National Insurance Co. Ltd. vs Bashir Ahmad Chopan and Others

Hasnain Massodi, J.—The civil first miscellaneous appeal on hand is directed against the award of the Motor Accidents Claims Tribunal,

Srinagar dated 16.12.2008 in claim petition titled Chopan v. Syed Rafiq Ahmad whereby learned Tribunal has awarded Rs. 6,69,000 (rupees six

lakh and sixty-nine thousand) as compensation to the claimants-respondents in the present appeal, on account of death of wife of the claimant-

respondent No. 1 and mother of claimant-respondent No. 2 in a vehicular accident on 21.8.2003 at Umarabad, Srinagar. The award is assailed

on following two grounds:

(i) That the driver of the bus bearing registration No. JK 01-D 4605 that hit the scooter on which the deceased was travelling from rear, was not

having PSV endorsement on the driving licence, that entitled him to drive a light motor vehicle/medium goods vehicle/heavy goods vehicle

(LMV/MGV/HGV) and, thus, was not competent to drive the offending vehicle; that the owner of the vehicle by allowing its driver to drive the bus

has committed breach of insurance contract releasing the appellant insurance company from liability to indemnify the owner.

(ii) That the compensation assessed by the Tribunal is excessive, unreal and exorbitant and is not 'just compensation' within meaning of section 168

of Motor Vehicles Act.

I have gone through the memorandum of appeal as also the record received from the Tribunal and have heard learned counsel for the parties.

The driver of the offending vehicle as evident from the material brought on the file, including Exh. PR 3, was holding the driving licence that

declared him competent to drive a heavy goods vehicle/medium goods vehicle and light motor vehicle. The offending vehicle is a bus having

capacity of carrying 52 passengers. The offending vehicle, thus, falls within the definition of 'heavy passenger motor vehicle' as defined u/s 2(17) of

the Motor Vehicles Act, 1988 inasmuch as its weight exceeds 12,000 kilograms. Section 2(21) of the Act defines a light motor vehicle as 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 7,500 kilograms. The offending vehicle, thus, does not fall within the definition of 'light motor vehicle'. There is no question of the

offending vehicle falling within the definition of 'medium goods vehicle' or 'heavy goods vehicle' inasmuch as the offending vehicle admittedly was a

passenger vehicle. The driver of the offending vehicle was, therefore, not competent to drive a 'heavy passenger motor vehicle' and his licence was

not effective as regards the vehicle he was driving at the time of tragic accident. Learned Tribunal has misread 'heavy goods vehicle' as 'heavy

transport vehicle' and proceeding on such assumption held the offending vehicle to be a transport vehicle inasmuch as the light motor vehicle

included the transport vehicle. Reliance placed by the Tribunal on law laid down in National Insurance Co. Ltd. Vs. Irfan Sidiq Bhat and Mohd

Aslam Khan, and National Insurance Co. Ltd. Vs. Swaran Singh and Others, , is, therefore, misplaced. The assumption made by Tribunal is

erroneous and so are the conclusions drawn. In the first place, the 'light motor vehicle' defined u/s 2(21) of the Act does not make reference to

'transport vehicle' as it is defined u/s 2(47). In the second place, the licence held by the driver of the offending vehicle did not authorise him to drive

a transport vehicle as was assumed by the Tribunal. The driving licence, it may be said, at the cost of repetition, authorised its holder to drive a light

motor vehicle, medium goods vehicle and heavy goods vehicle. The offending vehicle did not fall within the description of any of the aforesaid types

of vehicles. The driving licence did not have ""PSV endorsement"" recorded on it. There is, thus, merit in the stand taken by the appellant insurance

company that the driver of the offending vehicle was not holding an effective driving licence at the time of accident. It is nobody's case that the

owner of the vehicle had made such verification as is expected of a man of ordinary prudence to verify whether the driver he employed to drive the

