(PER: HON'BLE MR. JUSTICE C M JOSHI)
02. Being aggrieved by the judgment and award in
petitioner is before this Court.
03. The factual matrix of the case is that on
petitioner. As a result, both the riders fell down and
sustained grievous injuries. The petitioner suffered
right leg. He had taken the treatment extensively from
different hospitals. He was treated with surgeries.
Therefore, he claimed that he is entitled for compensation.
No.157/2014. Ultimately, they filed the charge-sheet
possessing the driving license.
04. On being issued with the notice, the
05. The respondent No.1 - owner of the offending
on the part of the petitioner. He disputed the age, income
06. The respondent No.2 - insurance company
respondent No.1 was not having a valid driving license.
conditions of the policy. It is not liable to pay the
compensation. Inter-alia it had also disputed the age,
income and occupation of the petitioner. It has also
exorbitant, imaginary and untenable in law.
07. On the basis of the above contentions, the
V. To what relief the parties are entitled.?
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08. The petitioner was examined as PW.1 and a
doctor who assessed the disability was examined as PW.2
and Ex.P.1 to 9 were marked in the evidence. The official
of the respondent No.2 was examined as RW.1 and Ex.R.1
to 4 were marked in the evidence.
09. During the proceedings before Tribunal,
applications under Order 11 Rule 16 of CPC and under
Order 16 Rule 1 of CPC were filed by the insurance
company, seeking the driving license from the respondent
No.1. Even though, there was an order by the Tribunal
directing the respondent No.1 and its rider to produce the
driving license, but they did not comply the same. As
such, an order came to be passed that adverse inference
has to be drawn against them.
10. The Tribunal after hearing the arguments
answered the issues No.1, 2 and 4 in the negative and
issue No.3 in the affirmative and dismissed the petition
with costs.
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11. Being aggrieved by the same, the petitioner is
before this Court in appeal.
12. When the notice was issued by this Court to the
respondent No.1, he refused the same. Therefore, the
service of notice was held sufficient. The respondent No.2
- insurance company has appeared through its counsel.
13. The arguments of Sri. Basavaraj R. Math, the
learned counsel appearing for the appellant and Smt.
Preeti Patil Melkundi, the learned counsel appearing for
respondent No.2 were heard.
14. The learned counsel appearing for the appellant
/ petitioner would submit that the charge-sheet though
indicts that the rider of the motorcycle for the offence
punishable under Section 181 of the Motor Vehicles Act,
the respondent No.1 had filed his written statement where
he had contended that the rider had a valid driving license.
Though, it is a fact that the respondent No.1 had not
produced a driving license, despite an application being
filed by the respondent No.2, the interse dispute between
the respondents No.1 and 2 cannot bind him from claiming
compensation for the injuries suffered by him. He
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submitted that the judgments of the Apex Court in the
case of Pappu vs. Vinod Kumar Lamba1 and in the case
of National Insurance Company Limited vs. Swaran
Singh and others2, come to the aid of a 3rd party who
suffers injury at the hands of the wrongdoer. It is
submitted that in Para No.8 of the written statement it is
categorically stated that rider of his motorcycle was having
valid driving license. Therefore, there being an interse
dispute between the respondents No.1 and 2, the
petitioner was entitled for the compensation. He points out
that the Tribunal has unnecessarily drawn certain adverse
inference on the ground that the petitioner had not
produced the charge-sheet and he had not produced all
the medical records etc. He also points out that the
Tribunal unnecessarily commented that the petitioner has
withheld certain material documents. Therefore, he
vehemently argued that the impugned judgment is liable
to be set aside.
(2018) 3 SCC 208
(2004) 3 SCC 297
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15. Per contra, the learned counsel for the
respondent No.2 submits that when there is material to
show that the rider of the motorcycle was not having a
valid driving license and when the respondent No.1 had
not yielded to an order passed by the Tribunal directing
him to produce the documents and when the respondent
No.1 had not replied to the notice issued by the
respondent No.2 as per Ex.R.3, the insurance company
having discharged its duty cannot be fastened with liability
to pay the compensation. Therefore, the impugned
judgment is liable to be upheld.
