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Judgment
Hon'ble Pankaj Purohit, J.
The present Appeal from Order has been preferred by appellant-Insurance Company under Section 173 of Motor Vehicles Act, 1988, against judgment and award dated 20.03.2013 passed by learned Motor Accident Claims Tribunal, Nainital in M.A.C.P. No. 67 of 2010, whereby compensation of ₹1,83,500/- along with interest at the rate of 7% per annum has been awarded in favour of claimant.
Facts of case are that on 06.06.2009 claimant, Master Pushkar, aged about 17 years, was travelling along with his father Leela Ram and brother as a member of a marriage party in Jeep No.UA-04-A-3206, being driven by Madan Singh. Near Chadail, Lohali, the vehicle met with an accident due to rash and negligent driving of its driver, resulting in grievous injuries to claimant, including loss of vision in his left eye. The claimant was initially taken to Government Hospital, Haldwani and was thereafter treated at Krishna Hospital, Haldwani, where he remained admitted from 08.06.2009 to 11.06.2009. It was stated that about ₹5,00,000/- was incurred towards his treatment and that he suffered permanent disability and physical and mental hardship on account of the injuries. The claimant accordingly instituted M.A.C.P. No.67 of 2010 before learned Tribunal, seeking compensation of ₹17,00,000/-. The owner and driver contested claim, while appellant-Insurance Company disputed its liability on the grounds of use of vehicle for carrying persons in connection with a marriage, absence of a valid and effective driving licence and breach of terms of insurance policy and permit. Learned Tribunal, after considering evidence on record, awarded compensation of ₹1,83,500/- along with interest at the rate of 7% per annum vide judgment and award dated 20.03.2013. Aggrieved thereby, Insurance Company has preferred the present appeal.
Claimant pleaded that the accident occurred on 06.06.2009 due to rash and negligent driving of Jeep No.UA-04-A-3206 by its driver, Madan Singh. He stated that he was travelling in the said vehicle along with his father and brother as a member of a marriage party when the vehicle met with the accident, resulting in grievous injuries, particularly to his left eye, causing loss of vision. It was pleaded that substantial expenditure was incurred on his treatment and that, owing to permanent disability suffered by him, he had been subjected to physical and mental hardship. On these grounds, a compensation of ₹17,00,000/- was claimed.
The owner and driver of the vehicle, in their written statement, denied that accident had occurred due to rash and negligent driving on the part of the driver. It was pleaded that the vehicle was being driven carefully and that the accident had not occurred due to any fault of the driver. The claim made by the claimant was otherwise denied and the liability was sought to be disputed.
The appellant-Insurance Company, in its written statement, denied its liability to satisfy the claim. It was pleaded that the vehicle was insured only for carrying goods, whereas at the time of the accident it was being used for carrying persons in connection with a marriage, in breach of terms and conditions of the insurance policy and permit. It was further pleaded that driver did not possess a valid and effective driving licence on the date of accident. The Insurance Company also disputed the disability certificate and the medical expenditure claimed by the claimant, and contended that the claim was liable to be dismissed against it on account of the aforesaid breaches.
Based on pleadings of the parties the Tribunal framed the following issues:
a. Whether on 06.06.2009 claimant was travelling along with his brother and father Leela Ram in Jeep No. UA-04-A-3206 and, due to rash and negligent driving of its driver, the said vehicle met with an accident, resulting in grievous injuries to the claimant?
b. Whether the aforesaid accident took place due to the wrongful act and carelessness of the claimant himself ? If so, its effect?
c. Whether the driver of vehicle No.UA-04-A-3206 was holding a valid and effective driving licence at the time of the accident?
d. Whether the owner of vehicle No.UA-04-A-3206 has breached terms and conditions of the insurance policy and permit, as the aforesaid vehicle was used for carrying persons related with a marriage? If so, its effect?
e. To what compensation is the claimant entitled? If any, and from whom?
I. While dealing with Issue Nos.1 and 2 learned Tribunal considered oral testimony of claimant's father Leela Ram and his mother Smt. Durga Devi, who supported claimant's case regarding manner of accident. Their testimony was found consistent with claimant's version that offending vehicle was being driven rashly and negligently and met with accident near Lohali. The Tribunal also noted that the owner of the vehicle, Kripal Singh, examined himself as a witness but was not an eyewitness to the accident. Accordingly, the testimony of claimant's witnesses was accepted and it was held that accident occurred due to rash and negligent driving of the offending vehicle and that claimant had no contributory negligence. Issue Nos.1 and 2 were accordingly decided in favour of the claimant.
II. While dealing with issue Nos.3 and 4 the Tribunal considered the registration, insurance policy and driving licence documents produced on behalf of the vehicle owner. It was observed that the Insurance Company had not specifically objected to these documents on the ground that the vehicle was not insured with it or that the driver did not possess a valid licence on the date of the accident. The principal objection of the Insurance Company was regarding the absence of a valid permit. The Tribunal noted that the vehicle weighed less than 3,000 kilograms and, relying upon the applicable legal position, held that no breach of the insurance policy or permit conditions, sufficient to absolve the Insurance Company of its liability, was established. Issue Nos.3 and 4 were accordingly decided in favour of the claimant.
III. While dealing with Issue No.5 on the question of compensation, the Tribunal found that claimant had suffered 30% permanent disability and had incurred medical expenditure. Taking claimant's age as 17 years and his notional income at ₹100/- per day, the Tribunal assessed the annual income at ₹36,000/- and applied the multiplier of 16. After taking 30% permanent disability into consideration and adding the amounts towards medical expenses, special diet and other incidental expenses, the Tribunal assessed the total compensation at ₹1,83,500/-. The liability to pay the said compensation was fastened upon the appellant-Insurance Company, with interest at the rate of 7% per annum.
