Full Text
Through: Mr. L.K. Tyagi, Adv. for the appellant.
Through: None.
JUDGMENT
1. Whether Reporters of local papers may be allowed to see the judgment? No
2. To be referred to the Reporter or not ? No
3. Whether the judgment should be reported in the Digest ? No M.L. MEHTA, J.
1. This appeal has been filed by the insurance company against the award dated 29.09.2008 of the Presiding Officer, MACT, Ms Deepa Sharma whereby a sum of `7,08,904/- was awarded as compensation to the six claimants who are the wife, mother and sons of deceased Lal Babu Thakur who was hit by a TATA 407 bearing registration No. DL 1 LD 6700 on 2011:DHC:4386 08.11.2005, being driven by its driver Rajbir Singh and ultimately succumbed to the injuries in the hospital on 18.11.2005. The offending truck was owned by respondent Manoj and was insured with the appellant under a valid policy. The deceased was stated to be aged about 36 years and working as a barber and earning `4,500/- per month. The learned Tribunal observed that there was no evidence to prove the income of the deceased to be `4,500/- per month and consequently she adopted the minimum wages of `3166/- per month as the monthly income of the deceased. Applying the principles as laid down in Smt.Sarla Dixit and Another Vs. Balwant Yadav & Ors. AIR 1996 SC 1274, the Tribunal arrived at average gross future monthly income of `4,749/- per month. In arriving at this, the future prospects equivalent to double the present monthly income were added in the present income and the total sum of the same was divided by 2.
2. This finding of the Tribunal has been assailed by the appellant on the ground that the deceased was not in any permanent or stable job or profession and therefore, he had no future prospects of increase in income. It has also been assailed on the ground that the appellant was not liable to pay compensation since the owner (respondent No. 7) committed breach of terms of policy in allowing the driver (respondent No. 8) to drive the vehicle in the absence of a valid driving licence.
3. The appeal was admitted against respondents No. 7 & 8 namely the owner and the driver. None appeared for them to address arguments. I have heard learned counsel for the appellant/insurance company.
4. It may be that the deceased may or may not have any future prospects of growth in his profession of barber, but this Court cannot lose sight of the facts that keeping in view the all around inflationary trend and rise in prices, the increase to some extent in the earning of the deceased was also likely to happen in line with other commodities and professions. I do not find any infirmity or perversity in the reasoning given by the Tribunal in this regard. The Tribunal has deducted 1/4th of the income of the deceased towards his personal living expenses and in this regard also, there is no infirmity pointed out by the learned counsel for the appellant. Similarly no infirmity has been pointed out by the learned counsel for the appellant in the multiplier of 16 applied by the Tribunal. I do not find any reason to differ with the reasoning or the amount of compensation awarded by the Tribunal.
5. The main contention raised by learned counsel for the appellant was that it was not liable to pay any compensation inasmuch as there was a breach of terms and conditions of insurance policy on the part of the insured Manoj Kumar since driver Rajbir did not possess the licence to drive offending vehicle. In other words, the contention was that driver Rajbir had a licence of LMV and not that of HTV or transport vehicle and so his having driven the offending vehicle was in violation of the terms and conditions of the insurance policy and that being so, the appellant was not liable. It was submitted that since the appellant has discharged its statutory liability and paid the compensation, it was entitled to recover the same from the insured. Based on this premise, it was submitted that right may be given to the appellant to effect recovery of the said amount from the insured/owner of the vehicle.
6. For better appreciating the controversy involved, it would be appropriate to refer to relevant provisions of law and also the decided cases on the issue. Section 3 of the Act stipulates necessity of a driving licence. It reads as under: 3- Necessity for driving licence. (1) No person shall drive a motor vehicle in any public place unless he holds an effective driving licence issued to him authorising him to drive the vehicle; and no person shall so drive a transport vehicle [other than a motor cab hired for his own use or rented under any scheme made under sub-section (2) of section 75] unless his driving licence specifically entitles him so to do. (2) The conditions subject to which sub-section (1) shall not apply to a person receiving instructions in driving a motor vehicle shall be such as may be prescribed by the Central Government.
