1 IN THE HIGH COURT OF JUDICATURE AT BOMBAY APPELLATE SIDE, BENCH AT AURANGABAD FIRST APPEAL NO.66 OF 2005 United India Insurance Co. Ltd. Branch Hingoli, post Office Road, Taluka Appellant/orig. Hingoli Dist. Parbhani. Respondent No.3. versus 01. Pushpabai w/o Ramesh Shinde, age 30 years, occup. Labourer, r/of Yelki, Taluka Kalamnuri, District Parbhani. 02. Gulab s/o Baban Kale, age 22 years, occup. driver, r/of Yerandeshwar, Taluka Basmath, District Parbhani. 03. Sakharamji s/o Babanrao Kale, Respondents/No.1 age major, occupation business, orig. petitioner r/of Yerandeshwar, Taluka and Nos.2 and 3 Basmath, District Parbhani. are orig. resp Nos. 1 & 2. WITH FIRST APPEAL NO.642 OF 1997 Pushpabai w/o Ramesh Shinde, age 30 years, occup. Labourer, r/of Yelki, Taluka Kalamnuri, Appellant/orig. District Parbhani. Petitioner. versus 01. Gulab s/o Baban Kale, age 22 years, occup. driver, r/of Yerandeshwar, Taluka Basmath, District Parbhani. 2 02. Sakharamji s/o Babanrao Kale, age major, occupation business, r/of Yerandeshwar, Taluka Basmath, District Parbhani. 03 United India Insurance Co. Ltd. Branch Hingoli, post Office Road, Taluka Hingoli Dist. Parbhani. Respondents. ----------------------------------------------------------- Shri A.M. Phule, Advocate, holding for Shri D.V.Soman, for the appellant in First Appeal No.66/2005. Smt. A.N. Ansari for Respondent No.1 in F.A. No.66/2005 and for appellant in First Appeal No.642 of 1997. Shri V.N. Upadhye, Advocate for Respondent No.3 in F.A.No.642/1997. Respondent Nos.2 and 3 in F.A. No.66/2005 (who are Respondent Nos. 1 and 2 in F.A. No.642/1997) are served and absent. ----------------------------------------------------------- Coram : P.R. Borkar, J. Date : April 20, 2010 ORAL JUDGMENT 01. These two appeals arise out of the same judgment and award passed by Ex-officio Member, Motor Accident Claims Tribunal, Parbhani, on 1.3.1996 in M.A.C.P. No. 84 of 1994, whereby petitioner-claimant Pushpabai was awarded compensation of Rs.28,000/= with interest at 12 per cent per annum from the date 3 of application till actual payment for the injuries caused to her. Original claimant Pushpabai being aggrieved by inadequate compensation has filed First Appeal No.642 of 1997, whereas Insurance Company not being satisfied for holding it responsible, has filed First Appeal No.66 of 2005. 02. Brief facts giving rise to this appeal may be stated as below. Original claimant Pushpabai was travelling in a jeep which was owned by original Respondent No.2 Sakharam Kale, driven by original Respondent No.1 Gulab Kale and insured with original Respondent No.3 United India Insurance Company. Claimant Pushpabai was travelling in the jeep from Shembal Pimpri to Yerandeshwar and when the jeep passed passed Tupa Pati, it suddenly went out of the road and turned turtle in which Pushpabai sustained fracture. She was first taken to the Government Dispensary at Kalamnuri and thereafter to the Civil Hospital at Parbhani. It is stated that Pushpabai sustained injury on her back and waist and was indoor patient from 20.5.1994 to 8.8.1994. Thereafter she had to take medical treatment as an outdoor patient. She sustained fracture which 4 resulted in permanent disablement to the extent of 45 per cent. It is said that Pushpabai was 30 years old when accident took place and was earning Rs.25/= per day. In the circumstances, she claimed compensation of Rs.1,00,000/=. 03. Original Respondent Nos.1 and 2 (driver and owner of jeep) filed written statement at Exhibit 24. According to them, they allowed Pushpabai and others at their request to travel in the jeep driven by original Respondent No.1. Jeep was not driven in rash and negligent manner and the injuries caused to Pushpabai were simple in nature. She did not spend more than Rs.1000/= towards medical treatment. 04. Original Respondent no.3-insurance company, however, raised a defence that the driver of the jeep was holding a learning licence and so it is not liable under the policy. There was also breach of terms and conditions of the policy inasmuch as passengers were carried in the jeep. 05. The learned Member of the Tribunal held that the claimant Pushpabai proved that she sustained permanent disablement due to rash and negligent 5 driving of original Respondent No.1 and that all the Respondents are liable to pay compensation. He, therefore, awarded Rs.28,000/= as compensation with interest at 12 per cent. Being aggrieved by said judgment, these two appeals are filed by the claimant and insurance company which are being disposed of by this common judgment. 06. So far as First appeal No.66 of 2005 is concerned, learned counsel for the appellant-insurance company argued that the driver had only learner's licence as has been proved by the insurance company by examining witness Kishor Pise at Exhibit 36. Witness Kishor Pise was surveyor working with original Respondent No.3-insurance company. He stated that he had gone to the Ramkirhsna Automobiles on Gangakhed road at Parbhani and had assessed the damage to the vehicle. At that time both, driver and owner of the jeep, were present. He demanded R.C.book, tax book and driving licence to the driver and the owner, which documents were produced by them before him. At that time, he found that original Respondent No.1 was having learning licence and had no permanent licence. 