Research › Search › Judgment

J&K High Court · body

2024 DIGILAW 267 (JK)

Oriental Insurance Co. Ltd. v. Sanjay Kumar

2024-06-06

RAHUL BHARTI

body2024
JUDGEMENT 1. Heard learned counsel for the parties. 2. A motor vehicle accident resulted in death of one Tripta Devi leaving behind her husband and two minor children (sons). A claim petition filed before Motor Accidents Claim Tribunal (in short “MACT”), Jammu for compensation resulted in passing of an award dated 04.03.2013 against which the insurer i.e. Oriental Insurance Company (OIC) Ltd., has come up in present appeal under section 173 of the Motor Vehicles Act, 1973. 3. The respondent Nos. 1 to 3 herein were the claimants in the claim petition. The accident took place on 03.12.2009 when an offending vehicle (Bus) bearing registration No. JK02X-8627 owned by the respondent No. 5-Madan Lal and driven by the respondent No. 6-Sham Lal came to hit Tripta Devi, who was pedestrian knocking her down and leaving her dead. 4. The offending vehicle (bus) was insured by the appellant–insurance company and the offending vehicle was carrying an insurance cover at the relevant point of time. The claim petition resulted in the generation of the following issues:- (1) Whether an accident occurred on 03.12.2009 near Nonath Temple under jurisdiction of P/S, Samba by the rash and negligent driving of offending vehicle No. JK02X-8627 in the hands of erring driver as a result of which deceased Smt. Tripta Devi suffered fatal injuries? OPP (2) If issue No. 1 is proved in affirmative, whether petitioners are entitled to the compensation; if so to what amount and from whom? OPP (3) Whether at the time of the accident the driver of the offending vehicle was not holding valid and effective DL and drove the vehicle in violation of terms and conditions of the insurance policy? OPR-1 (4) Relief. O.P. Parties. 5. The MACT, Jammu came to hold that the accident took place on 03.12.2009 caused by the offending vehicle and by rash and negligent act of driving on the part of the respondent No. 6–Sham Lal. 6. The MACT, Jammu came to carry out a compensation assessment payable in favour of respondent Nos. 1 to 3 by reckoning the monthly salary of the deceased-Tripta Devi to be Rs. 21,611/- as being a Government teacher employed in the Education Department of J&K Govt. and at the relevant point of time serving as a Master with her salary @ Rs. 22000-23000. 7. 1 to 3 by reckoning the monthly salary of the deceased-Tripta Devi to be Rs. 21,611/- as being a Government teacher employed in the Education Department of J&K Govt. and at the relevant point of time serving as a Master with her salary @ Rs. 22000-23000. 7. The MACT, Jammu came to work out the actual salary of the deceased–Tripta Devi to be approximately Rs. 20,983/- calculated after carrying out contributions and deductions attending thereto and considering the age of the deceased being 49 years at the time of her unfortunate death and the future prospects related to the deceased–Tripta Devi also being taken into consideration by adding 30% of her actual salary income of the deceased–Tripta Devi thereby holding and reckoning her actual monthly income to be Rs. 27,278/-. 8. By keeping in view the position of law as settled in cases of “Mrs. Helen C. Rebello & Ors. vs. Maharashtra SRTC & Anr.” [ AIR 1998 SC 3104 ] and “United India Insurance Co. Ltd. vs. Patrica Jean Mahajan” ( AIR 2002 SC 2607 ), the MACT, Jammu came to reckon the husband and the two minor children of the deceased as three dependents and, therefore, subjected the monthly income of the deceased to deduction by 1/3rd formula so as to calculate the loss of dependency to the three claimants/ dependents to be Rs. 2,18,224/- and by applying multiplier of eleven (11) came to work out just compensation payable in favour of the clamant/respondent Nos. 1 to 3 to be Rs. 24,00,000.00/- (twenty four lacs). The other heads of compensation like funeral expenses, loss of estate and loss of consortium with respect to respondent No. 1, the total compensation came to be Rs. 24,25,000.00/- (Rupees Twenty four lacs and twenty five thousand only) and was so awarded in favour of the respondent Nos. 1 to 3 along with interest @ 7.5% from the date of filing of the claim petition (19.05.2010) till the actual realization of the awarded amount. 9. 24,25,000.00/- (Rupees Twenty four lacs and twenty five thousand only) and was so awarded in favour of the respondent Nos. 1 to 3 along with interest @ 7.5% from the date of filing of the claim petition (19.05.2010) till the actual realization of the awarded amount. 