United India Insurance Co. Ltd. vs Sajjan Singh and Others

Jitendra Chauhan, J.

Two appeals, as noticed above, are being disposed of by this single judgment, having arisen out of the impugned Award dated 01.05.2012, passed by the learned Motor Accident Claims Tribunal, Hisar. The learned counsel for the appellant-Insurance Company contends that the liability has been wrongly fastened upon the appellant-insurance company in view of the fact that the respondent-driver was not holding valid licence to drive the offending vehicle.

The learned counsel for the claimant-appellant contends that the compensation awarded by the learned Tribunal is on the lower side and deserves to be enhanced.

The learned counsel for respondents-driver and owner, has contended that even in the absence of any specific endorsement to drive the transport vehicle, the insurance company cannot be absolved of its liability and the driving licence in question was admittedly genuine.

I have heard learned counsel for the parties and perused the record.

As far as the appeal preferred by the insurance company is concerned, it is not in dispute that the offending vehicle was fully insured from the appellant-company. Ex. R3 is the photocopy of the driving licence possessed by the driver at the time of the accident. Its genuineness is also not under challenge. The only question which requires determination is as to whether the driver was holding valid and effective driving licence to drive the offending vehicle i.e. three-wheeler, at the time of the accident From the perusal of the copy of the driving licence, it is evident that the same was valid for driving motorcycle, LMV, MMV and HMV. However, there is no endorsement with regard to driving a transport/commercial vehicle as required under Section 3 of the Motor Vehicles Act. The learned counsel for the respondents has placed reliance on the judgment rendered by Hon''ble the Apex Court, in S. Iyyapan Vs. United India Insurance Company Ltd. and Another, , to contend that even if it is proved that the driver was not holding valid driving licence to drive the commercial vehicle, the insurer cannot escape from its liability. This Court is in complete agreement with the contention raised by the learned counsel for the respondents to the effect that absence of valid driving licence for driving commercial vehicle, the insurance company cannot be absolved, however, at the same time, their Lordships in Iyyappan''s case (supra) have further held that the insurer has every right to proceed against the insured for recovery of the amount in the event of violation of any conditions of the insurance policy.

In this view of the matter, this Court is of the considered opinion that in the absence of specific endorsement to drive a commercial vehicle, it can be safely held that the driver was not holding a valid licence to drive the vehicle involved in the accident. Therefore, there is apparent violation of the terms and conditions of the insurance policy.

Accordingly, the appellant-Insurance Company is granted recovery rights against the respondents owner and driver on the principle of ''first pay, then recover''.

The statutory amount, if any, deposited at the time of filing this appeal, be placed at the disposal of the learned Tribunal for reimbursement.

As far FAO No. 4487 of 2012, preferred by the claimant for enhancement of the amount of compensation, is concerned, it has come on record that he remained on earned leave on account of the injuries suffered by him in the accident from 02.08.2010 to 31.08.2010, which he could have availed of for any other purpose, but for the accident. In the circumstances, an amount of Rs. 15,000/- is awarded on account of the earned leave, availed by the appellant. It is further noticed that the appellant suffered disability to the extent of 8%, remained hospitalized for sixteen days and suffered loss of teeth and disfigurement The learned Tribunal has awarded Rs. 20,000/- on account of hospitalization, loss of teeth, disfiguring, pain and suffering, attendant charges, which is inadequate. Accordingly, another amount of Rs. 25,000/- is awarded under the above heads. No other point has been raised.

In view of the above, the claimant-appellant is held entitled to enhanced amount of compensation of Rs. 40,000/-, as indicated above, over and above the amount already awarded by the teamed Tribunal, which shall be payable within a period of 45 days from the date of receipt of a certified copy of this judgment failing which, he shall also be entitled to interest as indicated in the award i.e. 7.5% per annum, from the date of filing the present appeal, till its realization. With the aforesaid modification in the impugned award, the present appeals are partly allowed.