{"id":198617,"date":"2010-10-14T00:00:00","date_gmt":"2010-10-13T18:30:00","guid":{"rendered":"https:\/\/www.legalindia.com\/judgments\/abdul-nafis-minor-vs-adarsh-shiksha-samiti-ors-on-14-october-2010"},"modified":"2019-02-15T06:19:07","modified_gmt":"2019-02-15T00:49:07","slug":"abdul-nafis-minor-vs-adarsh-shiksha-samiti-ors-on-14-october-2010","status":"publish","type":"post","link":"https:\/\/www.legalindia.com\/judgments\/abdul-nafis-minor-vs-adarsh-shiksha-samiti-ors-on-14-october-2010","title":{"rendered":"Abdul Nafis [Minor] vs Adarsh Shiksha Samiti & Ors on 14 October, 2010"},"content":{"rendered":"
Madhya Pradesh High Court<\/div>\n
Abdul Nafis [Minor] vs Adarsh Shiksha Samiti & Ors on 14 October, 2010<\/div>\n
                                       1\n\n      HIGH COURT OF MADHYA PRADESH : JABALPUR\n             S.B: HON. SMT. SUSHMA SHRIVASTAVA, J.\n                       Misc. Appeal No.539\/03\n                         Abdul Nafis (minor)\n                   through his father Abdul Shafiq\n\n                                   VERSUS\n                  Adarsh Shiksha Samiti & two others\n______________________________________________________\nMs. Aparna Singh, Advocate for the appellant.\nShri Harpreet Ruprah, Advocate for respondents no.1 and 2.\nMs. Amrit Ruprah, Advocate for respondent no.3\/Insurance Co.\n\n                                   ORDER\n<\/pre>\n
               Being aggrieved by the award dated 18.11.2002
\npassed by Additional Motor Accident Claims Tribunal, Narsinghpur
\n(in short ‘the tribunal’) in Claim Case No.6\/98, appellant\/claimant
\nhas preferred this appeal under Section 173 of Motor Vehicle Act,
\n1988 (for brevity ‘the Act’).\n<\/p>\n
2.             Appellant\/claimant filed a claim petition under Section
\n166 of the Act through his father and natural guardian before the
\nTribunal for compensation to the tune of Rs.21,00,000\/- for injuries
\nsustained by him in the motor accident due to rash and negligent
\ndriving of minibus No.MP-20H-2408 by respondent no.2, belonging
\nto respondent no.1 and insured with respondent no.3\/Oriental
\nInsurance Co. As per averments made in the claim petition, the
\naccident occurred on 4.2.97 at 5:15 in the evening, when appellant\/
\nclaimant, a minor boy aged about five years while going by the
\nroadside in front of the house of Soni compounder at Hardaul Bag,
\nGotegaon was dashed by minibus No.MP-20H-2408 being driven
\nrashly   and    negligently     by    respondent     no.2.    As   a   result,
\nappellant\/claimant sustained grievous injuries in his both legs and
\nother parts of the body resulting into permanent disablement in his
\nright leg.     Appellant\/claimant was treated in various hospitals,
\nremained hospitalized for several days and incurred heavy medical
\nexpenses       amounting      to     Rs.1,00,000\/-    in     his   treatment.
\nAppellant\/claimant had to undergo surgical operation twice and
\n                                    2<\/span><\/p>\n
suffered mental pain and suffering. Appellant\/claimant, therefore,
\nclaimed compensation of Rs.21,00,000\/- from the respondents.\n<\/p>\n
3.           The claim petition was opposed by the driver and
\nowner of the minibus as well as by its insurance company.
