IN THE HIGH COURT OF JUDICATURE AT PATNA MA No.111 of 2005 NILAM DEVI & ORS Versus PARMANAND YADAV & ORS ----------- For the appellants: M/S Vivekanand Vivek, D.K.Poddar For the Insurance Co.:Mr.Ashok Priyadarshi For the owner : none. 6. 26/9/2008 This appeal has been directed against the order dated 22nd December, 2004 and award signed on 4.1.2005 in Claim case no. 87 of 2001 by the learned 3rd. Additional District Judge-cum-Motor Accident Claims Tribunal, Naugachia, whereby and whereunder the claim petition filed by Nilam Devi, wife of late Gopal Singh and her children, has been dismissed. The appellants Nilam Devi and others have, thus, prayed for setting aside the impugned judgment and award, as stated above. Heard learned counsel for the appellants and learned counsel for the respondent New India Assurance Co. Ltd. An application under Section 166 of the M.V. Act was filed by Nilam Devi, wife of late Gopal Singh and others, who are her minor son and daughters, against Parmanand Yadav, owner of the vehicle Tata Sumo bearing registration no. WB 74C- 0421 and against Insurance Company, as stated above, which has insured the aforesaid vehicle, seeking compensation of Rs.3,95,000/- and odd on account of death of her husband Gopal Singh. As per claimants‟ case, on 21.7.2001 Gopal Singh was coming from Samastipur to Naugachia by driving aforesaid Tata Sumo and when reached near Fulwaria within the district of Begusarai on NH 28, the front tyre of the said vehicle burst and all on a sudden the vehicle turn turtled on the road, out of which several persons received fatal 2 injuries including Gopal Singh and Gopal Singh while being carried to hospital for his treatment ultimately died in way to hospital. Post mortem of the dead body was held at Sadar hospital, Begusarai and Doctor opined that Gopal Singh died of shock and haemorrhage due to antimortem injuries caused by hard and blunt substance. As per further case, Gopal Singh was Hindu Male governed by a Mitakshra School of Hindu Law and died leaving behind his wife, two minor daughters and one son, who was earning Rs.3000/- per month by way of monthly salary apart from other allowances in case of performance of duties out of station. Age of Gopal Singh at the time of his death was 40 years. A police case vide Fulwaria P.S.case no. 51/2001 under Sections 279, 337, 338 and 427 IPC. was drawn against the driver. Claimants have also furnished insurance policy of the said vehicle bering policy no. 3151230027870 effective from 21.1.2001 to 20.1.2002, thus, covering the period of accident. Owner of the vehicle appeared and filed written statement and objected maintainability of the case as also raised objection regarding non-joinder and mis-joinder of the parties besides taking some other technical pleas but admitted that the vehicle met with an accident due to act of God while it was coming from Samastipur to Naugachia and suddenly front wheel of the vehicle burst and, so, it was imbalanced. It has also been averred by the owner of the vehicle that it was insured with the New India Assurance Com. Ltd., Silliguri vide its policy no. 315230027870 effective from 21.1.2001 to 20.1,2002 and insurance was 3 comprehensive and the premium of driver was also paid, hence Insurance Company was liable to indemnify the risk of driver and also stated that the opposite party has not violated any terms and conditions of the insurance policy. New India Assurance Com. Ltd. appeared and filed written statement and raised objection regarding maintainability of the petition besides objection in respect of non-joinder and mis-joinder of parties and denied death of Gopal Singh, as alleged, and pleaded that driver has not been made party and also asserted that vehicle, in question, was being plied without fitness, road permit etc. and owner of the vehicle has violated rules of the vehicle and for this the Insurance Company was not liable to pay compensation, besides raising plea of res judicata, age, occupation and monthly income etc. and denying claim of the claimants. On the basis of pleadings of the parties, following issues have been framed : (1) Is the claim petition maintainable ? (2) Have the claimants valid cause of action ? (3) Did the accident took place due to negligence of driver of the vehicle ? (4) Is the amount of compensation claimed by the claimants excessive ? (5) Who is liable to pay compensation to the claimants, owner or insurer ? (6) Are the claimants entitled for other reliefs prayed for ? Claimants produced four witnesses, namely, Nilam Devi, Dinesh Singh, Santosh Kumar Jha and Bipin Kumar besides five documents, which were exhibited as Ext.1, signature of Parmanand Yadav on his certificate, Ext.2, certified copy of FIR, Ext.3 , photo copy of post mortem report, Ext.4 , photo copy of Insurance policy and Ext.5, photo copy of 4 Driving licence. Except the claimants, none of the opposite party adduced any evidence either oral or documentary. The New India Assurance Co. before the Tribunal argued that the claimants had not proved regarding age, occupation and monthly income of the deceased and asserted that the claimants were required to prove those facts and also pleaded that amount of compensation was exaggerated and excessive. It