Madhya Pradesh High Court
Iffco Tokiyo General Insurance ... vs Sitalli Kahar on 28 August, 2023
Author: Avanindra Kumar Singh
1
IN THE HIGH COURT OF MADHYA PRADESH
AT J A B A L P U R
BEFORE
JUSTICE AVANINDRA KUMAR SINGH
ON THE 28th OF AUGUST, 2023
MISC APPEAL No. 1946 of 2011
BETWEEN:-
1. IFFICO TOKIYO, GENERAL INSURANCE
COMPANY THROUGH BRANCH
MANAGER, IFFCO TOKIYO GENERAL
INSURANCE COMPANY LTD.--
BRANCH OFFICE -2ND FLOOR, QUALITY
CENTER, PLOT NO.7, ZONE-2, M.P.
NAGAR BHOPAL, TEHSIL AND
DISTRICT-BHOPAL (M.P)-
..... APPELLANT/NON-APPLICANT NO.3
(BY SMT. AMRIT RUPRAH - ADVOCATE )
AND
1. SITALLI KAHAR, AGED
ABOUT 60 YEARS, S/O-NANHU
KAHAR
2. BHAGWATI BAI, AGED ABOUT
50 YEARS W/O - SITALLI
3. KUMARI NARBADI, AGED
ABOUT 18 YEARS S/O SITALLI
KAHAR
4. MADAN LAL KAHAR, AGED
ABOUT 30 YEARS, S/O-
SITALLI KAHAR
(ALL R/O- GRAM RAIPUR,
2
TEHSIL AND DISTRICT-
HOSHANGABAD)
5. MOHAN YADAV, AGED ABOUT
40 YEARS S/O- LAKHAN LAL
YADAV R/O- HOUSE OF
GULSHAN YADAV, GRAM-
MANAGAON, TEHSIL AND P.S-
BABI, DISTT-HOSHANGABAD
(NON-APPLICANT NO.1)
6.ARUN DHATRA S/O-
D.D.DHATRA R/O- GINNI
COMPOUND, IN FRONT OF
HOUSE OF DR. GANGRADE,
TEHSIL & DISTRICT-
HOSHANGABAD (M.P)- (NON-
APPLICANT NO.2)
.....RESPONDENTS
( NONE FOR RESPONDENTS)
Reserved on :- 02-08-2023
Pronounced on :- 28-08-2023
-----------------------------------------------------------------------------------------
This appeal having been heard and reserved for orders, coming
on for pronouncement this day, the Court passed the following:-
ORDER
1] This Misc Appeal has been filed by the appellant/Insurance
Company assailing the impugned award passed by the learned Motor
Accident Claims Tribunal, Hoshangabad in Claim Case No. 56/2009
dated 28-01-2011.
2] In short, the case of the appellant is that the Tribunal while
passing the impugned award on account of Motor Accident which
happened on 03-02-2009 in Raipur -Bandra Bhan village District-
Hoshangabad by Jeep No. MP-05T-0293 have applied a wrong
multiplier, lesser deduction has been made, income has been assessed on
the higher side and therefore, compensation may be reduced in the facts
and circumstances of the case. The vehicle was driven without proper
licence and without permit.
3] In brief, as per the claimant in the accident, Mangilal died, who
was going from village Raipur to Bandra Bhan in Jeep No. MP-05T-
0293 driven by respondent No. 5/Non-applicant No. 1- Mohan Yadav
and owned by respondent No. 6/Non-applicant No. 2-Arun Dhatra hit
the deceased Mangilal causing severe injuries and while he was treated
in hospital, he succumbed to death on 07-02-2009. As per the claimant,
the deceased was working as Raj Mistry and his income was assessed at
Rs. 6,000/- per month and therefore, his LR's i.e. father, mother and
unmarried sister- respondent Nos. 1 to 3 respectively sought
compensation to the tune of Rs. 36, 20,000/-.
