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Judgment
N.K. Patil, J.—These two appeals, respectively by the Insurance Company and the injured claimant are directed against the same judgment and award dated 13th August 2007, passed in MVC No. 691/2005, by the Civil Judge(Sr. Dn) and Additional Motor Accident Claims Tribunal, Sira, (for short, ''Tribunal''). While the Insurer has filed the appeal seeking to set aside the impugned judgment and award passed by Tribunal, in so far as it relates to the direction issued to the Insurer to indemnify the award, on the ground that the driver of the offending vehicle did not possess a valid and effective Driving Licence, as on the date of accident; the injured claimant has filed the appeal seeking enhancement of compensation, on the ground that the compensation awarded by Tribunal is inadequate.
The facts in brief are that, the claimant filed the claim petition u/s 166 of the Motor Vehicles Act, contending that, at about 5:30 AM, on 14-12-2004, when the claimant was traveling in a Mini Bus bearing Registration No. KA-06/A-4020, the driver of the said bus drove the same in a rash and negligent manner and said Mini Bus capsized on left side of the road near Kadakol village on Mysore-Nanjangud Road. Due to the impact, the claimant sustained grievous injuries and was immediately shifted to the Hospital.
It is the case of claimant that as per the Wound Certificate at Exs.P3 and P4, he has sustained three injuries, viz. fracture of 1/3rd of left Tibia and Fibula injury to right hand. The Doctor has opined that the said injuries are grievous in nature. Further, Doctors, PW3 and Pr4 at Pristine Hospital, Bangalore and Neuro Surgeon and Spine Surgeon at Bhagavan Mahaveer Jain Hospital, Bangalore have deposed that as per MRI scan of Thorasic spine, the claimant has sustained T4 Anterior wedge compression fracture right side T-4 artecular process and Lumina, antegrade Listhesis of T3 and T4 and rotationed Listhesis T4 over T5, anterior Thecal fonget is kinked and Cord disturbed from T2-T5 level, cord compression. They further opined that the claimant is having total paraplegia with sensory level at T5-T6 level. They also opined that there is no recovery in motor or sensory functions and he has no bowel and bladder control and needs intermittent catheterization for the bladder and assistance of others for manual removal of stool. He needs permanent waterbed and also physio therapy for life, to avoid muscle wasting and contractures and also requires high protein nutritious food and need frequent consultation by Doctor for cathederization and repeated urinary infections and also for bedsores. The said Doctors have opined that the claimant has sustained 70% disability towards whole body and the Tribunal, on the ground that the claimant is unable to do any work as he is completely bedridden and for lifelong he has to be laid on waterbed, assessed the functional disability at 100%. It is stated that the claimant took treatment at BGS Hospital, Mysore from 14-12-2004 to 29-12-2004, at M.S. Ramaiah Hospital, Bangalore from 29-12-2004 to 29-01-2005 and at Pristine Hospital Bangalore from 29-01-2005 to 19-02-2005 and at Hosmat Hospital, Bangalore from 11-04-2005 to 16-04-2005. It is also stated that the claimant took treatment at Venkateshwar Clinic, Koratagere from 19-02-2005 to 10-04-2005. In all the claimant was inpatient for a period of 74 days. Therefore, it is the specific case of the claimant that he has spent considerable amount towards conveyance, nourishing food and attendant charges apart from medical and incidental expenses and therefore, reasonable enhancement made be made by modifying the impugned judgment and award passed by Tribunal.
However, it is the specific case of the Insurer that Ex.R2, the endorsement issued by the jurisdictional Regional Transport Officer establishes beyond reasonable doubt that as on the date of accident, the driver of the offending bus did not possess the valid Driving Licence. The Driving Licence issued by the jurisdictional authority in favour of the Driver of the offending vehicle, viz. K.R. Mallik was effective and in force from 07-02-2001 to 06-02-2004. The accident occurred on 13-12-2004, i.e. one week after the expiry of the said term. The claimant has not produced an iota of document to show that as on the date of accident, the driver of the offending vehicle, K.R. Mallik did possess a valid and effective Driving Licence. When once the driver of the offending vehicle does not possess a valid and effective Driving Licence, fastening the liability on the Insurer is not justifiable nor the same is permissible. In support of the said submission, he placed reliance on the judgment of the Apex Court in the case of New India Assurance Co. Ltd. Vs. Mandar Mahadev Tambe and others reported in 1996 ACJ 253, wherein it is held that the Insurance Company would be liable only if the vehicle was being driven by a person holding a valid Driving Licence or a permanent Driving Licence other than Learners Licence and if the driver was holding no licence as on the date of accident, then, the Insurance Company is not liable to indemnify the insured. Therefore, he submits that the impugned judgment and award passed by Tribunal is liable to be set aside at the threshold.
In reply to the said submission of the learned counsel appearing for Insurer, learned counsel appearing for injured claimant submits that the reasoning given by Tribunal at paragraph 28 of its judgment, while answering issue No. 3 is just and proper. In the said paragraph, the Tribunal has observed that as per Ex.R2, the driver was having valid and effective Driving Licence to drive motor vehicle from 07-02-2001 to 06-02-2004. The accident happened on 13-12-2004. Hence, on the date of accident, there was no licence of the Driver. The owner has produced the Driving Licence of the said driver as per Ex.R3, which reveals that the licence of the said driver was renewed from 07-02-2001. Thus, although the driver was not having licence, the owner of the vehicle has not allowed him to drive the particular category of vehicle. Moreover, subsequently, his licence became renewed and hence, it shows that the driver was having the experience and knowledge of driving the Mini Bus. However, learned counsel appearing for claimant fairly submitted that there is some error in the observation made by Tribunal towards the end of paragraph 28.