9. The MACT, Jammu came to hold that the offending vehicle was carrying insurance cover and was being driven by the respondent No. 6–Sham Lal having the driving license and there being no breach of terms and conditions of the insurance policy, as such, made the appellant liable to indemnify the insured i.e. the respondent No. 5–Madan Lal as being the owner of the offending vehicle and, accordingly, the onus to pay the compensation rested securely on the appellant. 10. The appellant, in its appeal, has assailed the said award on all conceivable grounds expecting as if a total reprieve from payment of compensation in the matter and that is how on the quantum as well as on its liability to pay the compensation the appellant has come forward throwing challenges to the impugned award. 11. Insofar as challenge to the quantum of compensation paid in favour of the respondent Nos. 1 to 3 is concerned, the appellant is stating that an amount of Rs. 24,25,000.00/- as a compensation is a huge amount. The appellant is taking exception to the fact that the percentage of increase given to the salary of the deceased @ 30% is not commensurating to the admissible percentage of increase and that has rendered the calculation of dependency as highly exaggerated. 12. Further, the appellant is also cribbing about the fact that the dependents of the deceased were to get equal amount of salary for the first 7 years from the date of her death and thereafter, also getting admissible to the pension and, therefore, all this ought to have been set off against the compensation calculated by the MACT, Jammu. 13. The appellant is also taking up an issue with the application of multiplier of eleven (11) by the MACT, Jammu and insists that the multiplier should have been five (5). 14. Insofar as challenge to the quantum of compensation is concerned, this Court believes that ground 'D' has been stated just for the sake of posing a challenge without meaning any serious challenge. 14. Insofar as challenge to the quantum of compensation is concerned, this Court believes that ground 'D' has been stated just for the sake of posing a challenge without meaning any serious challenge. 30% increase was accorded by the MACT, Jammu by keeping in view the Hon'ble Supreme Court of India's judgment in perspective and, therefore, this Court sees no error of judgment on the part of the MACT, Jammu in computing the compensation payable in favour of the respondent Nos. 1 to 3 and, therefore, challenge to the impugned award on this ground is rejected. 15. Insofar as the effort on the part of the appellant to exploit the license related aspect of the respondent No. 6–Sham Lal in driving the offending vehicle (Bus) No. JK02X-8627 is concerned, the contention arises from the fact that the driving license No. 29267/L/2004 of the respondent No. 6–Sham Lal originally meant for M/Cycle and LMV only and, as such, said driving license did not authorize the respondent No. 6–Sham Lal to be on a driver seat of Heavy Commercial Vehicle (HCV) being the nature of the offending vehicle as recorded in the registration certificate held by the respondent No. 5–Madan Lal, the owner of the offending vehicle. 16. It is worth observing here that the Motor Vehicles Act, 1988 per se does not define or mention about the Heavy Commercial Vehicle (HCV), as endorsed on the RC of the offending vehicle, and that leaves the said vehicle, as being a Bus, to be Heavy Passenger Motor Vehicle in terms of Section 2(17) of the Motor Vehicles Act, 1988. 17. Effort on the part of the appellant is to show that the driving license of the respondent No. 6-Sham Lal was not meant for driving the offending vehicle and that constituted a breach of the policy, terms and conditions and that was good enough to have been taken into consideration by the MACT, Jammu to exonerate the appellant from the liability of payment of compensation and at their best the principle of “pay and recover” ought to have been employed in its favour against the respondent No. 5-Madan Lal, the registered owner of the offending vehicle. 18. 18. If a driving license of the respondent No. 6–Sham Lal is actually for M/Cycle and LMV then surely the plea of the appellant would have been well stated and directed, but MACT, Jammu on facts side did not see the said plea of the appellant to be well founded and that is how with respect to finding on issue No. 3 as to whether at the time of accident, the driver of the offending vehicle was not holding a valid and effective driving license came to be returned against the appellant. The MACT, Jammu reckoned the offending vehicle to be a passenger carrying bus, as such, being a public service vehicle within the meaning of Section 2(35) of the Motor Vehicles Act, 1988. 