has been submitted by the learned counsel for the Insurance Company that claimants may be allowed compensation on notional income before the Tribunal. Learned Tribunal has decided issue no.1 and 2 in favour of the claimants and thereby it was held that claim petition was maintainable and the claimants had valid cause of action. But the Tribunal decided issue nos. 3 and 4 against the claimants. Issue nos. 5 and 6 in the light of such decision were accordingly decided. From the impugned judgment it appears that the learned Tribunal has considered this aspect of the case that the vehicle concerned was carrying 14 passengers and, therefore, it was held that it was not an act of God rather it was the deliberate act of the deceased driver, who was himself responsible for such accident having taken place due to negligence on the part of the driver and, so, claimants were not entitled to any claim. From last page of the impugned judgment, it would appear that learned Tribunal has taken a judicial notice of the fact that the driver himself was responsible for the reason that he was carrying 14 passengers inside the Sumo 5 and died and for that it could not be said that it was an act of God. Learned counsel for the appellants has submitted that only one witness on this point, as an eye-witness, has been examined in course of hearing of the proceeding, i.e., Dinesh Singh, who happens to be a co-passenger and he has no where stated regarding existence of 14 passengers inside the Sumo. The cross examination of this witness made on behalf of the Insurance Company is silent regarding age, income and manner of occurrence. So, the examination-in- chief is to be taken on its face value wherein it has clearly been stated that all on a sudden on the way tyre burst as a result of which it caused accident and driver ultimately died. Nilam Devi, Claimants witness no.1, wife of the deceased, has stated in her deposition that her husband was a driver. He was 40 years of age and whose earning was Rs.3000/- per month. She has been cross examined on behalf of the owner as well as Insurance Company in which she has stated that her husband used to get salary from the owner of the vehicle. Cross examination made on behalf of the Insurance Company also confers regarding payment of salary of her husband by the owner of the vehicle. There is nothing in her cross examination to discredit her evidence so far status of her husband as a driver, who was an earning member of the family. Claimants witness no.3 Santosh Kumar Jha, who was fully acquainted with the family of the deceased, has also stated that Gopal Singh was driver, who was aged 40 years at the time when he died on 21.7.2001. There is nothing to discredit his testimony 6 although he has been cross examined on behalf of the Insurance Company. Claimants witness no.4 is Bipin Kumar, who also claims to be an employee of Parmanand Yadav, owner of the vehicle. He says that Gopal Singh used to ply vehicle of his owner and he files and proves a certificate granted by Parmanand Yadav. The cross examination made on behalf of the Insurance Company does not contradict so far employment of deceased and earning of the deceased is concerned. There is nothing to disbelieve such certificate of earning rather he says that he was also getting Rs.3000/- per month as monthly salary from the owner. On the basis of fardbeyan of Baij Nath Paswan FIR of Phulwaria P.S.case no. 51/01 was drawn against the driver, which is Ext.2. But author of fardbeyan Baij Nath Paswan has not been examined. So, it is only relevant so far institution of police case, i.e., FIR is concerned, contents of which cannot be used in the claim proceeding. Practically there is no evidence on the record either of the sides so as to infer that vehicle, in question, was driving rashly and negligently. From the record of the Tribunal it appears that deceased was driver aged about 40 years and met with an accident in the manner as stated in the claim petition in view of the fact that the respondent Insurance Company has failed to obtain anything from the cross examination of the witnesses examined on behalf of the claimants. The Insurance Company has no where claimed that the vehicle concerned was not insured by the said Insurance Company for that aforementioned relevant paper, which is Xerox copy of the insurance cover, also shows that 7 insurance policy was meant to cover the liability to pay compensation. There is nothing on the record to show that the respondent Insurance Company has led any evidence so as to create any doubt in genuineness of driving licence of the deceased driver, which was valid and renewed upto 30.8.2002. Of course, it has been argued on behalf of the Insurance Company that Sumo vehicle was being used for commercial purpose and the driver did not hold licence for driving of such commercial vehicle. In support of the contention learned counsel for the Insurance Company has relied upon a decision of Hon‟ble Apex Court, reported in AIR 2008 SC, 614 (New India Assurance Co.Ltd. Vs. Prabhu Lal) wherein the Hon‟ble Apex Court in Judgment of Civil Appeal Nos. 5539 with 5540-5541 of 2007 (arising out of SLP© Nos. 7370, 17794 of 2004, 7618 of 2005), dated 30.11.2007 has held that there is no liability of the Insurer to make payment of the compensation to the claimants in respect of Motor accident being driven by a driver having light motor vehicle licence for driving a transport vehicle. Learned counsel for the Insurance Company has given emphasis that the vehicle in question was used as Taxi and so it was a commercial vehicle and for that the Insurance Company should be absolved from paying compensation to the aggrieved party, rather this liability of the awarded amount should be fastened on the owner of the vehicle who utilized services of a driver having no effective licence of a commercial vehicle. 