{ 1 } IN THE HIGH COURT OF JUDICATURE FOR RAJASTHAN AT JODHPUR O R D E R S.B. CIVIL MISC. APPEAL NO.725/1997 NATIONAL INSURANCE CO. LTD. Vs. KODARA & ORS. Date of order : 29.4.2010 HON'BLE MR.JUSTICE A.M.SAPRE Mr. R.K. Singhal, for the appellant in CMA No. 725/1997 Mr. A.K. Rajvanshy, for the appellant in CMA No. 655/1997 Ms. Rekha Borana, for the respondents The decision rendered in this appeal shall also govern disposal of other appeal being SBCMA No.655/1997 because both the appeals arise out of one accident case so also one impugned award. In fact, they are in the nature of cross-appeals. One is filed by the Insurance Company and other is filed by the claimants. 1. This is a misc. appeal filed by Insurance Company (NA-3) under Section 173 of the Motor Vehicles Act (for short hereinafter called “the Act”) against an award, dated 15.07.1997, passed by Motor Accident Claims Tribunal, Dungarpur in Claim Case No.112/1996. 2. By impugned award, the Tribunal allowed the claim petition of claimants (appellants of CMA No. 655/1997) { 2 } filed under Section 166 of the Act and in consequence awarded a total sum of Rs. 72,500/- to claimants for the death of one 'Nana' who died in vehicular accident. 3. In this appeal i.e. CMA No. 725/1997 and other one i.e. CMA No. 655/1997 filed by the claimants, two question arise. First, whether Tribunal was justified in awarding compensation of Rs. 75,500/- to claimants for the death of 'Nana' and second, whether Tribunal was justified in holding that the Insurance Company i.e. insurer of offending vehicle is also liable to suffer the liability arising out of accident and was justified in passing the award in question jointly and severely against the insurance company. 4. Facts, necessary for disposal of these two appeals are very short. They need mention in brief. 5. 'Nana' was a labourer. He was aged 20 years working for NA-2 – a construction company, who owned one Dumper bearing No. RJ-27-G-01435. It was insured with NA-3 (appellant of CMA No. 725/1997). 6. On 04.04.1995, while travelling in dumper as labourer, Nana died due to rash and negligent driving of NA-1 – driver of the dumper because it turned turtle and lost control. It is this event, which gave rise to filing of claim petition by legal representatives of Nana under { 3 } Section 166 of the Act against the driver, owner and insurer of the offending vehicle (dumper) claiming compensation for his death. 7. One of the defense of insurance company while contesting the claim of claimants was that driver of offending vehicle did not possess valid driving license while driving the vehicle. It was contended that driver was having license to drive 'LMV' (Light Motor Vehicle), but since he was driving dumper which was 'HMV' (Heavy Motor Vehicle) and hence it amounted to committing breach of terms of the policy by the insured. It was therefore contended that no liability arising out of accident can be fastened upon the insurance company in view of the breach of policy condition. 8. So far as NA-1 and NA-2 were concerned, they remained ex-parte. Parties adduced evidence. 9. By impugned award, the Tribunal partly allowed the claim petition. It was held that driver of dumper was holding LMV license, whereas he was driving HMV i.e. dumper which caused accident. It was held that the claimant is entitled to claim a total sum of Rs. 72,500/- for the death of 'Nana'. As observed supra, it is this award which is impugned in these two appeals – i.e. one by insurance company and other claimants. { 4 } 10. Having heard the learned counsel for the parties and on perusal of record of the case, I am inclined to allow both the appeals in part as indicated infra: 11. It is not in dispute that driver of dumper was holding license to drive light motor vehicle (LMV), whereas he was driving HMV – i.e. heavy motor vehicle (Dumper) which caused accident. It is also not in dispute that Dumper was heavy motor vehicle as specified in the Schedule to the Act. 12. This question was considered by Supreme Court in the case reported in 2008 (1) SCC P. 696 (New India Assurance Co. Ltd. Vs. Prabhu Lal) and was answered in favour of company by holding as under: “30. Now, it is the case of the Insurance Company that the vehicle of the compalianant which met with an accident was a “transport vehicle”. It was submitted that the insured vehicle was a “goods carriage” and was thus a “transport vehicle”. The vehicle was driven by Ram Narain, who was authorised to drive light motor vehicle and not a transport vehicle. Since the driver had no licence to drive transport vehicle in absence of necessary endorsement in his licence to that effect, he could not have driven Tata 709 and when that vehicle met with an accident, the { 5 } Insurance Company could not be made liable to pay compensation. 