Gulabi Bai (Mst.) and Others vs United India Insurance Company

N.K. Agarwal, J.—M.A.C. No.72/2008 preferred by the claimants and M.A.C. No. 1317/2008 preferred by the owner against the award dated 28-9-2007 passed by 1st Additional Motor Accident Claims Tribubal, Surajpur distt. Sarguja in Claim Case No. 111/2006 are being disposed by this common order as both the appeals arise out of the same award.

Facts of the case in brief are that on 16-5-2006, Mahendra Raj wade (since deceased) was going on his bicycle from village Karuvan towards Bishrampur. At about 4.30 p.m. a jeep bearing registration No. CG 15/3600 being driven by Sahadat Ali, owned by Rajkumar Prajapati dashed the bicycle near Chhattisgarh Dhaba, Kuruvan turn, as a result of which, Mahendra Rajwade sustained grievous injuries and died during treatment. The claimants being legal heirs of the deceased, preferred a claim petition u/s 166 of the Motor Vehicles Act, 1988 claiming Rs. 30,40,000/- as compensation for the death of the deceased.

M.A. No. 1317/2008 has been filed by the owner against the direction of the Insurance Company regarding first pay and then recover the amount of compensation from the owner. M.A. No. 72/2008 has been filed by the claimants for enhancements of the amount of compensation.

Let us first consider the quantum of compensation.

The income of the deceased was assessed by the Tribunal as Rs. 3,000/- per month i.e., Rs. 36,000/- per annum. The deceased was a married person and there are 5 claimants. Hence according to para 30 of the decision of the Supreme Court in the case of Sarla Verma (Smt.) and other vs. Delhi Transport Corporation and another reported in Smt. Sarla Verma and Others Vs. Delhi Transport Corporation and Another, , where the deceased was married, the deduction towards personal and living expenses of the deceased, should be 1/4th where the number of dependent family members is 4 to 6. Therefore, Rs. 9,000/- out of Rs. 36,000/- is liable to be deducted from the annual income of the deceased. Thus the loss of dependency comes to Rs. 27,000/- per annum. Further the Tribunal has applied multiplier of 13 only. Considering the age of the deceased as 40 years at the time of death, multiplier of 15 is to be applicable between the age of 36 to 40 years, in view of the table given in Sarla Verma''s case (supra). Therefore, after applying the multiplier of 15, the total amount towards loss of dependency comes to Rs. 4,05,000/-. Further, the widow is also entitled for Rs. 5,000/-towards loss of consortium and rest of claimants for loss of love and affection to Rs. 5,000/- each. Claimants are also entitled for Rs. 5,000/- for funeral expenses and Rs. 5,000/- towards loss of estate. Thus total amount towards other heads comes to Rs. 35,000/-. After adding this amount to the amount of loss of dependency i.e., Rs. 4,05,000/-, the total amount for which the claimants are entitled comes to Rs. 4,40,000/-.

Thus the appeal M.A.C. no. 72/2008 filed by the claimants is liable to be allowed to the above extent. The claimants are entitled for Rs. 4,40,000/-along with interest at the rate of 6% per annum from the date of application till this payment.

Further in respect of the owner''s appeal, we have perused the conditions of the policy. Relevant part of the policy reads thus -

Persons or class of persons entitled to drive" Any person including the insured provided that the person driving holds an effective and valid driving licence to drive a category of vehicle insured hereunder at the time of accident and is not disqualified from holding or obtaining such a licence. Provided also that a person holding an effective valid learner''s licence to drive the category of vehicle insured hereunder may also drive the vehicle when not used for transport of passengers at the time of accident and that the person satisfies the requirements of Rule 3 of Motor Vehicles Act, 1989.

In the instant case, policy of insurance (Ex. P-7) is Passengers Carrying Commercial Vehicle Package Policy, which covers the risk of occupants of the offending vehicle. Indisputably, the deceased was bicyclist and was not occupant of the vehicle. As per the evidence, the vehicle was in private use at the time of accident inasmuch as the owner of the vehicle was going from Ambikapur to Surajpur for Mahamaya Mandir Darshan. Therefore, in the light of above referred clause in the policy, the driving licence of the driver who was having licence to drive light motor vehicle, was valid as light motor vehicle (private) licence holder can drive a jeep which is used as private vehicle. In view of above, only due to the reason that the vehicle was registered and insured as taxi, it cannot be said that the driver holding licence to drive light motor vehicle cannot drive such vehicle when the vehicle was in private use.

