The Oriental Insurance Company Limited vs Ved Pal and Others

K. Kannan, J.—Both the appeals are connected and they address the issue of the extent of liability of the Insurance Company and the quantum of compensation by the claimant. FAO No. 5744 of 2010 is at the instance of the Insurance Company and FAO No. 795 of 2011 is at the instance of the claimant seeking for enhancement. The point urged by the counsel for the Insurance Company is that the insured vehicle was a Canter truck, insured as a goods vehicle. The driver had only driving licence to drive scooter, motorcycle and car and did not have a special endorsement in the licence in the way that Section 3 of the MV Act requires. Without a specific endorsement to drive a transport vehicle, the driver could not be stated to be duly licensed to make the insurer liable. The counsel would argue therefore that the liability cast on the insurer without providing for a right of recovery against the owner for breach of terms of policy was untenable. The counsel for the legal representatives of the driver and superdari are before me to contend that the vehicle was only a light motor vehicle and the licence held by him was sufficient to make the insurer liable. The learned counsel refers me to a judgment of the Supreme Court in Ashok Gangadhar Maratha Vs. Oriental Insurance Co. Ltd., , to contend that when the driver of a vehicle driving a light motor vehicle, would be taken as competent, if he held a LMV licence. According to him, there was no requirement to have a specific authorization on the licence of the driver under Form-6. The Supreme Court was considering a case where the insurance policy did not cover the risk to a transport vehicle and there was nothing to show that the policy cover itself was only for a transport vehicle. In such an event, the Court held that LMV licence was good enough. In this case the copy of the policy shows that it was insured as a commercial vehicle and as a goods carriage. A goods carriage is a transport vehicle under the definition of the transport vehicle u/s 2(47) of the Motor Vehicles Act. If the vehicle was a transport vehicle, Section 3 spells out the necessity for a driving licence to carry a special endorsement to drive a transport vehicle. If there was no endorsement to drive a transport vehicle, then he could not be stated to be duly licensed in the manner that the law requires. This point was answered by the Supreme Court in New India Assurance Co. Ltd. Vs. Prabhu Lal, and National Insurance Company Limited v. Challa Bharathamma, (2008-1) 149 PLR 315 (SC) that dealt with the cases of transport vehicles where the driver, who held merely a LMV licence, was found not to be duly licensed to make possible for a right of indemnity for the insured/owner. In terms of the two judgments of the Supreme Court, it has to be only held that the driver was not duly licensed and, therefore, the Insurance Company was bound to make the payment to the claimant, but would have a right of recovery against the insured/owner for breach of terms of policy in the manner provided by the decision of the Supreme Court in National Insurance Co. Ltd. Vs. Swaran Singh and Others,

The appeal by the Insurance Company in FAO No. 5744 of 2010 is allowed to the above extent of making it liable and securing a right of recovery against the owner/insured for the liability cast on the insurer.

As regards the quantum of compensation payable, the contention is that the claimant had suffered a prolonged treatment and he could not attend to his job from 25.12.2007 to 30.04.2008. The evidence was that he was earning Rs. 10,000/- in a Sugar Mill in his capacity as a Juice Heater Attendant. The counsel would argue that he had fractures of right femur and fracture of the tibia and he was operated twice on 07.01.2008 and 09.01.2008 for open reduction and fixation of the fracture bones and he also had a fracture of index finger which had to be corrected by plaster cast. The Tribunal had provided for Rs. 25,000/- as compensation for pain and suffering, Rs. 40,000/- for loss of income for 4 months at the rate at which he was said to be earning; Rs. 5,100/- for medicines and Rs. 50,000/- for disability said to have been sustained by the petitioner. The learned counsel would contend that the Court has not properly provided for the disability suffered by him and the future loss of earnings. Future loss of earnings, which is a pecuniary head of claim will be permissible in a case where injuries have impacted the earning skills and there has been any impairment in that regard. It is essentially a matter of evidence and it has to be supported by cogent proof. In this case all that the petitioner has stated is that during the period of his leave, his salary was not given. The seasonal employment had ceased and he was without employment at that time. This evidence, according to the learned counsel, would mean that he had lost his earning capacity. I cannot extend this logic that the person''s earning capacity is lost by fractures of his bones. He had only stated hat during the time when he was on leave, he had not been provided with salary. He had not spoken anywhere about his inability to secure employment or brought any evidence through the doctor that he was incapable of working. The learned counsel wants to point out, which to me seems conjectural that he cannot stand for long time and that he cannot carry on with his employment in the manner he did previously. That ought to have been a matter of evidence, if it was true. If the award could be faulted anywhere, he ought to have been provided for attendant charges, special diet and transportation that shall be added. The claimant had contended that he had spent Rs. 2 to Rs. 2.5 lakhs towards medical expenses. He admitted in evidence that he did not have the document for the same. The Tribunal provided Rs. 5,100/- for the bills produced before the Court. The heads of claim which would require to be added are brought out in the tabulation below:-

There is a modest increase over what has been already awarded and the amount increased over what was awarded by the Tribunal will carry interest at 7.5% from the date of petition till date of payment. The liability shall stands modified in the manner referred to in the appeal fled by the Insurance Company. The awards stands modified and the appeal by the claimant in FAO No. 795 of 2011 is allowed to the above extent.