Imran vs Hussain and Others

A.V. Chandrashekara, J.—M.F.A. 2524/10 has been filed by the claimant in a case in MVC. 628/07 which was pending on the file of MACT, Mangalore. The connected appeal, M.F.A. 2656/10 is filed by the insurer on the ground that the Tribunal should not have mulcted liability on the insurance company when the owner-cum-driver of the three-wheeler goods tempo had taken the assistance of the claimant while transporting iron rods. The delay of 32 days in filing the appeal is condoned and LA filed under Section 5 of the Limitation Act is allowed.

Learned counsel for the insurer has vehemently argued that the claimant who was injured in the said accident, at the best, would be the authorized representative of the owner and therefore he does not come within the meaning of ''employee'' to claim compensation as per the insurance policy issued by the insurer.

The 1st respondent-Hussain is the registered owner of the offending vehicle, i.e. three wheeler goods auto bearing registration No. KA-19-B-2767. He was proceeding from Derlakatte towards Harekala in Mangalore on 11.10.2006. Admittedly the iron rods were being transported by the 1st respondent who is the owner-cum-driver and the claimant was in the said tempo. Due to the alleged negligence of the driver, the accident took place at 5.30 p.m. as a result of which the claimant sustained certain injuries.

The evidence on record goes to show that the claimant was not a gratuitous passenger. What is argued before this court by the insurer is that even if it is accepted that the owner-cum-driver had taken the assistance of the claimant to load iron rods to the tempo and to transport the same to the destination, he would be, at the best, an authorized representative of the owner and would not get any compensation as per the policy conditions issued by the insurer vide Ex. R1.

The Tribunal has given a categorical finding that the claimant was not a gratuitous passenger. No grounds are made out to interfere with such factual finding. Ex. R2 is a copy of ''B'' extract relating to the vehicle in question. It is a three-wheeler pick-up van and in column 7, the class is mentioned as ''three wheeler - goods.'' The 1st respondent was the registered owner of the said vehicle. Ex. R1 is the policy of insurance issued by the appellant-insurer favouring the 1st respondent. A sum of Rs. 900/- has been collected as premium towards basic third party liability, Rs. 100/- covering the risk of owner-cum-driver restricted to Rs. 2,00,000/- and Rs. 25/- to cover the risk of paid driver/operation maintenance. In all Rs. 1,025/- has been collected as premium vide Ex. R1. Admittedly the vehicle in question has been validly insured and was valid as on the date and time of the accident that occurred.

What is argued before this court by the learned counsel for the insurer, Smt. H.R. Renuka is that the claimant was neither a loader nor an employee so as to be covered under the policy. The word ''operation/maintenance'' found in Ex. R1-insurance policy will have to be liberally construed in the present case. Admittedly the 1st respondent had taken the assistance of this claimant in order to load iron rods to the tempo and he had asked him to be in the goods tempo till it was unloaded in the destination. Therefore the fact of engaging the claimant by the 1st respondent for loading and unloading iron rods transported in the said goods vehicle would be covered under Ex. R1. Therefore the insurer cannot avoid liability attributing stricter construction of the words ''operation/maintenance.''

It is further argued that the driver-cum-owner did not have a valid licence as on the date of the accident and therefore the insurance company is not liable. E.R3 is the extract of driving licence issued by the R.T.O., Mangalore, on 5.12.2007. Initially he had been issued licence to drive a motor vehicle other than transport vehicle from 6.11.2003 to 31.5.2014. In the meantime he obtained licence to drive a three-wheeler transport vehicle and the same was granted on 12.10.2006. What is argued before this court is that on 11.10.2006, the driver did not have a valid and effective licence to drive a transport vehicle, and therefore the insurer is not liable to indemnify the claimant. This court does not accept the same.

Admittedly the owner had licence to drive a three-wheeler non-transport vehicle and it was valid from 6.11.2003 to 31.5.2014. The only difference in regard to the nature of vehicle that could have been driven by the 1st respondent was with respect to transport vehicle or otherwise.