19. Given the fact that the driving license of the respondent No. 6 came to bear an endorsement from the Regional Transport Officer (RTO), Jammu authorizing the respondent No. 6 to drive Passenger Service Vehicle (PSV), as such, the competence and authority of the respondent No. 6 to drive the offending bus was held to be legal and without any deficiency. 20. Section 10 of the Motor Vehicles Act, 1988 refers to form and contents of the license to drive. Section 10(2)(e) refers to a driving license meant for transport vehicle. Section 10(2) does not introduce or envisage any splitting of identity of the vehicles falling under category of Transport Vehicle. 21. Transport Vehicle per se is defined in Section 2(47) of the Motor Vehicles Act, 1988 and the said definition reads as under: “47. transport vehicle means a public service vehicle, a goods carriage, an educational institution bus or a private service vehicle.” 22. Motor Vehicles Act, 1988 further defines public Service Vehicle in its Section 2(35) which reads as under:- “35. public service vehicle means any motor vehicle used or adapted to be used for the carriage of passengers for hire or reward, and includes a maxi-cab, a motor-cab, contract carriage, and stage carriage.” 23. Related to the aforesaid two definitions pertaining to transport vehicle and public service vehicle is the definition of medium passenger motor vehicle as provided in Section 2(24) of the Motor Vehicles Act, 1988 and which definition reads as under:- “24. Related to the aforesaid two definitions pertaining to transport vehicle and public service vehicle is the definition of medium passenger motor vehicle as provided in Section 2(24) of the Motor Vehicles Act, 1988 and which definition reads as under:- “24. Medium passenger motor vehicle means any public service vehicle or private service vehicle, or educational institution bus other than a motor cycle, invalid carriage, light motor vehicle or heavy passenger motor vehicle.” 24. Heavy passenger motor vehicle is defined in Section 2(17) and it reads as under:- “17. Heavy passenger motor vehicle means any public service vehicle or private service vehicle or education institution but or omnibus the gross vehicle weight of any or which, or a motor car the unladen weight of which, exceeds 12,000 kilograms.” 25. The endorsement on the driving license of the respondent No. 6–Sham Lal is with respect to passenger service vehicle meaning thereby the driving license of the said respondent No. 6 entitled him to drive the passenger bus and which in the present case the offending vehicle was bus and, therefore, MACT, Jammu committed no error of fact in holding the respondent No. 6-Sham Lal to be holder of a valid driving license vis-à;;-vis the offending vehicle. 26. Mr. Suneel Malhotra, learned counsel for the appellant submits that the duration of validity of the driving license of the respondent No. 6 is not commensurating with the Section 14. Mr. Malhotra also submits that had the driving license of the respondent No. 6 being for a transport vehicle then its duration as per Section 14 would have been 5 years and at the date of accident it was prescribed to be 3 years whereas in the present case, the driving license duration is for 20 years. 27. Mr. Malhotra also submits that had the driving license of the respondent No. 6 being for a transport vehicle then its duration as per Section 14 would have been 5 years and at the date of accident it was prescribed to be 3 years whereas in the present case, the driving license duration is for 20 years. 27. Once the Act itself means that what would be the duration of the particular type of license then that means if the driving license of the respondent No. 6 was for public service vehicle then of course its statutory duration is meant to be for 3 years as was the time prescribed, as is now for 5 years, and, therefore, it comes to no use of the appellant to say that since the driving license of the respondent No. 6 mentioned the period of its expiry to be after 20 years, as such, it automatically meant that the driving license is not meant for Public Service Vehicle (PSV). The driving license issuing authority was under no obligation to specify it in terms of Section 14 given the fact that Section 14 is to be read in the very endorsement on the license of the respondent No. 6 with respect to license granted in favour of the respondent No. 6 to drive public service vehicle and, therefore, this plea cannot come in favour of the appellant except for its own satisfaction that a plea was raised for the purpose of impugning the award. 