Rajasthan High Court - Jodhpur

Roop Lal vs Surajmal And Ors on 1 April, 2021

Bench: Devendra Kachhawaha

HIGH COURT OF JUDICATURE FOR RAJASTHAN AT JODHPUR.

S.B. Civil Misc. Appeal No. 324/2016.

Roop Lal S/o Jetha Lal Jat, aged about 15 years, R/o Falichada,

Tehsil Mavali, District Udaipur, through natural guardian father

Jetha Lal S/o Sunda Ji, aged about 45 years, R/o Falichada,

Tehsil Mavali, District Udaipur.

                                                      ----Appellant (Claimant)
                                    Versus
1.   Surajmal S/o Devji Gurjar,             R/o      Soniyana, Post        Bhawa,
     District Rajasamand.                                                  Driver

2. Jeevan Nath S/o Sultan Nath Rajput, R/o Kajiyawas, Tehsil Nathdwara, District Rajsamand. Owner

3. HDFC IRGO General Insurance Company Limited, through Divisional Office Udaiupur. Insurer

----Respondents (Non-Claimants)

For Appellant(s) : Mr. G.S. Rathore.

For Respondent(s)         :     Mr. Vipul Solanki.
                                Mr. Aditya Singhi.

HON'BLE MR. JUSTICE DEVENDRA KACHHAWAHA

Judgment

01/04/2021

The instant appeal has been preferred under Section 173 of

the Motor Vehicles Act, 1988 (for short, 'Act') on behalf of the

appellant-claimant against the judgment and award dated

02.11.2015 passed by the Judge, Motor Accident Claims Tribunal

No.1, Udaipur (for short, 'learned Tribunal') in Claim Case No.

172/2014 by which, the claim petition has been allowed, while

exonerating the insurance company and the claimant has been

awarded compensation in the sum of Rs.70,000/- along with

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interest @ 9% per annum and at the same time, the respondent

No. 2 - Owner of the offending vehicle has been directed to pay

the amount of compensation.

Briefly put the facts leading rise to this appeal are that on

the fateful day of 30.10.2013 at about 3:00 pm when the

appellant-claimant going with his elder brother from Kunchloni to

their village on cycle, near Bhojlai, a tractor rashly and negligently

driven by its driver, came from the wrong side and hit the cycle,

as a result of which, claimant received injuries.

The claim petition was presented before the learned Tribunal

on 05.02.2014 stating, inter alia, that at the time of accident, he

was 13 years of age and studying in class 8 th; that as a result of

the accident, he received simple as well as grievous injuries and

was permanent disable and was declared to unable to do the

work; that a huge amount was incurred in treatment, medicines

and healthy diet and it was also stated that during the treatment,

incurred on transportation and attendant; that alleged loss of

future income and suffered agony etc, held responsible the non-

applicant No.1 (driver) who rashly and negligently driven the

tractor, owned by the non-applicant No.2 (owner) and insured by

the non-applicant No.3 (insurer); that a sum of Rs. 14,56,000/-

was claimed as compensation.

The learned Tribunal, despite extending sufficient

opportunities to the non-applicants No.1 & 2 to file their written

statement, on 10.02.2015, their right to file written statement was

closed.

In its written statement, the non-applicant No. 2 insurer has

denied the averments alleged in the claim petition and stated that

no accident was occurred from the tractor owned by the non-

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applicant No.2 and at the same time, it was alleged that the

accident was occurred due to mistake and negligence of rider of

the cycle, not by the mistake and negligence of the non-applicant

driver; that the exaggerated compensation amount has claimed;

that at the time of accident, the tractor was insured for

agricultural works but was used for commercial purposes and the

driver was not holding the valid and effective driving license to

drive the tractor; that due to this reason, terms of the policy have

been violated, therefore, insurance company was not liable to pay

the compensation.

After hearing the learned counsel for the parties, the learned

Tribunal has framed the following issues:-

^^1- vk;k fnukad 30-10-2013 dks 3-00 ih-,e- ij HkkstykbZ xkao ds ikl jksM ij vizkFkhZ la-1 }kjk vizkFkhZ la- 2 ds LokfeRo o vizkFkhZ la-3 }kjk chfer okgu VªsDVj la[;k [email protected]&868 dks xQyr o ykijokgh ls pykus ds dkj.k dkfjr gqbZ nq?kZVuk esa izkFkhZ :iyky pksVxzLr gqvk \ 2- vk;k chek ikWfylh dh "krksZa dh vogsyuk gksus ds dkj.k vizkFkhZ chek daiuh {kfriwfrZ vnk;xh gsrq mRrjnk;h ugha gS \ 3- vk;k izkFkhZ dksbZ izfrdj jkf"k izkIr djus dk vf/kdkjh gS \ ;fn gka rks fdlls o fdruh \ 4- lgk;rk \^^

