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Judgment
This Misc. Appeal has been filed under the provisions of Section 173(1) of the Motor Vehicles Act, 1988 being aggrieved by award dated 17.9.2009
passed by 3rd Motor Accident ClaimsPradeshTribunal,Morena, in Claim Case No.31/2008 wherein appellant had sustain fracture of radius bone of
left hand.
It is submitted by learned counsel for the ppellant that Claims Tribunal has awarded a meagre sum of Rs.15,500/- overlooking the fact that because of
fracture in the left hand ppellant suffered pain and mental agony. He was also admitted and hospitalized for five days, therefore, award of sum of
Rs.1,000/- on me icines, Rs.2,000/- on account of fracture and loss of income for a period of two months at the rate of Rs.1,250/- per month, besides
Rs.10,000/ - for mental and physical agony is on the lower side.
It is also submitted by learned counsel for the appellant that accident had taken place on 1.12.2007 and if minimum wages on the date of accident are
taken into consideration, then also computation of loss of income at the rate of Rs.1,250/- per month is on lower side. In fact, on the date of accident
minimum wages for an unskilled labourer was Rs.2651/- per month and definitely with injury in the left wrist, he could not have performed his
agricultural and animal rearing profession, and therefore, the amount of award needs to be enhanced.
Taking into consideration the totality of facts and circumstances of the case, this Court is of the opinion that even if the notional income is taken as
minimum wages for an unskilled labourer, then also appellant will be entitled to enhancement of a sum of Rs.3,000/- on account of loss of income as
has been computed by the Claims Tribunal. However, looking to the fact that appellant was engaged in the agricultural operations merely reunion of
the bone will not be sufficient for him to perform his agricultural and animal rearing operations, therefore, an additional sum of Rs.6,000/-can be
awarded on account of loss of income.
Claims Tribunal has not awarded any amount for future treatment and amount of Rs.1,000/- appears to be too meagre, therefore, it is enhanced to
Rs.5,000/-. Thus, there will be an addition of Rs.4,000/- on account of notional expenditure on the treatment. Similarly, no amount has been awarded to
the appellant for nutritious diet and also on account of attendant for which a sum of Rs.5,000/- can be awarded looking to the period of temporary
disability incurred by the appellant.
Thus, there will be an addition of Rs.15,000/- to the sum already awarded by the Claims Tribunal.
Learned Claims Tribunal has exonerated the Insurance Company from its liability to pay the award on the ground that driving licence of the driver was
not having a P.S.B. endorsement and commercial ve icle was being driven by him in the form of a tempo.
Recently Hon'ble Supreme Court in the case of Mukund Dewangan Vs. Oriental Insurance Company Ltd. (Civil Appe l No. 5826/2011) has dealt
with this aspect and has held that for grant of licence to drive a transport vehicle, the provisions of Section 10 (2) (e) became effective from
28.3.2001. It has been held that the legal position was not appreciated correctly in the case of Oriental Insurance Company Limited Vs. Angad Kol
and others as reported in (2009) 11 SCC 356 and as the vehicle was of light motor vehicle class, thus the decision in the case of Angad Kol (supra)
was overruled and it was held that though the vehicle was a transport vehicle but since it was being driven by a person having licence to drive the light
mo or vehicle and it may be a transport vehicle but will not fall within the definition of light motor vehicle, lacuna of endorsement will not take a right
of the driver to drive a light motor vehicle.
To this, Shri Gupta submits that this judgment in the case of Mukund Dewangan (supra) has already been placed for reconsideration in the case of
M/s Bajaj Alliance General Insurance Co. Ltd. Vs. Rambha Devi & Others (SLP (C) No. 27787/2017) vide order dt.31.10.2017.
On the other hand, learned counsel for the appellant submits that law is very clear that merely placing a judgment for reconsideration will not take
away the rights which have already been accrued in terms of the existing judgment as has been held by the Full Bench of this court in the case of
Oriental Insurance Company Ltd. Vs. Sanju Bai and others as reported in 2016 ACJ 1000, wherein the ratio is that even if the correctness of view
expressed in the judgment has been doubted and the question is referred to the larger Bench of the Supreme Court, nevertheless, it is well settled
position that so long as the decision of the Supreme Court on the point is in force, the same will be binding on all the subordinate courts. The fact that
the issue has been referred to a larger Bench of the Supreme Court, can not be the basis to ignore the decision of the Supreme Court cited on the
subject, which is still holding the field and will be, therefore, binding precedent until overturned by the larger Bench of the Supreme Court.
In view of such decision of the Full Bench of this court in the case of Sanju Bai (supra), the judgment rendered by the Hon'ble Supreme Court in the
case of Mukund Dewangan (supra) is a binding precedent for this Court notwithstanding the fact that it has been placed for reconsideration. Thus, the
ratio in the case of Mukund Dewangan (supra) being binding, insurance company can not be exonerated.
Consequently, this appeal is allowed byPradeshenhancingteaward by a further sum of Rs.15,000/- (Rs. Fifteen Thousand Only) which hall be paid by
the respondents jointly and severally within period of three months.
Rest of the award shall remain same.