\nRespondents no.1 and 2 denied the factum of accident with their
\nvehicle and any negligence on the part of bus driver.          It was
\ncontended that the appellant\/claimant did not suffer any grievous
\ninjury or permanent disablement and was not entitled to
\ncompensation. The plea of the insurance company was that the
\nminibus was being driven without valid driving licence and in breach
\nof the condition of policy, as such insurance company was not liable
\nto pay the compensation.\n<\/p>\n
4.           The Tribunal, after enquiry, came to hold that the
\nappellant\/claimant sustained simple injuries in the motor accident
\ndue to rash and negligent driving of minibus No.MP-20H-2408 by
\nrespondent no.2 and awarded a sum of Rs.5,000\/- to the appellant
\nas compensation. The tribunal also held that respondent no.2 was
\nhaving a licence to drive light motor vehicle and heavy goods
\nvehicle, but he was not entitled to drive heavy passenger vehicle, as
\nsuch not authorized to drive the vehicle in question at the time of
\naccident, therefore, exonerated the insurance company from its
\nliability to pay the compensation on the ground of breach of terms
\nand condition of the insurance policy, and passed the impugned
\naward for Rs.5,000\/- against respondents no.1 and 2, which has
\ngiven rise to this appeal.\n<\/p>\n
5.           Appeal is preferred inter alia on the ground that the
\ntribunal did not appreciate the evidence properly and failed to
\nconsider that appellant sustained grievous injuries resulting into
\npermanent disability and awarded a meagre sum as compensation
\nand erroneously absolved the insurance company from its liability to
\npay compensation, though the driver of the offending vehicle had a
\nvalid and effective driving licence at the time of accident.\n<\/p>\n
6.           Respondents no.1 and 2 also filed cross-objection in
\nthe appeal, which was opposed mainly by learned counsel for
\nrespondent no.3\/Insurance Co. It was submitted that respondents
\nno.1 and 2 did not deposit the amount, as required by
\n                                   3<\/span><\/p>\n
Section 173(1) of the Act and when no appeal lies against the
\naward for less than Ten Thousand rupees, the cross-objection was
\nnot maintainable.\n<\/p>\n
7.           Learned counsel for respondents no.1 and 2 conceded
\nthat the amount required to be deposited under Section 173(1) of
\nthe Act was not deposited. In such a situation, cross-objection filed
\nby respondents no.1 and 2 is not tenable, especially when the
\namount of impugned award was less than Rs.10,000\/- and not
\nappealable, the same could not have been challenged by
\nrespondents no.1 and 2 by way of cross-objection. The cross-
\nobjection filed by respondents no.1 and 2, therefore, deserves to be
\ndismissed and the same is accordingly dismissed as not
\nmaintainable.\n<\/p>\n
8.           As regards the merits of the appeal, there was no
\nchallenge to the finding that the appellant sustained injuries in the
\nmotor accident due to rash and negligent driving of minibus no.
\nMP-20H-2408 by respondent no.2. There was also no dispute at
\nbar that the offending vehicle belonged to respondent no.1 and was
\ninsured with respondent no.3.\n<\/p>\n
9.           Learned counsel for the appellant, however, submitted
\nthat the tribunal failed to consider the bulk of oral and documentary
\nevidence that appellant sustained grievous injuries in his both the
\nlegs and had to undergo surgery, remained hospitalized for number
\nof times and was disabled permanently on account of injuries, yet
\nthe tribunal awarded a meagre sum as compensation to the
\nappellant.\n<\/p>\n
10.          Learned counsel for respondents, on the other hand,
\nsupported the sum awarded by the tribunal and submitted that there
\nwas no authentic evidence that appellant sustained any grievous
\ninjury or any permanent disablement due to injuries in the motor
\naccident.\n<\/p>\n
11.          Perused the evidence on record.         There was no
\nevidence of the doctor to the effect that appellant\/claimant sustained
\nany fracture or permanent disablement on account of injuries
\nsustained by him in the motor accident. None of the doctors, who
\nissued the disability certificate filed on record, was examined in the
\n                                    4<\/span><\/p>\n
case. The Apex Court in the case of Rajesh Kumar alias Raju Vs.
\nYaduvir Singh and another reported in AIR 2008 Supreme Court
\npage 2396 observed that unless the author of the certificate
\nexamined himself, it is not admissible in evidence. Thus, the
\ndisability certificate filed on record, which was neither proved, nor
\nexhibited, could not be acted upon to hold that the appellant
\nsustained any permanent disablement. There was also no X-ray
\nreport of the appellant to indicate that he sustained any fracture in
\nthe accident.\n<\/p>\n
12.             The certified copy of MLC report (Ex.P-3) of the
\nappellant, however, indicated that the appellant\/claimant had
\nsustained injuries in his right leg and he was also referred to
\nMedical College, Jabalpur for further treatment. There was also oral
\nevidence of father and uncle of the appellant, namely, Abdul Shafiq
\n(A.W.-3) and Abdul Aziz (A.W.-2) to the effect that appellant
\nsustained injuries in his both the legs and he was treated in various
\nhospitals. The tribunal, however, discarded the discharge tickets
\n(Ex.P-5 to P-7) of Victoria Hospital, Jabalpur on the ground that
\nfather of appellant\/claimant, namely, Abdul Shafiq never stated in
\nhis evidence that his son was treated in Victoria Hospital, Jabalpur
\nand the gender of the patient in discharge tickets (Ex.P-5 and P-6)
\nwas shown as female, while        appellant, Abdul Nafis was a boy.