28. Mr. Malhotra has referred two judgments of this Court in the case of “National Insurance Co. Ltd. vs. Qazi Hilal Ahmad & Ors.” 2010 (2) JKJ 605 [HC] on the aspect of validity of a driving license. By reference to this judgment, Mr. Suneel Malhotra, learned counsel for the appellant refers to paragraph 14 which is reproduced as under:- “14. In Oriental Insurance Company vs. Zaharulnisha and others; AIR 2008 SC 2218 , the driver of the scooter that caused accident resulting in death to a cycle rider, was not holding licence to drive the scooter but had a licence to drive the heavy motor vehicle only. The driver of the offending scooter was thus a driver of a totally different class of vehicle in violation of Sections 10(2) of the M.V. Act. The driver of the offending scooter was thus a driver of a totally different class of vehicle in violation of Sections 10(2) of the M.V. Act. It was held that in light of the settled proposition of law, the insurance company cannot be held liable to pay the compensation to the claimants for the cause of death of a cycle rider in road accident which had occurred due to rash and negligent driving of the scooter by a person, who admittedly had no valid and effective driving licence on the day accident. It was held that the scooterist was possessing driving licence for driving HMV and it was totally a different class of vehicle, which act is in violation of Section 10(2) of the Act.” 29. In para 14, the judgment of the Hon'ble Supreme Court of India in the case of “Oriental Insurance Company vs. Zaharulnisha and Ors.” (2008 AIR SC 2218), wherein the motor vehicle causing the accident was a scooter and the driver was having the driving license meant for Heavy Motor Vehicle (HMV) only. This judgment may not serve the cause of the appellant herein in fact appellant's plea is contrary to the record of the present case wherein the driving license of the respondent No. 6 bears a valid endorsement authorizing the respondent No. 6 to drive Heavy Passenger Vehicle (HPV) and that includes none else than the passenger bus which is offending vehicle in the present case. 30. Another judgment of this Court in the case of “Oriental Insurance Company Ltd. vs. Lata Kumari and Ors.”, [ 2021 JKJ 314 ] in which a death of Vijay Kumar was involved who was a Government servant and the compensation was awarded in favour of the widow and two daughters. By referring to this judgment, the learned counsel for the appellant submits that MACT ought to have carried into consideration the aspect of the amount of family pension admissible to the respondent Nos. 1 to 3 on account of loss of life of deceased-Tripta Devi being a Government servant as envisaged under SRO 94, dated 15.04.2009. 31. When this Court takes into consideration the judgments so cited by Mr. 1 to 3 on account of loss of life of deceased-Tripta Devi being a Government servant as envisaged under SRO 94, dated 15.04.2009. 31. When this Court takes into consideration the judgments so cited by Mr. Malhotra, learned counsel for the appellant, this Court cannot allow the appellant–Insurance Company to exploit the judgments so cited when in its reply to the claim petition with respect to the claim of quantum of compensation put forth in the claim petition by the respondent Nos. 1 to 3, the appellant nowhere came forward with the plea that with respect to quantifying the compensation in favour of the claimants i.e. respondent Nos. 1 to 3, the assessment and quantification is to be governed by the provisions of the Civil Service Regulations providing for admissibility of family pension and, accordingly, same to be considered in terms of deduction before arriving at the actual amount of compensation admissible to the respondent Nos. 1 to 3 and, therefore, this Court rules out application of this judgments in the present facts and circumstances of the case. 32. In the light of the aforesaid, appeal is held to be without merits and award passed by the MACT, Jammu is retained as it is. 33. The present appeal is, accordingly, dismissed. 34. The compensation amount lying in deposit before this Court to whatever extent shall be released in favour of the respondent Nos. 1 to 3 in the manner as envisaged under the award along with updated interest upon an application to be made to said effect by the respondent Nos. 1 to 3 to the Registrar Judicial, Jammu.