8 In reply the learned counsel for the appellants has submitted that „Transport vehicle‟ has now been substituted for „medium goods vehicle‟ and „heavy goods vehicle‟ in Form 4 but „light motor vehicle‟ continued to cover both, light passenger carriage vehicle and light goods carriage vehicle and the driver carrying passengers in the said vehicle is given only L.M.V. licence and so he was having a valid licence to drive the light motor vehicle and was thus authorized to drive the light goods vehicle. Thus, the Hon‟ble Apex Court came to the conclusion that the Insurance Company should be held liable to pay compensation. In the Judgement of the Hon‟ble Apex Court reported in 2008 ACJ, 721, the issue on behalf of the Insurance Company was as to whether the driver of the offending vehicle having licence to drive light motor vehicle was authorized to drive a van which had a goods carriage permit and was insured with insurance company, met an accident causing death of the driver and it was that the driver did not possess any effective licence to drive the light motor vehicle. Paras 9, 10, 11, 12, 13, 14 and 15 of the judgment are quoted below : Para 9: The Motor Vehicles Act, 1988, which was enacted to consolidate and amend the law relating to motor vehicles, is a complete code. Para 10: Section 2 of the Act provides for interpretation of the terms contained herein. It employs the words „unless the context otherwise requires‟. Section 2(16) of the Act defines „heavy goods vehicle‟ to mean any 9 goods carriage the gross vehicle weight of which, or a tractor or a road-roller the unladen weight of either of which, exceeds 12000 kg. Para 11 : Section 2(21) defines „light motor vehicle‟ and Section 2(23) defines „medium goods vehicle‟ as under: “(21) „light motor vehicle‟ means a transport vehicle or omnibus the gross vehicle weight of either of which or a motor car or tractor or road-roller the unladen weight of any of which, does not exceed 7500 kilo grams; (23) „medium goods vehicle‟ means any goods carriage other than a light motor vehicle or a heavy goods vehicle.” Section 3 of the Act is in the following terms : “3. Necessity for driving licence(1) No person shall drive a motor vehicle in any public place unless he holds an effective driving licence issued to him authorizing him to drive the vehicle; and no person shall so drive a transport vehicle other than a motor car or motorcycle hired for his own use or rented under any scheme made under sub-section (2) of Section 75 unless his driving licence specifically entitles him so to do.” Para 12: The Central Government has framed rules known as Central Motor Vehicles Rules, 1989. Para 13: The word „Form‟ has been defined in rule 2(e) to mean a Form appended to the rules ( sic. Relevant portion of Form 4 before its amendment reads as under); “I apply for a licence to enable me to drive vehicles of the following description : (d) Light motor vehicle 10 (e) Medium goods vehicle (g) Heavy goods vehicle (j) Motor vehicles of the following description… After amendment the relevant portion of Form 4 reads as under : “I apply for a licence to enable me to drive vehicles of the following description : (d) Light motor vehicle (e) Transport vehicle (j) Motor vehicles of the following description…” Para 14: Rule 14 prescribes for filing of an application in Form 4, for a licence to drive a motor vehicle, categorizing the same in nine types of vehicles. Clause(e) provides for transport vehicle which has been substituted by G.S.R. 221(E) w.e.f. 28.3.2001. Before the amendment in 2001, the entries medium goods vehicle and heavy goods vehicle existed which have been substituted by transport vehicle. As noticed hereinbefore, light motor vehicle also found place therein. Para 15: „Light motor vehicle‟ is defined in section 2(21) and, therefore, in view of the provision, as then existed, it included a light transport vehicle. Form 6 provides for the manner in which the licence is to be granted, the relevant portion whereof read as under : “Authorisation to drive transport vehicle Number………………… Date………………… Authorised to drive transport vehicle with effect from……… Badge number………………. Signature Designation of the 11 Licensing Authority Name and designation of the authority who conducted the driving test”. Learned counsel for the appellants has further submitted that now this point has been settled by several decision of the Hon‟ble Apex Court and now only two categories of licence to the driver are being issued in view of recent amendment of the M.V. Act; one meant for light motor vehicle and other for transport passenger