Pre-emptory compensation award u/s 92A of Motor Vehicles Act

There is a proviso added to this section by amendment of 1982 and it says that where such application makes a claim for compensation u/s 92A in respect of the death or permanent disablement of any person, such claim and any other claim (whether made in such application or otherwise) for compensation in respect of such death or permanent disablement shall be disposed of in accordance with the provisions of Chapter VII-A.

Thus it is clear from this legislation that a separate application u/s 92A can be filed and a separate claim u/s 110A can also be filed by the claimants. As mentioned above, to give expeditious relief Section 92A has been enacted and according to this section on a principle of no fault, a compensation is to be granted to the claimant as first mentioned compensation. The point is that u/s 92A only the owner is liable to make this compensation or the Insurer is also liable. If the vehicle is insured and the Insurer is liable to the extent to which the vehicle is insured. So the Insurance Company can also be saddled with the liability u/s 92A of the Act keeping in view the provisions of Section 96 which says that it is the duty of the insurers to satisfy demands against persons insured.

This matter has also been examined in the case of Mahaveer Prasad v. Manmohan (1986) 2 JS 521. This is the decision of our High Court where the question was whether the Insurance Company can be made liable for payment of the interim compensation u/s 92A. In this case it has been observed as under : —

“Having regard to the provisions contained in Sections 92A, 95, 96 and 110B, the insurance company is liable for specifying the compensation claimed, arising from the accident by the insured vehicles in accordance with the terms of Section 95. In this view of the matter, to the extent of the policy, which covers the risk without enquiry as to whether the amount awarded is u/s 92A of the Act or is otherwise, the insurance company is liable to pay the amount awarded. The Tribunal was not right in holding that in terms of Section 92A of the Act, the owner is only liable.

The case of Oriental Fire and General Insurance Co. Ltd. Goa Vs. Aleixo Fernandes and others, is also with regard to this very aspect and where a claim is u/s 92A it has been held that the Insurer is liable to pay pre-emptory compensation award u/s 92A.

 Thus the intention of the legislation at the time of amending the Motor Vehicles Act in the year 1982 is clear that interim relief is to be given to the claimant u/s 92A and this can be awarded against the owner as well as the Insurance Company. In the present case the owner has raised an objection before the Tribunal that Insurance Company is necessary party and it should be impleaded as party. At that time the claimant should have requested the Court to implead the Insurance Company as party in the claim and after hearing it the Tribunal should have decided the matter. When it was brought to the notice of the Tribunal that in a claim u/s 92A the Insurer is also liable to make pre-emptory compensation it was incumbent on the Tribunal to implead the Insurance Company as party. The claimant have also not requested the Court to make the Insurer party in this claim. So without calling a party no order could be passed. The Tribunal had passed Award only against Mohanlal, the appellant who is the owner of the vehicle. The Insurance Company, respondent 1 has not been made party and no award has been passed against it. In the appeal notice has been issued to respondent 1, Insurance Company and their objection that unless the Company is party in the claim before the Tribunal, no appeal lies against it and the appeal is not maintainable. This objection raised by Shri Bhansali has force and I agree with him. When respondent 1, the Insurance Company, was not made party in the original claim u/s 92A of the Act, when no award has been passed against it, no appeal lies against the Company. But as Section 92A makes liable the Insurer also, so in the interest of justice I feel that the order of the Tribunal be set aside and the matter be remanded back to the Tribunal after making the National Insurance Company as party to the claim and after giving opportunity to the Insurance Company to decide the claim afresh. As there is objection raised by the owner before the Tribunal the claimant should move an application before the Tribunal to implead National Insurance Company as party to the claim and after giving notice to the Company the matter be decided afresh.

Consortium- SC explained the meaning and held Motor Vehicles Act is a beneficial welfare legislation

September 18, 2018: While granting  Compensation in Motor vehicle accident case of death  Supreme Court Held: The Motor Vehicles Act is a beneficial legislation aimed at providing relief to the victims or their families, in cases of genuine claims.

In legal parlance, “consortium” is a compendious term which encompasses ‘spousal consortium’, ‘parental consortium’, and ‘filial consortium’.
The right to consortium would include the company, care, help, comfort, guidance, solace and affection of the deceased, which is a loss to his family. With respect to a spouse, it would include sexual relations with the deceased spouse. Continue reading

Shivaraj Vs. Rajendra & ANR [ALL SC 2018 SEPTEMBER]

September 05, 2018: MOTOR INSURANCE-Permanent disability should be reckoned as 67% to the whole body. However, after going through the evidence of the doctor who had treated the appellant and the medical records, we find that the assessment made by the tribunal about the extent of permanent disability at 60% to the whole body seems to be a possible view. We are not inclined to disturb the said finding and also because it has been justly affirmed by the High Court, being concurrent finding of fact. Accordingly, the claim of the appellant for enhancement of compensation amount does not merit interference-APPEAL NOT ALLOWED. Continue reading

Whether owner of vehicle would get benefit of insurance if meet with accidental death while driving illegally

Supreme Court in Oriental Insurance Co. Ltd. v. Jhuma Saha (Smt) and Ors. (2007) 9 SCC 263, was considering a similar case where the owner himself was driving the vehicle which due to his negligence dashed with a tree on the roadside as a result of which he died. The Court held that the claim petition filed by his LRs was not maintainable. It was held thus:- Continue reading

Mangla Ram Vs. The Oriental Insurance Company Ltd. & Ors.[ALL SC 2018 APRIL]

KEYWORDS:-  Motor Accident Claim -Distinction between no-fault liability strict liability-

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DATE:- April 06, 2018

ACT:-  Section 166 of Motor Vehicles Act

Mangla Ram Vs. The Oriental Insurance Company Ltd. & Ors.

[Civil Appeal Nos.24992500 of 2018 arising out of SLP (Civil) Nos.2814142 of 2017]

A.M. Khanwilkar, J.

1. In the present appeals, the appellant/claimant has challenged the judgment dated 5th January, 2017 passed by the High Court of Judicature for Rajasthan, Jodhpur Bench, in SB Civil Miscellaneous Appeal Nos.273 of 2001 and 290 of 2001, which set aside the award of the Motor Accident Claims Tribunal [‘the Tribunal’] granting compensation to the appellant at the instance of respondent Nos.2 and 3 (driver and owner of the offending vehicle, respectively) as also negatived the appellant’s prayer for enhancement of the compensation amount.

2. The appellant alleges that on or about 10th February, 1990, while he was riding his motorcycle, bearing No. RJ196636, he was hit by jeep No. RST4701, owned by respondent No.3 and purportedly being driven by respondent No.2 at the time, resulting in serious injuries and ultimately, amputation of his right leg above the knee. The appellant subsequently filed an application before the Tribunal, Jodhpur, seeking compensation against the respondents, including the respondent No.1 insurance company.

He claimed 40% permanent disability and 100% functional disability, contending that his primary livelihood of driving heavy transport vehicles (HTVs) had been curtailed on account of his amputation, and sought compensation to the tune of Rs. 11,17,000/. Respondent Nos.2 and 3 denied the accident and the involvement of the jeep in question. The respondent No.1 insurance company argued that the cover note purportedly taken for the jeep in question was fraudulent. The cover note had been given unauthorisedly by its then Development Officer, no 3 premium had been deposited with the company and no policy had been issued in that regard. Thus, the jeep was not validly insured.

3. In its judgment dated 22nd November, 2000, the Tribunal discussed the evidence on record in detail. PW2 (Chainaram) and PW4 (Thanaram), who had taken the appellant to the hospital after the accident, deposed that after the accident, the jeep which caused the accident stopped ahead and they noted the jeep number in the backlight and further, they heard the driver’s name being called out by the passengers in the jeep. The Tribunal, however, found that their version of having noted the jeep number and heard the driver’s name seemed to be unnatural.

The Tribunal also discarded the version of the appellant (PW1) about the details of the vehicle as being not reliable. The Tribunal then noted the evidence of the defence witnesses, that the jeep in question was nowhere near the area of the accident. The Tribunal, however, opined that the accident had been caused by the jeep in question, based on the investigation report filed by the police mentioning that when they seized the jeep after one month of the accident, the jeep bore a scratch on the mudguard of the tyre on the upper footboard on the left side.

The Tribunal also relied on the charge sheet (Exh.1) filed by the police, wherein it has been stated that the accident was caused by the jeep in question on the basis of statements made by the appellant and other witnesses (Roopram, Thanaram and Pratap Singh). The Tribunal held that there was no reason to disagree with the conclusion of the police. In short, the Tribunal disbelieved the evidence of the appellant’s witnesses, regarding the commission of accident by the jeep in question, as unreliable but nevertheless relied upon the investigation report as also the charge sheet filed by the police in that regard which was supported by two other witnesses who did not depose before the Tribunal.

4. The Tribunal then referred to the site map of the accident (Exh.2), to conclude that the appellant was riding his motorcycle one foot on wrong side from the middle of the road and hence, had contributed to the accident by being negligent. The Tribunal also accepted the plea of the respondent No.1 insurance company that the cover note as regard the offending jeep was fraudulent. The Tribunal accepted the evidence of witness DW4, the branch manager of the respondent No.1 insurance company, that the company did not receive any premium under the relevant cover note and had not issued any insurance policy in that regard. DW 4 had deposed that the cover note was not deposited with the company.

Further, the concerned development officer, whose signature was on the cover note, had been removed from the respondent No.1 insurance company but had in his possession certain cover notes, including the relevant cover note. DW 4 stated that no insurance policy was issued on the basis of the said cover note. The Tribunal then found that it was possible that the Development Officer had backdated the cover note and had not deposited the money for issuing a policy with the company. The Tribunal thus held that the vehicle was not insured by the company and, therefore, the company was not liable.

