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Judgment
The appeal in MFA No.10005/2010 is by the Insurance Company and the appeal in MFA No.7651/2011 by the claimant lay a challenge to the
judgment and award dated 31.07.2010 made by Addl. MACT, Hassan allowing MVC 1649/2007 whereby a compensation of Rs.60,000/- has been
awarded with 6% annual interest thereon subject to usual condition of bank deposit. The challenge by the insurer is on the ground of liability itself
whereas the challenge by the claimant is on the ground of inadequacy of compensation.
On 14.06.2005 because of the accident caused by the offending Tata Sumo bearing registration No.KA-27 B-8786 due to rash and negligent
driving, the minor claimant had sustained grievous injuries. In his claim petition in MVC No.1649/2007, the injured had filed the written statement
resisting the claim.
To prove the claim, the father of the claimant namely Mr. Annappa (wrongly stated to be Suresha) was examined as Pw1 and in his evidence 09
documents came to be marked as per Ex.P1 to Ex.P9 which interalia comprised of the Police papers, IMV Report and the medical records. The
doctor who had treated the injured boy was examined as Pw2. From the side of the insurer, one Mr. K.N. Ramachandra, its official was examined as
RW1 and in his evidence 03 documents came to be marked as per Ex.R1, R2 and R3, which essentially comprised of DL extract, etc. The MACT
after adverting to the pleadings of the parties and after weighing the evidentiary materials on record has passed the impugned judgment and award.
Learned panel counsel of the insurer submits that the vehicle in question was a transport vehicle and that the DL extract marked as per Ex.R3 did
not have a transport endorsement and therefore, there is breach of essential terms and conditions of the contract of insurance and consequentially the
liability could not have been fastened on the insurer at all. Per contra, the learned counsel for the claimant submits that the question of law raised in
this appeal is no legal res integra vide Apex Court judgment in the case of Mukund Dewangan Vs. Oriental Insurance Company Limited, reported in
AIR 2017 SC 3668, disposed of on 03.07.2017, wherein, the question is answered against the insurer, holding that even in the absence of Transport
Endorsement, the insurer is liable.
The learned counsel for the claimant pressing into service his appeal, argues that the impugned judgment and award are flawsome; the MACT has
not awarded adequate compensation to the claimant; the MACT has not adverted to the guidelines to be adhered to, when the case involves injured
minor claimant. Per contra, the learned counsel for the insurer submits that the MACT being a statutory Tribunal in its accumulated wisdom has
appreciated the matter in the right perspective and has awarded just and reasonable compensation and therefore, indulgence in this appeal is uncalled
for.
I have heard the learned counsel for the claimant and the learned counsel for the insurer. I have perused the papers.
The contention of the claimant that the injured boy being aged 14 years, the ratio laid down in the case of Master Mallikarjun Vs. Divisional
Manager, the National Insurance Company Limited & another, AIR
2014 SC 736 is prima-facie invokable. The Apex Court in the said case at para 12 of its judgment observed as under:
“Though it is difficult to have an accurate assessment of the compensation in the case of children suffering disability on account of a motor vehicle
accident, having regard to the relevant factors, precedents and the approach of various High Courts, we are of the view that the appropriate
compensation on all other heads in addition to the actual expenditure for treatment, attendant, etc., should be, if the disability is above 10% and upto
30% to the whole body, Rs.3 lakhs; upto 60%, Rs.4 lakhs; upto 90%, Rs.5 lakhs and above 90% , it should be Rs.6 lakhs. For permanent disability
upto 10%, it should be Re.1 lakh, unless there are exceptional circumstances to take different yardstick. In the instant case, the disability is to the tune
of 18%. Appellant had a longer period of hospitalization for about two months causing also inconvenience and loss of earning to the parents.â€
In view of the above guideline, the compensation awarded by the MACT is required to be enhanced from Rs.60,000/- to Rs.1,20,000/- since the
occupational disability is a little less than 10 %.
The learned counsel for the insurer submits that the ratio in Mukund Dewangan’s case is doubted by the subsequent Bench in the case of M/s.