This aspect of the matter has been dealt with in detail by the Hon''ble apex court in the case of Kulwant Singh Vs. Oriental Insurance Company Ltd., . Relying on the earlier decision rendered in the case of S. Iyyapan Vs. United India Insurance Company Ltd. and Another, , the Hon''ble apex court has held in paragraph 10 as follows:

"10. Section 149(2)(a)(ii) gives a right to the insurer to take a defence that person driving the vehicle at the time of accident was not duly licensed. In other words, Section 149(2)(a)(ii) puts a condition excluding driving by any person who is not duly licensed. The question arose before this Court as to whether the Insurance Company can repudiate its liability to pay the compensation in respect of the accident by a vehicle taking a defence that at the relevant time it was being driven by a person having no licence. While considering this point, this Court in the case of Skandia Insurance Co. Ltd. (supra) observed:--

"12. The defence built on the exclusion clause cannot succeed for three reasons, viz.:

(1) On a true interpretation of the relevant clause which interpretation is at peace with the conscience of Section 96, the condition excluding driving by a person not duly licensed is not absolute and the promisor is absolved once it is shown that he has done everything in his power to keep, honour and fulfil the promise and he himself is not guilty of a deliberate breach.

(2) Even if it is treated as an absolute promise, there is substantial compliance therewith upon an express or implied mandate being given to the licensed driver not to allow the vehicle to be left unattended so that it happens to be driven by an unlicensed driver.

(3) The exclusion clause has to be "read down" in order that it is not at war with the "main purpose" of the provisions enacted for the protection of victims of accidents so that the promisor is exculpated when he does everything in his power to keep the promise."

What is argued by the learned counsel for the insurer is that the facts discussed in the case of IYAPPAN were prior to the amendment to the Motor Vehicles Act and thus they are different from that of the case on hand.

As could be seen from the facts discussed in the case of KULWANT SINGH, the accident took place on 8.10.2005 at 5.30 p.m. while traveling in a vehicle and the same was hit by a tempo. Even as per the facts of the said case, the accident had taken place after the amendment was effected to the Motor Vehicles Act. Therefore the said plea is not available to the insurer in the present case.

Thus the appeal filed by the insurer is liable to be dismissed.

Insofar as the claimant''s appeal is concerned, the Tribunal has granted Rs. 70,500/- under different heads found in paragraph 20 of the award and the same is reproduced below:

The claimant had sustained swelling and tenderness over the lower half of right leg and x-ray showed fracture of shaft of right tibia. Apart from this, he has also suffered injury to the knee joint. He was treated in the hospital for 12 days and had spent some amount towards treatment. Only Rs. 20,000/- is awarded towards pain and suffering and this is on the lower side. Awarding Rs. 30,000/- would meet the ends of justice.

Learned counsel for the claimant has vehemently argued that towards medical expenses only Rs. 15,000/- is awarded by the Tribunal on the ground that they are not properly explained, though the total amount spent as per Exs. P10 to P48 is Rs. 33,458/-. There is no reason to disbelieve the documents filed to that effect. Thus awarding Rs. 33,500/- would meet the ends of justice.

Only a sum of Rs. 6,000/- is awarded towards future medical expenses. In view of the gravity of the injuries and fixation of implants, awarding Rs. 10,000/- would meet the ends of justice. Under the head loss of income during the laid up period,'' only Rs. 3,750/- is awarded. Taking into consideration the gravity of injuries and number of days spent in the hospital, it can be definitely said that he was not able to work for three months. Thus Rs. 9,000/- is awarded under this head, at the rate of Rs. 3,000/- as monthly income.

A sum of Rs. 15,750/- is awarded under the head loss of amenities and permanent disability. This is reasonable and does not require any interference. Likewise Rs. 5,000/- awarded towards incidental charges is reasonable and does not require any interference. Thus the claimant is entitled to enhanced compensation as under:

In the result, I pass the following order:

"I. The appeal filed by the insurer, i.e. M.F.A. 2656/10 is dismissed.

II. The appeal filed by the claimant, M.F.A. 2524/10 is allowed in part. Compensation awarded by the (Tribunal is enhanced from Rs. 70,500/- to Rs. 1,13,200/-. The enhanced amount of Rs. 42,700/- (rupees forty two thousand seven hundred only) shall carry interest at the rate of 9% p.a. from the date of petition till realization.

III. Parties to bear their own costs.

IV. The amount in deposit shall be transferred to the jurisdictional Tribunal. In the event of deposit of the amount, the entire amount shall be released to the claimant."