offending vehicle was having a valid and effective driving licence. The owner of the offending vehicle, in the circumstances, is held to have

committed breach of the insurance contract while entrusting the vehicle to driver, who was not having an effective driving licence. The appellant

insurance company, thus, has a right to escape its liability to indemnify the owner of the vehicle. However, the respondents-claimants cannot,

almost ten years after the tragic accident took place and the claim petition was laid, be asked to chase the owner of the offending vehicle. The right

course in such case is to ask the appellant insurance company to pay the compensation assessed to the respondents-claimants and recover it from

the owner of the vehicle by approaching the Tribunal, without instituting the suit. Such a course has found approval of the Supreme Court and

superior courts of the country. The latest in the point is the judgment reported as Kusum Lata and Others Vs. Satbir and Others, . In the said case,

the Supreme Court observed:

(13) In respect of the dispute about licence, the Tribunal has held and, in our view rightly, that the insurance company has to pay and then may

recover it from the owner of the vehicle. This court is affirming that direction in view of the principles laid down by a three-Judge Bench of this

court in the matter of National Insurance Co. Ltd. Vs. Swaran Singh and Others, .

The deceased as per the evidence brought on file was 25 years of age on the date of accident. In view of the law laid down in Smt. Sarla Verma

and Others Vs. Delhi Transport Corporation and Another, , the Tribunal was to apply a multiplier of 18 to work out loss of dependency. The

Tribunal instead has applied a multiplier of 17 to compute the loss of income. The Tribunal has taken monthly income of the petitioner as Rs.

4,000. The ground urged in the appeal that the Tribunal ought not to have taken into account the income claimed to have been generated by the

shop, inasmuch as the shop that the deceased was said to have been running before her death was registered in the name of her husband,

respondent-claimant No. 1, is preposterous and better to be ignored. The ground is set up unmindful of the contribution made by a lady to the

household. It has been emphasised time and again that even where a woman is not employed or shown to have been running any business, still her

contribution to the household and to the family coffers is in no case to be downplayed. A woman though unemployed in the eyes of all those

around her, performs multiple roles and in each role, she makes significant contribution to the household. She, as a wife, takes care of her husband,

as a mother takes care of her children and as a daughter-in-law serves her parents-in-law and above all, works as a cook to cook for the family, a

washer-woman, to wash clothes of the family, a caretaker to take care of the household and may, at times, lend a helping hand to male members

of her family in agricultural activities, where her husband is an agriculturist.

So viewed, the Tribunal cannot be faulted for having taken Rs. 4,000 as the income of the deceased. The Tribunal has rightly deducted 1/3rd of

the income on account of personal expenses, computed loss of dependency as Rs. 5,44,000. However, the Tribunal has erred while awarding Rs.

50,000 on account of pain and agony caused to the respondents-claimants and again Rs. 50,000 on account of loss of love and affection. The loss

on said counts is to be taken to get internalised in loss of dependency worked out by the Tribunal. The objections raised by the appellant insurance

company as regards award of Rs. 50,000 on account of pain and agony and further an amount of Rs. 50,000 on account of loss of love and

affection is to be sustained. However, the Tribunal acted within its powers while awarding Rs. 20,000 on account of loss of consortium to the

claimant-respondent No. 1 and Rs. 5,000 on account of the funeral expenses. The 'just compensation', in the circumstances, would be Rs.

5,69,000. There is no merit in the contention that the interest allowed on the awarded amount is excessive or without jurisdiction.

For the reasons discussed above, the award impugned in the appeal is modified as under:

The appellant insurance company shall pay an amount of Rs. 5,69,000 to the respondents-claimants in lieu of all the claims under the impugned

award. The rate of interest and other conditions subject to which the award has been made shall remain unaltered. The appellant insurance

company shall be at liberty to recover the award amount together with interest thereon from the owner of the vehicle.

The appeal is disposed of accordingly along with connected CMP(s).