National Insurance Co. vs Smt. Sampatbai and Others

This order shall govern the disposal of aforesaid appeals filed on behalf of the Insurance Company and the claimant Nasrat Khan against the common award dated 19.8.2000 passed by the 1st Addl. Member, Accident Claims Tribunal, Mandsaur whereby the application filed under the provisions of Motor Vehicles Act (for short the Act) on behalf of the claimants for award of compensation is partly allowed.

The facts of the case in brief are that--on 17.9.1996 the appellant claimants Nasrat Khan and one Kuwarlal travelling in an autorickshaw met with an accident by bus No. MP-13-T-7799 and sustained serious injuries. In the said accident Kuwarlal died as a result of the injuries caused to him. Injured appellant Nasrat Khan of M.A. 93/2001 and the LRs. of deceased Kuwarlal filed two separate petitions before the Tribunal for award of compensation under the provisions of the Act. Learned Tribunal allowed both the petitions and awarded compensation of Rs. 2,42,400/- in favour of the LRs of the deceased Kuwarlal together with interest at the rate of 12% per annum from the date of the application till the payment of the compensation amount, and award of Rs. 75,000/- together with interest as stated above in favour of the claimant appellant Nasrat Khan for the injuries sustained by him in the said accident. Appellant Insurance Company in both the claim cases took a defence that the driver of the offending bus was not having a valid licence to drive the said bus; as such, the Insurance Company is not liable to pay the compensation if any awarded by the Tribunal. Learned Tribunal on considering the evidence adduced on behalf of the parties and the defence taken on behalf of the Insurance Company, held that the Insurance Company is also liable to indemnify the compensation awarded by the Tribunal, as the alleged bus was insured with the appellant Insurance Company. Aggrieved by the said order of the Tribunal holding Insurance Company liable to pay the compensation, the Insurance Company has filed M.A. 1355/2000 and M.A. 1356/ 2000; whereas the appellant claimant. Nasrat Khan has filed M.A. 93/2001 for enhancement of the compensation award by the Tribunal in his favour.

We have heard the respective learned Counsel appearing for the parties in the aforesaid appeals.

First of all we shall consider the appeals filed on behalf of the Insurance Company against impugned awards holding the Insurance Company liable to pay the compensation awarded by the Tribunal in favour of the claimants. Learned Counsel appearing for the Insurance Company submitted that on behalf of the Insurance Company a defence was taken that on the date of accident respondent T. Purnachandra Rao, the driver of the offending bus, had no valid licence to drive the said bus, as such, the bus was driven in breach of the conditions of the policy and Insurance Company is not liable to pay the compensation to any of the claimants.

The law is well settled on the point that when a defence is raised on behalf of the Insurance Company with regard to want of valid driving licence by the driver of the offending bus, the burden lay on the Insurance Company to prove the aforesaid facts from the evidence. In this case on the aforesaid point, the Insurance Company has filed Ex. D1 a "validity certificate" issued by Additional Licensing Authority, Vijayvada, Krishna District, with regard to the driving licence issued to driver T. Purnachandra Rao who was driving the offending bus at the time of alleged accident. In the aforesaid certificate, the Licensing Authority from the record of the office has verified that respondent T. Purnachandra Rao was having a licence to drive light motor vehicle effective from 3.7.1992 to 29.12.1992. In this certificate it is also verified that the driver of the offending bus was also having a licence to drive transport vehicle (HGV and HPV) effective from 9.4.1999 till 3.11.2001. On perusal of the copy of the driving licence of respondent T. Purnachandra Rao, recovered by police in a criminal case registered with regard to alleged accident, it emerged that a licence for driving a light motor vehicle issued to the respondent driver by the Licensing Authority was extended till 2.7.1995. No other evidence is adduced on behalf of the Insurance Company on the point, that the driver of the bus was not having a valid licence to drive the bus on the date of the incident. Learned Tribunal on considering the aforesaid evidence found that the date of the alleged incident is 17.9.1996 whereas in "validity certificate" Ex. Dl, it is verified that a licence to drive light motor vehicle was issued to the driver T. Purnachandra Rao on 3.7.1992 which continued upto 2.7.1995. In Ex. D1 it is also verified that a licence to drive transport vehicle was issued in favour of the driver on 9.4.1999 valid upto 3.11.2001. As such, what was the position existing on the date of the accident, is not established from the evidence adduced on behalf of the Insurance Company, and held Insurance Company liable to pay the compensation.

The only contention of the learned Counsel appearing for the Insurance Company is that a licence to drive transport vehicle was issued in favour of the driver on 9.4.1999 i.e. after the date of the alleged incident. He submitted that prior to the accident the driver was having a licence to drive light motor vehicle which was renewed till 2.7.1995. As such, it should be presumed that on the date of the incident either the driver was not having any licence to drive the motor vehicle or he was holding a licence to drive "light motor vehicles". As such, the Tribunal has committed an error in holding Insurance Company liable to pay the compensation.