Hon''ble Supreme Court in the case of National Insurance Co. Ltd. Vs. Swaran Singh and Others, has held in paragraphs 47, 89 and 110(vi) of the judgment as under: -

If a person has been given a licence for a particular type of vehicle as specified therein, he cannot be said to have no licence for driving another type of vehicle which is of the same category but of different type. As for example, when a person is granted a licence for driving a light motor vehicle, he can drive either a car or a jeep and it is not necessary that he must have driving licence both for car and jeep separately.

Section 3 of the Act casts an obligation on a driver to hold an effective driving licence for the type of vehicle which he intends to drive. Section 10 of the Act enables the Central Government to prescribe forms of driving licences for various categories of vehicles mentioned in sub - section (2) of the said section. The various types of vehicles described for which a driver may obtain a licence for one or more of them are: (a) motorcycle without gear (b) motorcycle with gear (c) invalid carriage, (d) light motor vehicle, (e) transport vehicle (f) road roller, and (g) motor vehicle of other specified description. The definition clause in Section 2 of the Act defines various categories of vehicles which are covered in broad types mentioned in sub section (2) of Section 10. They are "goods carriage", "heavy goods vehicles", "heavy passenger motor vehicle", "invalid carriage", "light motor vehicle", "maxi - cab", "medium goods vehicle", "medium passenger motor vehicle", "motor-cab", "motorcycle", "omnibus", "private service vehicle", "semi-trailer", "tourist vehicle", "Tractor", "Trailer" and "Transport Vehicle". In claims for compensation for accidents, various kinds of breaches with regard to the conditions of driving licences arise for consideration before the Tribunal as a person possessing a driving licence for "motor cycle without gear", [sic may be driving a vehicle] for which he has no licence. Cases may also arise where a holder of driving licence for "light motor vehicle" is found to be driving a "maxi - cab", "motor - cab" or "omnbibus" for which he has no licence. In each case, on evidence led before the Tribunal, a decision has to be taken whether the fact of the driver possessing licence for one type of vehicle but found driving another type of vehicle, was the main or contributory cause of accident. If on facts, it is found that the accident was caused solely because of some other unforeseen or intervening causes like mechanical failures and similar other causes having no nexus with the driver not possessing requisite type of licence, the insurer will not be allowed to avoid its liability merely for technical breach of conditions concerning driving licence.

The summary of our findings to the various issues as raised in these petitions is as follows:

(i) XXX

(ii) XXX

(iii) XXX

(iv) XXX

(v) XXX

(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 the 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 insurer u/s 149(2) of the Act.

In the instant case, since the vehicle in question was in fact used as a private vehicle at the time of accident, and the driver of the vehicle was holding an effective and valid driving licence to drive light motor vehicle, therefore, in view of the clause in the policy referred to hereinabove in para 7 of the judgment and in view of the decision of the Supreme Court in case of National Insurance company Ltd. v. Swaran Singh (supra), the insurer will not be allowed to avoid its liability.

In view of the above, the part of the award by which the Tribunal has directed the Insurance Company to pay and recover the compensation from the owner deserves to be set aside. The owner is not liable to pay the amount of compensation. The Insurance Company is liable to pay the amount of compensation.

Therefore, the appeal filed by the owner M.A.C. No. 1317/2008 is also allowed to the above extent.

In the result, both the appeals are allowed. The amount of compensation is enhanced to Rs. 4,40,000/- from Rs. 3,37,000/- along with interest at the rate of 6% per annum from the date of application till is payment. The part of the award by which the direction to first pay and then recover from the owner has been given to the Insurance Company, is set aside. The Insurance Company is liable to pay the amount of compensation. The Insurance Company shall not be entitled to recover any amount of compensation paid by it from the owner. However, the owner can recover the amount from the Insurance Company which has already been deposited by him.

No order as to costs.