The Branch Manager vs Krishna Ramaswamy

G. Narendar, J.—Heard the learned counsel appearing for the appellant and respondent. Matter is listed for admission. With the consent of learned counsel appearing for the parties, the matter is taken up for final disposal.

The appeal lies on a narrow compass and the sole ground urged is that the driver of the offending vehicle did not possess a valid licence entitling him to drive goods auto and that he was endorsed to drive only light motor vehicle. He would also rely upon the judgment of the Hon''ble Apex Court rendered in Mukund Dewangan v. Oriental Insurance Co. Ltd, reported in wherein the Apex Court after noting the various judgments of the Apex Court itself has been pleased to refer the issue for determination by a larger Bench in view of the conflicting decisions. One of the issue for determination by a larger Bench is :

"Whether ''transport vehicle'' and ''omnibus'' the "gross vehicle weight" of either of which does not exceed 7500 kgs. would be a "light motor vehicle" and also motor car or tractor or a road roller, "unladen weight" of which does not exceed 7500 kgs. and holder of licence to driver class of "light motor vehicle" as provided in Section 10(2)(d) would be competent to drive a transport vehicle or omnibus, the "gross vehicle weight" of which does not exceed 7500 kgs. or a motor car or tractor or road roller, the "unladen weight" of which does not exceed 7500 kgs.?

The issue is now seized off by the Apex Court, but while so referring, the Apex Court has not expressed any opinion on account of conflicting view expressed by different Benches of the Apex Court. No doubt Section 41 of the Act details the transport vehicle and non-transport vehicle and the three wheeler auto-rickshaw, as was being driven by respondent No. 1, is classified as a transport vehicle. It is contended that, in the light of the interpretation of Section 2(21) of the M.V. Act by the Hon''ble Apex Court, the contention that a person holding licence to drive light motor vehicle is also entitled to drive light goods carriage vehicle as contended by the claimant has to fail.

Per contra, the learned counsel for the respondent has relied upon the judgment rendered by the Apex Court in the case of S. Iyyapan v. United India Insurance Company Ltd., reported in LAWS (SC) 201307-10: (AIR 2013 SC 2262, para 10) wherein, the Apex Court has been pleased to hold as under:

"Section 149(2)(a)(ii) gives a right to the insurer to take a defence that person driving the vehicle at the time of accident was not duly licensed. In other words, Section 149(2)(a)(ii) puts a condition excluding driving by any person who is not duly licensed. The question arose before this Court as to whether the Insurance Company can repudiate its liability to pay the compensation in respect of the accident by a vehicle taking a defence that at the relevant time it was being driven by a person having no licence. While considering this point, this Court in the case of Skandia Insurance Co. Ltd. (AIR 1987 SC 1184) (supra) observed :-

"12. The defence built on the exclusion clause cannot succeed for three reasons, viz.:

(1) On a true interpretation of the relevant clause which interpretation is at peace with the conscience of Section 96, the condition excluding driving by a person not duly licensed is not absolute and the promisor is absolved once it is shown that he has done everything in his power to keep, honour and fulfil the promise and he himself is not guilty of a deliberate breach.

(2) Even if it is treated as an absolute promise, there is substantial compliance therewith upon an express or implied mandate being given to the licensed driver not to allow the vehicle to be left unattended so that it happens to be driven by an unlicensed driver.

(3) The exclusion clause has to be "read down" in order that it is not at war with the "main purpose" of the provisions enacted for the protection of victims of accidents so that the promisor is exculpated when he does everything in his power to keep the promise."

That apart, the counsel for the respondent has also relied upon another judgment of the Hon''ble Apex Court in the case of Kulwant Singh and others v. Oriental Insurance Company Ltd. (reported in (2015) 2 SCC 186) and pleaded to set aside the finding of the trial Court with reference to issue of effective and valid driving licence. In the said judgment the Apex Court gainfully relied upon the judgment rendered in the case of S. Iyyapan v. United India Insurance Company Limited and another (AIR 2013 SC 2262). The learned counsel for the respondent would submit that though such plea is urged before this Court, the same was neither pleaded nor proved before the Tribunal. He would submit that the appellant-insurer has not adduced any evidence in support of their assertions and the only documentary evidence marked on behalf of the respondent is only the insurance policy. He would draw the attention of this Court to the judgment of the Apex Court in the case of Fahim Ahmad and others v. United India Insurance Company Limited and others, reported in (2014) 14 SCC 148 : (2014 AAC 1330 : AIR 2014 SC 2187) wherein the Hon''ble Apex Court has been pleased to hold that it is mandatory upon the insurer do not only to plead, but also adduce appropriate evidence to positively prove its assertions. The Hon''ble Apex Court in paragraph No. 6 held as under :

"6. Although the plea of breach of the conditions of policy was raised before the Tribunal, yet neither any issue was framed nor was any evidence led to prove the same. In our opinion, it was mandatory for respondent 1 -Insurance Company not only to plead the said breach, but also substantiate the same by adducing positive evidence in respect of the same. In the absence of any such evidence, it cannot be presumed that there was breach of the conditions of policy. Thus, there was no reason to fasten the said liability of payment of the amount of compensation awarded by the Tribunal on the appellants herein."

The learned counsel for the appellant would vehemently contest the correctness and reasonableness of the sum awarded as compensation. He would submit that the compensation awarded is excessive and disproportionate to the loss suffered by the claimants.

Per contra, the learned counsel for the respondent would draw the attention of this Court to the contents of paragraph No. 8 of the judgment and award, wherein the Tribunal has found that the claimant-petitioner has suffered crush injury of the right leg from knee to ankle, that all muscles are damaged and tissues destroyed. X-ray of right foot confirms the fracture of the lower end of shaft of Tibia and Fibula. He would submit that subsequently the treatment did not bear fruit and the claimant had to undergo above knee amputation of right leg. In fact the doctor who has issued the disability certificate is examined as P.W.3 has assessed the permanent partial disability at 80%. The Tribunal has assessed the disability at 70% in accordance with Schedule-Ill of the Workmen''s Compensation Act, 1966 and has been pleased to award a sum of Rs. 5,57,819/- along with interest at 6% p.a. from the date of petition till its deposit.

Keeping in view the nature of injuries suffered by the claimant and the loss of the limb, this Court is of the considered view that the sum awarded as compensation is just and reasonable and does not w arrant any interference at the hands of this Court. Accordingly, the appeal being devoid of merit, stands dismissed without being admitted.

The amount in deposit is directed to be transmitted to the jurisdictional Tribunal along with LCR.