37. The argument of the Insurance Company is that at the time of accident, Ram Narain had no valid and effective licence to drive Tata 709. Indisputedly, Ram Narain was having a licence to drive light motor vehicle. The learned counsel for the Insurance Company, referring to various provisions of the Act submitted that if a person is having licence to drive light motor vehicle, he cannot drive a transport vehicle unless his driving licence specifically entitles him so to do (Section 3), Clauses (14), (21), (28) and (47) of Section 2 make it clear that if a vehicle is “light motor vehicle”, but falls under the cateogry of transport vehicle, the driving licence has to be duly endorsed under Section 3 of the Act. If it is not done, a person holding driving licence to ply light motor vehicle cannot ply transport vehicle. It is not in dispute that in the instant case, Ram Narain was having licence to drive light motor vehicle. The licence was not endorsed as required and hence, he could not have driven Tata 709 in absence of requisite endorsement and the Insurance company could not be held liable. 38. We find considerable force in the submission of the learned counsel for the Insurance Company. We also find that the District Forum considered the question in its proper perspective and held that the vehicle driven by Ram Narain was covered by the category of transport vehicle under Clause (47) of Section 2 of the { 6 } Act. Section 3, therefore, required the driver to have an endorsement which would entitle him to ply such vehicle. It is not even the case of the complainant that there was such endorsement and Ram Narain was allowed to ply transport vehicle. On the contrary, the case of the complainant was that it was Mohd. Julfikar who was driving the vehicle. To us, therefore, the District Forum was right in holding that Ram Narain could not have driven the vehicle in question.” 13. The aforesaid decision was relied on by Supreme Court in latter decision reported in 2009 DNJ (SC) 249 (Oriental Insurance Co. Ltd. Vs. Angad Kol & Ors.). Their Lordships again on somewhat similar facts recorded following finding in para 18: “From the discussions made hereinbefore, it is, thus, evident that it is proved that respondent No. 6 did not hold a valid and effective driving licence for driving a goods vehicle. Breach of conditions of the insurance is, therefore, apparent on the face of the records”. 14. In my view, keeping in view the two decisions of Supreme Court rendered in the case of Prabhu Lal (supra) and Angad Kol (supra) and applying the same to the undisputed facts of this case, the Tribunal was not right in this case by holding that insurance company was liable. In my view, the case of breach of policy condition had been { 7 } made out by insurance company qua insured so far as driving license of the driver of insured vehicle was concerned and hence the law laid down in aforementioned two cases was applicable to the facts of this case. 15. Learned counsel for the claimants (respondents), however, contended that since the accident in question occurred in 1995 and at that time, the law on this issue was not settled and hence keeping in view the law now laid down particularly in Swaran Singh's case (2004 ACJ 1), this Court should direct the insurance company to first deposit the awarded sum and then grant them a right of recovery of the awarded sum from the insured. I find force in his submissions. 16. In my opinion, looking to the nature of facts of this case i.e. accident occurred in 1995 and the fact that there was a breach of term of policy though technical in nature and the law laid down by Supreme Court in Swaran Singh's case and two more decisions relied on by this Court as taken note of supra which were rendered in 2004 and then in 2008 by settling the legal position, the Tribunal did not have occasion to decide the issue in the light of the law subsequently laid down on the issue. In such cases, their Lordships have in appropriate cases even without taking recourse to powers under Article 142, had directed the Insurance Company to first satisfy the award in favour of claimants and then recover the awarded sum { 8 } from the insured. I prefer to give this indulgence in favour of claimants in this case. 17. In view of foregoing discussions, the appeal succeed and is allowed. Impugned award is modified in favour of insurance company to the extent that insurance company would first deposit the entire awarded sum (including what is awarded by this Court) in Tribunal and on such deposit being made will be entitled to recover the entire awarded sum from the insured (NA-2) in these very proceedings. No cost. 18. This takes me to other appeal being CMA No. 655/1997. It is filed by claimants for enhancement. 