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Judgment
N. Ananda, J.—MFA No. 2045/2013 is filed by Insurance Company to modify the impugned award to exonerate Insurance Company of its liability on the ground that the driver of insured vehicle (light goods vehicle) did not possess driving licence to drive a transport vehicle.
MFA No. 4644/2013 is filed by the claimant for enhancement of compensation.
I have heard Sri O. Mahesh, learned counsel for Insurance Company and Sri Raju Bhat, learned counsel for insured.
Sri O. Mahesh, learned counsel for Insurance Company would submit that vehicle involved in accident (insured vehicle) is a light goods vehicle (transport). The driver did not possess licence to drive a transport vehicle. Therefore, the Tribunal should have directed the insured to pay compensation to claimant.
The learned counsel for the insured would justify the order of pay and recovery passed by Tribunal.
It is true that vehicle involved in accident is a light goods vehicle (transport). It is also true that the driver did not have endorsement to drive a transport vehicle. Therefore, the question that would arise for determination is:
"Whether the insured has committed breach of policy by allowing the driver to drive a transport vehicle, without there being an endorsement in driving licence, authorising him to drive a transport vehicle?"
This question has been answered by the Supreme Court in Civil Appeal No. 8639/2014 (in the case of S. Chinnaswamy v. Rathnamma and others) dated 10.09.2014, wherein the Supreme Court has held:--
"Both the Motor Accident Claims Tribunal and the High Court, while awarding the compensation held that the insurance company is not liable to pay the amount only for the reason that the driver was not holding a licence to drive transport vehicle.
The aforesaid question directly came for consideration before this Court in the case of S. Iyyapan Vs. United India Insurance Company Ltd. and Another, (2013) 5 ABR 385 : (2013) 3 ACC 19 : (2013) ACJ 1944 : (2013) 7 AD 202 : AIR 2013 SC 2262 : (2013) 10 JT 85 : (2013) 172 PLR 409 : (2013) 3 RCR(Civil) 654 : (2013) 7 SCALE 637 : (2013) 7 SCC 62 , wherein after considering all the earlier decisions, this Court held that Insurance Company cannot disown its liability for the payment of compensation on that count. The Court observed thus:
"16. The heading "Insurance of Motor Vehicles against Third Party Risks" given in Chapter XI of the Motor Vehicles Act, 1988 (Chapter VIII of 1939 Act) itself shows the intention of the legislature to make third party insurance compulsory and to ensure that the victims of accident arising out of use of motor vehicles would be able to get compensation for the death or injuries suffered. The provision has been inserted in order to protect the persons travelling in vehicles or using the road from the risk attendant upon the user of the motor vehicles on the road. To overcome this ugly situation, the legislature has made it obligatory that no motor vehicle shall be used unless a third party insurance is in force.
Reading the provisions of Sections 146 and 147 of the Motor Vehicles Act, it is evidently clear that in certain circumstances the insurer''s right is safeguarded but in any event the insurer has to pay compensation when a valid certificate'' of insurance is issued notwithstanding the fact that the insurer may proceed against the insured for recovery of the amount. Under Section 149 of the Motor Vehicles Act, the insurer can defend the action inter alia on the grounds, namely, (i) the vehicle was not driven by a named person, (ii) it was being driven by a person who was not having a duly/granted licence, and (iii) person driving the vehicle was disqualified to hold and obtain a driving licence. Hence, in our considered opinion, the insurer cannot disown its liability on the ground that although the driver was holding a licence to drive a light motor vehicle but before driving light motor vehicle used as commercial vehicle, no endorsement to drive commercial vehicle was obtained in the driving licence. In any case, it is the statutory right of a third party to recover the amount of compensation so awarded from the insurer. It is for the insurer to proceed against the insured for recovery of the amount in the event there has been violation of any condition of the insurance policy."
For the reasons stated above, this appeal is allowed. It is directed that the compensation amount awarded by the Tribunal shall be paid by Respondent No. 2 - Insurance Company within a period of two months. It is for the insurance company to proceed against the insured for alleged breach of policy.
In view of what has been held in the aforestated judgment, the order of Tribunal, directing the Insurance Company to pay compensation and recover compensation from the insured does not call for interference.
The claimant had suffered following injuries:
Degloving injury on right calf with muscles exposed.
Laceration of upper lip.
Degloving injury LS region with total loss of skin
A laceration wound measuring 1 1/2" x 1/2 x 1/8" over lateral aspect of right thigh.
An abrasion over lateral aspect of right thigh
The claimant was treated in Spandana Maternity and General Hospital at Karkala. The claimant is a boy. He was aged, about 9 years at the time of accident. He had suffered severe pain consequent to the above injuries. Even after complete treatment, there are raw areas of injuries on right calf muscles and right upper lip.
The Tribunal has awarded compensation of Rs. 90,266/- under following heads:--
The Tribunal has not awarded compensation towards "loss of earnings of parents during period of treatment". The Tribunal has not made provision for "future medical expenses". Therefore, I award compensation of Rs. 20,000/- towards "loss of earnings of parents during period of treatment" and compensation of Rs. 20,000/- towards "future medical expenses". Thus, claimant is entitled to additional compensation of Rs. 40,000/- and total compensation of Rs. 1,30,266/-. In the result, I pass the following:--
ORDER
MFA No. 2045/2013 filed by Insurance Company is dismissed. The order of pay and recovery passed by Tribunal is confirmed. MFA No. 4644/2013 filed by claimant is accepted in part. Compensation of Rs. 90,266/- awarded by Tribunal is enhanced to Rs. 1,30,266/-. The rest of the impugned award as it relates to rate of interest, period of accrual of interest, ratio of payment and investment is confirmed. The amount deposited by Insurance Company shall be transferred to Tribunal.