16. The perusal of the Tribunal records would
indicate that in Para No.8 of the written statement of the
respondent No.1, he has stated as under:-
"That the person who drove the vehicle in
question was holding valid and effective driving
license to drove such type of vehicles, the
vehicle in question was fully insured with the 2nd
respondent / insurer and policy was enforced as
on the date, time and place of alleged accident.
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In case any liability for payment of compensation
lies on this respondent No.1, the same be shifted
on the insurer / 2nd respondent who is bound in
indemnify this respondent No.1/owner of vehicle
as per cover, risks and validity of the policy."
17. The fact that the charge-sheet was filed as per
Ex.R.4 indicting the rider of the motorcycle owned by
respondent No.1 for the offence punishable under Section
181 of the Motor Vehicles Act, cannot be disputed. The
cross-examination of PW.1 initially shows that the non-
possession of driving license by the rider of the respondent
No.1 was suggested to PW.1.
18. The evidence of RW.1 would show that he had
issued the notice to the respondent No.1 as per Ex.R.3,
calling upon him to produce the driving license of the
rider. Despite such notice, the respondent No.1 has not
produced the driving license.
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19. Therefore, there cannot be any doubt that the
rider of the motorcycle did not produce any driving license
enabling him to fasten the liability on the respondent No.2.
20. The interse dispute between the respondents
No.1 and 2 shows that though respondent No.1 had
contended in the written statement as above, he did not
produce the driving license. In the result, the Tribunal had
ordered to draw adverse inference against the respondent
No.1.
21. The Apex Court in the case of Swaran Singh
(supra), in Para No.110 has observed as below:-
"110. The summary of our findings to the various
issues as raised in these petitions are as follows:
(i) Chapter XI of the Motor Vehicles Act,
1988 providing compulsory insurance of vehicles
against third party risks is a social welfare
legislation to extend relief by compensation to
victims of accidents caused by use of motor
vehicles. The provisions of compulsory insurance
coverage of all vehicles are with this paramount
object and the provisions of the Act have to be
so interpreted as to effectuate the said object.
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(ii) Insurer is entitled to raise a defence in a
claim petition filed under Section 163 A
or Section 166 of the Motor Vehicles Act, 1988
inter alia in terms of Section 149(2)(a)(ii) of the
said Act.
(iii) The breach of policy condition e.g.,
disqualification of driver or invalid driving licence
of the driver, as contained in sub-section
(2)(a)(ii) of section 149, have to be proved to
have been committed by the insured for avoiding
liability by the insurer. Mere absence, fake or
invalid driving licence or disqualification of the
driver for driving at the relevant time, are not in
themselves defences available to the insurer
against either the insured or the third parties. To
avoid its liability towards insured, the insurer has
to prove that the insured was guilty of
negligence and failed to exercise reasonable care
in the matter of fulfilling the condition of the
policy regarding use of vehicles by duly licensed
driver or one who was not disqualified to drive at
the relevant time.
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(iv) The insurance companies are, however, with
a view to avoid their liability must not only
establish the available defence(s) raised in the
said proceedings but must also establish 'breach'
on the part of the owner of the vehicle; the
burden of proof wherefor would be on them.
(v) The court cannot lay down any criteria as to
how said burden would be discharged, inasmuch
as the same would depend upon the facts and
circumstance of each case.
(vi) Even where the insurer is able to prove
breach on the part of the insured concerning the
policy condition regarding holding of a valid
licence by the driver or his qualification to drive
during the relevant period, the insurer would not
be allowed to avoid its liability towards insured
unless the said breach or breaches on the
condition of driving licence is/ are so
fundamental as are found to have contributed to
the cause of the accident. The Tribunals in
interpreting the policy conditions would apply
"the rule of main purpose" and the concept of
"fundamental breach" to allow defences available
to the insured under section 149(2) of the Act.
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(vii) The question as to whether the owner has
taken reasonable care to find out as to whether
the driving licence produced by the driver, (a
fake one or otherwise), does not fulfil the
requirements of law or not will have to be
determined in each case.
(viii) If a vehicle at the time of accident was
driven by a person having a learner's licence, the
insurance companies would be liable to satisfy
the decree.