5. Based on the aforesaid observations, the Tribunal took into account the injuries caused to the appellant and calculated compensation of Rs. 1,27,000/but, owing to the purported negligence of the appellant, reduced the amount by half and finally awarded a sum of Rs. 63,500/to the appellant payable by the respondent Nos. 2 and 3 jointly.

6. The appellant filed an appeal (SB Civil Misc. Appeal No.273 of 2001) for enhancement whereas respondent Nos. 2 and 3 (driver and owner of the jeep, respectively) challenged the Tribunal’s award (by way of SB Civil Misc. Appeal No.290 of 2001), before the High Court of Rajasthan, Jodhpur Bench. In its judgment dated 5th January, 2017, the High Court concluded that the Tribunal’s findings were incorrect, unconvincing and not supported by evidence. Further, the Tribunal’s reasoning, that it did not believe the oral evidence of the parties but had nevertheless answered the issue in favour of the claimant solely on the basis of the police report, on the ground that there was no reason not to believe the conclusion arrived at by the police, was flawed and incorrect.

The High Court noted that the Tribunal was not convinced about the involvement of the vehicle, despite which it held that involvement was proved. Furthermore, no finding regarding negligence of the driver of the jeep had been recorded by the Tribunal rather it found that the appellant was negligent while riding his motorcycle. The High Court took the view that mere filing of a chargesheet, without any finding of conviction, was insufficient to prove negligence by respondent Nos. 2 and 3.

Additionally, the High Court also held that the statement of the appellant, wherein he claimed that the bumper of the jeep had hit the rear of his motorcycle, was contradicted by the investigation report of the jeep which recorded that it did not bear out that the jeep had been involved in an accident. The High Court, therefore, was pleased to set aside the Tribunal’s award and allowed the appeal filed by the driver and owner of the jeep (respondent Nos. 2 and 3 respectively) while dismissing the appeal filed by the appellant.

7. We have heard Mr. Rishabh Sancheti, learned counsel appearing for the appellant. He contends that the evidence on record clearly indicates that the accident was caused due to the rash and negligent driving of Jeep No. RST4701 by respondent No.2, which fact has been established by the eyewitnesses. The respondent No.2 failed to adduce any cogent evidence in his defence. He also contends that the vehicle in question was seized by the police but there was a strong possibility that it had been repaired in the interregnum creating a discrepancy between the accounts of the witnesses who were present at the time of the accident and the actual condition of the vehicle at the time of seizure.
Further, the Tribunal’s reliance on the site map to infer that the appellant was riding his motorcycle on the wrong side of the road is erroneous as the site map merely reflected the position of the motorcycle after the accident and not at the time of the accident. The High Court, contends the learned counsel, erroneously decided the matter on the principle of ‘beyond reasonable doubt’ whereas proceedings under the Motor Vehicles Act were required to be decided on the basis of preponderance of probabilities and thus, the degree of proof required was much less.

Additionally, the proceedings under the Motor Vehicles Act were not adversarial and in that regard, the evidence on record was sufficient to reach at the conclusion that respondent No.2’s negligence led to the accident and that the appellant was entitled to full compensation. Finally, the appellant suffered 40% permanent disability and 100% functional disability and on that basis, the Tribunal erred by not granting higher compensation to the appellant. He also contends that the courts below erred in absolving the respondent No.1 insurance company from its liability. The following cases were cited by the learned counsel in support of the submissions: Kaushnuma Begum & Ors. vs. The New India Assurance Co. Ltd. and Ors.1, Dulcina Fernandes and Ors. vs. Joaquim Xavier Cruz and Anr.2, Bimla Devi and Ors. vs. Himachal Road Transport Corporation and Ors.3, Ravi Kapur v State of Rajasthan4, National Insurance Co. Ltd. v Pranay Sethi & Ors.5, Kishan Gopal & Anr. v Lala & Ors.6, Harbans Lal v Harvinder Pal7, New India Assurance Co. Ltd. v Pazhaniammal & Ors.8, United India Insurance Co. Ltd. v Deepak Goel9, Manisha v Umakant Marotrao Kolhe10 and Mahawati Devi v Branch Manager11.

8. We have also heard Ms. Aishwarya Bhati, learned counsel for respondent Nos.2 and 3 [in SLP (Civil) No. 28141 of 2017 and respondent Nos.1 and 2 in SLP (Civil) No.28142 of 2017] the driver and owner, respectively, of the offending jeep and Mr. K.K. Bhat, learned counsel appearing for respondent No.1 Insurance Company. They contend that the appellant did not have a valid driving licence at the time of the accident and was negligently driving on the wrong side of the road. Even the driving licence produced by the appellant was for a different class of vehicles and not for a motorcycle, which he was riding at the time of the accident.

Further, the Tribunal sans examination of the witnesses whose statement were recorded by the police in furtherance of the FIR filed in relation to the subject accident could not have based its conclusion merely due to filing of a charge sheet in that regard and without any information as to any conviction. Mere filing of the charge sheet by the police is not enough. That is not a legal evidence, much less sufficient to record a finding of fact that either that the jeep in question was involved in the accident or that respondent No.2 was negligently driving the said vehicle. The High 11 Court has also categorically opined that no finding on the factum of negligence on the part of respondent No.2 driver of the jeep has been recorded by the Tribunal; and that the selfsame police report indicates that the jeep was not involved in the accident in question.

9. On the issue of whether the jeep was validly insured, Ms. Bhati contends that the respondent No.3 owner took insurance for the jeep and even paid premium for the same and hence, any objection taken by the respondent No.3 insurance company that such insurance was fraudulently obtained, is untenable. Reliance is placed on the decision in New India Assurance Co. Ltd. Vs. Rula & Ors12, to buttress this submission. Mr. Bhat, however, argues that the jeep was not insured and that the official of the company who had issued the cover note had fraudulently issued the same. It is possible that the said official had backdated certain cover notes, for which he had been expelled from the company. The evidence in that regard is conclusive and there is a finding by the Tribunal on that count. Mr. Bhat relies upon the decisions in Oriental Insurance Co. Ltd. v Meena Variyal13, Minu B Mehta & Anr. v Balakrishna Ramachandra Nayan & Anr.14 and Surender Kumar Arora & Anr. v Dr. Manoj Bisla & Ors.15.

10. The moot question which arises for our consideration in these appeals is about the justness of the decision of the High Court in reversing the finding of fact recorded by the Tribunal on the factum of involvement of Jeep No.RST4701 in the accident occurred on 10th February, 1990 at about 8.008.30 P.M. and also on the factum of negligence of the driver of the jeep causing the accident in question.

On the first aspect, the High Court has noted that the Tribunal having discarded the oral evidence adduced by the appellant (claimant) could not have based its finding merely on the basis of the FIR and the chargesheet filed against the driver of the offending vehicle and also because the mechanical investigation report (Exh.5) merely indicated that on the left side of the offending vehicle a scratch mark was noticed on the mudguard of the left tyre which contradicted the statement of the claimant and the Police Investigation Report much less showing involvement of the vehicle in the accident. As regards the second aspect on the factum of negligence, the High Court noted that the Tribunal did not record any finding about the negligence of the driver of the jeep and the site map (Exh. 2) would indicate that the appellant/claimant himself was negligent in driving the motorcycle in the middle of the road.

11. As the judgment of the High Court has been assailed in the appeal filed by the appellant (claimant) for enhancement of compensation, including the finding of the Tribunal in discarding the evidence of PW1, PW2 and PW4 on the factum of involvement of the offending vehicle in the accident and also on the factum of the said vehicle being driven rashly and negligently by the driver (respondent No.2), we have been called upon to examine even the correctness of the approach of the Tribunal. We are conscious of the fact that in an appeal under Article 136 of the Constitution, ordinarily this Court will not engage itself in reappreciation of the evidence as such but can certainly examine the evidence on record to consider the challenge to 14 the findings recorded by Tribunal or the High Court, being perverse or replete with error apparent on the face of the record and being manifestly wrong.

12. From the evidence which has come on record, the finding recorded by the Tribunal that the appellant while riding his motorcycle on 10th February, 1990 between 8.00 P.M. and 8.30 P.M., met with an accident when a jeep being driven rashly and negligently, struck his motorcycle resulting in falling down and suffering severe injuries on his right leg, which was required to be amputated from above the knee level at MGH Hospital, seems to us to be a possible view. That position is established from the oral evidence of PWs1, 2 and 4 and the charge sheet and its accompanying documents filed by the police. Even the High Court has broadly agreed with this finding recorded by the Tribunal.

13. The debatable issue is about the factum of involvement of Jeep No.RST4701 allegedly driven by respondent No.2 and whether it was driven rashly and negligently as a result of which the accident occurred.

14. Indeed, the Tribunal did not accept the version of PW1, PW2 and PW4 about the involvement of Jeep No.RST4701, but has not discarded their version in toto. The evidence of these witnesses to the extent they have consistently stated that when the appellant was riding on his motorcycle bearing No.RJ 196636 at the relevant time, going to Basni from Panwara Phanta and when he reached near Siviya Nada, a green jeep coming at a high speed from Salawas side, hit the motorcycle from back side, as a result of which the appellant fell down and suffered severe injuries including to his right leg which was eventually amputated from above the knee level, has not been doubted.
Pertinently, besides mentioning the description of the offending vehicle as a “jeep” they have also spoken about its colour (green) and that it was displaying the Congress Party flags and banners on the side of the jeep. In other words, their version limited to having noted the jeep number, has not been accepted. Besides, the Tribunal relied upon the evidence of respondent No.2 Chail Singh (DW1) and Bhanwar Singh (DW2) who had stated that the jeep was deployed in the election campaign of Sarpanch of Somdar 16 Village on the Salawas Road and thus denied the involvement of the vehicle in the accident in question. Nevertheless, the Tribunal then adverted to the FIR and the chargesheet filed in respect of the accident naming respondent No.2 as accused.

