United India Insurance Company ... vs Muneeb Ahmad Najar And Others
2021 Latest Caselaw 122 j&K/2

             HIGH COURT OF JAMMU AND KASHMIR
                       AT SRINAGAR
                                     ....
                           Mac App No. 34/2015

                                                    Reserved on: 09.12.2020
                                                  Pronounced on: 16.02.2021


United India Insurance Company Limited
                                                          .........Appellant(s)

                                 Through: Mr. N. H. Khuroo, Advocate
      V/s
Muneeb Ahmad Najar and others
                                                        ..........Respondent(s)

                                 Through: None


Coram:      HON'BLE MR. JUSTICE VINOD CHATTERJI KOUL, JUDGE

                               JUDGEMENT

1. Impugned in this Appeal is Award dated 27th March 2015, passed by

Motor Accident Claims Tribunal, Anantnag (for short "Tribunal") on a

Claim Petition bearing File no. 15/2009 titled Muneeb Ahmad Najar v.

Mohammad Younus Wani and Ors., directing appellant Insurance

Company to pay compensation in the amount of Rs.1,15,000/- along

with 7.5% interest per annum from the date of institution of claim till

realization, on the grounds made mention of therein.

2. A claim petition, as is discernible from perusal of the file, was filed by

respondent no.1 before the Tribunal on 17th April 2009, averring therein

that Muneeb Ahmad Najar S/o Mohammad Iqbal Najar R/o Doonipawa

Anantnag, aged 3 years (respondent no.1) injured in an accident, which

took place on 26th March 2005, at Doonipawa Anantnag, due to rash

and negligent driving of driver of offending vehicle, bearing

Mac App no.34/2015

Registration no. JK13-5832 (Tata Sumo), which was insured with

appellant Insurance Company. Claimants/ Respondent no. 1 sought

compensation to the tune of Rs.18.65 Lakhs.

3. Appellant Insurance Company resisted the claim before the Tribunal on

the ground that the driver of the offending vehicle was not holding a

valid and effective driving licence at the time of accident. Respondent

2&3 were aware that respondent no.1 was not holding a valid and

effective driving licence for driving offending vehicle on the date of

accident. Despite this fact, they had employed respondent no.1 to drive

the vehicle. They have willfully and consciously breached the express

conditions of policy contract which disentitles them for indemnifying

by virtue of policy conditions. It was further averred that the vehicle

involved in the accident was not having a valid fitness on the date of

accident. It was further submitted that the injured minor petitioner has

not suffered any permanent or partial disablement. The alleged

disablement of 4% for fracture of clavical bone vide medical certificate

is fraudulent and collusively obtained. Fracture of clavical bone of a

teenager gets united and ceases on passage of time. Further same has no

bearing in any aspect on earnings or studies of petitioner. It was also

maintained that petitioner be referred to a Specialist in Bone and Joint

Hospital for examination so as to entail the fraudulent certificate issued

by Medical Board Anantnag, who have issued same falsely.

4. The Tribunal, in view of pleadings of parties, framed five issues for

determination, which are:

Mac App no.34/2015

1. Whether on 26th March 2005, the offending vehicle bearing registration no.JK13-5832, while coming from Achabal towards Ananrnag hit the petitioner at Donipawa while he was walking on kacha portion of the road as a result of which the petitioner felt unconsous and was shifter to treatment to District Hospital where from he was referred to SKIMS Soura, for further treatment? OPP.

2. Whether the accident was caused due to the rash and negligent driving of the respondent no.1? OPP.

3. Whether the petitioner is entitled to compensation, if so, from whom and to what extent? OPP

4. Whether the respondent no.1 was not holding valid and effective D/L at the time of the accident and vehicle involved was having valid fitness? OPR3.

5. Relief? O.P Parties.

5. Claimants produced and examined five witnesses before the Tribunal.

Appellant Insurance Company has not produced any evidence in

support of its stand.

6. By impugned Award, the Tribunal found claimants/respondents entitled

to receive compensation of Rs. 1,15,000/- along with 7.5% interest per

annum.