vehicle. All such vehicles unloaded weight of which is below 7500 kg are covered under light motor vehicle and, so, the deceased driver could be said to be plying the vehicle holding proper and effective driving licence. I find force and substance in such contention of the learned counsel for the appellants. Moreover, learned counsel for the appellants has also submitted that the learned Advocate representing Insurance Company before the Tribunal in all fairness has submitted that claimants should be paid compensation treating notional income of the deceased driver of a ordinary person. Learned counsel for the respondent Insurance Company has submitted that learned Lawyer representing Insurance Company before Tribunal has no such authority to make such submission. But I do not find any logic in such submission in view of the fact that no such written instruction of high officials of the Insurance Company has ever been produced before the Tribunal or in this Court so as to ascertain the instruction received by the learned counsel and to confine their argument within that limit before 12 Tribunal. It is a professional understanding and communication between client and the lawyer and for that the submission advanced by any lawyer representing Insurance Company before the Tribunal cannot be questioned and condemned here. In the facts and circumstances, it is manifest that learned Tribunal has dismissed claim of the claimants without consideration of any legal evidence on the record of any witness of the claimants or the owner and, as such, there was no basis to infer that the vehicle concerned was loaded with 14 passengers. If Insurance Company was so much interested to prove this fact, the Company was not prevented from examining any witness or the informant or any injured on their behalf. But Insurance Company did not bother to examine any witness so as to discredit or contradict averments made in the claim petition or evidence adduced on behalf of the claimants or documents produced on behalf of the claimants. The income of the driver at the rate of rupees three thousand per month has been supported from a paper produced, purported in the writing of the owner of the vehicle by an employee of the concerned owner, who is Claimants Witness No.4 Bipin Kumar and there is nothing on the record to suggest that he has given a false statement. Learned Tribunal has dismissed the claim case on the ground that it was not an act of God rather deliberate act of the driver. I do not agree with such view of learned Tribunal. An accident is an accident and there are several factors responsible for tyre bursting which cannot be attributed to the negligence of the driver. It is an 13 unforeseen phenomenon and any speeding vehicle could have the same fate. The tyre in question may burst out of friction in moving position even when it comes in contact with some pointed stones, glass pieces or nails or anything else and for that it cannot be said that driver was responsible. There is nothing on the record to show that driver did any act for which tyre burst which resulted in death of driver of the vehicle. No body could dare and move to the extent of causing accident by committing an act in such a way so as to end his own life. The simple point is that vehicle was insured and insurer has the liability to indemnify the owner even for loss of life of the driver and all the paraphernalia and necessary ingredients for payment to the victim‟s family is said to have been fulfilled. Income of Rs.3000/- per month in the year 2001, i.e., at the rate of Rs.100/- per day for doing the job of a driver, who has to work more than 8-10 hours in a day in plying vehicle cannot be said to be an exaggerated amount but normal wage for such person in that category. In the facts and circumstances, treating income of the deceased at the rate of Rs.3000/- per month and applying the multiplier of „15‟ in respect of age of the deceased or the claimant whichever is known, it would be Rs.2,47,000/-. Income of Rs.3000/- per month comes to Rs.36,000/- per annum and deducting 1/3 of the same, it would come to Rs.24,000/- per annum and applying multiplier of „15‟ plus loss of consortium of Rs.5000/- and funeral expenses of Rs.2000/-, total amount comes to Rs.2,47,000/- (Rupees two 14 lacs forty seven thousand) which the claimants are also entitled to receive as compensation. The impugned order dismissing the claim petition is not sustainable either on facts or in law, so, the same stands set aside. The Insurance Company, who is to indemnify the owners liability, is, thus, directed to pay the aforesaid amount of Rs.2,47,000/- (Rupees two lacs forty seven thousand) besides interest at the rate of 7% per annum from the date of filing of the claim petition in the court below, till the date of its realization, within two months from the date of passing of this order. The entire amount should be credit in the account of the claimant, out of which 50% of the same should be deposited in the fixed deposit account of the children of the deceased in their proportionate value, so that each of them could be at liberty to withdraw the same, on attaining their age of majority. In the result, this appeal is allowed. (Subash Chandra Jha,J.) spal/