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HIGH COURT OF MADHYA PRADESH : JABALPUR
S.B: HON. SMT. SUSHMA SHRIVASTAVA, J.
Misc. Appeal No.539/03
Abdul Nafis (minor)
through his father Abdul Shafiq
VERSUS
Adarsh Shiksha Samiti & two others
______________________________________________________
Ms. Aparna Singh, Advocate for the appellant.
Shri Harpreet Ruprah, Advocate for respondents no.1 and 2.
Ms. Amrit Ruprah, Advocate for respondent no.3/Insurance Co.
ORDER
Being aggrieved by the award dated 18.11.2002
passed by Additional Motor Accident Claims Tribunal, Narsinghpur
(in short ‘the tribunal’) in Claim Case No.6/98, appellant/claimant
has preferred this appeal under Section 173 of Motor Vehicle Act,
1988 (for brevity ‘the Act’).
2. Appellant/claimant filed a claim petition under Section
166 of the Act through his father and natural guardian before the
Tribunal for compensation to the tune of Rs.21,00,000/- for injuries
sustained by him in the motor accident due to rash and negligent
driving of minibus No.MP-20H-2408 by respondent no.2, belonging
to respondent no.1 and insured with respondent no.3/Oriental
Insurance Co. As per averments made in the claim petition, the
accident occurred on 4.2.97 at 5:15 in the evening, when appellant/
claimant, a minor boy aged about five years while going by the
roadside in front of the house of Soni compounder at Hardaul Bag,
Gotegaon was dashed by minibus No.MP-20H-2408 being driven
rashly and negligently by respondent no.2. As a result,
appellant/claimant sustained grievous injuries in his both legs and
other parts of the body resulting into permanent disablement in his
right leg. Appellant/claimant was treated in various hospitals,
remained hospitalized for several days and incurred heavy medical
expenses amounting to Rs.1,00,000/- in his treatment.
Appellant/claimant had to undergo surgical operation twice and
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suffered mental pain and suffering. Appellant/claimant, therefore,
claimed compensation of Rs.21,00,000/- from the respondents.
3. The claim petition was opposed by the driver and
owner of the minibus as well as by its insurance company.
Respondents no.1 and 2 denied the factum of accident with their
vehicle and any negligence on the part of bus driver. It was
contended that the appellant/claimant did not suffer any grievous
injury or permanent disablement and was not entitled to
compensation. The plea of the insurance company was that the
minibus was being driven without valid driving licence and in breach
of the condition of policy, as such insurance company was not liable
to pay the compensation.
4. The Tribunal, after enquiry, came to hold that the
appellant/claimant sustained simple injuries in the motor accident
due to rash and negligent driving of minibus No.MP-20H-2408 by
respondent no.2 and awarded a sum of Rs.5,000/- to the appellant
as compensation. The tribunal also held that respondent no.2 was
having a licence to drive light motor vehicle and heavy goods
vehicle, but he was not entitled to drive heavy passenger vehicle, as
such not authorized to drive the vehicle in question at the time of
accident, therefore, exonerated the insurance company from its
liability to pay the compensation on the ground of breach of terms
and condition of the insurance policy, and passed the impugned
award for Rs.5,000/- against respondents no.1 and 2, which has
given rise to this appeal.
5. Appeal is preferred inter alia on the ground that the
tribunal did not appreciate the evidence properly and failed to
consider that appellant sustained grievous injuries resulting into
permanent disability and awarded a meagre sum as compensation
and erroneously absolved the insurance company from its liability to
pay compensation, though the driver of the offending vehicle had a
valid and effective driving licence at the time of accident.
6. Respondents no.1 and 2 also filed cross-objection in
the appeal, which was opposed mainly by learned counsel for
respondent no.3/Insurance Co. It was submitted that respondents
no.1 and 2 did not deposit the amount, as required by
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Section 173(1) of the Act and when no appeal lies against the
award for less than Ten Thousand rupees, the cross-objection was
not maintainable.
7. Learned counsel for respondents no.1 and 2 conceded
that the amount required to be deposited under Section 173(1) of
the Act was not deposited. In such a situation, cross-objection filed
by respondents no.1 and 2 is not tenable, especially when the
amount of impugned award was less than Rs.10,000/- and not
appealable, the same could not have been challenged by
respondents no.1 and 2 by way of cross-objection. The cross-
objection filed by respondents no.1 and 2, therefore, deserves to be
dismissed and the same is accordingly dismissed as not
maintainable.
