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Judgment
V. Ratnam, J.—This appeal has been prefened by the claimant against the award of the Motor Accidents Claims Tribunal (District Court),
Tiruchirapalli, in M.C.O.P. No. 64 of 1984. According to the case of the appellant, on 20.7.1983, at about 9.45 p.m., the appellant along with her
husband was walking along Tiruvanaikkaval South Street on the left side of the road. At that time, a moped bearing registration No. TNG 9782
and belonging to the first respondent, came driven by one Singaram from the opposite direction and dashed against the appellant, as a result of
which she sustained a fracture in her left arm and other injuries. The accident, according to the appellant, took place only on account of the rash
and negligent driving of the moped of the first respondent by its driver. In respect of that, the appellant prayed that compensation in a sum of Rs.
50,000/- should be awarded to her against the owner and the insurer of the vehicle involved in the accident, who are the respondents herein. The
first respondent did not contest the claim of the appellant, but remained exparte. In the counter filed by the second respondent, apart from
disputing the rash and negligent driving of the moped it put forward the plea that the amount of compensation claimed was exorbitant and
disproportionate and no liability could be fastened on it, as the driver of the vehicle did not have a valid driving licence at the time of the accident.
The Tribunal, on a consideration of the oral as well as the documentary evidence, found that the rash and negligent driving of the moped TNG
9782 by its driver had caused the accident and that the appellant deserved to be awarded compensation in a sum of Rs. 12,000/- in respect of the
injuries sustained by her. Considering the plea of the second respondent insurance company regarding its liability for the payment of compensation,
the Tribunal found that the second respondent insurance company had established that driver of the moped, at the time of the accident, held only a
learner''s licence and under the terms of the policy, the liability for payment of compensation could not be fastened on the second respondent
insurance company. Ultimately, the Tribunal passed an award in favour of the appellant and against the first respondent for recovery of a sum of
Rs. 12,000/- together with interest at 15 per cent per annum thereon from the date of the award till the date of payment, if the first respondent
defaulted in the payment of the compensation amount within two months from the date of the award. It is the correctness of the award so passed
that is challenged in this appeal in which the appellant has prayed for the award of the disallowed portion of the compensation in a sum of Rs.
38,000/-.
Learned counsel for the appellant first contended that the Claims Tribunal, after determining the amount of compensation awardable to the
appellant in a sum of Rs. 16,000/- in respect of the injuries sustained by her in the accident, erroneously proceeded to deduct Rs. 4,000/- on the
ground of lump sum payment. It was also further contended that the quantum of compensation awardable to the appellant as fixed by the Tribunal
in a sum of Rs. 16,000 was too low, meagre and inadequate and that a higher compensation should have been awarded together with interest at
12 per cent per annum from the date of the claim petition till the date of payment. On the other hand, learned Counsel for the respondents
submitted that having regard to the injuries sustained by the appellant in the accident and their after-effects, the Tribunal was justified in awarding to
the appellant compensation in a sum of Rs. 12,000/- with interest as provided in the award.
It is seen from the claim petition that the appellant had claimed compensation in a sum of Rs. 50,000/- in all comprised of Rs. 7,500/- under no
fault liability, Rs. 10,000/- for the pain and suffering, Rs. 7,500/- towards medical expenses and Rs. 25,000/- in regard to permanent disability.