The appellant–insurer would submit that the learned Tribunal has fastened liability upon the Insurance Company without properly appreciating documentary evidence on record. It is contended that the vehicle in-question was a goods carriage and was insured only for such use, whereas the claimant was admittedly travelling in the vehicle as a member of a marriage party. Thus, the claimant was neither the owner of the goods nor his authorised representative, and use of the vehicle for carrying members of the marriage party was contrary to terms and conditions of the insurance policy. The statutory requirement under Section 147 of the Motor Vehicles Act does not extend to a gratuitous passenger travelling in a goods carriage.
The appellant further submitted that although the driving licence contained validity for non-transport vehicles, the endorsement authorising the driver to operate a transport vehicle was effective only from 23.05.2011. Consequently, on the date of the accident, the driver was not duly licensed to drive the vehicle in question. The learned Tribunal, therefore, erred in holding Issue No.3 against the insurer.
Respondent no.2-owner, denied that accident occurred due to rash and negligent driving of the vehicle. He stated that the vehicle was being driven carefully and in accordance with the rules and that, if any liability for compensation was found, the same would be payable by the Insurance Company, the vehicle having been duly insured.
The Respondent no.3-driver, also denied the allegation of rash and negligent driving and asserted that the accident was not caused due to any fault or negligence on his part. He disputed claimant’s case and maintained that the claim was not maintainable against him.
Heard learned counsel for the parties and perused the record, the challenge raised by the appellant-Insurance Company may be considered under the heads of disability, driving licence, permit and its liability towards the claimant. The Insurance Company has disputed the validity of the disability certificate relied upon by the claimant. However, the said certificate was issued by the competent medical authority and was duly considered by the learned Tribunal while assessing the permanent disability of the claimant at 30%. No contrary medical evidence has been brought on record to discredit the certificate or establish that the same was not issued by the competent authority. Mere denial by the Insurance Company, therefore, cannot be accepted as sufficient to discard the medical evidence relied upon by the learned Tribunal. The objection in this regard is accordingly rejected.
The objection regarding the driving licence also does not merit acceptance. The driving licence of the driver shows authorisation to drive LMV (NT), valid from 16.04.2004, while the offending Mahindra Pickup Van had a gross vehicle weight of about 2,750 kg. The fact that the transport endorsement was subsequently granted with effect from 23.05.2011 would not, in the facts of the present case, render the driver unauthorised to drive the vehicle on the date of accident. The Constitution Bench of the Hon'ble Supreme Court in the case of Bajaj Alliance General Insurance Co. Ltd. v. Rambha Devi, reported in 2024 2024 SCC OnLine SC 3183, has held that a holder of an LMV licence is competent to drive a transport vehicle falling within the LMV category, having a gross vehicle weight not exceeding 7,500 kg, without a separate transport endorsement. The objection regarding the driving licence, therefore, fails. As regards the permit, the Insurance Company had raised the said objection before the learned Tribunal, and the same was considered while deciding the relevant issues. The learned Tribunal, after considering the documents on record, recorded a finding against the Insurance Company. No material has been shown which would warrant interference with the said finding in appeal. Even otherwise, the question of permit cannot be considered in isolation from the nature of liability which is ultimately fastened upon the insurer.
The more substantial question is whether the appellant-Insurance Company can be directed to bear the compensation awarded to the claimant, who was travelling in the insured vehicle as a member of a marriage party. The policy on record is a Goods Carrying Commercial Vehicle (Goods) Policy. The claimant was travelling in the vehicle along with his father and brother and was not the owner of any goods or the authorised representative of such owner. Thus, his status was that of a gratuitous passenger in a goods carriage, and such risk is not ordinarily covered by the statutory liability contemplated under Section 147 of the Motor Vehicles Act, 1988. The principle was settled by the Hon'ble Supreme Court in the case of National Insurance Co. Ltd. v. Baljit Kaur, reported in (2004) 2 SCC 1. However, the fact that the Insurance Company has no substantive liability to indemnify the owner in respect of such passenger does not necessarily mean that the claimant should be left to recover the awarded amount directly from the owner. In the case of Baljit Kaur (supra), the Hon'ble Supreme Court, while holding that the insurer was not liable in law, directed the insurer to satisfy the award and recover the amount from the owner. The same approach was subsequently followed in the case of Manuara Khatun v. Rajesh Kumar Singh, reported in (2017) 4 SCC 796, where the Court, while recognising the absence of liability of the insurer towards a gratuitous passenger, directed the insurer to first satisfy the award and thereafter recover the amount from the owner in the same proceedings.
In the present case, the claimant was about 17 years of age at the time of the accident and suffered grievous injuries resulting in permanent disability. If the claimant is required to recover the compensation directly from the owner, it may cause avoidable hardship and delay in realisation of the compensation already determined by the Tribunal. At the same time, the legitimate interest of the Insurance Company can be protected by permitting it to recover the amount from the owner. In the peculiar facts and circumstances of the present case, therefore, the appropriate course would be to direct the appellant-Insurance Company to first satisfy the award and thereafter recover the amount so paid from the owner of the offending vehicle.
Accordingly, the appeal is partly allowed. The impugned judgment and award dated 20.03.2013 is modified to the extent that the appellant-Insurance Company shall first satisfy the award and shall thereafter be entitled to recover the amount so paid from respondent no.2-owner of the offending vehicle in accordance with law.
The 50% amount already released to the claimant shall stand adjusted towards the awarded amount. The remaining 50% amount of ₹79,250/- lying in fixed deposit shall be released in favour of the claimant along with interest accrued thereon @ 7% per annum, as awarded by the learned Tribunal, within a period of eight weeks from today. The statutory deposit of ₹25,000/-shall be remitted to the concerned MACT, if not already remitted, for being paid to the claimant.