After detailed discussion, the issue No.1 regarding liability,

this issue was decided by the learned Tribunal in favour of the

claimant. The burden to prove issue No.2 was on the insurance

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company regarding violation of terms of the insurance policy and

thereby seeking exoneration from paying the compensation. This

issue was decided in favour of the insurance company and on the

basis of findings on this issue, the insurance company was

exonerated from its liability to pay the compensation. The burden

to prove issue No.3 regarding determination of amount of

compensation was on the applicant-claimant. This issue was

decided by the learned Tribunal in the manner that, it assumed

the notional income of the claimant as Rs.15,000/- per annum, as

he was 13 years of age; while taking the multiplier of 15, the

learned Tribunal assumed 12% loss of income and awarded

Rs.27,000/- to the claimant (Rs.15,000/- x 15 x 12%);

considering the medical expenses, the learned Tribunal proceeded

to award Rs.7,000/- to the claimant; the learned Tribunal

proceeded to award Rs.6,000/- towards dietary expenses,

attendant and transportation for the purpose of follow-up check-

ups; that the Tribunal further observed that due to accident, the

claimant has received 12% permanent disability and considering

his difficulties in walking, sitting, in working, the learned Tribunal

has awarded a sum of Rs.30,000/-. In total, Rs.70,000/- was

awarded as compensation by the learned Tribunal to the claimant,

while holding the non-applicant No.2 (owner of the offending

tractor) liable to satisfy the award. In issue No.4, the learned

Tribunal has proceeded to allow interest @ 9% per annum on

Rs.70,000/- from the date of filing claim petition, i.e., 05.02.2014

till realisation of the awarded amount.

For ready reference, the order passed by the learned Tribunal

is reproduced here as under:-

                                          (5 of 10)              [CMA-324/2016]



                               ^^&& vkns"k &&

32- izkFkhZS }kjk izLrqqr izkFkZuk i= fo:} vizkFkhZ la- 2 /kkjk 166 eksVjokgu vf/kfu;e Lohdkj fd;k tkrk gS fd izkFkhZ] vizkFkhZ la- 2 ls {kfriwfrZ ds :i esa dqy 70][email protected]& :i;s izkIr djus dk vf/kdkjh gSa ! IzkFkhZ mDr vokWMZ jkf"k ij rkjh[k izkFkZuk i= 5-2-2014 ls rkjh[k olwyh rd 09 izfr"kr okf'kZd nj ls C;kt Hkh izkIr djus dk vf/kdkjh gSA 33- vizkFkhZ la- 2 }kjk {kfriwfrZ dh jkf"k o C;kt tek djok;s tkus ij izkFkhZ :iyky ds uke fdlh jk'Vªh;d`r cSad esa cpr [kkrk esa tek djokbZ tkosa! 34- vizkFkhZ la- 3 chek daiuh ds fo:} izkFkZuki= [kkfjt fd;k tkrk gSA vokWMZ tkjh gksA^^

Learned counsel for the appellant-claimant has submitted

that the learned Tribunal committed a grave mistake in deciding

issue No. 2 against the claimant and in favour of insurance

company. It is an admitted case that at the time of the accident,

the respondent No.1 was holding a valid and effective driving

license to drive tractor. It cannot be said that the person

authorized to drive a LMV is barred to drive LTV of same capacity

and of same type of vehicle. Learned counsel also submitted that

the learned Tribunal has further committed a grave mistake in

holding that the vehicle in question was commercial vehicle

because tractor was attached with trolley and carrying stone.

Learned counsel further submitted that it is clearly on record that

due to the injuries caused in the accident, the claimant developed

permanent disability and has restricted physical movements. The

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mental pain and sufferings and loss of the amenities of the life are

enormous especially in the case of this child claimant. The learned

Tribunal has also erred in not passing the award by incorporating

the element of future prospectus and as per the various

pronouncements of Hon'ble the Apex Court, substantial amount

under the head of future prospectus may also be awarded. Lastly,

learned counsel for the appellant-claimant prayed for suitable

modification for enhancing the amount of compensation as

awarded by the learned Tribunal.

On the contrary, learned counsel appearing on behalf of the

respondent-non-applicant No.3 (insurer) stated that the learned

Tribunal has erred in awarding interest @ 9% from the date of

filing of the claim petition. Learned counsel also stated that at the

time of accident, the driver of the tractor was not holding the valid

and effective license, as he was holding the license to drive LMV

only.

In reply, learned counsel for the appellant-claimant stated

that in regard to interest aspect of the matter, the insurer has not

filed any appeal before this Court. Learned counsel further stated

that so far as holding of valid and effective driving license is

concerned, the issue is res integra with the pronouncement of

judgment by Hon'ble the Supreme Court in the case of Mukand

Dewangan Vs. Oriental Insurance Company Limited,

reported in 2017 (2) R.A.R. 41 (SC).

