New India Assurance Co. Ltd vs Rajinder Prashad Uppal And Others

Sanjeev Kumar, J

The New India Assurance Co. Ltd. (hereinafter referred to as the „insurer‟) is in appeal against the award dated 25.09.2009 passed by the Motor Accident Claims Tribunal, Jammu (hereinafter referred to as the „Tribunal‟) in file No. 29/claim titled „Rajinder Prashad Uppal vs. New India Assurance Co. and others‟ whereby the Tribunal has held the insurer solely liable to pay compensation of Rs.1,70,000/- along with interest @ 7.5% per annum w.e.f the date of filing of claim petition till its realization to respondent No. 1 (hereinafter referred to as the „claimant‟)

Brief facts of the case are that on 30.07.2003 the claimant was coming on his motorcycle No. JK02H-8527 and when reached Maheshpura Chowk, the offending vehicle i.e Mini Bus No. JK02T/4669 which was being driven by its driver in a rash and negligent manner, hit the motor cycle of the claimant, as a result whereof, the claimant sustained injuries. Hence, the claimant filed the claim petition, claiming compensation of Rs.45.00 lac from the respondents.

On being summoned, only the insurer appeared and contested the claim of the claimant by filing its objections.

On the basis of the pleadings of the parties, the Tribunal framed the following issues:-

"(i) Whether an accident occurred on 30.07.2003 at Maheshpura Chowk Jammu due to rash and negligent driving of offending vehicle No. JK02T/4669 in the hands of erring driver in which petitioner Rajinder Parshad sustained grievous injuries ? OPP

(ii) If issue No. 1 is proved in affirmative whether petitioner is entitled to the compensation, if so to what amount and from whom ? OPP

(iii) Whether the driver of offending vehicle at the time of accident was not holding valid and effective driving licence ? OPR-1

(iv) Whether claim petition is not filed in accordance with the rules framed under the MV Act, if so how ? OPR-1

(v) Relief OP Parties.

The Tribunal, after appreciating the evidence led before it, decided the claim petition vide its award dated 25.09.2009, awarding compensation to the claimant.

The insurer is aggrieved and has challenged the impugned award, inter alia, on the following grounds:

(i) That the driver of the offending vehicle was not holding the valid driving licence. It is submitted that the driver was authorized only to ply light motor vehicle and that the PSV endorsement was not made on his license. It is further submitted that on the aforesaid count, there is breach of terms and conditions of the insurance policy, and, therefore, the insurance company was not liable to satisfy the award.

(ii) That the Tribunal has erred in determining the monthly income of the claimant as Rs. 5000/- as there was no evidence regarding the profession and income of the claimant. It is submitted that the finding of the Tribunal with regard to the income of claimant is only on guess work and without any basis.

With regard to the ground that the driver of the offending vehicle was not holding the valid driving license as he was authorized only to ply light motor vehicle and not a public service vehicle unless there was PSV endorsement made on his license; the point raised is no longer res integra as the Hon‟ble Supreme Court in paragraph No.46 of its judgment in case of Mukund Dewangan v. Oriental Insurance Company Limited; 2017(2) Law Herald (SC) 1441, has held thus:-

"46. No doubt about it, that in addition thereto the Court while dealing with the matter comprehensively has gone in question as to the pleadings and the evidence adduced and it was observed that since there was neither a pleading nor a permit produced on record, the vehicle remained a light motor vehicle. If we proceed on the basis of the definition itself, we reach to the same conclusion that for driving transport vehicle of light motor vehicle category, no separate endorsement is required on a licence. Even when a light motor vehicle is used for carrying goods or for hire or rewards, it becomes a transport vehicle, though it remains included in the category of light motor vehicle as per Section 1(21) of the Act. The interpretation of the definition in Ashok Gangadhar Maratha v. Oriental Insurance Co. Ltd.; (1999) 6 SCC 620, makes it clear that light motor vehicle cannot always be a light goods carriage. It can be a non-transport vehicle as well.The definition of a light motor vehicle in aforesaid extracted para 10 is sound and we are in unison with the same. It was not necessary for the Court to go into the question of pleadings and evidence in Ashok Gangadhar Maratha (supra)."

In view of the aforesaid judgment, the driver of the offending vehicle was not necessarily required to possess license having PSV endorsement and, therefore, the plea of the insurer that the driver was not possessing valid licence would be inconsequential.

As far as second ground that the Tribunal has erred in determining the monthly income of the claimant at Rs.5000/-is concerned, it was claimed that the claimant was running a shop of Cosmetics and STD/PCO and was earning Rs.6000/- per month. However, the Tribunal has taken the monthly income of the claimant as Rs.5000/-. It is submitted on behalf of the insurer that the Tribunal has not correctly taken the income of the claimant.

I am not impressed by the submission made by the learned counsel for the insurer for the simple reason that the claimant was running a cosmetic and STD/PCO shop. By no stretch of imagination, the monthly income of Rs.5000/- fixed by the Tribunal can be said to be on the higher side as Rs.5000/- per month could have been reasonably earned from running the shop of cosmetic and STD/PCO in the year 2003. In that view of the matter, the Tribunal was correct in pegging the income of the claimant at Rs.5000/-per month.

In view of the above, this appeal is found to be devoid of merit and the same is, accordingly, dismissed.

Let the amount of compensation, deposited in the Registry of this Court, be released in favour of the claimant in terms of the impugned award.