The said submission of the learned counsel appearing for claimant cannot be sustained for the reason that, after microscopic evaluation of the bulk original records available on file, it emerges that there is no renewal of the said Driving Licence by the driver of the said offending vehicle. The copy of renewal of Driving Licence, available in the original records at ink page 149 reveals that the Driving Licence of the said Driver has been renewed from 31-12-2005 to 30-12-2008. The Tribunal, inadvertently, on the ground that the Driving Licence has been subsequently renewed, has given the reasoning at paragraph 28 of its judgment holding that the driver of the offending Bus possessed an effective and valid Driving Licence as on the date of accident. The said reasoning given by Tribunal is contrary to the clinching material available on file, as rightly pointed out by learned counsel appearing for Insurer.
In support of the stand of the learned counsel appearing for claimant, he placed heavy reliance on the judgment of the Division Bench of the Allahabad High Court, Lucknow Bench reported in 2001 ACJ 2337 (National Insurance company Ltd. Vs. Mahadev Rawat and another), wherein it is held that if the driver of the offending vehicle has filed an application before the expiry of the period, for renewal of Driving Licence and if there delay on the part of the transport authorities to issue the renewal certificate, then, the Driving Licence is deemed to have been renewed from the date of the application and he is stated to be holding an effective Driving Licence. Therefore, he fairly submitted that, liberty may be given to the claimant to find out whether the driver of the offending vehicle, viz. K.R. Mallik, S/o. Raju, had made any such application, seeking renewal of his Driving Licence from 06-02-2004 and take necessary endorsement from the transport authorities and produce the same before the Tribunal, in support of their claim.
We find some force in the said submission of the learned counsel appearing for claimant as well as the submission of the learned counsel appearing for Insurer. Therefore, in view of the categorical submission made by the learned counsel appearing for both the parties, as referred above, we are of the considered view, that, ends of justice would be met, if the matter is remanded back to Tribunal and appropriate directions are issued to the Tribunal to dispose of the same, after permitting the parties to adduce oral and documentary evidence.
In the case on hand, the injured claimant is stated to be in waterbed and has to depend upon the assistance of others to perform his day-to-day activities. Therefore, having regard to the facts and circumstances of the case, the seriousness of the condition of the claimant, we are of the considered view that at any stretch of imagination, the impugned judgment and award passed by Tribunal cannot be sustained and is liable to be set aside.
Having regard to the totality of the case on hand, including the submission of the learned counsel appearing for both the parties and after careful perusal of the impugned judgment and award passed by Tribunal, we are of the firm opinion that expressing any further opinion on the merits of the case would definitely affect the stand/defence to be taken by the respective parties. Therefore, to meet the ends of justice and to safeguard the interest of both the parties, it would suffice for this Court, if the impugned judgment and award passed by Tribunal is set aside and the matter is remitted back to Tribunal, for reconsideration afresh. In the light of the discussion made above, the appeals filed by the Insurer and also the claimant are hereby allowed.
I] The impugned judgment and award, dated 13th August 2007, passed in MVC No. 691/2005, by the Civil Judge(Sr. Dn) and Additional Motor Accident Claims Tribunal, Sira, is hereby set aside;
II] Matter stands remanded back to Tribunal for reconsideration and redetermination of compensation afresh and to pass appropriate order, in accordance with law, after affording reasonable opportunity of hearing to the claimant, Insurer and also the Owner of the Mini Bus, personally or through their counsel and dispose of the same, as expeditiously as possible, on top priority basis, not later than six months from the date of receipt of application for additional evidence by the parties, bearing in mind the seriousness of the case and also the fact that the accident is of the year 2004;
III] All the grounds urged in me memorandum of appeal filed by the Insurer as well as the claimant are left open;
IV] Further, the claimant and Insurer are directed to appear before the jurisdictional Tribunal on 26-11-2012 and collect the further dates of hearing;
V] Parties are permitted to file necessary application/s, for adducing additional evidence, oral/documentary, to substantiate their respective case within four weeks from the date of receipt of a copy of this judgment;
VI] In case such application/s is/are filed by the learned counsel for the parties, within the time stipulated above, the Tribunal is directed to receive the same and proceed further and dispose of the same as expeditiously as possible, in compliance of the direction issued by this Court, as above;
VII] Registry is directed to return the entire original records, received from the Tribunal, to the jurisdictional Tribunal, forthwith;
VIII] Registry is also directed to refund the statutory amount in deposit in the appeal filed by the Insurance Company to the authorized officer of the Insurer or through its counsel, immediately.
Office to draw award, accordingly.
In view of disposal of both the appeals and remanding the matter before the Tribunal, the prayer sought in Misc. Cvl. 21704/2009, filed by learned counsel appearing for claimant, for producing additional documents, does not survive for consideration and is accordingly dismissed as having become infructuous.
In case, learned counsel appearing for claimant makes an application for return of the original documents produced along with the Misc. Cvl. 21704/2009, Office is directed to return the same, forthwith.