In view of the peculiar facts of this case the contention of the learned Counsel for the Insurance Company cannot be accepted. In view of the settled position of law, the burden lay on the Insurance Company to prove that on the dale of the alleged accident the driver of the offending vehicle had no valid licence to drive the type of the vehicle by which the accident occurred. In this case in our considered opinion from the evidence adduced on behalf of the Insurance Company the position of driving licence held by the driver of the offending bus on the date of accident i.e. 17.6.1996 is not established. As such, the finding of the Tribunal on this point does not require any interference.

In this respect the Division Bench of this Court in case of Rachana Dube v. Pitamberdas Bhojumal and Ors. in similar circumstances, has held that 2001 (3) MPLJ 103:

When the Insurance Company took defence that the driver of the accident vehicle was not in possession of the valid driving licence and the said allegations are not proved by production of the Regional Transport Authority or any Official from that office, the Insurance Company cannot be escaped from the liability to pay the compensation.

For the sake of arguments it is considered that from the evidence of the Insurance Company it is established that the driver of the bus had no valid licence to drive the said bus on the date of the accident even then the Insurance Company under the terms and conditions of the Insurance Policy cannot escape from the liability to pay the compensation to the third party sustained injuries in the alleged accident. In New India Assurance Co. v. Kamla and Ors. the Apex Court while considering the scope of Section 149 of the Motor Vehicles Act of 1988 has held as under: New India Assurance Co., Shimla Vs. Kamla and Others etc. etc.,

A reading of the proviso to Sub-section (4) as well as the language employed in Sub-section (5) of Section 149 of the Act would indicate that they are intended to safeguard the interest of an insurer who otherwise has no liability to pay any amount to the insured but for the provisions contained in Chapter XI of the Act. This means, the insurer has to pay to the third party only on account of the fact that a policy of insurance has been issued in respect of the vehicle, but the insurer is entitled to recover any such sum from the insured if the insurer were not otherwise liable to pay such sum to the insured by virtue of the conditions of the contract of insurance indicated by the policy.

In view of the aforesaid legal position, expressed by the Apex Court, it cannot be held that the Insurance Company is not liable to pay the compensation as awarded by the Tribunal to a third party on account of breach of conditions of the policy issued in favour of the insurer (owner of the vehicle). As such, we do not find that any error is committed by the Tribunal in holding the appellant Insurance Company also liable to pay the compensation as awarded by the Tribunal in the two claim cases in favour of the claimants.

In the result, M.A. 1355/2000 and M.A. 1356/2000 filed on behalf of the Insurance Company are devoid of any merit and substance and deserve the fate of dismissal.

With the regard to appeal filed on behalf of claimant Nasrat Khan for enhancement in the amount of compensation awarded by the Tribunal, on perusal of the evidence it emerged that in the alleged accident he sustained grevious injuries on his left leg and also on the left eye. As a result of the injury on the left leg, the tibia febula bone was got fractured and due to the injury on eye, his left eye was totally damaged and he became partly blind. Learned Tribunal awarded Rs. 25,000/- compensation for the loss of future income sustained by the claimant as a result of the disability in his left leg in the said accident. The Tribunal also awarded Rs. 25,000/-, incurred by the appellant claimant on medicines and treatment of the injuries sustained by him. We do not consider that the compensation awarded on the aforesaid heads, is on the lower side and it has any scope for enhancement. However, the Tribunal has awarded only Rs. 25,000/- for the injury to the eye resulting into total damage to the left eye and also for sufferings and pains caused to appellant Nasrat Khan, due to injuries sustained in alleged accident. In this respect of perusal of Section 142 of the Act, "permanent privation of the sight" falls under the definition of "permanent disablement" and on this count the claimant becomes entitled to get a minimum compensation of Rs. 25,000/- u/s 140 of the Act on the principle of no fault liability. As such, in our considered opinion, the claimant appellant Nasrat Khan is entitled for Rs. 25,000/- compensation, for the injuries gaused to left eye resulting into blindness of permanent nature in the said eye; whereas the appellant claimant becomes entitled to get the compensation for the pains and sufferings caused to him as a result of the injuries sustained to him and for this purpose we consider it proper to award Rs. 15,000/- (fifteen thousand) separately under this head.

In the result, we enhance total compensation of Rs. 15,000/- and award total compensation of Rs. 90,000/- (ninety thousand) in favour of the claimant appellant Nasrat Khan. The appellant shall be entitled to get an interest at the rate of 12% per annum on the enhanced amount of compensation from the date of filing of the claim petition till the payment of the said amount.

Consequently, the appeal M.A. 93/2001 filed on behalf of appellant claimant Nasrat Khan, is partly allowed and the amount of compensation stands enhanced as indicated above. The three appeals under consideration stand finally disposed of without any order as to the costs in any of the appeals. A copy of order be placed on the records of M.A. 1356/2000 and M.A. 93/2001.