Smt. Pana and Others vs Meghraj and Others

Mahesh Chandra Sharma, J.—Instant civil misc. appeal and cross objection arise out of common facts and award, hence same are being decided by this common judgment. This misc. appeal has been filed by the appellants-claimants against the award dated 26th May, 1997 passed by learned Judge, Motor Accident Claims Tribunal, Tonk (for short ''the learned Tribunal'') in Claim Case No. 106/95.

Brief facts of the case are that on 24th September, 1995, Chaturbhuj was going in the Jungle of Naya Gaon, Police Station Uniara. At that time, respondent No. 1 drove his car No. RJ-25-C-0404 in rash and negligent manner with excessive speed and hit Chaturbhuj who sustained severe injuries and was taken to Saadat Hospital, Tonk. During the course of treatment Chaturbhuj died.

Thereafter, an F.I.R. was lodged regarding this incident. Thereafter, claimants appellants filed claim petition before the learned Tribunal. Notices were issued. Written statements were filed by the claimants-respondents. Evidence was submitted by both the parties. The issues were framed. Thereafter, the learned Tribunal after hearing both the parties passed the impugned award. Hence, this misc. appeal before this Court.

Learned Counsel for the claimants-appellants submits that the learned Tribunal has manifestly erred in exonerating the Insurance Company from the liability of paying compensation on the ground that the driver who was driving the car, at the time of accident was having a driving licence authorizing him to drive heavy vehicles whereas the vehicle involving in the accident was a car i.e. the light vehicle. First of all no such evidence was examined on behalf of the Insurance Company that the respondent No. 1 was disqualified to drive a light motor vehicle nor it has been proved that respondent No. 1 was disqualified to drive a light motor vehicle. The burden to prove that respondent No. 1 is not having a valid driving licence, was on Insurance Company i.e. respondent No. 3 has totally failed to discharge its burden. In these circumstances, by drawing an adverse inference against it the liability of paying compensation should have been fastened on the Insurance Company also. If a person is holding a driving licence to drive heavy vehicle is always to drive a light motor vehicle and in such circumstances the decision relating to issue No. 2 deserves to be quashed and set aside. The learned Tribunal has further erred in considering the monthly dependency of the family only as Rs. 1,000/-. The learned Tribunal has reached at conclusion that the monthly income of the deceased was Rs. 1,500/- whereas it was proved by un-rebutted evidence that the monthly income of the deceased at that time was about Rs. 3,000/- per month and in future, there was every likelihood of rise in his income. Very low amount has been awarded under the head of loss of consortium and loss of love and affection. The driver was not authorized to drive the vehicle involved in the accident which was a light motor vehicle. The finding of the learned Tribunal is against the statutory provisions of Motor Vehicles Act as well as the settled proposition of law. In support of his case learned Counsel has placed reliance upon the following judgments :

DB Civil special Appeal No. 43/99 and two other connected matters/ Oriental Fire and General Insurance Company Limited v. Kishori Sharan Pareek and others; and

Rukmani and Others Vs. New India Assurance Co. and Others, .

On the other hand learned Counsel for the respondent No. 3 Insurance Company has seriously opposed the aforementioned submissions advanced by the learned Counsel for the appellants and submits that learned Tribunal has rightly passed the impugned award. He submits that in the matter of Qazi Atta Mohd. v. Sayed Fazal Ali and others, 2004 A.C.J. 1012 : 2003 (3) T.A.C. 797 (Raj.) it has been held that ''it cannot be presumed that a person holding licence to drive heavy vehicle was initially issued a licence for a light motor vehicle including a jeep and, only thereafter, a licence to drive heavy vehicle was issued and he was authorised to drive the jeep''.

Hon''ble the Apex Court in the matter National Insurance Co. Ltd. Vs. Swaran Singh and Others, , under the head held that "when the person has been granted licence for one type of vehicle but at the relevant time he was driving another type of vehicle."

He has also placed reliance upon the judgment of Oriental Insurance Co. Ltd. Vs. Zaharulnisha and Others, .

Mr. R.P. Garg, learned Counsel for the cross-objector submits that so far as liability of Insurance Company is concerned, the finding of the learned Tribunal is against the provisions of Section 7 of the Motor Vehicles Act which provides that to have a licence to drive transport vehicle which includes both medium and heavy goods as well as passenger vehicles one must have licence to drive L.M.V. at least for one year. As soon as a person gets driving licence of any category of transport vehicle, his L.M.V. license merges with licence of transport vehicle. In the present case the driver was having a licence to drive heavy goods vehicle that means he was earlier having a licence to drive L.M.V. and even after having license to drive heavy goods vehicle, he is authorized even to drive a heavy goods vehicle (sic). In this accident the vehicle involved is an ambassador car which is a light motor vehicle and respondent No. 1 was authorized to drive this vehicle. In these circumstances there was no breach of policy condition and, hence, the Insurance Company has been wrongly exonerated from the liability of paying compensation.

He further submits that no evidence has been led on behalf of the Insurance Company to prove any breach of policy condition or that such breach of policy condition was willful on the part of the owner of the vehicle. In this regard principle has been laid down by Hon''ble Apex Court in its judgment given in the matter of "Lal Chand v. Oriental Insurance Co. Ltd." reported in M.A.C.D. 2006 (2) (S.C) 1051 in which it has been held that the duty of the owner of the vehicle before appointing the driver and also as to in what condition Insurance Company cannot be absolved of its liability to pay compensation hence, in view of this judgment also the finding of issue No. 3 deserves to be quashed and set aside.

From a bare perusal of the facts of the case as also after carefully scanning the entire material made available to me, in my considered view, the learned Tribunal has passed the award dated 26th May, 1997 after considering the facts and circumstances of the case as also the legal aspect of the matter. Thus, the impugned award passed by the learned Tribunal needs no interference of this Court. In the result, this misc. appeal and cross-objection stands dismissed after confirming the award dated 26th May, 1997 passed by learned Judge, Motor Accident Claims Tribunal, Tonk in Claim Case No. 106/95.