Exh. A-13 is the wound certificate and that shows that the appellant had sustained a fracture of the left upper arm and two abrasions, one on the
lower half of left forearm and another on the lower lip. The appellant examined as PW 1, referring to the fracture sustained by her in the left upper
arm, stated that though her left arm was put in plaster of Paris cast for nearly one year and further treatment was also given by Dr. John Karuppiah
for another year, the fracture had not united and that she was advised that internal fixation had to be done. PW 1 further added that owing to the
non-union of the fracture, she has been experiencing lot of pain and was unable to sleep on her left side and that she was also obliged to seek the
help and assistance of another person to look after her normal day-to-day needs. In the course of her cross-examination, PW 1 reiterated that she
had engaged another person, a relative, for help and that that person was staying with her and was also fed by her and that person had helped her
when she was in the hospital and continued to do so and further that without the assistance of that person, she cannot do anything. PW 2 is the
husband of the appellant and in his evidence, he stated that his wife sustained a fracture in her left upper arm and she was admitted first into the
Government Hospital at Srirangam and subsequently she was admitted into a private nursing home where she underwent treatment for more than
six months. PW 2 had also referred to the advice given to the appellant that internal fixation by insertion of plates required to be done, the facilities
for which were available either at Madurai or at Madras. A sum of Rs. 10,000/- had been spent by PW 2 on the treatment of the appellant and
that to undergo internal fixation surgery, it would cost Rs. 20,000/- according to him. PW 2 had also referred to the employment of a person to
help the appellant. In his cross-examination, PW 2 stated that though PW 1 was initially admitted into the Government Hospital at Srirangam, she
was later admitted into a private nursing home because of the seriousness of her condition and the inattention in the Government Hospital. PW 2
was obliged to admit that to establish the incurring of expenditure of Rs. 10,000/- no documents were filed. PW 3 is the doctor who attended on
the appellant on her admission into the private nursing home and he has spoken to the taking of the X-rays marked as Exhs. A-2 to A-10 with
reference to the fracture sustained by the appellant in her left upper arm. PW 3 has also spoken to the issue of Exh. A-12 to the effect that the
appellant had been admitted in the G.V.N. Hospital for treatment for compound fracture on 20.7.1983 and was discharged on 10.1.1984 and that
during that period, the appellant would have spent Rs. 10,000/- towards medical expenses. PW 3 was unable to state how much it would cost for
the appellant to undergo surgery for internal fixation. From the aforesaid evidence, it is clearly established that the appellant had sustained a
compound fracture on her left upper arm which had not united in spite of prolonged treatment having been given to her. The evidence also
discloses that immediately after the accident, the appellant was admitted in the Government Hospital at Srirangam and later, in a private nursing
home between 20.7.1983 and 10.1.1984. Owing to the non-union of the fracture, the appellant has not been able to use her left arm and has been
obliged to seek the help of another person even to look after her daily needs. The medical evidence further discloses that surgery for internal
fixation for insertion of plates required to be done and that would also cost the appellant quite a bit. The Tribunal, in para 7 of its award, observing
the appellant at the time when she gave evidence, stated that owing to the fracture, she had not been able to use her left hand at all. It is in the
background of the aforesaid evidence that the amount of compensation awardable to the appellant has to be determined. Under the head of pain
and suffering, the Tribunal had not awarded to the appellant any compensation separately. The nature of the injuries sustained by the appellant in
the accident as well as the period of her hospitalisation has already been referred to. The appellant had sustained a compound fracture in her left
upper arm and immediately after the accident as well as during the period of her undergoing treatment, the appellant would have undoubtedly
undergone considerable pain on account of trie fracture and the other injuries. Taking into account the nature of the injuries sustained by the
appellant and the period of her hospitalisation and also her evidence as PW 1 that she was still experiencing pain, it would be just, fair and
reasonable to award to the appellant compensation in a sum of Rs. 4,000/-. Under the head of medical expenses, the Tribunal had awarded to the
appellant Rs. 6,000/- against her claim for Rs. 7,500/-. The amount of expenditure incurred on the treatment of the appellant while she was in the
Government Hospital and also in the private nursing home has not been clearly made out by evidence. Merely relying upon Exh. A-12 issued by
PW 3 and others, it cannot be assumed, in the absence of other supporting documentary evidence, that the appellant had spent Rs. 10,000/- on
her treatment. Indeed, it is seen that towards the medical expenses, the appellant had claimed Rs. 7,500/-. Considering the injuries sustained by the
appellant and also the treatment undergone by her, initially in the Government Hospital at Srirangam and later in the private nursing home between
20.7.1983 and 10.1.1984, in the absence of clinching and reliable evidence, the award of Rs. 6,000/- under this head by the Tribunal cannot be
stated to be either meagre or low. Regarding the permanent disability and pain and suffering, the Tribunal had awarded to the appellant