The Tribunal placed reliance upon the copy of challan (Exh.1), copy of FIR (Exh.32), Site Map (Exhs.3 & 4), Jeep Seizure Report (Exh.5), XRay (Exh.6) and Injury Report (Exh.7), to opine that these police records gathered during the investigation of the crime not only confirmed that an accident had occurred but also indicated the involvement of the offending Jeep No.RST4701, which was driven by respondent No.2 at the relevant time. The Tribunal went on to conclude that there was no reason to disagree with the opinion of the Investigating Agency in that behalf. The chargesheet was accompanied by the statements of the appellant and the witnesses Rooparam, Thanaram and Pratap Singh. On the basis of the entirety of the evidence, the Tribunal had held that Jeep No.RST4701 which was driven by respondent No.2 at the relevant time was involved in the accident in question, causing severe injuries to the appellant.

15. The High Court, however, reversed this finding of fact rendered by the Tribunal essentially on two counts: First, that the Tribunal having discarded the oral evidence about the involvement of Jeep No.RST4701 in the accident in question, allegedly driven by respondent No.2, could not and ought not to have recorded the finding on the relevant issue against respondent Nos.2 & 3 merely by relying on the documents forming part of the police charge sheet. Second, the jeep seizure report (Exh. 5) indicated that only a scratch on the mudguard of the left tyre of the vehicle was noticed, which contradicted the claim of the appellant about the involvement of the vehicle.

16. The question is: whether this approach of the High Court can be sustained in law? While dealing with a similar situation, this Court in Bimla Devi (supra) noted the defence of the driver and conductor of the bus which inter alia was to cast a doubt on the police record indicating that the person standing at the rear side of the bus, suffered head injury when the bus was being reversed without blowing any horn. This Court observed that while dealing with the claim petition in terms of Section 166 of the Motor Vehicles Act, 1988, the Tribunal stricto sensu is not bound by the pleadings of the parties, its function is to determine the amount of fair compensation. In paragraphs 1115, the Court observed thus:

“11. While dealing with a claim petition in terms of Section 166 of the Motor Vehicles Act, 1988, a tribunal stricto sensu is not bound by the pleadings of the parties; its function being to determine the amount of fair compensation in the event an accident has taken place by reason of negligence of that driver of a motor vehicle. It is true that occurrence of an accident having regard to the provisions contained in Section 166 of the Act is a sine qua non for entertaining a claim petition but that would not mean that despite evidence to the effect that death of the claimant’s predecessor had taken place by reason of an accident caused by a motor vehicle, the same would be ignored only on the basis of a postmortem report visàvis the averments made in a claim petition.

12. The deceased was a constable. Death took place near a police station. The postmortem report clearly suggests that the deceased died of a brain injury. The place of accident is not far from the police station. It is, therefore, difficult to believe the story of the driver of the bus that he slept in the bus and in the morning found a dead body wrapped in a blanket. If the death of the constable had taken place earlier, it is wholly unlikely that his dead body in a small town like Dharampur would remain undetected throughout the night particularly when it was lying at a busstand and near a police station. In such an event, the court can presume that the police officers themselves should have taken possession of the dead body.

13. The learned Tribunal, in our opinion, has rightly proceeded on the basis that apparently there was absolutely no reason to falsely implicate Respondents 2 and 3. The claimant was not at the place of occurrence. She, therefore, might not be aware of the details as to how the accident took place but the fact that the first information report had been lodged in relation to an accident could not have been ignored.

14. Some discrepancies in the evidence of the claimant’s witnesses might have occurred but the core question before the Tribunal and consequently before the High Court was as to whether the bus in question was involved in the accident or not. For the purpose of determining the said issue, the Court was required to apply the principle underlying the burden of proof in terms of the provisions of Section 106 of the Evidence Act, 1872 as to whether a dead body wrapped in a blanket had been found at the spot at such an early hour, which was required to be proved by Respondents 2 and 3.

15. In a situation of this nature, the Tribunal has rightly taken a holistic view of the matter. It was necessary to be borne in mind that strict proof of an accident caused by a particular bus in a particular manner may not be possible to be done by the claimants. The claimants were merely to establish their case on the touchstone of preponderance of probability. The standard of proof beyond reasonable doubt could not have been applied. For the said purpose, the High Court should have taken into consideration the respective stories set forth by both the parties.”

(emphasis supplied)

17. The Court restated the legal position that the claimants were merely to establish their case on the touchstone of preponderance of probability and standard of proof beyond reasonable doubt cannot be applied by the Tribunal while dealing with the motor accident cases. Even in that case, the view taken by the High Court to reverse similar findings, recorded by the Tribunal was set aside. Following the enunciation in Bimla Devi’s case (supra), this Court in Parmeswari (supra) noted that when filing of the complaint was not disputed, the decision of the Tribunal ought not to have been reversed by the High Court on the ground that nobody came from the office of the SSP to prove the complaint. The Court appreciated the testimony of the eyewitnesses in paragraphs 12 & 13 and observed thus:

“12. The other ground on which the High Court dismissed the case was by way of disbelieving the testimony of Umed Singh, PW 1. Such disbelief of the High Court is totally conjectural. Umed Singh is not related to the appellant but as a good citizen, Umed Singh extended his help to the appellant by helping her to reach the doctor’s chamber in order to ensure that an injured woman gets medical treatment. The evidence of Umed Singh cannot be disbelieved just because he did not file a complaint himself. We are constrained to repeat our observation that the total approach of the High Court, unfortunately, was not sensitised enough to appreciate the plight of the victim.

13. The other socalled reason in the High Court’s order was that as the claim petition was filed after four months of the accident, the same is “a device to grab money from the insurance company”. This finding in the absence of any material is certainly perverse. The High Court appears to be not cognizant of the principle that in a road accident claim, the strict principles of proof in a criminal case are not attracted…….”
18. It will be useful to advert to the dictum in N.K.V. Bros. (P) Ltd. Vs. M. Karumai Ammal and Ors.16, wherein it was contended by the vehicle owner that the criminal case in relation to the accident had ended in acquittal and for which reason the claim under the Motor Vehicles Act ought to be rejected. This Court negatived the said argument by observing that the nature of proof required to establish culpable rashness, punishable under the IPC, is more stringent than negligence sufficient under the law of tort to create liability. The observation made in paragraph 3 of the judgment would throw some light as to what should be the approach of the Tribunal in motor accident cases.

The same reads thus:
“3. Road accidents are one of the top killers in our country, specially when truck and bus drivers operate nocturnally. This proverbial recklessness often persuades the courts, as has been observed by us earlier in other cases, to draw an initial presumption in several cases based on the doctrine of res ipsa loquitur. Accidents Tribunals must take special care to see that innocent victims do not suffer and drivers and owners do not escape liability merely because of some doubt here or some obscurity there. Save in plain cases, culpability must be inferred from the circumstances where it is fairly reasonable.
The court should not succumb to niceties, technicalities and mystic maybes. We are emphasizing this aspect because we are often distressed by transport operators getting away with it thanks to judicial laxity, despite the fact that they do not exercise sufficient disciplinary control over the drivers in the matter of careful driving. The heavy economic impact of culpable driving of public transport must bring owner and driver to their responsibility to their neighbour. Indeed, the State must seriously consider nofault liability by legislation. A second aspect which pains us is the inadequacy of the compensation or undue parsimony practised by tribunals.
We must remember that judicial tribunals are State organs and Article 41 of the Constitution lays the jurisprudential foundation for State relief against accidental disablement of citizens. There is no justification for niggardliness in compensation. A third factor which is harrowing is the enormous delay in disposal of accident cases resulting in compensation, even if awarded, being postponed by several years. The States must appoint sufficient number of tribunals and the High Courts should insist upon quick disposals so that the trauma and tragedy already sustained may not be magnified by the injustice of delayed justice. Many States are unjustly indifferent in this regard.”