\nThe tribunal also held that discharge tickets pertained to
\nyears 1998 and 1999, while the accident in question occurred on
\n4.2.97, and were thus not acceptable.\n<\/p>\n
13.             No doubt, the age and gender mentioned in the various
\ncolumns of discharge tickets (Ex.P-5 and P-6), as submitted, were
\nnot correctly written and there was also some overwriting in these
\ndocuments, but there was nothing wrong with the discharge ticket
\n(Ex.P-7) filed on behalf of the appellant.      There was also oral
\nevidence of the uncle of the appellant, namely, Abdul Aziz (A.W-2),
\nthat appellant was also treated in Victoria Hospital, Jabalpur,
\nbesides other hospitals and he also remained hospitalized in
\nVictoria Hospital. There was also no cross-examination on the point
\nthat the discharge tickets, particularly Ex.P-7 did not relate to the
\ntreatment of the appellant, so it could not be brushed aside.\n<\/p>\n
                                   5<\/span><\/p>\n
The discharge ticket (Ex.P-7) reveals that appellant Abdul Nafis
\nremained hospitalized at Victoria Hospital, Jabalpur from 9.2.98 to
\n27.2.98 for treatment of contracture of his right knee. Thus, the
\ndischarge ticket (Ex.P-7) indicates that the problem in the right knee
\nof the appellant continued even in the year 1998, for which he
\nremained hospitalized for more than fifteen days. Thus, it is evident
\nthat the injuries sustained by the appellant were not minor, but it
\nlasted long and required treatment for a long period. In the aforesaid
\ncircumstances, the amount of Rs.5,000\/- for physical injury and
\nmental pain and suffering of the appellant, as awarded by the
\ntribunal, was apparently inadequate.    Although, no cash memo or
\nmedical bills etc. were filed to prove medical expenses, but evidently
\nclaimant\/appellant was a resident of Gotegaon and he had to take
\ntreatment at Jabalpur, remained in the hospital for several days.
\nObviously, he would have spent good amount in staying in another
\ncity, as well as incurred other incidental expenses like conveyance
\ncharges, attendant charges, special diet etc. The tribunal, however,
\ndid not award any compensation under other heads like special diet
\nand attendant charges etc.       The amount of compensation, as
\nawarded by the tribunal, therefore, deserves to be enhanced by a
\nlump sum of Rs.10,000\/- in the facts and circumstances of the case.
\nThe amount of compensation awarded to the appellant is, thus
\nraised by a further sum of Rs.10,000\/- (Ten thousand rupees) only.\n<\/p>\n
14.          As regards the liability of insurance company to pay
\nthe compensation, learned counsel for respondent no.3\/Insurance
\nCo. submitted that when the tribunal exonerated the insurance
\ncompany on the ground of breach of terms and conditions of
\ninsurance policy and the cross-objection filed by respondents no.1
\nand 2 is not tenable, the question of liability of insurance company
\nto pay compensation no longer remains open for challenge.
\nHowever, the submission of learned counsel for respondent no.3
\nhas no force. When the question of liability of insurance company to
\npay the compensation was urged as a ground of appeal, it can well
\nbe examined in this appeal.\n<\/p>\n
15.          The tribunal has exonerated the insurance company
\nfrom its liability to make payment of compensation on the ground
\n                                     6<\/span><\/p>\n
that the driver of the offending vehicle was having a licence to drive
\nlight motor vehicle, heavy goods vehicle, while the offending vehicle
\nwas admittedly a heavy passenger vehicle, so, he was not
\nauthorized to drive the same.\n<\/p>\n
16.          A careful perusal of the copy of licence (Ex.D-1) filed
\nand proved by driver\/respondent no.2 Revaram (NA.W-1) with the
\noriginal licence, indicates that licence (Ex.D-1) was initially issued to
\nrespondent no.2 Revaram, for driving transport vehicle and it was
\nrenewed from time to time after every three years, as required by
\nSection 14 (2)(a) of the Act, it also remained in force and effective
\neven at the time of accident in question. The offending vehicle was
\nindisputably a school bus of Saraswati Shishu Mandir belonging to
\nrespondent no.1 bearing registration no.MP-20H-2408.             As per
\ndefinition of transport vehicle, as given in Section 2(47), an
\n‘education institution’ bus is also included in the definition of
\n‘transport vehicle’. Thus it could hardly be said that respondent no.2
\nwas not authorized to drive the school minibus no.MP-20H-2408
\nvide licence (Ex.D-1).\n<\/p>\n
17.          Learned      counsel       for   respondent   no.3\/Oriental
\nInsurance Co., however, submitted that the endorsement made in
\nlicence (Ex.D-1) indicated that respondent no.2 was granted licence
\nto drive light motor vehicle, medium goods vehicle and heavy goods
\nvehicle, and he was not authorized to drive heavy passenger
\nvehicle; as such respondent no.2 was not authorized and had no
\nvalid driving licence to drive the offending vehicle. Reliance was
\nplaced in this behalf on the decision of the Apex Court rendered in
\nthe case of National Insurance Co. Ltd. Vs. Kusum Rai and
\nothers reported in AIR 2006 Supreme Court page 3440 (1),
\nwherein the driver of the vehicle was holding a licence to drive light
\nmotor vehicle and not possessing a licence to drive commercial
\nvehicle, while the offending vehicle was being used as a taxi, it was
\nheld that there was a breach of terms and conditions of the policy.
