The Oriental Insurance Company ... vs Smt. Sharda Rajput
2022 Latest Caselaw 5204 Chatt

                                1

                                                                 NAFR

          HIGH COURT OF CHHATTISGAH , BILASPUR

                 Misc. Appeal (C) No. 405 of 2022

                   Order Reserved on 04.08.2022

                   Order delivered on 17.08.2022

     The Oriental Insurance Company Ltd., Through the Manager, The
     Oriental Insurance Company Limited, Parmanand Building, Near
     Rajendra Prasad Chowk, Durg, District-Durg (C.G.)

     (Insurer Mahindra Pick-Up No. C.G.-07-CA/2587)

                                    ---- Appellant/Non-applicant No. 3

                               Versus

     1. Smt. Sharda Rajput, wife of Rajesh Singh Rajput, aged about 42
     years,

     2.   Rajesh Singh Rajput, son of late Bhikham Singh Rajput, aged
     about 44 years,

     3.   Prachi Rajput, D/o Rajesh Singh Rajput, aged about 16 years,
     minor, represented through mother and legal guardian Sharda
     Rajput,

            All are resident of House No. 47, Ward No. 51, Vrinda Nagar,
     Borsi, District - Durg (C.G.)                          [Claimants]

     4.     Jageshwar Sahu, son of Chhabilal Sahu, aged about 28 years,
     at present address-House No. 212, Ward No. 39, Diprapara, Durg,
     District-Durg (C.G.)

     (Driver of Mahindra Pick-Up No. C.G.-07-CA/2587)

     5.   Mohd. Manjur Alam Ansari, son of late Yasin Ansari, aged
     about 55 years, present address-Hasrat Tire Works, Milpara Road,
     Ganjpara, Durg, District - Durg (C.G.)

     (Owner Mahindra Pick-Up No. C.G.-07-CA/2587)

                                                        ----Respondents

For Appellant : Mr. Harishankar Patel, Adv.

For Respondents No. 1 to 3 : Mr. Vinod Kumar Sharma, Advocate. For Respondents No. 4 & 5 : Mr. Sushil Kumar Kushwaha, Adv.

Hon'ble Shri Justice N.K. Chandravanshi

Order [C.A.V.]

1. The appellant/Insurance Company has preferred this appeal under Section 173 of the Motor Vehicles Act, 1988 (for short "MV Act, 1988") challenging the award passed by First Additional Motor Accident Claims Tribunal, Durg (for brevity 'the Claims Tribunal') in Claim Case No. 278/2019 whereby the liability of payment of compensation has been fastened upon the appellant/Insurance Company to indemnify the award of ₹ 13,79,392/- along with interest @ 9 percent per annum from the date of filing of claim petition, till its realization.

2. As against the compensation of Rs. 17,15,000/- claimed by the unfortunate parents and minor sister of deceased Sakshi Gupta, who is 19 years unmarried girl, by filing application under Section 166 of MV Act for her death in the motor accident on 02.03.2019; the Tribunal awarded a total sum of ₹ 13, 79, 392/- as compensation along with interest @ 9% from the date of filing of claim petition, till its actual payment.

3. The Tribunal, on a close scrutiny of evidence led, material placed and submissions made by the parties, held that the accident had occurred due to rash and negligent driving of Mahindra Pick-up bearing Registration No. CG 07-C.A./2587 (for short "offending vehicle") by its driver Jageshwar Sahu, owned by Mohd. Manjur Aalam, dashed the Scooty bearing registration No. CG 07-LN 9603 driven by Sakshi Rajpur from behind, who died on account of the injuries sustained by her in the said accident; Oriental Insurance Company Limited, who is insurer of Mahindra Pick-up, was held liable for payment of compensation to the claimants, as it could not establish the violation of policy conditions and assessed and awarded aforesaid sum as compensation to the claimants.

4. Shri Harishankar Patel, learned counsel appearing for the appellant/Insurance Company would submit: the offending vehicle Mahindra Pick-up bearing registration No. CG 07-C.A./2587 was transport vehicle and respondent No. 4/driver was having driving licence to drive only the Light Motor Vehicle, which was not having endorsement

authorizing him to drive the said transport vehicle, thus, he was driving the offending vehicle without having any valid and effective licence at the time of incident and it is clear cut violation of terms and conditions of the insurance policy, as such, learned Claims Tribunal has also fallen in error in saddling the liability of payment of compensation upon the Insurance Company. He would further submit that the Tribunal has fallen in error in assessing the income of the deceased as Rs.8,660/- per month and thereby in awarding compensation of Rs. 13,79,392/- which deserve to be suitably reduced.