19. In Dulcina Fernandes (supra), this Court examined similar situation where the evidence of claimant’s eyewitness was discarded by the Tribunal and that the respondent in that case was acquitted in the criminal case concerning the accident. This Court, however, opined that it cannot be overlooked that upon investigation of the case registered against the respondent, prima facie, materials showing negligence were found to put him on trial. The Court restated the settled principle that the evidence of the claimants ought to be examined by the Tribunal on the touchstone of preponderance of probability and certainly the standard of proof beyond reasonable doubt could not have been applied as noted in Bimla Devi (supra). In paragraphs 8 & 9, of the reported decision, the dictum in United India Insurance Co. Ltd. Vs. Shila Datta17, has been adverted to as under:
“8. In United India Insurance Co. Ltd. v. Shila Datta while considering the nature of a claim petition under the Motor Vehicles Act, 1988 a threeJudge Bench of this Court has culled out certain propositions of which Propositions (ii), (v) and (vi) would be relevant to the facts of the present case and, therefore, may be extracted hereinbelow: (SCC p. 518, para 10) ‘

10. (ii) The rules of the pleadings do not strictly apply as the claimant is required to make an application in a form prescribed under the Act. In fact, there is no pleading where the proceedings are suo motu initiated by the Tribunal. * * *
(v) Though the Tribunal adjudicates on a claim and determines the compensation, it does not do so as in an adversarial litigation. …
(vi) The Tribunal is required to follow such summary procedure as it thinks fit. It may choose one or more persons possessing special knowledge of and matters relevant to inquiry, to assist it in holding the enquiry.’
9. The following further observation available in para 10 of the Report would require specific note: (Shila Datta case, SCC p. 519) ’10. … We have referred to the aforesaid provisions to show that an award by the Tribunal cannot be seen as an adversarial adjudication between the litigating parties to a dispute, but a statutory determination of compensation on the occurrence of an accident, after due enquiry, in accordance with the statute.’ ”
In paragraph 10 of the reported decision [Dulcina Fernandes and Ors. (supra)], the Court opined that nonexamination of witness per se cannot be treated as fatal to the claim set up before the Tribunal. In other words, the approach of the Tribunal should be holistic analysis of the entire pleadings and evidence by applying the principles of preponderance of probability.
20. In the above conspectus, the appellant is justified in contending that the High Court committed manifest error in reversing the holistic view of the Tribunal in reference to the statements of witnesses forming part of the chargesheet, FIR, Jeep Seizure Report in particular, to hold that Jeep No.RST4701 driven by respondent No.2 was involved in the accident in question. Indeed, the High Court was impressed by the Mechanical Investigation Report (Exh. 5) which stated that only a scratch mark on the mudguard of the left tyre of the vehicle had been noted. On that basis, it proceeded to observe that the same was in contradiction to the claim of the appellant (claimant), ruling out the possibility of involvement of the vehicle in the accident.
This conclusion is based on surmises and conjectures and also in disregard of the relevant fact that the vehicle was seized by the police after investigation, only after one month from the date of the accident and the possibility of the same having been repaired in the meantime could not be ruled out. In other words, the reasons which weighed with the High Court for reversing the finding of fact recorded by the Tribunal upon holistic analysis of the entire evidence, about the involvement of Jeep No.RST4701 in the accident, cannot be countenanced.
For, those reasons do not affect the other overwhelming circumstances and evidence which has come on record and commended to the Tribunal about the involvement of the subject jeep in the accident in question. This being the main edifice, for which the High Court allowed the appeal preferred by respondent Nos.2 & 3, it must necessarily follow that the finding of fact recorded by the Tribunal on the factum of involvement of Jeep No. RST4701 in the accident in question will have to be restored for reasons noted hitherto.

21. Another reason which weighed with the High Court to interfere in the First Appeal filed by respondent Nos.2 & 3, 26 was absence of finding by the Tribunal about the factum of negligence of the driver of the subject jeep. Factually, this view is untenable. Our understanding of the analysis done by the Tribunal is to hold that Jeep No. RST4701 was driven rashly and negligently by respondent No.2 when it collided with the motorcycle of the appellant leading to the accident. This can be discerned from the evidence of witnesses and the contents of the chargesheet filed by the police, naming respondent No.2. This Court in a recent decision in Dulcina Fernandes (supra), noted that the key of negligence on the part of the driver of the offending vehicle as set up by the claimants was required to be decided by the Tribunal on the touchstone of preponderance of probability and certainly not by standard of proof beyond reasonable doubt.
Suffice it to observe that the exposition in the judgments already adverted to by us, filing of chargesheet against respondent No.2 prima facie points towards his complicity in driving the vehicle negligently and rashly. Further, even when the accused were to be acquitted in the criminal case, this Court opined that the same may be of no effect on the assessment of the liability required in respect of motor accident cases by the Tribunal. Reliance placed upon the decisions in Minu B Mehta (supra) and Meena Variyal (supra), by the respondents, in our opinion, is of no avail.

The dictum in these cases is on the matter in issue in the concerned case. Similarly, even the dictum in the case of Surender Kumar Arora (supra) will be of no avail. In the present case, considering the entirety of the pleadings, evidence and circumstances on record and in particular the finding recorded by the Tribunal on the factum of negligence of the respondent No.2, the driver of the offending jeep, the High Court committed manifest error in taking a contrary view which, in our opinion, is an error apparent on the face of record and manifestly wrong.

22. In Kaushnuma Begum (supra), whilst dealing with an application under Section 163A of the Motor Vehicles Act, 1988, this Court expounded that negligence is only one of the species for compensation in respect of the accident arising out of the use of motor vehicles. There are other premises for such cause of action. After observing this, the Court adverted to the principle expounded in Rylands Vs. 28 Fletcher18. It may be useful to reproduce paragraphs 1214 which read thus:
“12. Even if there is no negligence on the part of the driver or owner of the motor vehicle, but accident happens while the vehicle was in use, should not the owner be made liable for damages to the person who suffered on account of such accident? This question depends upon how far the rule in Rylands v. Fletcher can apply in motor accident cases. The said rule is summarised by Blackburn, J., thus: ‘[T]he true rule of law is that the person who, for his own purposes, brings on his land, and collects and keeps there anything likely to do mischief if it escapes, must keep it in at his peril, and, if he does not do so, he is prima facie answerable for all the damage which is the natural consequence of its escape. He can excuse himself by showing that the escape was owing to the plaintiff’s default, or, perhaps, that the escape was the consequence of vis major, or the act of God; but, as nothing of this sort exists here, it is unnecessary to inquire what excuse would be sufficient.’
13. The House of Lords considered it and upheld the ratio with the following dictum: ‘We think that the true rule of law is that the person who, for his own purposes, brings on his land, and collects and keeps there anything likely to do mischief if it escapes, must keep it in at his peril, and, if he does not do so, he is prima facie answerable for all the damage which is the natural consequence of its escape. He can excuse himself by showing that the escape was owing to the plaintiff’s default, or, perhaps, that the escape was the consequence of vis major, or the act of God; but, as nothing of this sort exists here, it is unnecessary to inquire what excuse would be sufficient.’
14. The above rule eventually gained approval in a large number of decisions rendered by courts in England and abroad. Winfield on Tort has brought out even a chapter on the “Rule in Rylands v. Fletcher”. At p. 543 of the 15th Edn. of the celebrated work the learned author has pointed out that ‘over the years Rylands v. Fletcher has been applied to a remarkable variety of things: fire, gas, explosions, electricity, oil, noxious fumes, colliery spoil, rusty wire from a decayed fence, vibrations, poisonous vegetation’. He has elaborated seven defences recognised in common law against action brought on the strength of the rule in Rylands v. Fletcher.

They are:
(1) Consent of the plaintiff i.e. volenti non fit injuria.
(2) Common benefit i.e. where the source of the danger is maintained for the common benefit of the plaintiff and the defendant, the defendant is not liable for its escape.
(3) Act of stranger i.e. if the escape was caused by the unforeseeable act of a stranger, the rule does not apply.
(4) Exercise of statutory authority i.e. the rule will stand excluded either when the act was done under a statutory duty or when a statute provides otherwise.
(5) Act of God or vis major i.e. circumstances which no human foresight can provide against and of which human prudence is not bound to recognise the possibility.
(6) Default of the plaintiff i.e. if the damage is caused solely by the act or default of the plaintiff himself, the rule will not apply.
(7) Remoteness of consequences i.e. the rule cannot be applied ad infinitum, because even according to the formulation of the rule made by Blackburn, J., the defendant is answerable only for all the damage ‘which is the natural consequence of its escape’. ” And again, the Court, after adverting to the decisions in Charan Lal Sahu Vs. Union of India 19, Union Carbide Corpn. Vs. Union of India 20 and Gujarat SRTC Vs. Ramanbhai Prabhatbhai 21, in paragraphs 19 & 20, observed thus:

“19. Like any other common law principle, which is acceptable to our jurisprudence, the rule in Rylands v. Fletcher can be followed at least until any other new principle which excels the former can be evolved, or until legislation provides differently. Hence, we are disposed to adopt the rule in claims for compensation made in respect of motor accidents.

20. ‘No fault liability’ envisaged in Section 140 of the MV Act is distinguishable from the rule of strict liability. In the former, the compensation amount is fixed and is payable even if any one of the exceptions to the rule can be applied. It is a statutory liability created without which the claimant should not get any amount under that count. Compensation on account of accident arising from the use of motor vehicles can be claimed under the common law even without the aid of a statute. The provisions of the MV Act permit that compensation paid under “no fault liability” can be deducted from the final amount awarded by the Tribunal. Therefore, these two are resting on two different premises. We are, therefore, of the opinion that even apart from Section 140 of the MV Act, a victim in an accident which occurred while using a motor vehicle, is entitled to get compensation from a Tribunal unless any one of the exceptions would apply. The Tribunal and the High Court have, therefore, gone into error in divesting the claimants of the compensation payable to them.

23. Be that as it may, the next question is whether the Tribunal was justified in concluding that the appellant was also negligent and had contributed equally, which finding rests only on the site map (Exh. 2) indicating the spot where the motorcycle was lying after the accident? We find substance in the criticism of the appellant that the spot where the motor vehicle was found lying after the accident cannot be the basis to assume that it was driven in or around that spot at the relevant time. It can be safely inferred that after the accident of this nature in which the appellant suffered severe injuries necessitating amputation of his right leg above the knee level, the motorcycle would be pushed forward after the collision and being hit by a high speeding jeep.

Neither the Tribunal nor the High Court has found that the spot noted in the site map, one foot wrong side on the middle of the road was the spot where the accident actually occurred. However, the finding is that as per the site map, the motorcycle was found lying at that spot. That cannot be the basis to assume that the appellant was driving the motorcycle on the wrong side of the road at the relevant time.