7. Heard and considered.

8. Learned counsel for appellant Insurance Company has stated that the

Tribunal erred in passing impugned Award inasmuch as it was

specifically pleaded and proved by appellant Insurance Company by

sufficient evidence that driver of offending vehicle bearing registration

no. JK13-5832 (Tata Sumo) was not eligible and authorized to drive the

offending vehicle as he was holding the licence which was valid for two

wheeler and Light Motor Vehicle only and was not having any

endorsement from the competent authority on his licence to drive the

passenger service vehicle. In the case in hand, as the vehicle was

passenger carrying vehicle, hence the driver was not competent and

having licence to drive such vehicle and, accordingly, the respondent/

Mac App no.34/2015

owner had committed a breach of policy condition by allowing

incompetent driver, respondent no.2, to drive offending vehicle. It is

further submission of learned counsel for appellant Insurance Company

that during investigation process of the claim which had been got

carried by the appellant Insurance Company it had been found that the

vehicle was not having a valid fitness certificate and a valid route

permit, which is a mandatory requirement under the provisions of the

Motor Vehicles Act, for plying the vehicle on a public road and the

company had, accordingly, taken a plea in its written statement. Due to

the non-validity of fitness certificate and route permit of offending

vehicle on the relevant date, respondents 3&4 being the owners of the

offending vehicle have committed breach of the policy condition by

plying the offending vehicle in the public place without valid route

permit and fitness certificate, hence the company was to be exonerated

from any liability in the claim petitioner.

9. Learned counsel for appellant Insurance Company has also averred that

the Tribunal has erred not only in fact but also in law by deciding the

relevant issue pertaining to the driving licence and other vehicular

documents, issue no. 4, in favour of the respondent no.1 and against

appellant company on the ground that the said issue has not been proved

by appellant company by adducing its evidence. Admittedly, it is a

requirement under law that the insurer has to prove that driving licence

was not valid and effective for driving a particular vehicle but the

vehicular documents were not valid on the particular date. The law of

evidence as well as the principles of natural justice provide that the

Mac App no.34/2015

parties to the Lis should be provided a reasonable and proper

opportunities to lead their evidence in support of their pleadings. It is

contended that the Tribunal had afforded long and reasonable

opportunities to the respondent no.1 to lead its evidence who has taken

about five years to lead his evidence, but the appellant company has not

been provided such a reasonable opportunity to lead its evidence which

was closed by the Tribunal in violation of such principle of natural

justice. On this count the impugned award is liable to be set-aside

against the appellant company.

10. The tribunal has erred in awarding a compensation of Rs. 1.00 Lakh in

lumpsum on account of injuries sustained by respondent no.1 in the

accident and a further compensation of Rs.15000/- on account of

medical expenses allegedly incurred by respondent no.1 in his medical

treatment. The learned tribunal itself has observed under the impugned

award that there has been no evidence from the respondent no.1 to prove

the pleadings for claiming the compensation and also there is no

evidence in the form of any medical bills and vouchers for medicines to

justify his claim for compensation on that count. The injury inflicted

upon the person of respondent no.1 in the accident had been of simple

and minor nature and claimant could not have been held entitled for

compensation of Rs. 1.00 lakh on account of such injury. Besides, there

being no evidence on record to prove any expenses incurred by claimant

towards his medical treatment, hence the compensation of Rs. 15000/-

on account of medical expenses is unwarranted and unjustified.

Mac App no.34/2015

11. It is also stated by learned counsel for appellant Insurance Company

that the Tribunal in the first instance has not been justified in awarding

the interest @ 7.5% on compensation amount for the entire period when

there has been no default on the part of appellant company, but there

has been negligence and default on part of the respondent no.1 himself

in leading the evidence within a reasonable time. Further, the Tribunal

tribunal is not again justified in directing the payment of interest at the

rate of 10% on the awarded amount in case the amount under the

impugned award is not paid by the appellant company within 30 days

from the date of award. Such direction under the impugned award

virtually amounts to imposition of penalty which under the established

law cannot be imposed and, accordingly, such a direction needs to be

deleted from the impugned award being against the law. Moreover, such

a direction under the impugned award goes against the provisions of law

as it virtually amounts to curtailing the right of appellant company to

file the appeal against the award for which appellant company has 90

days' time from the date of award and in case of delay in filing the

appeal, the appellant company could file application seeking condoning

the delay. So, the said direction of the Tribunal under the impugned

award being punitive in nature and in contravention to the provisions of

the Motor Vehicles Act.