8. As regards the merits of the appeal, there was no
challenge to the finding that the appellant sustained injuries in the
motor accident due to rash and negligent driving of minibus no.
MP-20H-2408 by respondent no.2. There was also no dispute at
bar that the offending vehicle belonged to respondent no.1 and was
insured with respondent no.3.
9. Learned counsel for the appellant, however, submitted
that the tribunal failed to consider the bulk of oral and documentary
evidence that appellant sustained grievous injuries in his both the
legs and had to undergo surgery, remained hospitalized for number
of times and was disabled permanently on account of injuries, yet
the tribunal awarded a meagre sum as compensation to the
appellant.
10. Learned counsel for respondents, on the other hand,
supported the sum awarded by the tribunal and submitted that there
was no authentic evidence that appellant sustained any grievous
injury or any permanent disablement due to injuries in the motor
accident.
11. Perused the evidence on record. There was no
evidence of the doctor to the effect that appellant/claimant sustained
any fracture or permanent disablement on account of injuries
sustained by him in the motor accident. None of the doctors, who
issued the disability certificate filed on record, was examined in the
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case. The Apex Court in the case of Rajesh Kumar alias Raju Vs.
Yaduvir Singh and another reported in AIR 2008 Supreme Court
page 2396 observed that unless the author of the certificate
examined himself, it is not admissible in evidence. Thus, the
disability certificate filed on record, which was neither proved, nor
exhibited, could not be acted upon to hold that the appellant
sustained any permanent disablement. There was also no X-ray
report of the appellant to indicate that he sustained any fracture in
the accident.
12. The certified copy of MLC report (Ex.P-3) of the
appellant, however, indicated that the appellant/claimant had
sustained injuries in his right leg and he was also referred to
Medical College, Jabalpur for further treatment. There was also oral
evidence of father and uncle of the appellant, namely, Abdul Shafiq
(A.W.-3) and Abdul Aziz (A.W.-2) to the effect that appellant
sustained injuries in his both the legs and he was treated in various
hospitals. The tribunal, however, discarded the discharge tickets
(Ex.P-5 to P-7) of Victoria Hospital, Jabalpur on the ground that
father of appellant/claimant, namely, Abdul Shafiq never stated in
his evidence that his son was treated in Victoria Hospital, Jabalpur
and the gender of the patient in discharge tickets (Ex.P-5 and P-6)
was shown as female, while appellant, Abdul Nafis was a boy.
The tribunal also held that discharge tickets pertained to
years 1998 and 1999, while the accident in question occurred on
4.2.97, and were thus not acceptable.
13. No doubt, the age and gender mentioned in the various
columns of discharge tickets (Ex.P-5 and P-6), as submitted, were
not correctly written and there was also some overwriting in these
documents, but there was nothing wrong with the discharge ticket
(Ex.P-7) filed on behalf of the appellant. There was also oral
evidence of the uncle of the appellant, namely, Abdul Aziz (A.W-2),
that appellant was also treated in Victoria Hospital, Jabalpur,
besides other hospitals and he also remained hospitalized in
Victoria Hospital. There was also no cross-examination on the point
that the discharge tickets, particularly Ex.P-7 did not relate to the
treatment of the appellant, so it could not be brushed aside.
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The discharge ticket (Ex.P-7) reveals that appellant Abdul Nafis
remained hospitalized at Victoria Hospital, Jabalpur from 9.2.98 to
27.2.98 for treatment of contracture of his right knee. Thus, the
discharge ticket (Ex.P-7) indicates that the problem in the right knee
of the appellant continued even in the year 1998, for which he
remained hospitalized for more than fifteen days. Thus, it is evident
that the injuries sustained by the appellant were not minor, but it
lasted long and required treatment for a long period. In the aforesaid
circumstances, the amount of Rs.5,000/- for physical injury and
mental pain and suffering of the appellant, as awarded by the
tribunal, was apparently inadequate. Although, no cash memo or
medical bills etc. were filed to prove medical expenses, but evidently
claimant/appellant was a resident of Gotegaon and he had to take
treatment at Jabalpur, remained in the hospital for several days.