Bajaj Alliance General Insurance Co. Ltd. Vs. Rambha Devi & others, in Civil Appeal No.841/2018; the matter is placed before the Hon’ble CJI
to take a decision as to whether the said ratio requires reconsideration by a larger Bench; therefore, the hearing of the appeal at hands be deferred till
after the cloud on the ratio invoked is clear. I am not impressed by this contention for the following reasons.
(a) The law declared by the Apex Court under Article 141 of the Constitution of India does not automatically loose its precedential value/force, merely
because the matter is placed before the Hon’ble CJI to decide its reconsideration-worthiness by a larger Bench. The text and context of Article
141 of the Constitution of India or any other kindred Article do not support the contention of the insurer.
(b) In the case of Ashok Sadarangani and another Vs. Union of India and others (2012) 11 SCC 321 at para 29, the Apex Court has observed as
under:
“29. As was indicated in Harbhajan Singh case, the pendency of a reference to a larger Bench, does not mean that all other proceedings involving
the same issue would remain stayed till a decision was rendered in the reference. The reference made in Gian Singh case need not, therefore detain
us. Till such time as the decisions cited at the Bar are not modified or altered in any way, they continue to hold the field.â€
(c) In the case of Manager, National Insurance Company Ltd. V/s Saju.P.Paul and another reported in (2013) 2 SCC 41, the Apex Court at paras 25
and 26 has stated as under:
“25. In National Insurance Company Ltd. v. Parvathneni & Another [SLP(C)….CC No. 10993 of 2009], the following two questions have been
referred to the larger Bench for consideration:
(1) If an Insurance Company can prove that it does not have any liability to pay any amount in law to the claimants under the Motor Vehicles Act or
any other enactment, can the Court yet compel it to pay the amount in question giving it liberty to later on recover the same from the owner of the
vehicle?
(2) Can such a direction be given under Article 142 of the Constitution, and what is the scope of Article 142? Does Article 142 permit the Court to
create a liability where there is none?â€
The pendency of consideration of the above questions by a larger Bench does not mean that the course that was followed in Baljit Kaur and
Challa Upendra Rao should not be followed, more so in a peculiar fact situation of this case. …. The recovery of the amount by the insurance
company from the owner shall be made by following the procedure as laid down by this Court in the case of Challa Upendra Rao.â€
(i) In the case of State of Maharashtra and another Vs. Sarva Shramik Sangh, Sangli and others AIR 2014 SC 61; it was contended by the
Management that the decision of the Apex Court in the case of BWSSB Vs. A. Rajappa and others (1978) 2 SCC 213 having been referred for
reconsideration by the larger Bench in the case of State of U.P Vs. Jai Bir Singh, (2005) 5 SCC 1, the hearing of the present case should be deferred.
The said contention was rejected by the Apex Court by its judgment dated 21.10.2013, at para 20, the Apex Court states as under:
“20. It is, however, contended on behalf of the appellant that the said undertaking was being run by the irrigation department of the first appellant,
and the activities of the irrigation department could not be considered to be an “industry†within the definition of the concept under Section 2(j) of
the I.D.Act. As noted earlier, the reconsideration of the wide interpretation of the concept of “industry†in Bangalore Water Supply and
Sewerage Board (supra) is pending before the larger bench of this Court. However, as of now we will have to follow the interpretation of law
presently holding the field as per the approach taken by this Court in State of Orissa v. Dandasi Sahu (supra), referred to above. The determination of
the present pending industrial dispute cannot be kept undecided until the judgment of the larger bench is received.â€
In the case of M/s. Bajaj Alliance General Insurance Co. Ltd. Vs. Rambha Devi & others, in Civil Appeal No.841/2018, the reference part of the
said case reads as under:
“1. Section 4(1) of the Motor Vehicles Act, 1988 (hereinafter referred to as “the Actâ€) provides that the minimum age of holding a driving
license for a motor vehicle is 18 years. Section 4(2) provides that no person under the age of 20 years shall drive a transport vehicle in a public place.