7. Clause (21) of Section 2 describes “light motor vehicle” whereas Clause (47) thereof defines “transport vehicle”. These read as under: “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 7500 kilograms; Section 2 (47) "transport vehicle" means a public service vehicle, a goods carriage, an educational institution bus or a private service vehicle;
8. Section 10 provides for the form and contents of the licence to drive. Sub Section (2) thereof after amendment w.e.f. 14.11.1994 provides for the classes of licences for different classes of motor vehicles. This section reads as under: “10. Form and contents of licences to drive. – (1) Every learner’s licence and driving licence, except a driving licence issued under section 18, shall be in such form and shall contain such information as may be prescribed by the Central Government. (2) A learner licence or, as the case may be, driving licence shall also be expressed as entitling the holder to drive a motor vehicle of one or more of the following classes, namely: (a) Motor cycle without gear; (b) Motor cycle with gear;
(c) Invalid carriage;
(d) Light motor vehicle;
9. Reading of these provisions conjointly it may be seen that holding an effective driving licence for driving a motor vehicle in any public place is mandatory under section 3. In the case of transport vehicle, unless it was the vehicle of the type excepted under sub section (1) of section 3, holding of a licence specifically entitling the driver to drive such a vehicle namely transport vehicle was obligatory.
10. It may also be noted that for the purpose of grant of a licence for driving a vehicle, an application is required to be filed in form no. 4 and it is only thereafter that the licence is granted in form no. 6. These forms have been prescribed in terms of rules 14 and 16 of the M.V. Rules 1989. On a perusal thereof, as also the aforementioned forms it would be seen that „light motor vehicle‟ does not answer the description of a „transport vehicle‟. After amendment, the relevant portion of form 4 reads as under: “I apply for a licence to enable me to drive vehicles of the following descriptions:
(d) Light motor vehicle
11. Reading sub section (2) of section 10 and form no 4, as reproduced above, it would be seen that clause (e) provides for „transport vehicle‟, whereas class (d) provides for „light motor vehicle‟. They both being in different classes of vehicle as per their definitions as noted above in clauses (21) and (47) respectively of section 2 of the Act, different types of licence would be required for these vehicles.
12. In the case of National Insurance Company Ltd. Vs. Kusum Rai & others, 2006 ACT 1336 the vehicle involved in the accident was a jeep and was being used as taxi for commercial purpose at the time of accident on 14.08.2000. it was held that since the driver of the offending vehicle was holding a licence to driver LMV, whereas he was driving a commercial vehicle, there was a breach of the contract of insurance and so the insurance company was not liable to pay any compensation to the claimant. However, since the insurance company was statutorily liable to pay, it was granted right of recovery from the owner of the offending vehicle. Similarly in the case of New India Assurance Co. Ltd. V. Roshanben Rahemansha Fakir and another, 2008 ACJ 2161, the driver of the offending vehicle had a licence to drive a threewheeler which was not meant to be used to drive a transport vehicle, but he was driving a goods carrying public carrier, an autorickshaw delivery van. It was held that since the vehicle was used as a commercial transport and was being used for private purpose, there was a breach of terms and condition of the insurance policy of the offending vehicle. In this case, as also in the present case the licence was granted for a period of 20 years. In this context the Supreme Court in the case of Roshanbean Rahemansha Fakir and another (Supra) held as under: “Section 14(2) (a) provides that a driving licence issued or renewed under the Act shall, in case of a licence to drive a transport vehicle will be effective for a period of 3 years whereas in the case of any other vehicle it can be issued or renewed for a period of 20 years from the date of issuance of renewal. The fact that licence was granted for a period of 20 years, thus, clearly shows that Salim Amadbhai, driver of the vehicle, was not granted a valid driving licence for driving a transport vehicle.”