Obviously, he would have spent good amount in staying in another
city, as well as incurred other incidental expenses like conveyance
charges, attendant charges, special diet etc. The tribunal, however,
did not award any compensation under other heads like special diet
and attendant charges etc. The amount of compensation, as
awarded by the tribunal, therefore, deserves to be enhanced by a
lump sum of Rs.10,000/- in the facts and circumstances of the case.
The amount of compensation awarded to the appellant is, thus
raised by a further sum of Rs.10,000/- (Ten thousand rupees) only.
14. As regards the liability of insurance company to pay
the compensation, learned counsel for respondent no.3/Insurance
Co. submitted that when the tribunal exonerated the insurance
company on the ground of breach of terms and conditions of
insurance policy and the cross-objection filed by respondents no.1
and 2 is not tenable, the question of liability of insurance company
to pay compensation no longer remains open for challenge.
However, the submission of learned counsel for respondent no.3
has no force. When the question of liability of insurance company to
pay the compensation was urged as a ground of appeal, it can well
be examined in this appeal.
15. The tribunal has exonerated the insurance company
from its liability to make payment of compensation on the ground
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that the driver of the offending vehicle was having a licence to drive
light motor vehicle, heavy goods vehicle, while the offending vehicle
was admittedly a heavy passenger vehicle, so, he was not
authorized to drive the same.
16. A careful perusal of the copy of licence (Ex.D-1) filed
and proved by driver/respondent no.2 Revaram (NA.W-1) with the
original licence, indicates that licence (Ex.D-1) was initially issued to
respondent no.2 Revaram, for driving transport vehicle and it was
renewed from time to time after every three years, as required by
Section 14 (2)(a) of the Act, it also remained in force and effective
even at the time of accident in question. The offending vehicle was
indisputably a school bus of Saraswati Shishu Mandir belonging to
respondent no.1 bearing registration no.MP-20H-2408. As per
definition of transport vehicle, as given in Section 2(47), an
‘education institution’ bus is also included in the definition of
‘transport vehicle’. Thus it could hardly be said that respondent no.2
was not authorized to drive the school minibus no.MP-20H-2408
vide licence (Ex.D-1).
17. Learned counsel for respondent no.3/Oriental
Insurance Co., however, submitted that the endorsement made in
licence (Ex.D-1) indicated that respondent no.2 was granted licence
to drive light motor vehicle, medium goods vehicle and heavy goods
vehicle, and he was not authorized to drive heavy passenger
vehicle; as such respondent no.2 was not authorized and had no
valid driving licence to drive the offending vehicle. Reliance was
placed in this behalf on the decision of the Apex Court rendered in
the case of National Insurance Co. Ltd. Vs. Kusum Rai and
others reported in AIR 2006 Supreme Court page 3440 (1),
wherein the driver of the vehicle was holding a licence to drive light
motor vehicle and not possessing a licence to drive commercial
vehicle, while the offending vehicle was being used as a taxi, it was
held that there was a breach of terms and conditions of the policy.
The facts of the instant case are, however, distinct and different.
In the instant case, even no such plea was specifically taken or
proved by the insurance company that the offending vehicle was a
heavy passenger vehicle.
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18. Needless to point out that “heavy passenger vehicle” is
defined in Motor Vehicle Act under Section 2(17) of the Act, which
includes an education institution bus or a minibus, the unladen
weight of which exceeds 12,000 kg. However, there was no such
evidence on record to indicate that the unladen weight of the
offending vehicle, i.e. education institution bus exceeded 12,000 kg.
The mere admission by the driver in his cross-examination that the
school bus was a heavy passenger vehicle per se could not be
held to be such in absence of documentary evidence in this behalf.
Moreover, respondent no.2 was admittedly authorized to drive a
heavy goods vehicle by means of licence (Ex.D-1); it could,
therefore, hardly be presumed that he was not able to drive a heavy
passenger vehicle, if the offending vehicle, for the sake of argument,
is considered to be one, so as to contribute to the cause of accident.
19. The Apex Court in its three Judges’ Bench decision
rendered in the case of National Insurance Co. Ltd. Vs. Swaran
Singh & others reported in AIR 2004 Supreme Court page
1531(1) has held that in each case a decision has to be taken,
whether the fact of the driver possessing licence for one type of
vehicle, but found driving another type of vehicle, was the main or
contributory cause of accident, and if cause of accident had no
nexus with the driver not possessing the requisite type of licence,
the insurer will not be allowed to avoid its liability merely for
technical breach of condition concerning driving licence. It would be
profitable to reproduce the following observation made by their
Lordships in the case of Swaran Singh (supra) in this behalf:-
“Section 10 of the Act provides for forms and
contents of licences to drive. The licence has to be
granted in the prescribed form. Thus, a licence to
drive a light motor vehicle would entitle the holder
there to drive the vehicle falling within that class or
description.