(ix) The claims tribunal constituted under Section
165 read with Section 168 is empowered to
adjudicate all claims in respect of the accidents
involving death or of bodily injury or damage to
property of third party arising in use of motor
vehicle. The said power of the tribunal is not
restricted to decide the claims inter se between
claimant or claimants on one side and insured,
insurer and driver on the other. In the course of
adjudicating the claim for compensation and to
decide the availability of defence or defences to
the insurer, the Tribunal has necessarily the
power and jurisdiction to decide disputes inter se
between insurer and the insured. The decision
rendered on the claims and disputes inter se
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between the insurer and insured in the course of
adjudication of claim for compensation by the
claimants and the award made thereon is
enforceable and executable in the same manner
as provided in Section 174 of the Act for
enforcement and execution of the award in
favour of the claimants.
(x) Where on adjudication of the claim under the
Act the tribunal arrives at a conclusion that the
insurer has satisfactorily proved its defence in
accordance with the provisions of section
149(2) read with sub-section (7), as interpreted
by this Court above, the Tribunal can direct that
the insurer is liable to be reimbursed by the
insured for the compensation and other amounts
which it has been compelled to pay to the third
party under the award of the tribunal.
Such determination of claim by the Tribunal will
be enforceable and the money found due to the
insurer from the insured will be recoverable on a
certificate issued by the tribunal to the Collector
in the same manner under Section 174 of the Act
as arrears of land revenue. The certificate will be
issued for the recovery as arrears of land
revenue only if, as required by sub-section (3)
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of Section 168 of the Act the insured fails to
deposit the amount awarded in favour of the
insurer within thirty days from the date of
announcement of the award by the tribunal.
(xi) The provisions contained in sub-section (4)
with proviso thereunder and sub-section (5)
which are intended to cover specified
contingencies mentioned therein to enable the
insurer to recover amount paid under the
contract of insurance on behalf of the insured
can be taken recourse of by the Tribunal and be
extended to claims and defences of insurer
against insured by relegating them to the
remedy before regular court in cases where on
given facts and circumstances adjudication of
their claims inter se might delay the adjudication
of the claims of the victims."
22. The above principles laid down by the Apex
Court in the case of Swaran Singh (supra), are reiterated
again in its judgment in the case of Pappu (supra). The
postulate No.3 shows that mere absence or fake, invalid
driving license or disqualification of the driver for driving
the vehicle at the relevant time, cannot be a defence
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available to the insurer against the insured or 3rd parties.
It is necessary that the insurer should prove that the
insured was guilty of negligence and failed to exercise the
reasonable care. Not only that, the insurer should also
establish the breach on the part of the owner of the
vehicle, the burden of such proof is on them. In the case
on hand, though the respondent No.1 had contended that
the rider had the driving license, he did not produce the
same. No doubt the respondent No.2 has made its effort in
securing the driving license from respondent No.1. The
Ex.R.3 T. P. Liability only policy and the Ex.R.4 - charge-
sheet are the documents which go in favour of the
respondent No.2. However, on that count, the Tribunal
could not have dismissed the petition. The interse dispute
between the respondents No.1 and 2 could not have
resulted in dismissal of the petition. By adopting the
principle laid down in the case of Pappu (supra), the
respondent No.2 is liable to compensate the petitioner who
is a 3rd party and then he is at liberty to recover the same
from the respondent No.1.
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23. The perusal of the impugned judgment shows
that it has observed that the petitioner has not produced
certain documents and he has withheld them. When the
charge-sheet is produced by the respondent No.2 as per
Ex.R.4, the petitioner again producing the said document
do not arise. It is not known, which other document was
withheld by the petitioner. Therefore, the dismissal of the
petition by the Tribunal is a prima-facia erroneous and
cannot be sustained.
24. The respondent No.1 in his written statement,
contented that the accident occurred due to the negligence
of the petitioner, he neither proved it nor cross-examined
the PW.1 on that count. The charge-sheet having filed
against the rider of the respondent No.1, such a
contention of the respondent No.1 falls to the ground.
25. It is worth to note that the investigating officer
has not found any culpable negligence on the part of the
petitioner. Hence, the dismissal of the petition is liable to
be set aside.