\nThe facts of the instant case are, however, distinct and different.
\nIn the instant case, even no such plea was specifically taken or
\nproved by the insurance company that the offending vehicle was a
\nheavy passenger vehicle.\n<\/p>\n
                                     7<\/span><\/p>\n
18.          Needless to point out that “heavy passenger vehicle” is
\ndefined in Motor Vehicle Act under Section 2(17) of the Act, which
\nincludes an education institution bus or a minibus, the unladen
\nweight of which exceeds 12,000 kg. However, there was no such
\nevidence on record to indicate that the unladen weight of the
\noffending vehicle, i.e. education institution bus exceeded 12,000 kg.
\nThe mere admission by the driver in his cross-examination that the
\nschool bus was a heavy passenger vehicle             per se could not be
\nheld to be such in absence of documentary evidence in this behalf.
\nMoreover, respondent no.2 was admittedly authorized to drive a
\nheavy goods vehicle by means of licence (Ex.D-1); it could,
\ntherefore, hardly be presumed that he was not able to drive a heavy
\npassenger vehicle, if the offending vehicle, for the sake of argument,
\nis considered to be one, so as to contribute to the cause of accident.\n<\/p>\n
19.          The Apex Court in its three Judges’ Bench decision
\nrendered in the case of National Insurance Co. Ltd. Vs. Swaran
\nSingh & others reported in AIR 2004 Supreme Court page
\n1531(1) has held that in each case a decision has to be taken,
\nwhether the fact of the driver possessing licence for one type of
\nvehicle, but found driving another type of vehicle, was the main or
\ncontributory cause of accident, and if cause of accident had no
\nnexus with the driver not possessing the requisite type of licence,
\nthe insurer will not be allowed to avoid its liability merely for
\ntechnical breach of condition concerning driving licence. It would be
\nprofitable to reproduce the following observation made by their
\nLordships in the case of Swaran Singh (supra) in this behalf:-\n<\/p>\n
                 “Section 10 of the Act provides for forms and
\n            contents of licences to drive. The licence has to be
\n            granted in the prescribed form. Thus, a licence to
\n            drive a light motor vehicle would entitle the holder
\n            there to drive the vehicle falling within that class or
\n            description.\n<\/p><\/blockquote>\n
                  Section 3 of the Act casts an obligation on a
\n            driver to hold an effective driving licence for the type
\n            of vehicle which he intends to drive. Section 10 of
\n            the Act enables Central Government to prescribe
\n            forms of driving licences for various categories of
\n            vehicles mentioned in sub-section (2) of said
\n            section. The various types of vehicles described for
\n            which a driver may obtain a licence for one or more
\n            of them are: (a) Motorcycle without gear, (b)
\n            motorcycle with gear, (c) invalid carriage, (d) light
\n            motor vehicle, (e) transport vehicle, (f) road roller
\n                                     8<\/span><\/p>\n
            and (g) motor vehicle of other specified description.
\n            The definition clause in Section 2 of the Act defines
\n            various categories of vehicles which are covered in
\n            broad types mentioned in sub- section (2) of Section\n<\/p><\/blockquote>\n
            10. They are `goods carriage’, `heavy-goods
\n            vehicle’, `heavy passenger motor-vehicle’, `invalid
\n            carriage’, `light motor-vehicle’, `maxi-cab’,`medium
\n            goods vehicle’, `medium passenger motor-vehicle’,
\n            `motor-cab’, `motorcycle’, `omnibus’, `private service
\n            vehicle’, `semi-trailer’, `tourist vehicle’, `tractor’,
\n            `trailer’, and `transport vehicle’. In claims for
\n            compensation for accidents, various kinds of
\n            breaches with regard to the conditions of driving
\n            licences arise for consideration before the Tribunal.