4] Before learned Claims Tribunal, the driver did not appear whereas
the owner of the vehicle denied its liability and submitted that as the
Jeep was insured, if any liability for compensation, that has to be borne
by the Insurance Company.
5] The Insurance Company denied the liability on the ground that the
driver was not having proper licence to drive the vehicle and it was
driven without permit. Respondent No. 6 did not cross-examine the
witnesses and therefore, permission u/s. 170 Motor Vehicles Act, 1988
was granted to the Insurance Company. The Claims Tribunal assessed
the income of the deceased as Rs. 60,000/-per annum and after
deducting 1/3rd income, dependency was calculated at Rs. 40,000/- per
annum and applied multiplier of 17 and calculated the compensation at
Rs. 6,80,000/- and added Rs. 40,050/- on account of medical treatment
and additionally awarded Rs. 10,000/- for mental pain and sufferings
and Rs. 5000/- for funeral expenses and in total awarded Rs. 7, 35,050/-
with interest @ 6% per annum.
6] It is further submitted by the Insurance Company that they have
examined RTO Clerk before the Claims Tribunal on the point of licence
and permit but, that evidence was totally ignored by the Claims Tribunal
hence, seeks exoneration of the Insurance Company to pay the
compensation and as an alternative to reduce the compensation.
7] None appeared for the respondents to oppose the appeal of the
Claim Company on the day of argument.
8] The question before this Court is whether in the facts and
circumstances of the case, Insurance Company can be exonerated from the
liability to pay compensation or in alternative can the amount of
compensation be reduced?
9] It would be proper to go through the controversy that the driver at
the time of accident did not possess the proper category licence and the
Jeep was driven without permit. In this context, witness No. 1 for non-
applicant No. 3/Insurance Company -Mr. R.S. Sharma-Assistant Grade-
II, RTO Office, Hoshangabad has deposed that driver- Mohan Yadav s/o
Lakhan Lal r/o Hoshangabad was having a licence issued by the RTO
Office, Hoshangabad licence No. 12702/95 dt. 12-07-1995, office has
issued DL particulars on 12-11-2009 which is registered as Ex. D/1 and
particulars of licence is Ex. D/2. The driver had licence to drive only
light motor vehicles and for commercial vehicles, he was required to
have commercial licence, which driver Mohan Yadav did not have. It is
further submitted that the Jeep Maxicap registration No. MP-05T-0293
was issued a temporary permit for driving from Hoshangabad to
Sohagpur. The permit was valid from 07-02-2009 to 31-03-2009.
Record of that permit is Ex. D/3. On the date of accident i.e. 03-02-
2009, the driver did not have the valid permit. In cross-examination by
the claimant, the witness agreed that in light motor vehicles, car, jeep
are included but, if the jeep is being used for commercial purpose then,
it is not to be treated as light motor vehicle.
10] To go further into this matter, FIR Ex. P/1 is to be seen. In the
FIR, it is mentioned that the deceased Mangilal on 03-02-2009, aged
about 20 years was going on foot and a Jeep Taxi No. MP-05T-0293
caused accident and ran away, due to which, Mangilal sustained injuries
in legs and he was admitted for treatment at Narmada Hospital and from
there he was referred to hospital at Bhopal and his son has admitted
there.
11] In the post-mortem report Ex. P/3, cause of death of Mangilal was
due to Cardio-respiratory failure on account of multiple injuries to the
body.
12] As regards breach of permit conditions, as proved by the
witnesses of RTO, in the concerned Court, the learned Tribunal in
paragraph-21 and 22 of the award has submitted that at the time of
accident that vehicle was being used for commercial purposes but, these
reasonings cannot be accepted when a vehicle has been registered for
commercial purpose then permit is required and it would be impossible
for the Tribunal to determine whether at any point of time, the vehicle
was being used for commercial purpose or for private use hence, breach
of permit is established and as per the judgment of Hon'ble Co-ordinate
Bench in Smt. Gudiya and Ors. Vs. Govind Sharma and Ors in MA No.