I have heard learned counsel for the parties and perused the

material available on record, including the above cited judgment in

the case of Mukund Dewangan (supra).

Upon examining the judgment in case of Mukund Dewangan

(supra), there remains no quarrel that a transport vehicle, as per

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weight prescribed in Section 2(21) read with Section 2(15) &

2(48) includes an "omnibus", as the gross weight of either of

which does not exceed 7500 kg. The Court further held that

holder of a driving licence to drive the class of "light motor

vehicle" as provided in Section 10(2)(d) would be 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. The Court held:-

"Prior to amendment in 1994 licence for transport vehicle was clearly covered as per Section 10(2)in five categories, i.e., Section 10(2)

(d) light motor vehicle, Section 10(2)(e) medium goods vehicle, Section 10(2)(f) medium passenger motor vehicle, Section 10(2)(g) heavy goods vehicle and Section 10(2)(h) heavy passenger motor vehicle. The licence for 'light motor vehicle' has been provided in section 10(2)(d). The expression 'transport vehicle' has been inserted by virtue of Amendment Act 54/1994 in Section 10(2)

(e) after deleting four categories or classes of vehicles, i.e. medium goods vehicle, medium passenger motor vehicle, heavy goods vehicle, and heavy passenger motor vehicle. Earlier Section 10 did not contain the separate class of transport vehicles.

The definition of 'light motor vehicle' makes it clear that for a transport vehicle or omnibus, the gross vehicle weight of either of which or a motor car or tractor or road-roller the unladen weight of any of which, does not exceed 7500 kgs. 'Gross vehicle weight' has been defined in section 2(15).

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The motor car or tractor or road roller, the unladen weight of any of which does not exceed 7500 kgs.

as defined in Section 2(48) of the Act, are also the light motor vehicle. No change has been made by Amendment Act of 54/94 in the provisions contained in Sections 2(21) and 10(2)(d) relating to the light motor vehicle. The definition of 'light motor vehicle' has to be given full effect to and it has to be read with Section 10(2)(d) which makes it abundantly clear that 'light motor vehicle' is also a 'transport vehicle', the gross vehicle weight or unladen weight of which does not exceed 7500 kgs. as specified in the provision. Thus, a driver is issued a licence as per the class of vehicle i.e. light motor vehicle, transport vehicle or omnibus or another vehicle of other categories as per gross vehicle weight or unladen weight as specified in Section 2(21) of the Act. The provision of Section 3 of the Act requires that a person in order to drive a 'transport vehicle' must have authorization. Once a licence is issued to drive light motor vehicle, it would also mean specific authorization to drive a transport vehicle or omnibus, the gross vehicle weight or motor car, road roller or tractor, the unladen weight of which, as the case may be, does not exceed 7500 kg. The insertion of 'transport vehicle' category in Section 10(2)(e) has no effect of obliterating the already defined category of transport vehicles of the class of light motor vehicle. A distinction is made in the Act of heavy goods vehicle, heavy passenger motor vehicle, medium goods vehicle and medium passenger motor vehicle on the basis of 'gross vehicle weight' or 'unladen weight' for heavy passenger motor vehicle, heavy goods vehicle, the weight, as the case may be, exceed 12000 kg. Medium goods vehicle shall mean any goods carriage other than a

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light motor vehicle or a heavy goods vehicle; whereas 'medium passenger motor vehicle' means any public service vehicle or private service vehicle or educational institution bus other than a motorcycle, invalid carriage, light motor vehicle or heavy passenger motor vehicle.

Thus, the newly incorporated expression 'transport vehicle' in section 10(2)(e) would include only the vehicles of the category as defined in Section 2(16) - heavy goods vehicle, Section 2(17)

- heavy passenger motor vehicle, Section 2(23) - medium goods vehicle and Section 2(24) medium passenger motor vehicle, and would not include the 'light motor vehicle' which means transport vehicle also of the weight specified in Section 2(21)."

In a later judgment rendered by Supreme Court dated

06.03.2018 (Jagdish Kumar Sood V/s. United India Insurance Co.

Ltd. & Ors. - Civil Appeal No.240/2017) same view is reiterated.

Thus, relying on the judgment in Mukund Dewangan (supra),

impugned award to the extent of finding on issue No.2 absolving

insurance company is set aside.

As a result of the discussion above, this Court is of the

opinion that the award passed by the learned Tribunal deserves to

be modified. As per guidelines issued by the Rajasthan State Legal

Services Authority, the noitional income of the claimant is treated

to be Rs. 25,000/- per annum + adding Rs. 4,000/- per month

(Rs. 48,000/- per annum) towards future prospectus, the total