Soram Bai vs Pawan Yadav and Others

Arun Mishra, J.—These appeals have been filed by the claimant and insurer aggrieved by an award dated 5.7.2005 passed by Motor Accidents Claims Tribunal, Astha, District Sihore in Claim Case Nos. 99 and 98 of 2004.

Claimants Soram Bai and Amarsingh were travelling in Matador No. MP 13-E 0826 along with their vegetables. They were going to the market to sell their vegetables. Matador was driven by Raees Khan on its side. Truck No. GTS 7843 driven by Pawan Yadav dashed Matador from driver side. Soram Bai and Amarsingh sustained injuries. They were taken to the hospital at Astha. A report against the driver of truck was lodged. Matador was owned by Raees Khan and insured with United India Insurance Co. Ltd. whereas truck was owned by Kirit Kumar Premji Bhai Patel and insured with New India Assurance Co. Ltd.

Claim Case No. 99 of 2004 was filed by Soram Bai claiming compensation on account of amputation of her right hand at the shoulder level. She was referred to Hamidia Hospital where she obtained treatment from the date of accident 17.4.2002 to 11.5.2002. Plastic surgery was performed. She has incurred permanent disability. Compensation of Rs. 9,55,000 was claimed under different heads.

Owner and driver of the truck in their written statement contended that accident was outcome of negligence of driver of Matador. Number of persons carried in Matador were more than the capacity, thus, driver of the truck was not negligent, as such claim application against them be dismissed.

Insurer of the truck, inter alia, contended that driver of the truck was not having valid and effective driving licence, thus, there was violation of the terms and conditions of the policy. It was a case of composite negligence, as such compensation has to be apportioned.

Driver of Matador remained ex parte.

Owner of Matador contended that negligence was on the part of driver of the truck. In Matador passengers could not have been taken as it was a goods vehicle, as such there was violation of terms and conditions of policy of insurance, hence, no liability could be imposed on the insurer.

Claims Tribunal has found that there was composite negligence of 25 per cent of the claimant, 50 per cent of the driver of the truck and 25 per cent of driver of Matador. Compensation of Rs. 1,61,080 has been awarded to Soram Bai along with interest at the rate of 6 per cent per annum from the date of filing of claim petition till realisation. To another claimant, Amar-singh compensation of Rs. 22,308 has been awarded. Amarsingh has not filed any appeal. Insurer of the truck has come up as against the imposing of liability on it.

Mr. Rajesh Nema, learned Counsel for appellant-claimant, Soram Bai (in M.A. No. 3171 of 2005) has submitted that compensation awarded by Claims Tribunal is on lower side. 80 per cent to 90 per cent permanent disability has been incurred due to amputation of right arm at the shoulder level. Income has been assessed at Rs. 900 on the lower side. Compensation be suitably enhanced. The claimant was not at all negligent. The negligence was that of the driver of truck, as such the finding with respect to the negligence of the claimant being perverse be set aside. He has further submitted that insurer of Matador has been illegally exonerated.

Mr. Harpreet Ruprah, the learned Counsel for New India Assurance Co. Ltd., while pressing the appeals, has submitted that driver of the truck was not holding valid and effective driving licence. Driver has produced two licences. With respect to initial licence enquiry was made and evidence was tendered that it was not issued by R.T.O., Gauhati. Yet another licence was produced, that was with respect to light motor vehicle. Under the licence produced subsequently driver was not authorised to drive heavy motor vehicle, as such insurer could not have been held liable, in view of the statement made by Pawan Yadav that the subsequent licence was in possession of the owner right from beginning, as such insured was aware that the driver was not having driving licence so as to drive heavy motor vehicle, thus, insurer New India Assurance Co. Ltd. ought to be exonerated from making the payment, liability has been illegally fastened.

Mr. Pradeep Naolekar, Mr. Sunil Kherdikar and Mr. Kamlesh Lakhera, the learned Counsel for United India Insurance Co. Ltd., have submitted that no case for interference is made out. No case for the enhancement of compensation and for exonerating New India Assurance Co. Ltd. to make the payment is made out.

Mr. Mukesh Pandey, learned Counsel for respondent No. 5, Matador owner, Raees Khan, has submitted that negligence was that of driver of the truck, as such no liability could have been fastened on the owner of Matador.

First question for consideration is whether the finding as to the negligence recorded by Claims Tribunal of 25 per cent negligence of Soram Bai can be said to be proper.

It is not in dispute that the claimant Soram Bai was travelling along with vegetables and it was permissible to travel in Matador along with the goods as per the amended section 147 of the Motor Vehicles Act and fare for carrying the goods was paid, thus, there was no violation of policy of insurance vis-a-vis Matador. It is also clear that claimant Soram Bai was sitting above the vegetables. Her hand was not protruded out from the side window of Matador.

Merely by the fact that she was sitting over the vegetables, it passes comprehension that the Tribunal has inferred 25 per cent of the negligence vis-a-vis to the claimant. Soram Bai, CW 2 has stated that Matador was driven by its driver in normal speed. Truck was at an excessive speed and dashed the back side of Matador. Truck came from opposite side. Driver of the truck all of a sudden hit the vehicle, that was the cause of accident, her right hand was entangled with the angle of the body, it was cut. There is statement of Amarsingh also. Amarsingh, CW 3, has stated to the same effect. Pawan Yadav, driver of the truck, has stated that Matador came from opposite side and driver of Matador applied the cut, that was the reason of accident and collision of the vehicle. He was not responsible for the accident. He was driving the truck at the speed of 60 kmph. His vehicle was stationary. Driver of Matador has not entered the witness- -box. Statement of Pawan Yadav is not reliable to the effect that vehicle was not moving.

