fact that the insurer may proceed against the insured for recovery of the amount. Under section 149 of the Motor Vehicles Act, the insurer can defend the action inter alia on the grounds, namely,- (i) The vehicle was not driven by a named person (ii) It was being driven by a person who was not having a duty granted licence, and (iii) Person driving the vehicle was disqualified to hold and obtain a driving license. Hence, in our considered opinion, the insurer cannot disown its liability on the ground that although the driver was holding a license to drive a light motor vehicle but before driving light motor vehicle used as commercial vehicle, no endorsement to drive commercial vehicle was obtained in the driving license. In any case, it is the statutory right of a third party to recover the amount of compensation so awarded from the insurer. It is for the insurer to proceed against the insured for recovery of the amount in the event there has been violation of any condition of the insurance policy." 17. Relying upon the aforesaid ratio laid down by the Supreme Court, a coordinate Bench of this Court in Swarna Devi v. Behari Lal & Ors., MA No. 66/2011, decided on 24.07.2017 has in somewhat similar circumstances, held that an appeal against a direction of the Tribunal to exonerate the insurer and make the amount payable by the owner is maintainable. It has been further held that awarded amount has to be made payable to the claimant by the insurer with liberty to the insurer to recover the same from the owner of the offending vehicle. 18. In view of the aforesaid analysis of law on the subject, it is clear that in the circumstances covered under section 149(4) and Section 149(5) of the Motor Vehicles Act, the insurance company has a statutory duty to satisfy the award even in the cases where it succeeds in proving its defence. The direction of the Tribunal to completely exonerate the insurance company of its liability to pay the awarded sum and burdening the owner to satisfy the amount is not in accordance with law, in the facts and circumstances of the instant case. This is so because it is not a case where the risk to the life of the appellant, who was a third party, is not covered under the policy of insurance but it is a case of violation of the policy conditions. 19. This is so because it is not a case where the risk to the life of the appellant, who was a third party, is not covered under the policy of insurance but it is a case of violation of the policy conditions. 19. For the foregoing discussion, the appeal is partly allowed and the impugned award passed by the learned Tribunal is modified to the extent that the awarded amount shall be satisfied by Respondent No. 3-insurance company in the first instance with a right to recover the same from the owner of the offending vehicle i.e. Respondent No. 1 herein. 20. The appeal stands disposed of.