compensation in a sum of Rs. 10,000/-. Earlier, the injuries sustained by the appellant in the accident and her inability to use her left upper arm in
spite of treatment which had also been observed by the Tribunal, had been noticed. On account of the inability of the appellant to use her left hand,
she is obliged to depend upon another person for help and assistance and that would undoubtedly create a feeling of dependence and depression
in the appellant. It has also to be borne in mind that the appellant has crossed 50 and that the fracture had not united completely and that internal
fixation by insertion of steel plates required to be done and that would mean more expenditure for the appellant on that account either at Madras or
at Madurai. That she had been advised to undergo corrective internal fixation surgery is clearly established by Exh. A-ll. It is thus clearly made out
by the evidence that as it is, the appellant is not able to have the use of her left arm for any purpose and is obliged to depend on others and that
deserves to be adequately and sufficiently compensated for. On the available evidence, in my view, it would be just, fair and reasonable to award
to the appellant compensation in a sum of Rs. 15,000/- under the head of permanent disability. In other words, the appellant would be entitled to
recover compensation in a sum of Rs. 25,000/- in all. In para 7 of the award of the Tribunal, it had determined the amount of compensation
awardable to the appellant in a sum of Rs. 16,000/- and had deducted Rs. 4,000/- on the ground of lump sum payment. The deduction in respect
of lump sum payment and other uncertainties of life would be more relevant in assessing the compensation awardable in the case of death rather
than in a case of injury. A careful consideration of the evidence does not in any manner justify a further deduction from the amount of compensation
recoverable by the appellant and as stated earlier, the appellant, on the facts and circumstances of this case, would be entitled to recover
compensation in a sum of Rs. 25,000/- without any further deduction. In regard to the interest on the amount of compensation awarded to the
appellant, the Tribunal fell into an error in depriving the appellant of the interest from the date of the claim petition till the date of the award and also
for two months thereafter. It is well settled by decisions of the Supreme Court that claimants in motor accident cases are entitled to be paid interest
at the rate of 12 per cent per annum from the date of the claim petition till the date of payment. In view of this, the appellant would be entitled to
recover compensation in a sum of Rs. 25,000/- with interest at 12 per cent per annum thereon from 19.1.1984 till the date of payment, credit
being given to payments, if any, made meanwhile.
Learned counsel for the appellant next contended that the view taken by the Tribunal that the second respondent insurance company cannot be
made liable for the payment of compensation to the appellant is erroneous. According to learned Counsel, though the driver of the vehicle involved
in the accident, at the time of the accident, had only a learner''s licence, that would be a valid driving licence, sufficient to fasten liability on the
second respondent insurance company, for the payment of compensation. Reliance in this connection was placed, amongst others, on the decision
reported in National Insurance Co. Ltd. Madras Vs. A. Babu and others, . Per contra, learned Counsel for the second respondent insurance
company, drawing attention to the terms of the policy, Exh. B-4, submitted that one of the conditions in the policy is to exclude its liability in the
event of the vehicle involved in the accident being driven by the holder of a learner''s licence. Attention in this connection was also drawn to the
decision reported in Ambujam v. Hindustan Ideal Insurance Company 1981 ACJ 175 . It was also submitted on the basis of Section 96(2)(b)(ii)
of the Motor Vehicles Act (hereinafter referred to as ''the Act'') that a condition excluding liability in respect of vehicles driven by those holding a
learner''s licence, as found in the policy, would be quite in order and the distinction pointed out in National Insurance Co. Ltd. Madras Vs. A.
Babu and others, , in regard to the decision in Ambujam v. Hindustan Ideal Insurance Company (supra) would not stand attracted.
The liability of the second respondent insurance company is purely contractual and necessarily, therefore, that would depend upon the terms and
conditions incorporated in the policy as well as the availability of one or more of the defences permitted to be raised by the insurance company
under the provisions of the Act and on a consideration of the Tamil Nadu Motor Vehicles Rules, 1940 (hereinafter referred to as ''the Rules'')
framed under the Act. It is seen from the evidence of RW 1 that the driver of the moped which was involved in the accident had been granted a
learner''s licence for the period 2.6.1983 to 1.12.1983. The accident had taken place on 20.7.1983 as a result of the rash and negligent driving of
the moped by Singaram, while he was the holder of a learner''s licence. RW 3 has spoken to the terms of the policy issued by the second
respondent insurance company under Exh. B-4. In order to ascertain whether the second respondent insurance company would be liable for
payment of compensation to the appellant, a reference has to be made to the conditions incorporated in the policy, Exh. B-4. In regard to the
limitations found in the Schedule for the driver of the vehicle insured, it had been stated that the driver, driving the vehicle at the time of the
accident, should hold a valid driving licence or had held a permanent driving licence (other than a learner''s licence) and is not disqualified from