12. In view of submissions made by learned counsel for appellant Insurance

Company, it would be appropriate to go through the record on the file

as also impugned Award.

Mac App no.34/2015

13. First submission of learned counsel for appellant relates to Issue no.4,

i.e., as to whether driver of offending vehicle was not holding valid and

effective driving licence at the time of accident and vehicle involved

was having valid fitness; onus to prove the same was exclusively upon

appellant Insurance Company. It did not adduce any evidence to prove

the said Issue before the Tribunal.

14. It is the case of appellant Insurance Company that driver of offending

vehicle was holding LMV driving licence and therefore, he could not

have plied LTV at the time of accident.

15. A similar issue came up for consideration before the Supreme Court in

S. Iyyapan v. United India Insurance Company ltd, (2013) 7 SCC 62 .

The Supreme Court held that in order to attract breach of Insurance

Policy, occurring in Section 96(2)(b) of the Motor Vehicles Act, 1988,

the Insurance Company has to establish that insured was guilty of an

infringement of violation of a promise. The infringement on the part of

insured must be shown to be wilful and if insured had taken all

precautions by appointing a duly licensed driver to drive vehicle in

question, Insurance Company cannot repudiate its statutory liability

under Section (1) of Section 96 of the Act. The Supreme Court relied

on the earlier judgment rendered in the case of Ashok Gangadhar

Maratha v. Oriental Insurance Co. Ltd, (1999) 6 SCC 620 , in which

appellant was owner of Truck weighing less than maximum limit

prescribed in Section 2 (21) of the Act. In the said case, claim was

rejected by National Consumer Disputes Redressal Commission stating

that Truck was a goods carriage or a transport carriage and driver of

Mac App no.34/2015

truck, who was holding a driving licence to drive light motor vehicles

only, was not authorized to drive a transport vehicle. The Supreme

Court set aside the said judgment by taking note of the fact that the

vehicle was weighing 5920 kilograms and driver had licence to drive a

light motor vehicle. In case of Light Motor Vehicle, which is a non-

transport vehicle, there was no statutory requirement to have a specific

authorisation on the licence of the driver under Form 6 under the rules.

Thus, driver was holding an effective driving license on the date of the

accident to drive a light motor vehicle.

16. In National Insurance Co. Ltd v. Swaran Singh, (2004) 3 SCC 297 , the

Supreme Court held that if a person had 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.

17. In National Insurance Company Ltd v. Annappa Irappa Nesaria alias

Nesaragi, (2008) 3 SCC 464, it was held by the Supreme Court that light

motor vehicle covers both light passenger vehicle and light goods

vehicle. The driver, who had valid driving licence to driver light motor

vehicle, therefore, was authorized to drive a light goods vehicle as well.

The Supreme Court ultimately held that driver was holding a valid

driving licence to drive a light motor vehicle and the motor vehicle in

question by which the accident took place was a light motor vehicle and

merely because driver did not get endorsement on his driving licence,

the Insurance Company cannot deny its liability to pay compensation.

Mac App no.34/2015

18. The Supreme Court in Mukund Dewangan v. Oriental Insurance

Company Ltd., (2016) 4 SCC 298, has held that it is sufficient the driver

possesses LMV license even though there is no badge endorsement and

the same will not amount to violation of policy condition. The insurance

company cannot deny their responsibility and liability of indemnifying

the vehicle owner, for want of badge endorsement. The full Bench of

the Supreme Court in Mukund Dewangan case (supra), thus, settled this

issue as under:

