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IN THE HIGH COURT OF JUDICATURE AT BOMBAY
NAGPUR BENCH, NAGPUR
FIRST APPEAL No.763 OF 2006
National Insurance Co. Ltd.,
Through its Divisional Manager,
Divisional Office 1, Firdos Chambers,
Wardha Road,
NAGPUR-440 012 (On R.A.) : APPELLANT
...VERSUS...
1. Dilip s/o. Shamraoji Meshram,
Aged about 36 years,
Occupation : Labour.
2. Umabai w/o. Dilip Meshram,
Aged about 31 years,
Occupation : Household Work.
(Nos.1 and 2 Original Petitioners)
Both residents of At & Post Umri Wagh,
Taluka Hingna, District Nagpur (On R.As.)
3. Shri G.H. Chawala,
Aged Major, Occupation : Owner,
Resident of 94, Gurunanak Pura,
NAGPUR (on R.A.). : RESPONDENTS
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Smt. S.P. Deshpande, Advocate for the Appellant.
Shri Gopal Mishra, Advocate for the Respondent Nos.1 and 2.
None for the Respondent No.3.
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CORAM : S.B. SHUKRE, J.
th DATE : 28 NOVEMBER, 2017.
ORAL JUDGMENT :
1. This appeal questions legality and correctness of the ::: Uploaded on - 29/11/2017 ::: Downloaded on - 30/11/2017 01:53:34 ::: J-fa763.06.odt 2/5 judgment and order dated 7th July, 2003, rendered in Claim Petition No.381/2002, by the Motor Accident Claims Tribunal, Nagpur. In a claim petition filed under Section 166 of the Motor Vehicles Act, 1988 (in short, "MV Act") by the respondent Nos.1 and 2, the parents of the deceased child, Karuna, aged about 6 years claiming compensation for untimely loss of their daughter, the Tribunal, partly allowed the petition and granted total compensation of Rs.1,65,000/- together with interest at the rate of 9% p.a. from the date of petition till realization and held the appellant, insurer of the offending truck and respondent No.3, owner of the offending truck as liable to pay the same jointly and severally.
2. In this case, on 25.4.2002, deceased Karuna was knocked down by the offending truck bearing registration No.MH-31-9258, when she was crossing the road at a village Umri Wagh, District Nagpur. The accident occurred at about 2.00 p.m. and Karuna died on the spot.
3. The respondent No.3, owner of the offending vehicle, did not contest the claim petition and he was proceeded against exparte. However, this was not so for the appellant which contested the petition on merits. He took the defence that the driver of the offending vehicle did not hold valid driving licence for the truck which was a heavy vehicle and the licence possessed by the driver was of light motor vehicle.
4. On merits of the case, the Tribunal held appellant and respondent No.3 jointly and severally liable to pay the compensation to the respondent Nos.1 and 2. However, the Tribunal did not deal with the ::: Uploaded on - 29/11/2017 ::: Downloaded on - 30/11/2017 01:53:34 ::: J-fa763.06.odt 3/5 defence that the driver of the offending did not possess valid driving licence to drive heavy vehicle like the offending vehicle. Not being satisfied with this approach or recording of no finding on the crucial aspect of the case, the appellant is before this Court in the present appeal.
5. I have heard Smt. S.P. Deshpande, learned counsel for the appellant and Shri Gopal Mishra, learned counsel for respondent Nos.1 and 2. Nobody appears on behalf of respondent No.3 although duly served.
6. I have gone through the record of the case including the impugned judgment and order.
Now, the following points arise for my determination are :
i) Whether the offending truck was proved to be a light motor vehicle as defined under Section 2(21) read with Section 10(2)(d) of the Motor Vehicles Act, 1988 or a Heavy Passengers Motor Vehicle as defined under Section 2(17) read with Section 10(2)(e) of the Motor Vehicles Act ?
ii) Whether the compensation awarded is just and proper ?
7. The definition of the light motor vehicle has been given in Section 2(21) of the MV Act which stipulates that a light motor vehicle is a transport vehicle or an omnibus, the gross vehicle weight of which does not exceed 7500 Kg. It also defines heavy goods vehicle and heavy passenger motor vehicle under Section 2(16) and 2(17) as the vehicle used for goods carriage or public service or private service, the gross ::: Uploaded on - 29/11/2017 ::: Downloaded on - 30/11/2017 01:53:34 ::: J-fa763.06.odt 4/5 vehicle weight of which or unladen weight of which exceeds 12000 Kg. In the case of Mukund Dewangan vs. Oriental Insurance Company Limited, reported in AIR 2017 SC 3668, relied upon by learned counsel for the respondent Nos.1 and 2, the definition of the light motor vehicle has been elaborately clarified by the Hon'ble Apex Court, when it holds that light motor vehicle is a vehicle which is transport vehicle, the gross vehicle weight or unladen weight of which does not exceed 7500 Kg., as specified in the provisions of law. So, the answer to the question posed by the defence taken by the appellant can be found by ascertaining the exact gross vehicle weight or unladen weight of the offending truck involved in the accident in the present case. For that matter, the evidence available on record will have to be scanned.
8. On going through the evidence available on record, I find that the appellant has not adduced any evidence in support of defence taken by it that the driver of the offending truck being possessed of licence to only drive the light motor vehicle, could not have driven the offending truck and thus there was a fundamental breach of conditions of the insurance policy. The appellant could have easily adduced evidence in that regard. But, it has not done so. Therefore, the question would have to be answered in favour of respondent Nos.1 and 2, who assert that the offending truck was a light motor vehicle, meaning thereby that the gross vehicle weight or unladen weight of which did not exceed 7500 Kg. The first point is answered accordingly.
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9. Although learned counsel for the appellant has taken an objection to the manner in which the determination of final amount of compensation has been made by the Tribunal, on going through the judgment, I do not find any illegality or perversity in the approach adopted by the Tribunal. The deceased girl was just 6 years old and therefore, the Tribunal by making some guess-work used Section 163-A of MV Act schedule and fixed the amount of compensation to be at Rs.1,65,000/-. The interest rate granted at the rate of 9% p.a., though a little on the higher side considering the prevailing rates of interest, I find that grant of interest being a discretionary relief and the rate granted being not exhorbitant, no interference is warranted with the impugned award on this count also. The second point is answered accordingly.
10. In the result, the appeal deserves to be dismissed and it is dismissed accordingly.
11. Parties to bear their own costs.
12. The claimants i.e. respondent Nos.1 and 2 are permitted to withdraw the amount lying with this Court after three months.
JUDGE okMksns ::: Uploaded on - 29/11/2017 ::: Downloaded on - 30/11/2017 01:53:34 :::