Further, the respondents did not produce any contra evidence to indicate that the motorcycle was being driven on the wrong side of the road at the time when the offending vehicle dashed it. In this view of the matter, the finding of the Tribunal that the appellant contributed to the occurrence of the accident by driving the motorcycle on the wrong side of the road, is manifestly wrong and cannot be sustained. The High Court has not expressed any opinion on this issue, having already answered the issue about the noninvolvement of the offending vehicle in favour of respondent Nos.2 & 3.

24. In other words, we are inclined to hold that there is no tittle of evidence about the motorcycle being driven negligently by the appellant at the time of accident. The respondents did not produce any such evidence. That fact, therefore, cannot be assumed. Resultantly, the argument of the respondents that the appellant did not possess a valid motorcycle driving licence at the time of accident, will be of no significance. Thus, we hold that there is no legal evidence to answer the issue of contributory negligence against the appellant.

25. The next question is about the quantum of compensation amount to be paid to the appellant. The Tribunal noted the claim of the appellant that he was getting Rs.1500/per month towards his salary and Rs.600/per month towards food allowance from Bhanwar Lal. The fact that the appellant had possessed heavy transport motor vehicle driving licence has not been doubted. The driving licence on record being valid for a limited period, cannot be the basis to belie the claim of the appellant duly supported by Bhanwar Lal, that the appellant was employed by him on his new truck.
Besides the said income, the appellant claimed to have earning of Rs.1000/per month from farming fields. In other words, we find that the Tribunal has not analysed this evidence in proper perspective. The Tribunal, however, pegged the loss of monthly income to the appellant at Rs.520/per month while computing the compensation amount on the finding that there was no convincing evidence about complete nonemployability of the appellant.
Further, no provision has been made by the Tribunal towards future prospects. The Tribunal, therefore, should have computed the loss of income on that basis. Additionally, the appellant because of amputation of his right leg would be forced to permanently use prosthetic leg during his life time. No provision has been made by the Tribunal in that regard. On these heads, the appellant is certainly entitled for enhanced compensation.

26. The next question is about the liability of insurer to pay the compensation amount. The Tribunal has absolved the insurance company on the finding that no premium was received by the insurance company nor any insurance policy was ever issued by the insurance company in relation to the offending vehicle. The respondents no.2 and 3 had relied on a Cover Note which according to respondent No.1 – Insurance Company was fraudulently obtained from the then Development Officer, who was later on sacked by respondent No.1 Insurance Company. The possibility of misuse of some cover notes lying with him could not be ruled out. The respondent Nos.2 & 3 have relied on the decision of this Court in Rula (supra).
That decision will be of no avail to respondent Nos.2 & 3. In that case, the Court found that the insurance policy was already issued after accepting the cheque; whereas in the present case, the respondent No.1 Insurance Company has been able to show that no payment was received by the company towards the insurance premium nor any insurance policy had been issued in respect of the offending vehicle (jeep). However, the claim of respondent Nos.2 & 3 to the extent that they possessed a cover note issued by the then Development Officer of the Oriental Insurance Company (respondent No.1) will have to be accepted coupled with the fact that there is no positive evidence to indicate that the said Cover Note is ante dated. Pertinently, the Cover Note has been issued by the then Development Officer at a point of time when he was still working with respondent No.1 Insurance Company.
It must follow that the then Development Officer was acting on behalf of the Insurance Company, even though stricto sensu the respondent No.1 Insurance Company may not be liable to pay any compensation as no insurance policy has been issued in respect of the offending vehicle, much less a valid insurance policy. But for the Cover Note issued by the Development Officer of respondent No.1 Insurance Company at a point of time when he was still working with respondent No.1, to do substantial justice, we may invoke the principle of “pay and recover”, as has 36 been enunciated by this Court in the case of National Insurance Co. Ltd. Vs. Swaran Singh & Ors.22

27. Reverting to the calculation of compensation amount, taking the loss of monthly income due to permanent disability of 40%, the appellant will be entitled to Rs.2,25,792/[ Rs.840 per month (i.e. 40 % of Rs.2,100/) + 40% future prospects [as per Pranay Sethi (supra)] x 12 x 16, i.e. (840 + 336) x 12 x 16. We uphold the amounts quantified by the Tribunal towards the heads for medical treatment after the accident, motorcycle repair, mental and physical problem, as it is. However, the appellant, in our opinion, is additionally entitled to medical expenses for procurement of a prosthetic leg, which is quantified at Rs.25,000/ ( Rupees twenty five thousand only). In summation, the appellant would be entitled to the following compensation:
(i) Medical treatment after accident : Rs. 5,000/-
(ii) Motorcycle repair : Rs. 2,000/-
(iii) Mental and physical problem : Rs. 20,000/-
(iv) Loss of income due to 40% permanent disability : Rs. 2,25,792/-
(v) Cost of prosthetic leg : Rs. 25,000/-
Total: Rs. 2,77,792/- (Rupees Two Lakh Seventy Seven Thousand Seven Hundred Ninety Two only)

28. The appellant would also be entitled to interest on the total amount of compensation at the rate of 9% per annum from the date of filing of the claim application i.e. 11th June, 1990 till the date of realization. The respondents will be entitled for adjustment of amount already paid to the appellant, if any.

29. The appeals are allowed in the above terms with costs.

CJI. (Dipak Misra)
J. (A.M. Khanwilkar)

New Delhi;
April 06, 2018.


1 (2001) 2 SCC 9
2 (2013) 10 SCC 646
3 (2009) 13 SCC 530
4 (2012) 9 SCC 284
5 AIR 2017 SC 5157
6 (2014) 1 SCC 244
7 2015 SCC OnLine P & H 9926
8 2011 SCC OnLine Ker 1881
9 2014 SCC OnLine Del 362
10 2015 SCC OnLine Bom 4613
11 2017 SCC OnLine Pat 1145
12 (2000) 3 SCC 195
13 (2007) 5 SCC 428
14 (1977) 2 SCC 441
15 (2012) 4 SCC 552
16 (1980) 3 SCC 457
17 (2011) 10 SCC 509
18 (186173) All ER Rep 1
19 (1990) 1 SCC 613
20 (1991) 4 SCC 584
21 (1987) 3 SCC 234

Bhartiben Nayabha Ker and Ors Vs. Sidabha Pethabha Manke and Ors[ALL SC 2018 APRIL]

KEYWORDS:- CALCULATION OF COMPENSATION -RATE OF  INTEREST –

c

DATE:-

SUPREME COURT OF INDIA

Bhartiben Nayabha Ker and Ors Vs. Sidabha Pethabha Manke and Ors

[Civil Appeal No 2697 of 2018 arising out of SLP(C) No 2927 of 2017]

Dr D Y CHANDRACHUD, J

1. The present appeal arises from a judgment of a learned Single Judge dated 15 March 2016, in a first appeal from the decision of the Motor Accident Claims Tribunal (MACT), Jamnagar.

2. The appellants are heirs and legal representatives of Nayabha Mapbha Ker who died as a result of a motor accident on 18 July 1993. He was travelling in a jeep bearing Registration No GBI-7896 which was being driven by the fourth respondent towards Mithapur. At about 3.00 am the first respondent who was driving a truck bearing Registration No.GJ-10-T-747, came from the opposite direction and dashed against the jeep. Nayabha was seriously injured and died during the course of the accident. His heirs filed a claim petition under Section 166 of the Motor Vehicles Act, 1988 before the MACT, Jamnagar seeking compensation in the amount of Rs 13 lakhs.

By its award dated 19 July 1999 the Tribunal allowed the claim in the amount of Rs 7,78,000 together with interest at the rate of 12 % per annum. The appellants filed a first appeal before the High Court of Gujarat. The High Court, by its impugned judgment, allowed an additional amount of Rs 33,000 under the head of loss of life, expenses and consortium but reduced the rate of interest from 12 % p.a. to 9% p.a. Aggrieved by the judgment of the High Court, the claimants are in appeal.

3. The deceased was 41 years old at the time of the accident. He had acquired a B.A. and B.Ed. qualification. For seven years, he had served as President of the Taluka Panchayat. The deceased owned agricultural land. The Tribunal assessed the annual income of the deceased at Rs.81,000 comprised of his agricultural income and income from other sources.

Applying a multiplier of 12, the Tribunal computed an amount of Rs. 7.56 lakhs towards the loss of dependency. A total amount of Rs 7.78 lakhs was awarded inclusive of conventional heads. In appeal, the High Court came to the conclusion that the total income would work out to Rs 92,000 out of which one fourth would be deducted for personal expenses. Applying a multiplier of 14, the High Court awarded an additional amount of Rs 33,000. However, the rate of interest has been reduced to 9% per annum.

4. Basically two submissions have been urged on behalf of the appellants. First, it has been urged that the High Court did not allow for future prospects for which provision has to be made in view of the law settled by a Constitution Bench of this Court in National Insurance Company Limited v Pranay Sethi. Second, it has been urged that there was no justification for the High Court to reduce the award of interest from 9% p.a. to 6% p.a.

5. The High Court has computed the total income of the deceased at Rs 91,800 (Rs 55,000 being the income from agriculture and Rs 36,800 being the income from salary). In view of the decision of the Constitution Bench in Pranay Sethi (supra), an addition of 25% is warranted, on account of future prospects having regard to the age of the deceased. The total income, after accounting for future prospects at 25% would work out to Rs 1,14,000 per annum. An amount of one fourth would have to be reduced on account of personal expenses. The net income would work out to Rs 85,500. Applying a multiplier of 14 the total compensation would work out to Rs 11,97,000. Adding a further amount of Rs 70,000 under conventional heads as stipulated in the judgment 1 (2017) 13 SCALE 12 4 in Pranay Sethi (supra), the total compensation payable would work out to Rs 12,67,000.