\n            A person possessing a driving licence for
\n            `motorcycle without gear’, for which he has no
\n            licence. Cases may also arise where a holder of
\n            driving licence for `light motor vehicle’ is found to be
\n            driving a `maxi-cab’, `motor-cab’ or `omnibus’ for
\n            which he has no licence. In each case on evidence
\n            led before the tribunal, a decision has to be taken
\n            whether the fact of the driver possessing licence for
\n            one type of vehicle, but found driving another type
\n            of vehicle, was the main or contributory cause of
\n            accident. If on facts, it is found that accident was
\n            caused solely because of some other unforeseen or
\n            intervening causes like mechanical failures and
\n            similar other causes having no nexus with driver not
\n            possessing requisite type of licence, the insurer will
\n            not be allowed to avoid its liability merely for
\n            technical breach of conditions concerning driving
\n            licence.<\/p><\/blockquote>\n
             The Apex Court in the aforesaid case further held as
\nunder :-\n<\/p>\n
                “Even where the insurer is able to prove breach
\n            on the part of the insured concerning the policy
\n            condition regarding holding of a valid licence by the
\n            driver or his qualification to drive during the relevant
\n            period, the insurer would not be allowed to avoid its
\n            liability towards insured unless the said breach or
\n            breaches on the condition of driving licence is\/are
\n            so fundamental as are found to have contributed to
\n            the cause of the accident. The Tribunals in
\n            interpreting the policy conditions would apply “the
\n            rule of main purpose” and the concept of
\n            “fundamental breach” to allow defences available to
\n            the insured under section 149(2) of the Act.”\n<\/p><\/blockquote>\n
20.          In the instant case, as said hereinabove, respondent
\nno.2\/the driver of the offending vehicle was admittedly having
\nlicence to drive heavy goods vehicle vide (Ex.D-1), and in absence
\nof any such evidence it could not be assumed that he was not able
\nto drive the minibus, said to be a passenger vehicle, in an efficient
\n                                       9<\/span><\/p>\n
manner so as to have contributed to the cause of accident in
\nquestion Thus, in view of the law laid down in the case of Swaran
\nSingh (Supra), in the instant case, insurer could not be allowed to
\navoid its liability merely for technical breach of condition concerning
\ndriving licence.\n<\/p>\n
21.          In    view   of   foregoing       discussion,   respondent
\nno.3\/Oriental Insurance Co. is held liable to pay the compensation
\nto the appellant. The negative finding recorded by the tribunal in
\nthis behalf is hereby set aside.\n<\/p>\n
22.          In the result, the appeal is partly allowed.          The
\ncompensation awarded to the appellant by the tribunal is enhanced
\nby a further sum of Rs.10,000\/- (Ten Thousand rupees) only, which
\nshall be payable by respondent no.3\/Oriental Insurance Co. to the
\nappellant within two months from today, failing which the enhanced
\namount shall carry interest @ 6% per annum from the date of filing
\nof claim petition till realization.       The amount of compensation
\nawarded to the appellant by the tribunal shall also be payable by
\nInsurance Co.\/respondent no.3.\n<\/p>\n
             Appeal stands allowed to the aforesaid extent.         No
\ncosts.\n<\/p>\n
                               (SMT. SUSHMA SHRIVASTAVA)
\n                                         JUDGE
\n                                        14.10.2010\n <\/p>\n","protected":false},"excerpt":{"rendered":"
Madhya Pradesh High Court Abdul Nafis [Minor] vs Adarsh Shiksha Samiti & Ors on 14 October, 2010 1 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 […]<\/p>\n","protected":false},"author":1,"featured_media":0,"comment_status":"open","ping_status":"open","sticky":false,"template":"","format":"standard","meta":{"_lmt_disableupdate":"","_lmt_disable":"","_jetpack_memberships_contains_paid_content":false,"footnotes":""},"categories":[8,24],"tags":[],"class_list":["post-198617","post","type-post","status-publish","format-standard","hentry","category-high-court","category-madhya-pradesh-high-court"],"yoast_head":"\nAbdul Nafis [Minor] vs Adarsh Shiksha Samiti & Ors on 14 October, 2010 - Free Judgements of Supreme Court & High Court | Legal India<\/title>\n<meta name=\"robots\" content=\"index, follow, max-snippet:-1, max-image-preview:large, max-video-preview:-1\" \/>\n<link rel=\"canonical\" href=\"https:\/\/www.legalindia.com\/judgments\/abdul-nafis-minor-vs-adarsh-shiksha-samiti-ors-on-14-october-2010\" \/>\n<meta property=\"og:locale\" content=\"en_US\" \/>\n<meta property=\"og:type\" content=\"article\" \/>\n<meta property=\"og:title\" content=\"Abdul Nafis [Minor] vs Adarsh Shiksha Samiti & Ors on 14 October, 2010 - 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