Smt. Saroj vs Mohd. Ishak and Others

A.K. Gohil, J.—The appellant/claimant has filed this appeal for enhancement of compensation u/s 173 of the Motor Vehicles Act, 1988 on two grounds: firstly that the Insurance Company has wrongly been exonerated by the Tribunal on the ground that the driver was not having a valid driving licence; and secondly the Tribunal has not awarded just and proper compensation for the injuries suffered by the claimant.

There is no dispute on the other facts of the case. There is also no dispute that the driver Mohd. Ishak was having a driving licence to drive Tempo only. Copy of the driving licence is Ex. D/1. He was examined as DW-1. He has admitted in his statement that though he was having a driving licence but that was for driving a private Tempo whereas on the date of accident he was driving a commercial vehicle and there was no endorsement on the said licence about driving commercial vehicle and on this ground Tribunal has exonerated the Insurance Company from its liability.

Mr. Sanjay Patwa, learned Counsel for appellant submitted that since the driver was having a driving licence to drive Tempo and he was driving the Tempo on the date of accident, therefore, endorsement is not necessary and he cited Division Bench decision in the case of Mohd. Karim Khan and Ors. v. Shamsher Khan and Anr. reported in 1999 ACJ 150. The Division Bench of this High Court after discussing various judgments has held that when the driver was not disqualified from holding or obtaining a driving licence to drive commercial vehicle, the Insurance Company is liable to pay compensation. He also placed reliance on a decision of the Supreme Court in the case of Ashok Gangadhar Maratha Vs. Oriental Insurance Co. Ltd., and also in the case of New India Assurance Co., Shimla Vs. Kamla and Others etc. etc., in which it has been held that when a valid insurance policy has been issued in respect of a vehicle, the burden is on the Insurer to pay to the third parties, whether or not there has been breach or violation of the policy conditions. In this case the claimant is a third party.

In reply Mr. P.K. Gupta, learned Counsel for Insurance Company placed reliance on a Division Bench decision of this High Court in the case of Mahesh Kumar and Another Vs. Hari Shanker Patel and Others, in which the Division Bench of this High Court has held that if there is no endorsement of authorisation of Licensing Authority on licence on the date of accident, it will amount breach of terms of conditions of the insurance policy and the Insurance Company cannot be held liable for payment of compensation.

Having heard learned Counsels for the parties and after perusal of the record and also after considering the judgments cited supra, it is a case in which the claimant is a third party. As per Sub-section (21) of Section 2, the Tempo is a light motor vehicle and the driver was also driving a Tempo which is a light motor vehicle. Therefore, the ratio of the decision in the case of Ashok Gangadhar Maratha (supra), and New India Assurance Co., Shimla (supra), would be applicable effectively to the facts of the case and in the light of the aforesaid two decisions when the driver was having a licence to drive the Tempo and he was not disqualified from holding or obtaining a valid driving licence to drive a commercial vehicle, in such case the Insurance Company cannot be exonerated from its liability and I am of the view that in third party accident claim cases, in such circumstances the Insurance Company is liable to pay compensation.

So far as the question of enhancement of compensation is concerned, according to evidence available on record the compensation assessed by the Tribunal is on lower side. The Tribunal has not awarded any compensation in the heads of pain and suffering and loss of income during the period of treatment and future treatment. I have perused the award and looking to the fracture in the pubic bone, she remained hospitalised for 7 days and could not work for 5-6 months, a sum of Rs. 5,000.00 is awarded towards pain and suffering; Rs. 5,000.00 in the head of loss of six months wages during the period of treatment; and Rs. 5,000.00 is also awarded for future treatment looking to the fracture in pubic bone. The Tribunal has awarded total compensation of Rs. 25,000.00 in the head of medical expenses and also in the head of general damages for fracture and injury suffered by the claimant. Mr. Patwa admits this position. Accordingly the amount of compensation from Rs. 25,000.00 is enhanced to Rs. 40,000.00. This enhanced amount shall carry interest @ 9% from the date of award i.e. 6.10.1998 till the date of its payment.

Consequently this appeal is allowed and the award is modified to the extent indicated above. The Insurance Company shall be jointly and severaly liable for payment of compensation alongwith the owner and driver of the vehicle. Counsel''s fee Rs. 500/-, if certified. Record be returned.