6. We find no reason or justification for the High Court to reduce the award of interest to 6% p.a.. The rate of interest of 9% p.a. fixed by the Tribunal is restored.

7. The appeal is accordingly allowed by directing that the quantum of compensation shall stand enhanced to Rs 12,67,000 on which interest shall be payable at 9% p.a. from the date of the claim petition. There shall be no order as to costs.

CJI [DIPAK MISRA]

J [A M KHANWILKAR]

J [Dr D Y CHANDRACHUD]

New Delhi;

April 05, 2018

Singh Ram Vs. Nirmala and Ors.[ALL SC 2018 MARCH]

KEYWORDS:- MOTOR ACCIDENT CLAIM-insured did not hold a valid driving licence at the time of the accident-LIABILITY OF THE OWNER OF MOTOR CYCLE-

c

DATE:- March 06, 2018

  • The owner did not depose in evidence and stayed away from the witness box. He produced a licence which was found to be fake. Another licence which he sought to produce had already expired before the accident and was not renewed within the prescribed period. It was renewed well after two years had expired. The appellant as owner had evidently failed to take reasonable care  since he could not have been unmindful of facts which were within his knowledge.

ACTS:- Section 166 of the Motor Vehicles Act 1988

SUPREME COURT OF INDIA

Singh Ram Vs. Nirmala and Ors.

[Civil Appeal No 2103 of 2018 arising out of SLP (C) No 22630 of 2015]

Dr. D.Y. CHANDRACHUD, J

1. Delay condoned.

2. In a claim for compensation under Section 166 of the Motor Vehicles Act 1988, the Motor Accident Claims Tribunal (‘the Tribunal’), Yamunanagar at Jagadhri found that the insured did not hold a valid driving licence at the time of the accident. The Tribunal absolved the insurer for that reason. The insurer was, however, directed to pay the compensation awarded to the claimant and to recover it from the owner of the offending motor cycle. The High Court dealt with three appeals: one filed by the claimant seeking enhancement of compensation, a second by the insurance company and the third by the owner cum driver of the offending vehicle.

The High Court held that in view of the decision of this Court in National Insurance Co. Ltd. v Swaran Singh1, the Tribunal was correct in directing the insurer to pay the compensation and to recover it from the owner-cum-driver of the offending vehicle. The present appeal has been filed by the owner and driver. The only point which has been urged in support of the appeal is that the Tribunal and the High Court erred in fastening the liability on him by granting a right of recovery to the insurer.

3. The accident took place on 22 March 2010. The deceased Sunil Kumar was riding a motor cycle bearing Registration No HR-04B-4673. The Tribunal found that the accident was caused as a result of the rash and negligent act of the appellant. This finding of fact has not been disturbed by the High Court. The deceased was employed as a sweeper in Haryana Roadways and was engaged on a salary of Rs 11,928 per month. The Tribunal allowed future prospects of 50%, the deceased being just short of 36 years of age. After deducting an amount representing one-fourth of the earnings for personal expenses, the Tribunal applied a multiplier of 15.

The total compensation was computed at Rs 24,15,420 to which the Tribunal added an amount of Rs 20,000 under conventional heads. However, the Tribunal held that the financial assistance which the heirs of the deceased would receive over a period of 12 years from the employee (amounting to Rs 16,16,112) would have to be deducted from the compensation. After making the deduction, the Tribunal awarded an amount of Rs. 8,19,500 together with interest at 7.5 per cent per annum from the date of the claim petition. The High Court has enhanced the compensation to Rs 16,04,912.

4. Special Leave Petition (C) No 7737 of 2015 filed by the claimant, which was connected to this appeal, has been dismissed on 8 February 2018.

5. In the present appeal by the owner cum driver of the offending motor cycle, the submission is that in view of the decision of a Bench of three learned Judges of this Court in Swaran Singh (supra), the insurer ought not to have been absolved. Hence the direction to the insurer to pay and recover the compensation from the appellant should, it has been urged, be modified to fasten a joint and several liability on the insurer.

6. Before we advert to the decision in Swaran Singh (supra) a brief reference to the facts as they emerge from the decision of the Tribunal is necessary. Initially before the Tribunal the appellant produced a driving licence issued by the Motor Vehicles Department, Agra (Exh.R-1). The driving licence was found to be fake. The statement of the Senior Assistant in the office of the RTO, Agra was that Exh.R-1 had not been issued by the office. The Tribunal noted that the witness had proved the report (Exh.R-2) issued by the department and concluded that the licence was fake. Faced with this situation, the appellant attempted to prove that he held a valid driving licence issued by the licencing authority at Jagadhri to drive a motor cycle.

The Tribunal rejected the application filed by the appellant for producing additional evidence. The Tribunal noted that even otherwise, the licence which was issued by the licencing authority, Jagadhri for a tractor and car was valid only until 29 August 2009. The accident took place on 22 March 2010. The licence was renewed on 28 November 2011 more than two years after it had expired. On these facts, the Tribunal observed that on the date of the accident, the appellant was not holding a valid and effective driving licence nor was there any evidence to indicate that the licence was sought to be renewed as required in law, within 30 days of its expiry. The Tribunal also observed that the appellant did not hold a valid licence to drive a motor cycle. On these grounds, the insurer was absolved. The High Court has confirmed the direction of the Tribunal to pay and recover.

7. In Swaran Singh (supra), this Court held that the holder of a driving licence has a period of thirty days on its expiry, to renew it:

“45. Thus, a person whose licence is ordinarily renewed in terms of the Motor Vehicles Act and the Rules framed thereunder, despite the fact that during the interregnum period, namely, when the accident took place and the date of expiry of the licence, he did not have a valid licence, he could during the prescribed period apply for renewal thereof and could obtain the same automatically without undergoing any further test or without having been declared unqualified therefor. Proviso appended to Section 14 in unequivocal terms states that the licence remains valid for a period of thirty days from the day of its expiry.

46. Section 15 of the Act does not empower the authorities to reject an application for renewal only on the ground that there is a break in validity or tenure of the driving licence has  lapsed, as in the meantime the provisions for disqualification of the driver contained in Sections 19, 20, 21, 22, 23 and 24 will not be attracted, would indisputably confer a right upon the person to get his driving licence renewed. In that view of the matter, he cannot be said to be delicensed and the same shall remain valid for a period of thirty days after its expiry.”

The following conclusion has been recorded in summation in the judgment::

“(iii) The breach of policy condition e.g. disqualification of the driver or invalid driving licence of the driver, as contained in sub-section (2)(a)(ii) of Section 149, has to be proved to have been committed by the insured for avoiding liability by the insurer. Mere absence, fake or invalid driving licence or disqualification of the driver for driving at the relevant time, are not in themselves defences available to the insurer against either the insured or the third parties. To avoid its liability towards the insured, the insurer has to prove that the insured was guilty of negligence and failed to exercise reasonable care in the matter of fulfilling the condition of the policy regarding use of vehicles by a duly licensed driver or one who was not disqualified to drive at the relevant time.

(iv) Insurance companies, however, with a view to avoid their liability must not only establish the available defence(s) raised in the said proceedings but must also establish “breach” on the part of the owner of the vehicle; the burden of proof where for would be on them.

(v) The court cannot lay down any criteria as to how the said burden would be discharged, inasmuch as the same would depend upon the facts and circumstances of each case.

(vi) 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 the 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 insurer under Section 149(2) of the Act.

(vii) The question, as to whether the owner has taken reasonable care to find out as to whether the driving licence produced by the driver (a fake one or otherwise), does not fulfil the requirements of law or not will have to be determined in each case”.

8. In the present case it is necessary to note, as observed by the Tribunal, that the owner did not depose in evidence and stayed away from the witness box. He produced a licence which was found to be fake. Another licence which he sought to produce had already expired before the accident and was not renewed within the prescribed period. It was renewed well after two years had expired. The appellant as owner had evidently failed to take reasonable care (proposition (vii) of Swaran Singh) since he could not have been unmindful of facts which were within his knowledge.

9. In the circumstances, the direction by the Tribunal, confirmed by the High Court, to pay and recover cannot be faulted.

The appeal is, accordingly, dismissed. There shall be no order as to costs.

CJI [DIPAK MISRA]

J [A M KHANWILKAR]

J [Dr D Y CHANDRACHUD]

New Delhi;

March 06, 2018

______________________________________

1 (2004) 3 SCC 297 3

ICICI Lombard General Insurance Company Ltd. Vs. Ajay Kumar Mohanty & ANR.[ALL SC 2018 MARCH]

KEYWORDS:-disability sustained by the claimant- basis to award compensation-

c

DATE:- March 06, 2018

  • In arriving at the quantification of compensation, we must be guided by the well-settled principle that compensation can be granted both on account of permanent disability as well as loss of future earnings, because one head relates to the impairment of the person’s capacity and the other to the sphere of pain and suffering on account of loss of enjoyment of life by the person himself.

ACTS:- Section 166 of the Motor Vehicles Act

SUPREME COURT OF INDIA

ICICI Lombard General Insurance Company Ltd. Vs. Ajay Kumar Mohanty & ANR.