5. On the other hand, learned counsel appearing for the respondents No. 1 to 3/claimants supported the award impugned and would submit that in the facts and circumstances of the case, the Tribunal has rightly fastened the liability upon the appellant/insurance company to pay compensation to the claimants, as the Insurance Company has neither filed any documents nor adduced any evidence with regard to breach of any of the policy conditions and further the amount awarded by the Tribunal is also just & proper, which does not call for any interference.

6. I have heard learned counsel for the parties and perused the record of Claims Tribunal.

7. Although, the appellant/Insurance Company has raised an objection that respondent No. 4/driver was not having valid and effective driving licence to drive the offending vehicle at the time of accident, but it is surprising that appellant/Insurance Company has not filed any documentary evidence or adduced any ocular evidence to substantiate his claim that the driver was not having valid & effective driving licence to drive the offending vehicle. Moreover, Xerox copy of driving licence of respondent No. 4/driver is enclosed with the record, which would demonstrate that he was having driving licence to drive 'Light Motor Vehicle'. The vehicle in question is "light motor vehicle" as defined under Section 2(21) of the MV Act, 1988. For the sake of arguments, it is supposed that his driving licence was not endorsed to drive transport vehicle, despite that since offending vehicle was Mahindra Pick up and as

per copy of RC Book enclosed with the record of the Tribunal, its unladen/gross weight is below 7500 kgs, therefore, the offending vehicle, which is transport vehicle, comes under the category of 'Light Motor Vehicle'.

8. In case of Mukund Dewangan Vs. Oriental Insurance Company Limited 1 , their Lordships of the Supreme Court has held as under :-

"60.4 The effect of amendment of Form 4 by insertion of "transport vehicle" related only to categories which were substituted in the year 1994 and the procedure to obtain driving licence for transport vehicle of class of "light motor vehicle" continues to be the same - There was no requirement to obtain separate endorsement to drive transport vehicle, and if a driver is holding licence to drive light motor vehicle, he can drive transport vehicle of such class without any endorsement to that effect."

9. By applying the aforesaid principles to the case in hand, it is clear that the driver of the offending vehicle was holding the valid and effective driving license and even in absence of any endorsement in his driving license authorizing him to drive the said transport vehicle, it cannot be held that he was not possessing the valid and effective driving license at the relevant time, therefore, the objection raised by learned counsel appearing for the appellant/Insurance Company is unsustainable. Accordingly it is held that the driver of the offending vehicle was holding the valid and effective driving license and was not driving the same in violation of the terms and conditions of the insurance policy.

10. Now coming to the question of quantum of compensation; since income of the deceased was not proved by respondents No. 1 to 3/claimants by adducing evidence, hence, learned Claims Tribunal has assessed income of the deceased on the basis of income of unskilled labour, as has been determined by Govt. of Chhattisgarh during relevant 1 (2017) 14 SCC 663

period to the tune of Rs.8,660/-. The appellant/Insurance Company did not adduce any evidence to rebut the aforesaid observations of learned Claims Tribunal, therefore, it could not be held that monthly income of deceased, as has been assessed by the Claims Tribunal, is exorbitant or baseless.

11. In view of above, income of deceased as Rs.8,660/- per month and Rs.1,03,920/- per annum assessed by the Claims Tribunal cannot be said to be excessive and the dependency amount of claimants calculated by the Claims Tribunal is inappropriate in any manner. Further, looking to the age of deceased i.e. 19 year, in view of the judgment of the Supreme Court in the matter of National Insurance Co. Ltd. v. Pranay Sethi 2, 40% of the yearly income of the deceased is also added into the income of the deceased towards future prospect and assessed the income of the deceases as Rs. 1,45,488/- [Rs.1,03,920/- + Rs.41,568/-]. In other words, the dependency amount, as calculated by the Claims Tribunal and amount awarded in various conventional heads is also found to be just & proper, therefore, objection raised by learned counsel for the appellant/Insurance Company in this regard is also not sustainable.

12. In view of foregoing discussion, I do not find any illegality or infirmity in the impugned award warranting interference by this Court, hence, the misc. appeal, being devoid of substance, is liable to be and is hereby dismissed.

Sd/-

(N.K.Chandravanshi) Judge

D/-

2 (2017) 16 SCC 680