IN THE HIHG COURT OF CHHATTISGARH AT BILASPUR fC.G.) M.A.faNo. 1^1 5- /2008 APPELLANT (Owner) RESPONDENTS . c ^•-'^.,^ '^ ^;^yi^- 0<SSS'^ ^...-'^ a-ffia^-- Rajkumar Prajapati, S/o Ramvirksh Ram, aged about 33 years, R/o- Singh Colony, Jodapipal Kedarpur, Ambikapur, District- Surguja (C.G.) VERSUS 1.^ United India Insurance Company Limited, though Branch Manager, Near Ram Mandir, Ambikapur, Distt.- Surguja (C.G.) Smt. Gulbai Devi W/o Late Mahendra Rajwade, aged about 38 years, Rajesh S/o- Late Mahendra Rajwade, aged about 18 years, Rakesh S/o Late Mahendra Rajwade, aged about 16 years, through his natural guardian Smt. Gulbai Devi W/o Late Mahendra Rajwade aged about 38 years, ^5: Gahbar S/o- Late Ujit, aged about 61 years, 6. Khuleshwari Bai W/o Gahbar, aged about 58 years, All resident No.2 to 6 R/o Village ' Kuruwan, P.S. Vishrampur, Tahsil- Surajpur, District- Surguja (C.G.) 7. Shadat Ali, S/o Taufik Ansari aged about 21 years, (Driver) C/o Rajkumar Prajapati, R/o Sinha Colony Jodapeepal Kedarpur, Ambikapur, District-Surguja (C.G.) (Formal Party) (Driver) ^ ^7 ^& ^--- MISCELLANEOUS APPEAL UNDER SECTION 173 OF THE MOTOR VEHICLE ACT. 1988 ^--^_ 1 HIGHCOURTOFCIIfiA'rTISGARHATBlLASPUR DB:- HON'BLE SHRI I.M. QUDDUSI & H^N^LE SHRI N.K.AGARWAL, JJ APPELLANT RESPONDENTS M.A.C. No. 72/2008 Mst. Gulabi Bai and others Versus United India Insurance Company Limited and others PRESENT:- Sushri Sharmila Singhai, Advocate for the appellants. Shri Dashrath Gupta, Advocate, for the respondent No. 1 Shri F.S. Khare, Advocate, for the respondent No. 2. None for other respondent. APPELLANT RESPONDENTS M.A.C. No.1317/2008 Rajkumar Prajapati Versus United India Insurance Company Limited and others \' PRESENT:- Shri F.S. Khare, Advocate for the appellant. Shri Dashrath Gupta, Advocate, for respondent No. 1. Sushri Sharmila Singhai, Advocate, for the respondents No. 2, 3, 5and6. ORAL ORDER (1-12-2010) Per N.K. Agarwal, J 1. M.A.C. No. 72/2008 preferred by the claimants and M.A.C. No. 1317/2008 preferred by the owner against the award dated 28-9-2007 passed by Ist Additional Motor Accident Claims Tribunal, Surajpur distt. Sarguja in Claim Case No. 111/2006 are being disposed of by this common order as both the appeals arise out of the sarne award. ^ 2. Facts of the case in brief are that on 16-5-2006, Mahendra Rajwade (since deceased) was going on his bicycle from village Karuvan towards Bishrampur. At about 4.30 p.m. a jeep bearing registration No. CG 15/3600 being driven by ^p'4^ •:'saSssy Sahadat Ali, owned by Rajkumar Prajapati dashed the bicycle near Chhattisgarh Dhaba, Kuruvan turn, as a result of which, Mahendra Rajwade sustained grievous injuries and died during treatment. The claimants being legal heirs of the deceased, preferred a claim petition under Section 166 of the Motor Vehicles Act, 1988 claiming Rs. 30,40,OOO/- as compensation for the death of the deceased. 3. M.A. No. 1317/2008 has been filed by the owner against the direction to the Insurance Company regarding first pay and then recover the amount of compensation from the owner. M.A. No. 72/2008 has been filed by the claimants for enhancement of the amount of compensation. 4. Let us first cQnsider the quantum of compensation. 5. The income of the deceased was assessed by the Tribunal as Rs. 3,000/- per month i.e. Rs. 36,000/- per annum. The deceased was a married person and there are 5 claimants. Hence according to para 30 of the decision of the Supreme Court in the case of Sarla Vernia (Smt.) and others -v- Delhi Transport Corporation and another reported in (2009) 6 SCC 121, where the deceased was married, the deduction towards personal and living expenses of the deceased, should be 1/4th where the number of dependent family members is 4 to 6. Therefore, Rs. 9,000/- out of Rs. 36,000/- is liable to be deducted from- the annual income of the deceased. Thus the loss of dependency comes to Rs. 27,000/- per annum. Further the Tribunal has applied multiplier of 13 only. Considering the age of the deceased as 40 years at the time of death, multiplier of 15 is to be applicable between the age of 36 to 40 years, in view of the table given in Sarla Verma's case (supra). Therefore, after applying the multiplier of 15, the total amount towards loss of dependency comes to Rs. J;, 4,05,000/-. Further, the widow is also entitled for Rs. " ^- 5,000/- towards loss of consortium and rest of claimants f •^ ^ for loss of love and affection to Rs. 5,000/- each, Claimants are also entitled for Rs. 5,000/- for funeri expenses and Rs. 5,000/- towards loss of estate. Thus total araount towards other heads comes to Rs. 35,000/-. After adding this amount to the amount of loss of dependency i.e. Rs'. 4,05,000/-, the total amount for which the claimants are entitled comes to Rs. 4,40,000/-. 6 . Thus the appeal M.A.C. No. 72/2008 filed by the claimants is liable to be allowed to the above extent. The claimants are entitled for Rs. 4,40,000/- along with interest at the rate of 6% per annum from the date of application till its payment. 