532/13 passed on 03-05-2019, the Insurance amount can be recovered
from the owner of the vehicle. Paragraph- 14 is reproduced herein as
under :-
"14- In view of the forgoing discussions, the appeal
succeeds and is hereby allowed. The appellants are held
entitled to receive the enhanced amount of
Rs.3,06,000/- in addition to the amount of compensation
already awarded by the Claims Tribunal. Respondent
No.3/Insurance Company is directed to make the
payment of enhanced and already awarded amount to
appellants/ claimants within a period of three months
from today. The aforesaid awarded amount shall carry
interest at the rate of 7% per annum. Rest of the
conditions as imposed by Claims Tribunal shall remain
intact.
It is made clear that Insurance Company shall pay
the amount of compensation to the claimants and
thereafter would recover the same from the owner of the
vehicle."
13] As regards not having commercial licence to drive the vehicle, the
law prevailing in this matter is referred in the case of Mukund
Dewangan vs. Oriental Insurance Company Limited ( 2017) 14 SCC
663, wherein the three Judges Bench of Hon'ble the Supreme Court
held that for driving Light Motor Vehicles upto unladen weight of 7500
kgs, commercial licence is not required. Relevant paragraphs of the said
judgment is reproduced herein as under :-
"60. Thus, we answer the questions which are referred to us
thus:
60.1. "Light motor vehicle" as defined in Section 2(21) of the
Act would include a transport vehicle as per the weight prescribed in
Section 2(21) read with Sections 2(15) and 2(48). Such transport
vehicles are not excluded from the definition of the light motor vehicle
by virtue of Amendment Act 54 of 1994.
60.2. A transport vehicle and omnibus, the gross vehicle
weight of either of which does not exceed 7500 kg would be a light
motor vehicle and also motor car or tractor or a roadroller, "unladen
weight" of which does not exceed 7500 kg and holder of a driving
licence to drive class of "light motor vehicle" as provided in Section
10(2)(d) is competent to drive a transport vehicle or omnibus, the
gross vehicle weight of which does not exceed 7500 kg or a motor car
or tractor or roadroller, the "unladen weight" of which does not
exceed 7500 kg. That is to say, no separate endorsement on the
licence is required to drive a transport vehicle of light motor vehicle
class as enumerated above. A licence issued under Section 10(2)(d)
continues to be valid after Amendment Act 54 of 1994 and 28-3-2001
in the form.
60.3. The effect of the amendment made by virtue of Act 54 of
1994 w.e.f. 14-11-1994 while substituting clauses (e) to (h) of Section
10(2) which contained "medium goods vehicle" in Section 10(2)(e),
"medium passenger motor vehicle" in Section 10(2)(f), "heavy goods
vehicle" in Section 10(2)(g) and "heavy passenger motor vehicle" in
Section 10(2)(h) with expression "transport vehicle" as substituted in
Section 10(2)(e) related only to the aforesaid substituted classes only.
It does not exclude transport vehicle, from the purview of Section
10(2)(d) and Section 2(41) of the Act i.e. light motor vehicle.
60.4. The effect of amendment of Form 4 by insertion of
"transport vehicle" is related only to the 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 as it was and has not been changed and there is 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."
14] Accordingly, the appeal of the Insurance Company on the ground
that at the time of accident the driver/non-applicant No.1 did not possess
the valid commercial licence of vehicle falling under the LMV class
whose unladen weight was more than 7500 kgs is untenable.
15] Accordingly, the appeal of the Insurance Company is partly
allowed and the award dated 28-01-2011 is modified to the extent that
the compensation as directed in paragraph-32 of the impugned award is
modified to the extent that the appellant/ Insurance Company shall pay
the amount to the claimant and therefore, recover the amount from the
owner of the vehicle and driver of vehicle / non-applicant No. 1 and 2
jointly and severally.
16] Accordingly, the appeal stands disposed of.
(AVANINDRA KUMAR SINGH)
JUDGE
PG
PARMESHWAR GOPE
2023.08.29 17:26:45
+05'30'
