THE HON'BLE SMT. JUSTICE M.G.PRIYADARSINI
MA.CMA.NO.70 OF 2015
JUDGMENT
Assailing the order and decree dated 04.09.2014 passed by the Court of the Motor Accidents Claims Tribunal (Judge, Family Court - cum - Additional District Judge) at Khammam in MVOP.No.908 of 2012, the United India Insurance Company Ltd., which is the insurer of the crime vehicle filed the present appeal.
2. The deceased is one R. Sunitha Rani and the claimants are her parents.
3. The case of the claimants is that on 9.3.2012 in the morning hours Sunitha Rani along with her friend P.Aruna and mother of Aruna were going to Bethupally Gangaram to attend the marriage of a relative and they were waiting at Tiruvur Bus Stand for bus. In the meanwhile, the friend of the deceased by name R.Kishore and deceased Sunitha Rani went to Bethupally Gangaram on motor cycle bearing No. AP 16 BE 426. After attending marriage and going to DD at Kankaram at N.S.P. canal, V.M. Banjara, they started for Tiruvuru through SNP canal bunk. When they crossed main road at about 5.30 p.m., the driver of the oil tanker lorry, bearing No. AP 11 V 2333 drove the lorry in a rash and negligent manner at high speed, and dashed against the motor cycle. As a result of which, Sunitha Rani and her friend Kishore fell down on the road and 2 sustained multiple injuries. Sunitha Rani sustained head injury and died on the spot. Police V.M.Banjara registered a case in Cr.No.42/2012 under Section 304-A and 337 IPC against the driver of the lorry.
4. The further case of the claimants is that the deceased was a meritorious student and would have got good job in private organizations and earned Rs.30,000/- per month. Due to sudden death of deceased, claimants have lost their daughter and source of income. Since the deceased was unmarried, the average income of the deceased has to be assessed based on the age of her mother, who is 45 years. The notional income of the deceased has to be taken at Rs.10,000/- per month. With these averments, the claimants filed the claim petition under Section 166 of the Motor Vehicles Act, 1988, claiming compensation of Rs.5,00,000/-, against respondents 1 and 2 before the Tribunal, who are the insured and the insurer of the lorry.
5. The 1st respondent, owner of the vehicle remained ex parte, and the insurance company filed counter affidavit and disputing the manner of accident pleaded by the claimants, the age of the deceased, her notional income and further contending that the driver was not having valid driving licence to drive the crime vehicle and sought for dismissal of the claim petition.
6. The Tribunal considering the evidence of P.W.1, the father of the deceased, and also the evidence of P.W.2, who is the eye witness to 3 the accident, coupled with Exs.A-1 to A-6, held that the accident occurred due to rash and negligent driving of the driver of the crime vehicle and that the deceased died due to the accident. As no income proof is filed by the claimants, the Tribunal has taken her income as Rs.4,500/- per month, and by deducting 50% towards her personal expenses, and by taking the age of the mother of the deceased, who was 45, applied the multiplier of 14, and arrived at Rs.4,86,000/- towards loss of dependency, and further granted Rs.10,000/- towards loss of estate, Rs.4,000/- towards transport and funeral expenses, and thus, in all, granted an amount of Rs.5,00,000/-.
7. The Tribunal, considering the admission of R.W.2, who is working as Senior Assistant in the office of R.T.O., Nalgonda, that a person having licence like Ex.B-4, which is the extract of the driving licence of the driver of the vehicle, can drive the crime vehicle, held that driver was possessing valid licence and that there is no violation of policy conditions, and hence made both the respondents i.e., insured and insurer, as jointly and severally liable to pay the compensation.
8. As stated above, aggrieved by the order of the Tribunal in fixing the liability on the insurer as well, the present appeal is filed.
9. Sri V.Samba Siva Rao, learned counsel appearing for the Insurance - Company mainly contended that the crime vehicle, which is an oil tanker, is a hazardous vehicle, and R.W.2, Who is a Senior 4 Assistant in the Office of Road Transport Authority, Nalgonda, though in his cross-examination deposed that a person having licence like Ex.B-4 can drive crime vehicle, in his re-examination has categorically stated that there is a different between HTV and Hazardous vehicle and to drive Hazardous vehicle, a person should have specific license and should take 15 days training. Learned counsel further submits that in the present case no evidence is placed on record by the insured that the driver of the crime vehicle has taken such training and there is no such endorsement on Ex.B-4 driving licence. But the Tribunal has ignored the evidence of R.W.2 in his re-examination. This clearly shows that the driver of the crime vehicle was not having valid driving licence to drive the oil tanker, which is a hazardous vehicle, and this amounts to violation of policy conditions, and as such, the insurance company cannot be made liable to pay the compensation. In support of this contention, learned counsel relied on the judgment of the High Court of Karnataka reported in VISWANATH SETTY vs. VINCENT PINTO1
10. On the other hand Sri K.Pavan Kumar, learned counsel appearing for the respondents - claimants supporting the impugned order, sought for dismissal of the appeal.
11. In the present appeal there is no dispute that the accident was occurred due to rash and negligent driving of the driver of the crime 1 212 ACJ 1717 5 vehicle, which is an oil tanker lorry, and that the deceased died in the said accident. Though in the grounds of appeal, it is sought to be contended that the notional income of the deceased cannot be taken as Rs.10,000/- per month and that awarding of Rs.5,00,000/- is without any basis, a perusal of the impugned order, shows that the deceased is 25 years and is studying M.Sc. II year and however, as there is no evidence with regard to her future earnings, the Tribunal has taken her income only as Rs.4,500/- per month. Hence, this ground is drafted without even perusing the entire award of the Tribunal, which cannot be appreciated. Hence, the only dispute in the present appeal is with regard to the alleged violation of the policy condition.
12. To consider the above ground, it is necessary to look into the evidence of R.W.2, who is the Senior Assistant in the office of Road Transport Authority, Nalgonda. In his cross-examination he has categorically stated that having licence like Ex.B-4, a person can drive Heavy Goods carrier vehicles and heavy passengers vehicle. He also admitted that the crime vehicle comes within the definition of goods carriage vehicle. He further admitted that a person having licence like Ex.B-4 can drive crime vehicle.
13. Further, a careful perusal of the re-examination of R.W.2, shows that no specific provision of law is quoted to support the contention of the Insurance Company and as noted above, he has 6 categorically admitted that the crime vehicles falls within the definition of goods carriage vehicle and that a person holding Ex.B-4 licence can drive crime vehicle. Further, the Apex Court in NATIONAL INSURANCE CO. LTD. vs. SWARAN SINGH2 held that if a person has been given a licence for a particular type of vehicle as specified therein, he cannot be said to have no licence for driving another type of vehicle, which is of the same category but of different type. The Tribunal considering the evidence on record and in the light of the above judgment, has rejected the contention of the insurance company that there is any violation of policy conditions.
14. Having regard to the facts and circumstances of the case, I do not find any merits in the appeal and the same is accordingly dismissed.
15. Interlocutory Applications pending, if any, shall stand closed. No order as to costs.
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M.G.PRIYADARSINI,J DATE: 02--12--2022 avs 2 (2004)3 SCC 297