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26. The next aspect is whether the matter has to be
remanded to the Tribunal for the purpose of assessment of
the compensation. When there is evidence recorded by the
Tribunal and when there is an issue on that aspect, it was
incumbent upon the Tribunal to determine such issues.
Thus, it is evident that the Tribunal despite there being an
issue has failed to assess the compensation and
committed an error. The remanding of the matter to the
Tribunal has to be resorted to as a final resort if recording
of the evidence is necessary. There being sufficient
evidence on record, it is not necessary for this Court to
remand the matter.
27. The perusal of the wound certificate at Ex.P.5
would show that the petitioner had sustained the fracture
of femur, ankle, patella and few cut lacerated wounds. The
discharge summary at Ex.P.8 also shows that he was in
patient from 27.12.2014 to 13.01.2015. The petitioner
was examined by PW.2 for assessment of the disability. He
opined that there is a disability of 90% to the right upper
limb and 55% to the right lower limb. In all, he concluded
that there is 90% of disability.
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28. It is relevant to note that the petitioner claims
himself to be aged 30 years, labourer and earning
Rs.25,000/- per month. Obviously, in order to prove his
income, he has not produced any document. The Aadhaar
Card produced by the petitioner shows the date of birth to
be 01.01.1987. Therefore, as on date of the accident he
was aged 28 years, but the wound certificate shows that
he was aged 30 years.
29. In the circumstances of the case, the functional
disability of the petitioner has to be considered at 25%.
Though, the petitioner contended that he was earning
Rs.25,000/- per month. There is being no material, the
notional income has to be considered.
30. The guidelines issued by the KSLSA for
settlement of disputes before Lok-Adalath prescribe a
notional income of Rs.7,500/- per month for the year
2014. In umpteen number of judgments, this Court has
held that the guidelines issued by the KSLSA are in
general conformity with the wages fixed under the
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Minimum Wages Act. Therefore, they are acceptable.
Hence, the notional income of the petitioner is considered
at Rs.7,500/-. Therefore, the compensation under the
head of loss of income due to loss of future income is
calculated as Rs.7,500/- x 12 x 17 x 25% =
Rs.3,82,500/-.
31. The petitioner having suffered the injuries as
above was unable to resume his work at least for a period
of 02 months. Therefore, he is entitled for a sum of
Rs.15,000/- under the head of loss of income during the
laid up period.
32. The petitioner is entitled for sum of Rs.15,000/-
under the head of attendant charges, food and
nourishment etc.
33. The petitioner is also entitled for sum of
Rs.30,000/- under the head of pain and suffering.
34. The petitioner is also entitled for a sum of
Rs.30,000/- under the head of loss of amenities in life.
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35. Thus, petitioner is entitled for a sum of
Rs.4,72,500/- under following heads:-
Sl. Heads Compensation Awarded
No.
by this Court
1. Loss of future income Rs.3,82,500/-
2. Loss of income during Rs. 15,000/-
laid up period
Towards attendant Rs. 15,000/-
3. charges, food and
nourishment
4. Towards pain and Rs. 30,000/-
suffering
5. Towards loss of Rs. 30,000/-
amenities in life
Total Rs.4,72,500/-
36. Hence, appeal deserves to be allowed in part.
Therefore, the following;
ORDER
I. The appeal is allowed.
II. The impugned judgment and award in
MVC.No.182/2016 dated 02.01.2019 passed by the
Tribunal, is hereby set-aside.
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III. The appellant / petitioner is entitled for a sum of
Rs.4,72,500/- along with interest at the rate of 6%
per annum from the date of petition till its realization
before the Tribunal, excluding the interest for a
delayed period of 308 days in filing the appeal.
IV. The respondent No.2 is directed to deposit the
compensation amount within a period of 06 weeks,
with liberty to recover the same from the respondent
No.1 by executing this award itself.
V. In the event of deposit of the compensation amount,
20% of the compensation amount to be deposited in
a fixed deposit for a period of 02 years and the
remaining amount shall be released in favour of the
petitioner on proper identification of the petitioner.
Sd/-
(C M JOSHI)
JUDGE
KJJ
CT: AK