Section 3 of the Act casts an obligation on a
driver to hold an effective driving licence for the type
of vehicle which he intends to drive. Section 10 of
the Act enables Central Government to prescribe
forms of driving licences for various categories of
vehicles mentioned in sub-section (2) of said
section. The various types of vehicles described for
which a driver may obtain a licence for one or more
of them are: (a) Motorcycle without gear, (b)
motorcycle with gear, (c) invalid carriage, (d) light
motor vehicle, (e) transport vehicle, (f) road roller
8and (g) motor vehicle of other specified description.
The definition clause in Section 2 of the Act defines
various categories of vehicles which are covered in
broad types mentioned in sub- section (2) of Section
10. They are `goods carriage’, `heavy-goods
vehicle’, `heavy passenger motor-vehicle’, `invalid
carriage’, `light motor-vehicle’, `maxi-cab’,`medium
goods vehicle’, `medium passenger motor-vehicle’,
`motor-cab’, `motorcycle’, `omnibus’, `private service
vehicle’, `semi-trailer’, `tourist vehicle’, `tractor’,
`trailer’, and `transport vehicle’. In claims for
compensation for accidents, various kinds of
breaches with regard to the conditions of driving
licences arise for consideration before the Tribunal.
A person possessing a driving licence for
`motorcycle without gear’, for which he has no
licence. Cases may also arise where a holder of
driving licence for `light motor vehicle’ is found to be
driving a `maxi-cab’, `motor-cab’ or `omnibus’ for
which he has no licence. In each case on evidence
led before the tribunal, a decision has to be taken
whether the fact of the driver possessing licence for
one type of vehicle, but found driving another type
of vehicle, was the main or contributory cause of
accident. If on facts, it is found that accident was
caused solely because of some other unforeseen or
intervening causes like mechanical failures and
similar other causes having no nexus with driver not
possessing requisite type of licence, the insurer will
not be allowed to avoid its liability merely for
technical breach of conditions concerning driving
licence.
The Apex Court in the aforesaid case further held as
under :-
“Even where the insurer is able to prove breach
on the part of the insured concerning the policy
condition regarding holding of a valid licence by the
driver or his qualification to drive during the relevant
period, the insurer would not be allowed to avoid its
liability towards insured unless the said breach or
breaches on the condition of driving licence is/are
so fundamental as are found to have contributed to
the cause of the accident. The Tribunals in
interpreting the policy conditions would apply “the
rule of main purpose” and the concept of
“fundamental breach” to allow defences available to
the insured under section 149(2) of the Act.”
20. In the instant case, as said hereinabove, respondent
no.2/the driver of the offending vehicle was admittedly having
licence to drive heavy goods vehicle vide (Ex.D-1), and in absence
of any such evidence it could not be assumed that he was not able
to drive the minibus, said to be a passenger vehicle, in an efficient
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manner so as to have contributed to the cause of accident in
question Thus, in view of the law laid down in the case of Swaran
Singh (Supra), in the instant case, insurer could not be allowed to
avoid its liability merely for technical breach of condition concerning
driving licence.
21. In view of foregoing discussion, respondent
no.3/Oriental Insurance Co. is held liable to pay the compensation
to the appellant. The negative finding recorded by the tribunal in
this behalf is hereby set aside.
22. In the result, the appeal is partly allowed. The
compensation awarded to the appellant by the tribunal is enhanced
by a further sum of Rs.10,000/- (Ten Thousand rupees) only, which
shall be payable by respondent no.3/Oriental Insurance Co. to the
appellant within two months from today, failing which the enhanced
amount shall carry interest @ 6% per annum from the date of filing
of claim petition till realization. The amount of compensation
awarded to the appellant by the tribunal shall also be payable by
Insurance Co./respondent no.3.
Appeal stands allowed to the aforesaid extent. No
costs.
(SMT. SUSHMA SHRIVASTAVA)
JUDGE
14.10.2010