M/S Raj Express vs Smt. Prabha Devi
2022 Latest Caselaw 16485 MP

                                                                 1
                                   IN    THE      HIGH COURT OF MADHYA PRADESH
                                                       AT JABALPUR
                                                             BEFORE
                                               HON'BLE SHRI JUSTICE VIVEK AGARWAL
                                                   ON THE 13 th OF DECEMBER, 2022
                                                     MISC. APPEAL No. 1856 of 2011

                                  BETWEEN:-
                                  1.    M/S RAJ EXPRESS, 21 ZONE II MP NAGAR BHOPAL
                                        THROUGH ITS DIRECTOR SANJAY MEHTA, S/O
                                        SHRI G.L. MEHTA, AGED ABOUT 41 YEARS, R/O E-
                                        3/4, ARERA COLONY, BHOPAL (MADHYA
                                        PRADESH)

                                  2.    RASHID KHAN S/O SHRI BABU KHAN H.NO. 7, BAG
                                        FARHAT AFZA, BHOPAL (MADHYA PRADESH)

                                                                                          .....APPELLANTS
                                  (BY SHRI VIVEK TIWARI - ADVOCATE)

                                  AND
                                  1.    SMT. PRABHA DEVI W/O LATE SHRI RAMKUMAR
                                        CHOURASIA, AGED ABOUT 49 YEARS, HOUSE NO.
                                        11, GALI NO. 2, HAMALPURA, MANGALWARA,
                                        BHOPAL (MADHYA PRADESH)

                                  2.    JITENDRA     CHOURASIA   S/O   LATE  SHRI
                                        RAMKUMAR CHOURASIA, AGED ABOUT 27
                                        YEAR S , H.NO. 11, GALI NO. 2, HAMALPURA,
                                        MANGALWARA, BHOPAL (MADHYA PRADESH)

                                  3.    H.D.F.C. ERGO GENERAL INSURANCE CO. LTD.
                                        THROUGH ITS BRANCH MANAGER, VNV PLAZA
                                        BUILDING NO. 6, 2ND FLOOR, M.P.NAGAR, ZONE-
                                        II, BHOPAL (MADHYA PRADESH)

                                                                                         .....RESPONDENTS
                                  (SHRI T.S. LAMBA - ADVOCATE FOR RESPONDENT NO.3/INSURANCE
                                  COMPANY)

Signature Not Verified
                                        This appeal coming on for admission this day, th e court passed the
  SAN




Digitally signed by ANURAG SONI
                                  following:
Date: 2022.12.14 19:23:21 IST

                                                                  ORDER

This appeal is filed by the non-applicant Nos.2 & 3 (owner & driver) before the learned Tribunal being aggrieved of award dated 31/01/2011 passed by IV Additional Judge (Fast Track) to the Court of X Additional Motor Accident Claims Tribunal, Bhopal in Claim Case No.1662/2009 on the ground that Tribunal has applied incorrect multiplier of 17, whereas age of the deceased was 26 years, therefore, multiplier of 17 should not have been applied. It is also mentioned in the grounds that the Tribunal has committed an error in holding that appellant No.2 was not having valid driving license at the time of the accident and therefore, respondent No.3 insurance company is not liable to pay the compensation.

Shri T. S. Lamba, learned counsel for the Insurance Company in his turn submits that there was breach of license as well as fitness. Appellant No.2 Rashid Khan S/o Babu Khan was not having valid driving license to drive the offending vehicle belonging to the appellant bearing registration No.MP-04-LC- 0924, which caused accident. He submits that even fitness was not available, therefore, compensation has been awarded against the owner, driver of the offending vehicle.

Shri T.S. Lamba fairly submits that since the driver was having driving license to drive a LMV, but it was lacking endorsement to drive a transport vehicle, but that issue is now settled by the law laid down by Supreme Court in Mukund Dewangan Vs. Oriental Insurance Company Ltd., (2017) 14 SCC 666, therefore, issue of license is no more available and to that extent award can be corrected. But, it is submitted that lack of fitness is still a ground

Signature Not Verified SAN to repudiate the claim as far as Insurance Company is concerned. This

Digitally signed by ANURAG SONI submission finds favour from the judgment of Constitution Bench of Kerala Date: 2022.12.14 19:23:21 IST

High Court in Pareed Pillai Vs. Oriental Insurance Company Ltd., 2018

SCC OnLine Ker 13119.

Taking these facts into consideration and after hearing learned counsel for the parties it is evident that as far as multiplier is concerned, it is in consonance with the law laid down by Supreme Court in Smt. Sarla Verma and others Vs. Delhi Transport Corporation and another, (2009) 6 SCC

121. As far as issue of fitness is concerned, that issue is also settled that in absence of fitness Insurance Company can not be fastened with the liability, as it will amount to breach of terms and conditions of the policy. There is no other ground available in the appeal and therefore, appeal being devoid of merit, impugned award is only modified to the extent that on the issue of driving license, since driver was having a license to drive a LMV, driver and owner shall stand exonerated in the light of the judgment of Supreme Court in Mukund Dewangan Vs. Oriental Insurance Company Ltd., (2017) 14 SCC 666, but on the ground of fitness no liability can be fastened on the Insurance Company and therefore, appellants (owner & driver) will be jointly and severally liable to satisfy the award.

In above terms, appeal is disposed of.

Record of the Claims Tribunal be sent back.

(VIVEK AGARWAL) JUDGE as

Signature Not Verified SAN

Digitally signed by ANURAG SONI Date: 2022.12.14 19:23:21 IST