THE HON'BLE JUSTICE G. SRI DEVI
M.A.C.M.A. No. 4141 of 2008
JUDGMENT:
New India Assurance Company Limited, respondent No. 3 before
the Tribunal, preferred this appeal challenging the award and decree, dated
13.03.2006, passed in M.A.T.O.P.No. 607 of 2002 on the file of the Motor
Accidents Claims Tribunal (IV Additional District Judge) (FTC-III),
Khammam.
The claimant, respondent No. 1 herein, filed the O.P. claiming
compensation of Rs.1,50,000/- for the injuries sustained by him in the motor
accident that occurred on 23.04.2002. According to the claimant, after
attending his duty at Khammam while he was returning to Nelakondapally
Village in the offending vehicle/auto bearing No. AP-20-U-8315, owned by
respondent No. 3 herein, , when the auto reached near Gokinapally Village
at Gouthami Granite Factory, the respondent No. 2 herein, being its driver,
drove the auto in a rash and negligent manner at high speed, due to which,
the auto turned turtle. As a result, the claimant sustained fracture, crush
injuries on left leg foot on below knee and multiple injuries all over his body.
According to the claimant, he incurred Rs.35,000/- towards treatment and
other expenses and on account of the accident, he was unable to attend his
normal duties as he suffered permanent disability. Therefore, he claimed
compensation of Rs.1,50,000/-. Considering the claim and the counter filed
by the Insurance Company and on evaluation of the evidence, both oral and
documentary, the learned Tribunal has allowed the O.P. and awarded total
compensation of Rs.48,000/- towards general and specific damages, with
7.5% interest per annum, holding the driver, owner of the offending vehicle
and the insurance company jointly and severally liable to pay the
compensation.
2
Now, the main contention of the learned Standing Counsel for the
appellant is that the learned Tribunal ought to have seen that the driver of
the offending auto was not having a valid driving license to drive the vehicle
and that the driver of the auto is having non-transport license, whereas he
was driving the passenger vehicle and thus, as there was breach of terms
and conditions of the insurance policy, the learned Tribunal ought not to
have fastened liability on the Insurance Company. It is further contended
that in the circumstances of the case, the learned Tribunal ought to have
directed the Insurance Company to pay the compensation in the first
instance and granted liberty to recover the same from the owner of the
offending vehicle, for the breach of terms and conditions of the policy.
On the other hand, learned counsel appearing for respondent No. 1-
claimant, contended that the compensation awarded by the learned
Tribunal is just and reasonable and needs no interference by this Court.
Heard the learned Standing Counsel for the appellant and the
learned counsel for the claimant-respondent No. 1 herein. Perused the
material available on record.
The learned Tribunal, while answering issue No. 2 i.e., whether the
petitioner is entitled to claim compensation? If so, to what amount and from
which of the respondents, evaluating the evidence adduced by the parties,
has observed, at para No. 13, as under:-
"13. As per Ex.B-2 the driver is authorized to drive auto rickshaw non-transport w.e.f. 16-08-1999. D.L. valid from 16-08-1999 to 15-08- 2019. As per Ex.B-2 certificate it is stated that the licence was non- transport licence. But in the typed Commissioner report it is mentioned that it is true to suggest that R-1 is having valid driving licence and issued to help R-3 but in the evidence of RW-1 it is clearly mentioned that it is not true that by mistake and the commissioner noted accordingly. In his cross-examination he stated that Ex.B-2 is not belongs to him and he also stated that he is not an authorized person to issue licence to anybody. He did not produce office record at present. I have seen from the 3
evidence of RW-1 it is held that there are some lacunas in this case, is not authorized to issue licence and Ex.B-2 is not belongs to him. He did not produce office record at present. It is the main lacuna on the insurance company, that by giving the evidence at the time of recording the evidence by commissioner, the witness who is the government employee and who is authorized person and possess all the records related to driving licence of driver but he did not do so and kept all relevant records with him. But he simply stated that he did not possess office records at present it reveals that the evidence was recorded on the basis of endorsement. If the record is available at the time of giving evidence, it has to prove that the driver is having valid driving licence or converted into driving licence etc. In this case R-3 was not examined by any person of company official to prove their contention. Hence, the plea of the insurance company is not properly proved by them and the evidence of RW-1 is also not properly deposed with records. In this case commissioner also not properly do his duty while recording the evidence of witness. As per the above lacunas in the prosecution case, the contention of R-3 is not properly proved. Hence it is not relied. Hence the insurance company is also liable to pay the compensation to the petitioner."
(verbatim reproduced)
Moreover, in the case of Mukund Dewangan v. Oriental Insurance
Co. Ltd.1 While dealing with the reference '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', the Apex Court, at para No 60.4, has answered as under:-
"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."
1
(2017) 4 SCC 663 4
Therefore, the contention of the learned Standing Counsel for the
appellant that as the driver of the offending vehicle is having non-transport
licence, but he drove the passenger vehicle and as such, since there was
breach of conditions of the policy, the learned Tribunal ought to have
directed the Insurance Company to pay the compensation in the first
instance and granted liberty to recover the same from the owner of the
offending vehicle, cannot be considered, in the light of the observations
made by the Apex Court in of Mukund Dewangan (supra). Since the
learned Standing Counsel for the appellant has not raised any other
grounds, this Court finds no reason to interfere with the order of the
Tribunal and the appeal is liable to be dismissed.
The M.A.C.M.A. fails and the same is accordingly dismissed. No
order as to costs.
Miscellaneous petitions, if any pending, shall stand closed.
___________________ JUSTICE G. SRI DEVI
03.01.2022 tsr 5
THE HON'BLE JUSTICE G. SRI DEVI
M.A.C.M.A. No. 4141 of 2008
DATE: 03-01-2022