"...the main question involved is whether a driver who is having a licence to drive 'light motor vehicle' and is driving 'transport vehicle' of that class is required additionally to obtain an endorsement to drive a transport vehicle? There is a conflict in the plethora of decisions of this Court. In Ashok Gangadhar Maratha v. Oriental Insurance Co. Ltd. (1999) 6 SCC 620, S. Iyyapan v. United India Insurance Co. Ltd. and Anr. (2013) 7 SCC 62, Nagashetty v. United India Insurance Co. Ltd. & Ors. (2001) 8 SCC 56, the view taken by this Court was that when a driver is holding a licence to drive 'light motor vehicle', he is competent to drive a 'transport vehicle' of that category without specific endorsement to drive the transport vehicle; whereas in New India Assurance Co. Ltd. v. Prabhu Lal (2008) 1 SCC 696, a view had been taken that before 2001 also, it was necessary for a driver possessing driving licence to drive light motor vehicle to obtain an endorsement to drive transport vehicle of that class; whereas in National Insurance Co. Ltd. v. Annappa Irappa Nesaria alias Nesargi & Ors. (2008) 3 SCC 464, a distinction was made in the legal position which existed before 28.3.2001 i.e. the date of amendment of the form and subsequent thereto. It was opined that before 28.3.2001 there was no necessity for the holder of a licence to drive light motor vehicle to obtain an endorsement to drive transport vehicle of that class. He could drive transport vehicle of Light Motor Vehicle category on the basis of holding a licence to drive light motor vehicle. In New India Assurance Co. Ltd. v. Roshanben Rahemansha Fakir & Anr. (2008) 8 SCC 253 and Oriental Insurance Co. Ltd. v. Angad Kol & Ors. (2009) 11 SCC 356, the view had been taken that a driver holding licence to drive light motor vehicle in order to drive 'transport vehicle' of that class has to obtain a specific endorsement on licence authorizing him to drive a transport vehicle.

xxxxxxxxx In our considered opinion Prabhu Lal's (supra) question has not decided correctly. The intendment and definition of the light motor vehicle which was clearly interpreted in Ashok Gangadhar Maratha (supra) in para 10 have not been taken into consideration in the correct perspective. Interpretation of Form 6 was also not correctly made. Even assuming that Ashok Gangadhar Maratha (supra) did not lay down that the driver holding licence to drive a light motor vehicle need not have an endorsement to drive a transport vehicle, but what emerges

Mac App no.34/2015

from the aforesaid discussion made by us it is clear that there is no necessity of such an endorsement for driving a transport vehicle of the category of light motor vehicle, which is not statutorily enjoined or provided for. The intendment of section 3 has also not been correctly appreciated. It has to be read along with Section 10(2)(d) and (e) and those classes of vehicles which are included in a category 10(2) (a) to

(j) can be driven by a person without any further specific endorsement to drive a particular vehicle. Thus, the decision in Prabhu Lal (supra) does not lay down correct proposition of law and is hereby overruled."

19. From the above legal position, the point raised in the grounds of appeal

is no more res integra. The Appeal on hand is, therefore, liable to be

dismissed.

20. Insofar as computation of Compensation and Medical Expenses is

concerned, impugned Award need not be interfered with. Perusal of

impugned Award reveals that the Tribunal has in detail discussed the

Issues no.3, in this regard. The Tribunal has rightly relied upon the

judgement of the Supreme Court rendered in the case of Master

Mallikarjun v. Divisional Manager National Insurance Co. Ltd. AIR

2014 SC 736, in which it was said by the Supreme Court that it would

be unfair and improper to follow the structured formula as per the

Second Schedule to the Motor Vehicles Act, for the reasons more than

one and that the appropriate compensation for disability should take

care of all the non-pecuniary damages as the children do not have

income. While computing the compensation, the Tribunal has

reproduced paragraph 12 of Master Mallikarjun (supra) and has rightly

given the compensation in favour of claimant. To this extent as well

impugned Award need not be interfered with and to this extent the

Appeal is liable to be dismissed.

Mac App no.34/2015

21. Now there remains interest part. There is sum and substance in the

submission of learned counsel for appellant Insurance Company as

regards interest having been given by the Tribunal @ 10%. To this

extent impugned Award is modified and interest @ 6% shall be paid by

appellant Insurance Company on the compensation of Rs.1,15,000/-.

22. For the reasons discussed above, the Appeal qua driving licence of

driver of offending vehicle and computation of compensation is

dismissed. However, impugned Award in respect of interest is modified

and interest @ 6% shall be paid by appellant Insurance Company on

award amount.

23. Record of the Tribunal, if summoned/received, be sent down along with copy of this judgement.

(VINOD CHATTERJI KOUL) JUDGE SRINAGAR 16.02.2021 "Manzoor"

Whether approved for reporting? Yes/No

MANZOOR UL HASSAN DAR 2021.02.18 12:24