On the one hand, he has stated that vehicle was stationary and on the other hand he has stated that speed of the vehicle was 60 kmph. In the facts and circumstances of the case, it appears that for the accident in question drivers of both the vehicles were responsible in equal proportion. None of them have tried to take the vehicle on safer side, that was the cause of accident. Both the drivers have failed to ensure that while crossing safe passage was provided and available.

Thus, we set aside the finding recorded by the Tribunal as to the negligence of the claimant Soram Bai and hold that accident was caused due to negligence of the drivers of Matador and truck in equal proportion.

It is clear that the claimant was travelling along with goods and it was permissible to travel along with the goods as per amended Section 147(1)(b) of the Motor Vehicles Act. The amended section is quoted below:

147(1)(b): insures the person or classes of persons specified in the policy to the extent specified in Sub-section (2):

(i) against any liability which may be incurred by him in respect of the death of or bodily injury to any person, including owner of the goods or his authorised representative carried in the vehicle or damage to any property of a third party caused by or arising out of the use of the vehicle in a public place;

(ii) against the death of or bodily injury to any passenger of a public service vehicle caused by or arising out of the use of the vehicle in a public place:

There was no violation of the policy visa-vis to Soram Bai as she was carrying vegetables. United India Insurance Co. Ltd. also to make payment to the extent of negligence of the driver of Matador.

Coming to the question of quantum of compensation to be awarded to Soram Bai in M.A. No. 3171 of 2005, it is not in dispute that her right hand was amputated. Disability appears to be 80 per cent considering the amputation below shoulder. The claimant Soram Bai has stated that she used to sell the vegetables and used to earn a sum of Rs. 4,000 per month. She was not able to do the household work or to sell the vegetables thereafter. As the claimant used to look after the household affair as well as to sell the vegetables, there was livelihood also, we assess her contribution to the household affair and income by selling vegetables at Rs. 2,500 per month, thus, annual income comes to Rs. 30,000. The disability is to the extent of 80 per cent, thus, the annual loss of earning capacity comes to Rs. 24,000. The age of claimant was mentioned in the M.L.C. as 35 years, thus, it appears that the age of claimant was between 35 and 40 years. Multiplier of 16 is applicable, that is applied. Thus, compensation comes to (Rs. 24,000 x 16) = Rs. 3,84,000.

In addition, the claimant has spent on medical expenditure Rs. 6,680 which is rounded off to Rs. 7,000. We award further sum of Rs. 3,000 towards special diet, Rs. 2,000 for expenditure on attendant and conveyance. We award further sum of Rs. 10,000 towards pain and suffering. Thus, total compensation comes to Rs. 4,06,000 (rupees four lakh six thousand). The compensation enhanced by us to carry interest at the rate of 7 per cent per annum from the date of filing of claim petition till realisation.

Coming to the question of liability to make the payment of compensation, Mr. Harpreet Ruprah, the learned Counsel for insurer New India Assurance Co. Ltd. has submitted that driver of the truck was not having valid and effective driving licence. It is clear that two licences were on record. One licence issued from R.T.O., Gauhati was seized by the police, that was got verified by the insurer and insurer has examined two witnesses. Ramesh Krapashanker, CW 1, Sr. Asstt., New India Assurance Co. Ltd., has stated that authorised surveyor, D.R. Barpujari has sent the report, Exh. D1 and licensing authority has issued a letter, Exh. D2. Babul Ali, CW 2, Lower Division Clerk of the office of D.T.O., Kamrup, Gauhati, has also been examined. He has stated that last licence issued in the year 1999 was bearing No. 4913 of 1999, licence No. P-39392 of 1999 was not issued by D.T.O., Kamrup, Gauhati. Pawan Yadav has also disowned the aforesaid licence, however, he has produced yet another licence, Exh. D4, which was issued on 4.12.2002, he was authorised to drive light motor vehicle for the period from 4.12.2002 to 3.12.2003; later on he was authorised to drive heavy motor vehicle on 24.6.2004 when the endorsement was made to drive heavy motor vehicle. The registration particular of the truck clinches the issue as it has been mentioned that unladen weight of the truck in question was 5000 kg. ''Light motor vehicle'' has been defined in section 2 (21) to mean a transport vehicle or omnibus the gross vehicle weight of either of which or a motor car or tractor or road-roller the unladen weight of any of which, does not exceed 7500 kg.

The aforesaid amendment with respect to the weight was incorporated w.e.f. 14.11.1994. ''Heavy goods vehicle'' means any goods carriage the gross vehicle weight of which, or a tractor or a road-roller the unladen weight of either of which, exceeds 12000 kg as defined u/s 2 (16) of the Motor Vehicles Act. Thus, it was not a heavy motor vehicle or heavy goods vehicle as the unladen weight was 5000 kg. Driver was having the licence to drive light motor vehicle. Insurer cannot escape liability in view of the Apex Court decision in United India Insurance Company Ltd. Vs. Lehru and Others, and National Insurance Co. Ltd. Vs. Swaran Singh and Others, .

We find no hesitation in rejecting the submission raised by Mr. Harpreet Ruprah, Advocate that driver was not having valid driving licence to drive the kind of the vehicle which he was driving as on the date of the accident. Accident took place on 17.4.2002, on that date driver was having valid and effective driving licence to drive the vehicle; even otherwise, in the facts and circumstances of the case, it cannot be said that there was breach and breach, if any, could not be said to be substantial breach on the part of owner so as to exonerate the insurer.

Resultantly, we dismiss the appeals filed by the insurer and allow the appeal filed by the claimant to the aforesaid extent. Liability to make the payment of compensation is held to be to the extent of liability for accident determined by us jointly and severally on the driver, owner and insurer of the respective vehicles. No order as to costs.