holding or obtaining such a licence. A further condition in the policy is to the effect that the insured is not indemnified, if the vehicle is driven
otherwise than in accordance with the terms of the Schedule. u/s 3(1) of the Act, no person shall drive a motor vehicle in any public place unless he
holds an effective driving licence issued to himself authorising him to drive the vehicle; and no person shall so drive a motor vehicle as a paid
employee or shall so drive a transport vehicle; unless his driving licence specifically entitles him so to do. u/s 3(2) of the Act, the State Government
is enabled to prescribe the conditions subject to which Sub-section (1) of Section 3 of the Act shall not apply to a person receiving instructions in
driving a motor vehicle. Under Rule 39 of the Rules, as it stood at the relevant time, framed u/s 3(2) of the Act, the applicability of Section 3(1) of
the Act to learner''s licences has been excluded. In other words, while u/s 3(1) of the Act a person can drive a motor vehicle only if he holds an
effective driving licence authorising him to drive the vehicle, by Rule 39 of the Rules, that had not been made applicable to a learner. A combined
reading of Section 3(1) and (2) of the Act and Rule 39 of the Rules thus clearly establishes that an effective driving licence contemplated u/s 3(1)
of the Act and a learner''s licence as provided under Rule 39 of the Rules are not the same. Indeed, Rule 39 of the Rules creates a separate class
of licences known as learner''s licences distinct from the licences contemplated by Section 3(1) of the Act. u/s 96(2)(b) of the Act, it is open to the
insurer, who is made a party to a claim proceeding, to defend such an action on receipt of notice on the ground that there has been a breach of a
specified condition of the policy, being one of the conditions enumerated thereunder. Section 96(2)(b)(ii) of the Act states that if there is a breach
of a condition excluding driving by a named person or persons, then it would be open to the insurer to defend the claim for compensation on that
ground. In this case, the condition in the policy excludes driving by holders of learner''s licence. The provision u/s 96(2)(b)(ii) of the Act excluding
driving by a named person or persons cannot be construed only as referring to individuals A, B or C, but would also be applicable to a class of
persons named learners. In other words, the provision u/s 96(2)(b)(ii) of the Act could be read as excluding driving by persons, all of whom would
go under one name ''Learners''. The word ''named'' cannot be literally interpreted to refer to the name of a particular person, but as comprehending
specified person or persons cited as instance. So construed, even though the driver of the vehicle involved in the accident in this case held only a
learner''s licence on the date of the accident, such licence had been excluded from the purview of the liability under the policy and that exclusion
has been incorporated in the policy as a condition that driving by holders of a learner''s licence cannot be regarded as either holding a valid driving
licence or as having held a permanent driving licence. The exclusion of a class of licence holders known as learner''s licence holders as persons
driving the vehicle for purposes of one of the conditions of the policy cannot, as assumed in National Insurance Co. Ltd. Madras Vs. A. Babu and
others, , run counter to the provisions of Section 96(2) of the Act and would, therefore, be unenforceable. In the above view of the terms of the
policy, Sections 3(1) and (2) and 96(2)(b)(ii) of the Act and Rule 39 of the Rules, it would follow that the exclusion of the holders of learner''s
licences under the terms of the policy would constitute a condition in the policy which excludes the driving of vehicles by a class of persons named
learners and that would enable the insurance company to avoid its liability on the ground that there has been a breach of one of the conditions of
the policy u/s 96(2)(b)(ii) of the Act. In National Insurance Co. Ltd. v. A. Babu (supra) only the latter part of Section 96(2)(b)(ii) of the Act had
been taken into account in relation to Rule 39 of the Rules framed under the Act and there had been no consideration whether a provision in the
policy, such as there is in this case, could not be considered as a condition of the policy excluding driving by the class of persons named learners
and, therefore, the decision in National Insurance Co. Ltd. v. A. Babu (supra) cannot have any application here. Likewise, the decision in
Ambujam v. Hindustan Ideal Insurance Company 1981 ACJ 175 , has also not taken into account the first part of Section 96(2)(b)(ii) of the Act
and has confined itself to the question whether a learner''s licence would be a valid driving licence or not within the meaning of the latter part of
Section 96(2)(b)(ii) of the Act and that decision also cannot be pressed into service. Thus, on a due consideration of the terms of the policy and
the relevant provisions in the Act and the Rules, no liability could be fastened on the insurance company for the payment of compensation to the
appellant. It would, therefore, follow that only the first respondent can be made liable for payment of compensation to the appellant. In the result,
the Civil Miscellaneous Appeal is allowed in part against the first respondent and the appellant will be entitled to recover from the first respondent
herein compensation in a sum of Rs. 25,000/- together with interest at 12 per cent per annum thereon from 19.1.1984 till the date of payment,
credit being given to payments, if any, made meanwhile and the award of the Tribunal will stand modified accordingly. The appeal against the
second respondent will stand dismissed. There will be no order as to costs.