Mrs. Girija W/O K.N.Raju vs Mr.K.N. Raju
2017 Latest Caselaw 9098 Bom

        J-fa763.06.odt                                                                                                     1/5 


                     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

        =-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-
        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.
        =-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-

                                                      CORAM  :   S.B. SHUKRE, J.

th DATE : 28 NOVEMBER, 2017.

ORAL JUDGMENT :

1. This appeal questions legality and correctness of the

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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

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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

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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