6 07. The learned counsel for the appellant cited case of New Indian Assurance Company vs. Mandar Tamabe 1996 (2) SCC 328. In the said case, the accident was caused by person who held learner's licence the validity of which had already expired. There was exclusion clause in the insurance policy specifically providing that person driving the vehicle must hold a valid driving licence or a permanent driving licence other than learner's licence. It was, therefore, held that the driver could not be held to be duly licenced driver within the meaning of Section 96(2)(b)(ii) of the Motor Vehicles Act 1939. In view of the same, insurance company was held to be not liable. 08. However, the law is considered by the Full Bench of the Supreme Court in the case of National Insurance Company vs. Swaran Singh (2004) 3 S.C.C. 297. Learned Counsel Smt. Ansari for claimant pointed out paragraph 93 of the said judgment. In that case, the Supreme Court observed that under the Motor Vehicles Act, 1988, there is provision for grant of learner's licence. So, the learner's licence is thus also a licence within the meaning of provisions of the Act and so such person could not be said to be a person not duly licenced resulting into right to 7 insurance company to avoid claim by third party. It was further observed that even if there is a condition in the contract of insurance that the vehicle cannot be driven by a person holding a learner's licence, the same would run counter to the provisions of Section 149(2) of the said Act. 09. So far as travelling of passenger in the vehicle is concerned, the learned Member of the Tribunal considered the evidence of claimant Pushpabai at Exhibit 33 and that of Kishor Pise at Exh.36. Witness Kishor Pise did not say anything about passengers travelling in the vehicle. We do not have any admission on the part of Pushpabai. On the other hand, in her cross-examination it has come on record that Respondent No.2 was husband of sister of her (Pushpabai's) mother. So,Pushpabai was travelling in close relative's jeep and she has specifically stated that nobody had paid fare to Respondent No.1. In these circumstances, First Appeal No.66 of 2005 must fail. There was no breach of terms and conditions of the insurance policy. 10. So far as quantum is concerned, evidence of claimant Pushpabai at Exhibit 33 clearly indicates 8 negligence of original Respondent No.1 Gulab Kale. She stated that jeep was being driven by Gulab Kale and suddenly it left the road and turned turtle. A jeep, if driven properly and in moderate speed, would not topple on its own. It is only in case of rash and negligence driving that such incident would occur. 11. Pushpabai further stated that she was first taken to the government dispensary at Kalamnuri and thereafter she was shifted to the Civil Hospital, Parbhani, where she was admitted for three months. In support of this, certain documents are produced on record which are admitted in evidence. There is a discharge card issued by Civil Hospital, Parbhani which shows that there was fracture to pelvic bone and patient was indoor patient. There is also disablement certificate which appears to be temporary, due to fracture. In the said certificate, there is nothing to indicate that disablement was permanent. However, the fact remains that for certain period claimant Pushpabai had difficulty in carrying out her duties. Disablement certificate is dated 3.8.1994 whereas the accident had occurred on 20.5.1994. So, it is clear that the said certificate was issued when Pushpabai was still under treatment. 9 12. The trial court, in paragraph 11 of its judgment, observed that he allowed Rs.10,000/= on account of medical treatment for three months. There was loss of Rs.25/= per day. Including No Fault Liability, learned Member of the Tribunal awarded Rs. 28,000/=. 13. In my considered opinion, besides Rs. 10,000/= required towards medical expenses, somebody must have attended Pushpabai in the hospital. So, I award Rs.6000/= towards such attendance and Rs. 10,000/= towards pains and suffering. Claimant Pushpabai must have lost Rs.25/= per day. Her income can be said to be Ra.s6000/= per month and she must have lost income for not less than 6 months considering that she was indoor patient for three months. Therefore, if we consider loss for six months, the same would come to Rs.36,000/=. Towards other heads, I award amount of Rs.3000/=. Total amount, therefore, comes to Rs.65,000/=. 14. In the result, First Appeal No.66 of 2005 by the Insurance company is hereby dismissed. So far as First Appeal No.642 of 1997 is concerned, the same is 10 allowed partly. Original Respondents are directed to pay to claimant Pushpabai jointly and severally the amount of Rs.65,000/= inclusive of No Fault Liability with interest at 9 per cent per annum from the date of application till actual payment/realisation. If any amount is already paid/deposited in the court the said payment/deposit would be taken into account while calculating interest. Both First Appeals stand disposed of, accordingly. pnd/fa66.05 (P.R.BORKAR, J.)