19. On 4.4.95, Nana, aged around 20 years, a labourer met with a vehicular accident and died. It is this incident which gave rise to filing of a claim petition by his parents claiming compensation for his death. The claim was resisted by the Insurance Company. Parties adduced evidence. By impugned award which was also subject matter of CMA No.725/97, the learned Member of the Claims Tribunal partly allowed the claim petition and awarded a total sum of Rs.72,500/- towards full payment of compensation for his death. It is this award which is sought to be challenged by the claimants on the ground that compensation awarded is on a lower side and { 9 } therefore, it should be enhanced. 20. I have gone through the evidence. Having gone through the same, I am of the opinion that this appeal deserves to be allowed in part to the extent indicated infra. 21. I have taken note of the judicial precedents on the issue of award of compensation in child death or I may say young persons cases such as the one, reported in 2001 ACJ 160 wherein their Lordships of Supreme Court while allowing the appeal filed by the New India Insurance Company awarded a sum of Rs.1,80,000/- for the death of a child aged 9 years and like wise in a case reported in 2009 ACJ 99 (Manju Devi vs. Musafir) their Lordships of Supreme Court again in a death case of child aged 13 years awarded Rs.2,25,000/-. I have examined the evidence of the present case keeping in view the law laid down in these 2 decisions, so also the approach of their Lordships in dealing with child death or young persons case who were school going or college going cases. The boy i.e. Nana in this case was a hale and hearty and was working as a labourer. Taking into all these factors, coupled with award of statutory conventional compensation, and applying the multiplier provisions as provided under the Act, I consider it just and proper to award a total sum of Rs.2,00,000/- in lump sum to the claimants by way of compensation for the death of Nana. In other words, applying all relevant criteria provided { 10 } under the Act to the facts of this case, I am of the view that an award of Rs.2,00,000/- to claimants for the death of Nana is a just one. 22. As a result, the claimants are held entitled for a total sum of Rs.2,00,000 by way of compensation for the death of Nana. 23. As observed supra, the compensation awarded to the claimants is just, reasonable and proper looking to the facts and circumstances of the case and the same is granted taking into account the law laid down by the Supreme Court in these types of cases referred supra. Indeed in such cases, no fixed or/and any static formula is provided for determining the compensation and the same is required to be determined on the basis of evidence adduced and all relevant factors mentioned supra. It is on this basis, the courts have to work out award of reasonable compensation by exercising discretion. It is done in this case. 24. Learned counsel for the appellant, however, cited some more authorities for claiming more enhancement. I have gone through these authorities. In my opinion and as observed supra, every case depends upon facts involved in that case. I need not, therefore, deal each case separately having placed reliance on 2 cases of Supreme Court referred supra. They are sufficient for the { 11 } disposal of this appeal. 25. Learned counsel for the respondent however vehemently contended that any increase in the compensation by this Court in this appeal would be a bonanza to claimants and hence it should not be done. I do not agree to this submission because on the facts found proved if the claimants are held entitled to get reasonable and lawful compensation, then in such event, it should be granted to them. It does not in my view call a “bonanza” to claimants but a just compensation awarded to them. 26. In this view of the matter, the appeal succeeds and is allowed in part. Impugned award is modified by enhancing the compensation to the extent indicated above in para 22. The enhanced sum will carry interest at the rate of 6% p.a. from the date of application till realization. All other findings are upheld being not under challenge. Counsel fees Rs.1500/-, if certified. (A.M.SAPRE ),J. /Anil/