[Civil Appeal No. 7181 of 2015]

[Civil Appeal No. 1879 of 2016]

Dr. D.Y. CHANDRACHUD, J

1. In a claim for compensation under Section 166 of the Motor Vehicles Act, arising out of a disability sustained by the claimant as a result of a motor accident, the Tribunal awarded an amount of Rs. 22,85,322/-. The High Court in an appeal filed by the insurer reduced the compensation to Rs. 12,00,000/- Interest was reduced from 7.5 per cent per annum to 7.0 per cent. The only reasoning contained in support of the order of the High Court reads as follows:

“Considering the grounds taken in appeal and the submissions made by the learned counsel for the parties and keeping in view the findings of the learned Tribunal given in the impugned award with regard to the quantum of compensation amount awarded and the basis on which the same has been arrived at, I feel, the interest of justice would be best served, if the awarded compensation amount of Rs. 22,85,322/- is modified and reduced to Rs. 12,00,000/-. The award of interst @ 7.5% per annum is also modified and reduced to 7% only. Accordingly, the claimant is entitled to the modified compensation amount of Rs. 12,00,000/- along with interest @ 7% per annum from the date of filing of the Claim application. The impugned award is modified to the said extent.”

2. Ex-facie, there has been no application of mind by the High Court to the evidence on the record and to the relevant facts and circumstances. The above extract cannot be regarded as the expression of a reasoned view. Ordinarily, we would have remitted the case back to the High Court for a fresh determination. However, we are inclined not to do so in order to prevent a miscarriage of justice which delay in itself is likely to occasion.

The accident took place on 25 April 2009 when the appellant was 32 years of age. The judgment of the Tribunal was rendered on 26 February 2014. The High Court delivered its judgment on 15 April 2015. Leave was granted by this Court on 25 February 2016. Hence, we have heard the learned counsel appearing on behalf of the contesting parties on merits and proceed to resolve the dispute so as to render finality to the case.

3. The accident in question took place on 25 April 2009 when the claimant was proceeding from Keonjhar to Badbil. The vehicle fell over a bridge of NH 215. The claimant was rescued by the villagers and was shifted to hospital for treatment. He suffered from a fracture to the left elbow and femur. The Tribunal entered a finding of fact that the evidence of the claimant remained unshaken and that the accident was caused by the rash and negligent act of the driver of the vehicle. The vehicle was insured with ICICI Lombard General Insurance Company Ltd. (the insurer).

4. While assessing the claim for compensation, the Tribunal noted the evidence of PW2, the Doctor who had issued a disability certificate to the claimant. The Doctor opined that the disability was temporary and not permanent. It appears that an admission was elicited during the course of the cross-examination to the effect that he had made certain interpolations in the disability certificate without the consent or knowledge of the CDMO. The Tribunal held that whether the disability was permanent or temporary, it was duty bound to make an assessment. From the income tax returns of the claimant for 2007, 2008 and 2009, the Tribunal observed that his annual income would work out to Rs. 1,45,231/-.

The Tribunal thereafter observed that the annual income was Rs. 2,62,372/-. The Tribunal however accepted the evidence of the claimant which placed his income at a lower amount of Rs. 2,22,000/- annually on the basis of the evidence of the claimant that as a BClass contractor, he was earning Rs. 18,500/- per month. The Tribunal applied a multiplier of 17 per cent. Treating the disability to be 55 per cent, on the basis of the certificate of the District Medical Board, Bhadrak, the Tribunal computed the compensation at Rs. 20,75,700/-. In addition, an amount of Rs. 2,09,622/- was awarded on account of medical expenses. A total quantum of Rs. 22,85,322/- was awarded.

5. Learned counsel appearing on behalf of the insurer submits that the order of the Tribunal is contradictory and contrary to the weight of the evidence. The error has been compounded by the failure of the High Court to attribute reasons. Counsel submits that the Tribunal proceeded on the manifestly erroneous basis that the claimant suffered a permanent disability.

It was urged that the evidence of PW 2, the doctor, indicates that the disability certificate was unauthorizedly interpolated by him. The admissions of the doctor in the course of his evidence that the injury was of a temporary nature and was likely to improve have been ignored. Moreover, it has been submitted that the judgment of the Tribunal, especially paragraph 10, would indicate that the Tribunal has committed serious and apparent errors of computation and there is an internal inconsistency in its reasoning.

6. On the other hand, learned counsel appearing on behalf of the claimant submits that while PW 2 admits having interpolated the disability certificate, this should in fact weigh in favour of the claimant as the nature of the interpolation would indicate. Like the insurer, the claimant also has a grievance in regard to the fact that the order of the High Court is not reasoned. However, what the claimant submits is that there was no justification for the High Court to reduce the quantum of compensation awarded by the Tribunal.

7. On perusing the order of the Tribunal, we find merit in the contention of the insurer that while calculating the income in paragraph 10 of its order, the Tribunal has committed an error of computation. The Tribunal has on the basis of the income tax returns for 2007, 2008 and 2009 arrived at an average income of Rs. 1,45,231/-. However, the Tribunal has thereafter noted that the average income comes to Rs. 2,62,372/-. Ultimately, the Tribunal proceeds on the annual income of Rs. 2,22,000/- on the basis of the testimony of the claimant that he was earning Rs. 18,500/- per month. This is contradictory. In our view, on the basis of the finding of the Tribunal that the average income of the claimant for the previous three years was Rs. 1,45,231/-, it would be necessary to take into account the evidence of PW2 that the disability is to the extent of 55 per cent. In other words, the loss of earning as a result of the aforesaid disability would work out to Rs. 79,877/- per year.

8. In arriving at the quantification of compensation, we must be guided by the well-settled principle that compensation can be granted both on account of permanent disability as well as loss of future earnings, because one head relates to the impairment of the person’s capacity and the other to the sphere of pain and suffering on account of loss of enjoyment of life by the person himself.

9. In Sri Laxman @ Laxman Mourya v Divisional Manager, Oriental Insurance Co. Ltd1, this Court held thus: “The ratio of the above noted judgments is that if the victim of an accident suffers permanent or temporary disability, then efforts should always be made to award adequate compensation not only for the physical injury and treatment, but also for the pain, suffering and trauma caused due to accident, loss of earnings and victim’s inability to lead a normal life and enjoy amenities, which he would have enjoyed but for the disability caused due to the accident.” In Govind Yadav v New India Insurance Company Limited2, this Court after referring to the pronouncements in R.D. Hattangadi v Pest Control (India) (P) Ltd.3 , Nizam’s Institute of Medical Sciences v Prasanth S. Dhananka4, Reshma Kumari v Madam Mohan5, Arvind Kumar Mishra v New India Assurance Co. Ltd.6, Raj Kumar v Ajay Kumar7 held thus:

“18. In our view, the principles laid down in Arvind Kumar Mishra v. New India Assurance Co. Ltd. and Raj Kumar v. Ajay Kumar must be followed by all the Tribunals and the High Courts in determining the quantum of compensation payable to the victims of accident, who are disabled either permanently or temporarily. If the victim of the accident suffers permanent disability, then efforts should always be made to award adequate compensation not only for the physical injury and treatment, but also for the loss of earning and his inability to lead a normal life and enjoy amenities, which he would have enjoyed but for the disability caused due to the accident.” (Id at page 693) These principles were reiterated in a judgment delivered by one of us (Justice Dipak Misra, as the learned Chief Justice then was) in Subulaxmi v MD Tamil Nadu State Transport Corporation8.

10. In the present case, the evidence of PW2 Dr Umakanta Jena indicates that he had initially, before issuing the disability certificate, examined the shoulder joint, elbow joint and left femur as per the discharge certificate. The discharge certificate indicated that the injuries sustained were grievous in nature. The Doctor initially placed a tick mark over the word ‘permanent’. However, subsequently he made an interpolation by cutting the word ‘permanent’ and “not likely to improve”. The evidence of the Doctor is reproduced below, insofar as it is material:

“4) The disability is temporary but not permanent. The disability is likely to improve. The disability certificate is the original one. By mistake, I gave a tick mark on the word “permanent”. Per day about one hundred disability certificates are issued. So, I committed this wrong. I have not mentioned which documents I verified prior to issuance of this disability certificate. There is nothing in the certificate to show that there was nailing. Particularly in this case, the disability may improve. Any fracture of extremity will cause disability. I cannot give any authority to the opinion of my above sentence.

5) It is not a fact that the percentage of disability has been made by me being gained over by the injured and that there was no disability. It is not a fact that being gained over by the injured I gave this disability certificate.

TO COURT:-

Q. No. 1:- Whether the certificate issued by you is creating confusion?

Ans; Yes.

Q. No. 2: Whether you will be paid T.A. and D.A. from State Exchequer for your mistake?

Ans:, No, I should be paid.

Q. No. 3:- Whether my attendance in the court is a govt. duty or C.L.?

Ans: For my mistake I should take C.L.

Q. No. 4:- Can you explain why you interpolated the certificate which was signed by doctors including CDMO, Bhadrak?

Ans: I cannot explain.

Q. No. 5:- Was not it desirable to obtain the consent of other three doctors before cutting and putting tick mark and making interpolation on an already prepared public document?

Ans: I should have obtained the consent and signature of all other signatories before interpolating the document.”

11. The doctor has admitted to having made an interpolation in the disability certificate. The above evidence indicates that the disability is temporary and not permanent. The Doctor admitted that the disability certificate indicated a tick mark on the word ‘permanent’ by mistake. He further stated that the disability in the present case was likely to improve.

12. Having regard to all these facts and circumstances, we find merit in the contention that the claim for compensation on the basis that the disability was permanent was clearly not established. There was no basis to award an amount of Rs. 20,75,700/-. The Tribunal has awarded an amount of Rs. 2,09,622/- towards medical expenses. We accept the figure of an annual loss of income of Rs. 79,877/-. The disability being of a temporary nature, we award compensation of Rs. 5 lakhs towards loss of income. We allow compensation of Rs. 2 lakhs towards trauma, pain and suffering. In addition, the claimant is entitled to medical expenses of Rs. 2,09,622. We are of the view that the ends of justice would be met by directing a payment of Rs. 9,10,000/- .