13. In the aforementioned case reference was made to the case of National Insurance Company Ltd. Vs. Swaran Singh AIR 2004 SC 1541 wherein it was held by the Supreme Court as under: “We have analyzed the relevant provisions of the said Act in terms whereof a motor vehicle must be driven by a person having a driving licence. The owner of a motor vehicle in terms of Section 5 of the Act has a responsibility to see that no vehicle is driven except by a person who does not satisfy the provisions of Section 3 or 4 of the Act. In a case, therefore, where the driver of the vehicle, admittedly, did not hold any licence and the same was allowed consciously to be driven by the owner of the vehicle by such person, the insurer is entitled to succeed in its defence and avoid liability. The matter, however, may be different where a disputed question of fact arises as to whether the driver had a valid licence or where the owner of the vehicle committed breach of the terms of the contract of insurance as also the provisions of the Act by consciously allowing any person to drive a vehicle who did not have a valid driving licence. In a given case, the driver of the vehicle may not have any hand in it at all i.e. a case where an accident takes place owing to a mechanical fault or vis major ”
14. Now coming back to the facts of the present case it may be seen that owner Manoj Kumar in his statement had stated that his vehicle TATA 407 was light goods vehicle. He produced registration certificate and also insurance policy. In the registration certificate, the class of vehicle was described as light goods vehicle. The insurance policy clearly stipulated the vehicle insured for “goods carrying – public carriers”. Permit issued by the transport authority was also for the purpose of goods carriage. It also stipulated the nature of goods to be carried on as “to carry goods on hire/to carry petrol or petroleum goods”. It is also noteworthy that fitness certificate which was obtained from the transport department was also for transport vehicle. Manoj Kumar had also testified the driving licence of his driver Rajbir Singh as Ex. R1W1/R2A. He however, stated that this licence was to drive transport vehicle on the date of the accident. It was put to him that the driver did not possess a valid and effective licence to drive transport vehicle. Mukesh Chandra Aggrawal, an official of transport authority, Mainpuri, who was examined by the appellant as its witness had come with the original summoned record in respect of driving licence no. 1886-MPI-05. He stated that this licence was valid for driving LMV (non transport) with effect from 12.09.2005 to 11.09.2025. He stated that this licence was renewed for transport vehicle with effect from 18.10.2006 to 17.10.2009. The testimony of this witness has not been assailed.
15. Ms Promila Kapoor, an officer of the appellant company was also examined on the validity of the driving licence. She deposed that a notice under Order XII Rule 8 of CPC was given to the owner as well as driver of the offending vehicle for production of policy and copy of driving licence of the driver. She stated that the driver of the vehicle was not having valid driving licence to drive a commercial vehicle and hence there was breach of terms and conditions of the policy and thus the appellant was not liable to pay any compensation. In her cross examination on behalf of the owner, she maintained that they have got the driving licence verified from Mainpuri authority. The rest of her deposition has not been assailed.
16. From the evidence led by the appellant it would be seen that the licence that was possessed by the driver was for LMV, whereas the vehicle which he was driving was TATA 407, a transport commercial vehicle. The owner Manoj Kumar had admitted that he had seen the licence of the driver which was for LMV, but he maintained that he had employed him on the recommendation of some known person and also that he had the licence to driver transport vehicle. It has been noticed above that the transport vehicle was separately classed in sub section (2) of section 10 and also that as per rules specified licence for transport vehicle was required to drive such a vehicle. The driving of a commercial /goods carrier was apparently in violation of the stipulated terms of the insurance policy on the part of the inured and if that was so, the appellant could not be said to be liable to pay any compensation to the claimants. Since the appellant has discharged its statutory liability, it would be entitled to recover the same from the insured/owner. Consequently, the appellant is granted right to effect recovery from the insured/owner, of the compensation amount that was paid in discharge of its statutory liability to the claimants in compliance of the impugned award of the Tribunal. The impugned award is accordingly modified as indicated above.
17. The appeal stands disposed of.
M.L. MEHTA (JUDGE) August 26, 2011 awanish