Section 7 provides that no person can be granted a learner’s licence to drive a transport vehicle unless he has held a driving licence to drive a
light motor vehilce for at least one year.
Section 14 deals with the currency of licence to drive motor vehilces. A driving licence issued or renewed under this Act, in case a licence to dirve
a transport vehicle will be effective for a period of three years. The proviso to Section 14(2) (a) provides that in case of a licence to drive a transport
vehicle carrying goods of dangerous or hazardous nature, it shall be effective for a period of one year. However, in case of any other licence, it would
be effective for a period of 20 years.
Rule 5 of The Central Rules Motor Vehicles Rules, 1989 (hereinafter referred to as “the Rulesâ€) makes a medical certificate issued by a
registered medical practitioner mandatory for in case of a transport vehicle, whereas for a non-transport vehicle, only a self-declaration is sufficient.
Rule 31, specifically sub-rules (2), (3) and (4) provide for a difference in the syllabus and duration of training between transport and non-transport
vehicles.â€
In all these judgments mentioned above, the inner voice of the Apex Court is that the pendency of consideration of the question of law by a larger
Bench of the Court does not per se require deferral of consideration of the same question by all other courts indefinitely when the case in reference
has already laid down the ratio. Mere reference does not rob off the precedential force of the case referred to the larger Bench. The ratio of the
decision referred for consideration by a larger Bench cannot be said to be in suspended animation.
Where the Apex Court intends that the ratio in a Case in Reference should not be followed, till the Reference is decided, there would be some
observation to that effect. For instance, in the case of State of Haryana and others Vs. M/s. G.D.Goenka Tourism Corporation Limited and another in
Special Leave to Appeal (C) --- C.C.No.8453 of 2017 vide order dated 21.02.2018, the Apex Court has referred its decision in the case of Indore
Development Authority Vs. Shailendra (Dead) through Lrs. and others [(2018) 2 Scale 1] as to the invokability of Section 24 of the Right to Fair
Compensation and Transparency in Land Acquisition, Rehabilitation and Resettlement Act, 2013, for consideration by the larger Bench. The Apex
Court in the said order has specifically requested all the Courts to defer hearing of the cases involving the said question, till after the Reference is
decided. Unnumbered 3rd and 4th paragraphs at pages 4 and 5 of the said Order read as under:
“Taking all this into consideration, we are of the opinion that it would be appropriate if in the interim and pending a final decision on making a
reference (if at all) to a larger Bench, the High Courts be requested not to deal with any cases relating to the interpretation of or concerning Section
24 of the Right to Fair Compensation and Transparency in Land Acquisition, Rehabilitation and Resettlement Act, 2013. The Secretary General will
urgently communicate this order to the Registrar General of every High Court so that our request is complied with. Insofar as cases pending in this
Court are concerned, we request the concerned Benches dealing with similar matters to defer the hearing until a decision is rendered one way or the
other on the issue whether the matter should be referred to larger Bench or not. Apart from anything else, deferring the consideration would avoid
inconvenience to the litigating parties, whether it is the State or individuals.â€
Such a suggestion for deferral, as found in the above paragraphs is conspicuously absent in the case of Sarva Shramik Sangh cited on behalf of the
insurer, supra. Conceding to such a request, virtually amounts to asking the injured litigant citizen to wait indefinitely and the same militates against the
idea of speedy justice to the needy of the vulnerable lot. Therefore, the request of the insurer to defer the hearing of this appeal is unacceptable.
In the above circumstances, the appeal filed by the insurer in MFA No.10005/2010 being devoid of merits, is dismissed; the appeal filed by the
claimant in MFA No.7651/2011 is partly favoured; the impugned judgment and award are modified enhancing the compensation from Rs.60,000/- to
Rs.1,20,000/- with interest at the rate of 6% per annum; the insurer is to make good the differential of the compensation forthwith.
The amount in deposit in the Registry, along with LCR, if any, shall be transmitted to the jurisdictional MACT for disbursement of compensation to the
claimant, forthwith.