The claimant shall be entitled to interest at the rate of 9 per cent per annum from the date of the filing of the petition. The insurer shall deposit the compensation along with interest before the Tribunal within twelve weeks which shall be disbursed to the claimant on proper identification.

13. For the above reasons, we set aside the impugned judgment and order of the High Court. Both the appeals are disposed of in terms of the directions issued above.

There shall be no order as to costs.

CJI [DIPAK MISRA]

J [A M KHANWILKAR]

J [Dr D Y CHANDRACHUD]

New Delhi

March 06, 2018


1 2011 (12) SCALE 658

2 (2011) 10 SCC 683

3 (1951) 1 SCC 551

4 (2009) 6 SCC 1

5 (2009) 13 SCC 422

6 (2010) 10 SCC 254

7 (2011) 1 SCC 343 7

8 (2012) 10 SCC 177

S. Thangaraj Vs. National Insurance Company Ltd. represented by the Branch Manager[ ALL SC 2018 MARCH]

KEYWORDS:- MOTOR ACCIDENT CLAIM-DISABILITY- 9% INTEREST ALLOWED-

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“the injuries sustained by the appellant are indeed of a serious nature. As a result of the multiple fractures sustained by him, the appellant has lost complete sensation below the abdomen. Evidently he cannot work any more as load man. In these circumstances, the assessment of disability at 70 per cent is incorrect. On a realistic view of the matter, the nature of the disability must be regarded as being complete. In the circumstances, we find no reason or justification for the deduction of an amount of Rs 2,91,600 by the Tribunal (Rs 9,72,000 minus Rs 6,80,400). The amount so deducted must be restored and is rounded off to Rs 3,00,000. Moreover we are of the view that the appellant is entitled to interest at the rate of 9 percent per annum from the date of the claim petition”.

DATE:-March 06, 2018

ACTS:- MV ACT

SUPREME COURT OF INDIA

S. Thangaraj Vs. National Insurance Company Ltd. represented by the Branch Manager

[Civil Appeal No 3152 of 2017]

Dr. D.Y. CHANDRACHUD, J

1. Delay condoned.

2. The claim arises out of a disability sustained as a result of a motor accident. The Tribunal granted compensation to the claimant in the amount of Rs 11,27,359 together with interest at 12 per cent per annum. The High Court has simply reduced the interest awarded by the Tribunal to 7.5 per cent per annum while maintaining the award of compensation. The claimant is in appeal.

3. The accident took place on 1 August 2004. The appellant was 26 years old at the time of the accident. The accident took place when the appellant was a pillion rider on a motor cycle ridden by one Edwin. As the motor cycle was proceeding from Marthandam, a lorry bearing Registration No.TN 69 Z 2979 dashed against it. The lorry thereafter dashed against an electric pole and collided with a residential property resulting in the death of an occupant of the house. The appellant sustained serious injuries in the accident. The injuries have been described in the evidence of PW 4, the doctor at the hospital where the appellant was treated.

The appellant sustained a fracture in his spinal cord, right leg and right hip bone. As a result of the accident the appellant has no sensation or movement in his legs. The Tribunal accepted the evidence of PW 4 and observed thus: “Moreover PW 4 the doctor has stated in his evidence that below the abdomen of the petitioner, there is no movement and sensation in two legs…” The Tribunal determined the disability at 70%, on the basis of medical opinion.

The Tribunal computed the compensation payable to the appellant on account of the loss of income occasioned by the disability at Rs 9,72,000. However, on the basis of the opinion of the doctor that the disability was to the extent of 70 per cent, the net amount was determined at Rs 6,80,400. After taking into account the medical and other expenses, the Tribunal awarded a total compensation of Rs 11,27,359 together with interest of 12 per cent per annum.

4. Before the High Court, the insurer filed an appeal against the award of the Tribunal. The appellant filed cross objections. The High Court has reduced the interest component from 12 per cent per annum to 7.5 per cent per annum.

5. Learned counsel appearing on behalf of the appellant submits that the High Court has not assessed the compensation in a correct manner. There was – it has been urged – no justification to compute the disability at 70 per cent. The appellant was at the relevant time a load man engaged by a building contractor. The nature of the disability involves a complete loss of sensation in both the legs. Hence, it would not be possible for him to work as a load man. Moreover it was urged that there was no justification to reduce the award of interest to 7.5 per cent per annum and the award of the Tribunal on interest should be maintained.

6. On the other hand it has been urged on behalf of the insurer that the High Court was justified in maintaining the award of compensation since it was urged on behalf of the appellant-claimant at the hearing before the High Court that the Tribunal had granted just and reasonable compensation. Learned counsel supported the judgment of the High Court.

7. Having perused the order passed by the High Court, we are not in agreement with the submission of the insurer that there was a concession on the part of the appellant before the High Court which must bind him. The statement made by counsel for the appellant before the High Court was on whether the Tribunal had granted just and reasonable compensation. Whether in fact the compensation which has been granted is just and reasonable cannot hence be construed as a matter of concession and it would not preclude the appellant from raising a contest in these proceedings.

8. On perusing the record it is evident that the injuries sustained by the appellant are indeed of a serious nature. As a result of the multiple fractures sustained by him, the appellant has lost complete sensation below the abdomen. Evidently he cannot work any more as load man. In these circumstances, the assessment of disability at 70 per cent is incorrect. On a realistic view of the matter, the nature of the disability must be regarded as being complete. In the circumstances, we find no reason or justification for the deduction of an amount of Rs 2,91,600 by the Tribunal (Rs 9,72,000 minus Rs 6,80,400). The amount so deducted must be restored and is rounded off to Rs 3,00,000. Moreover we are of the view that the appellant is entitled to interest at the rate of 9 per cent per annum from the date of the claim petition.

9. The appeal is accordingly allowed by enhancing the compensation granted by the Tribunal by an amount of Rs 3,00,000. The appellant would be entitled to interest @ 9 per cent per annum, on the total amount of compensation (instead and in substitution of 7.5% per annum awarded by the High Court). The differential amount shall be paid over to the appellant within a period of eight weeks from today. There shall be no order as to costs.

CJI [DIPAK MISRA]

J [A M KHANWILKAR]

J [Dr D Y CHANDRACHUD]

New Delhi;

March 06, 2018

Jagdish Kumar Sood Vs. United India Insurance Company Ltd. and Ors[ALL SC 2018 MARCH]

KEYWORDS:-Motor Accident Claims-LIABILITY OF LIGHT WAIGHT VEHICLE-

c

DATE:-March 06, 2018-

The liability shall jointly and severally be fastened on the insurer, in addition to the owner and driver

ACTS:- Section 2(21) of the MV Act

SUPREME COURT OF INDIA

Jagdish Kumar Sood Vs. United India Insurance Company Ltd. and Ors.

[Civil Appeal No 240 of 2017]

Dr D Y CHANDRACHUD, J

1. The Motor Accident Claims Tribunal allowed a claim for compensation filed by the third respondent. The claim arose from the death of the husband of the claimant on 4 January 2009 as a result of an accident caused by a collision with an offending truck. The Tribunal awarded an amount of Rs 4,08,000 together with interest at 6 per cent per annum. In an appeal filed by the third respondent the High Court enhanced the compensation to Rs 8,04,000. Interest @ 7.5 per cent per annum was awarded on the enhanced compensation.

2. The Tribunal absolved the insurer on the ground that the vehicle involved in the accident was a Light Goods Vehicle. The driver had a licence to drive the Light Motor Vehicle. The Tribunal held that in the absence of a specific authorization to drive a transport vehicle, the liability could not be fastened on the insurer. The Tribunal directed the insurer to pay in the first instance and allowed it to recover the compensation from the driver and the owner. The present appeal has been filed by the owner.

3. The High Court, while enhancing the compensation did not interfere with the order of the Tribunal absolving the insurer.

4. The issue which arises before the Court is not res integra and is covered by a judgment of a three Judges of this Court in Mukund Dewangan v Oriental Insurance Company Limited in which it has been inter alia held as follows:

“60.1. “Light motor vehicle” as defined in Section 2(21) of the Act would include a transport vehicle as per the weight prescribed in Section 2(21) read with Sections 2(15) and 2(48). Such transport vehicles are not excluded from the definition of the light motor vehicle by virtue of Amendment Act 54 of 1994.” (Id at page 709)

“60.2. A transport vehicle and omnibus, the gross vehicle weight of either of which does not exceed 7500 kg would be a light motor vehicle and also motor car or tractor or a roadroller, “unladen weight” of which does not exceed 7500 kg and holder of a driving licence to drive class of “light motor vehicle” as provided in Section 10(2)(d) is competent to drive a transport vehicle or omnibus, the gross vehicle weight of which does not exceed 7500 kg or a motor car or tractor or roadroller, the “unladen weight” of which does not exceed 7500 kg. That is to say, no separate endorsement on the licence is required to drive a transport vehicle of light motor vehicle class as enumerated above. A licence issued under Section 10(2)(d) continues to be valid after Amendment Act 54 of 1994 and 28-3-2001 in the form.” (Id at page 710)

5. Having regard to the above position, the Civil Appeal will have to be allowed.

6. The appeal is allowed, the order of the Tribunal absolving the insurer shall accordingly stand set aside. The liability shall jointly and severally be fastened on the insurer, in addition to the owner and driver. There shall be no order as to costs.

CJI [DIPAK MISRA]

J [A M KHANWILKAR]

J [Dr D Y CHANDRACHUD]

New Delhi;

March 06, 2018