7. Further in respect of the owner's appeal, we have perused the conditions of the policy. Relevant part of the policy reads thus:- "Persons or class of persons entitled to drive" Any person including the insured provided fhat the person driving holds an effective and valid driving Ucence to drive a category of vehicle insured hereunder at the time of accident and is not disqualified from holding or obtaining such a licence. Provided also that a person holding an effective and valid learner's licence to drive the category of vehicle insured hereunder may also drive the vehicle when not used for transport of passengers at the time of accident and fhat the person satisfies the requirements of Rule 3 of Motor Vehicles Act, 1989." 8. In fhe instant case, policy • of insurance (Ex. P-7) is Passengers Carrying Commercial Vehicle Package Policy, which covers the risk of occupants of the offending vehicle. Indisputably, the deceased was bicydist and was not .occupant of the vehicle. As per the evidence, the vehicle was in private use at the time of accident inasmuch as the \: ^ owner of the vehicle was going from Ambikapur to Surajpur for Mahamaya Mandir Darshan. Therefore, in fhe light of above referred clause in the policy, the driving licence of the driver who was having licence to drive light motor vehicle, was valid as light motor vehicle (private) licence holder can drive a jeep which is used as private vehicle. In view of above, only due to fhe reason that the vehicle was registered and insured as taxi, it cannot be said that fhe driver holding licence to drive light motor vehicle cannot drive such vehicle when the vehicle was in private use. 9. Hon'ble Supreme Court in the case of National Insurance Coinpany Ltd. -v- Swaran Singh and others reported in 2004(3) SCC 297 has held in paragraphs 47, 89 and 110(vi) of thejudgment as under:- "47. If a person has been given a licence for a particular type of vehicle as specified therein, he cannot be said to have no licence for driving another type of vehicle which is of the same category but of different type. As for example, when a person is granted a licence for driving a light motor vehicle, he can drive either a car or a jeep and it is not necessary that he must have driving licence both for car and jeep separately. 89. Section 3 of the Act casts an obligation on a driver to hold an effective driving licence for the type of vehicle which he intends to drive. Section 10 of the Act enables the Central Govemment to prescribe forms of driving licences for various categories ofvehicles mentioned in sub-section (2) of the said section. The various types of vehicles described for which a driver may obtain a licence for one or more of them are: (a) motorcy.de wifhout gear, (b) motorcycle with gear, (c) invalid carriage, (d) light motor vehicle, (e) transport vehicle, (fl :^v v road roller, and (gr) motor vehicle of other specified description. The definition clause in Section 2 of the Act defines various categories of vehicles which are covered in broad types mentioned in sub-section (2) of Section 10. They are "goods carriage", "heavy goods vehicle", "heavy passenger motor vehicle", "invalid carriage", "light motor vehicle", "maxi-cab", "medium goods vehicle", "medium passenger motor vehicle", "motor-cab", "motorcycle", "omnibus", "private service vehicle", "semi-trailer", "tourist vehicle", "tractor", "trailer" and "transport vehicle". In claims for compensation for accidents, various kinds of breaches with regard to the conditions of driving licences arise for consideration before the Tribunal as a person possessing a driving licence for "motorcycle without gear", [si'c may be driving a vehicle] for which he has no licence. Cases may also arise where a holder of driving licence for "light motor vehicle" is found to be driving a "maxi-cab", "motor-cab" or "omnibus" for which he has no licence. In each case, on evidence led before the Tribunal, a decision has to be taken whether the fact of the driver possessing licence for one type of vehicle but found driving another type of vehicle, was the main or contributory cause of accident. If on facts, it is found that the accident was caused solely because of some other unforeseen or intervening causes like mechanical failures and similar other causes having no nexus with the driver not possessing requisite type of licence, the insurer will not be allowed to avoid its liability merely for technical breach of conditions conceming driving licence. t1 1 ^. —-::"%in 's ^ ^•-..^'^ ^eS' •VSSX3S 110. The summaiy of our findings to the various issues as raised in these petitions is as follows: (i) (ii) (iii) (iv) (V) XXX xxx XXX XXX XXX XXX XXX XXX XXX XXX (r;) Even where the insurer is able to prove breach on the part of the insured conceming the policy condition regarding holding of a valid licence by fhe 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 Mcence is/are so fundamental as are found to have contributed to the cause of fhe 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." 10. In the instant case, since the vehicle in question was in fact used as a private vehicle at the time of accident, and the driver of the vehicle was holding an effective and valid driving licence to drive light motor vehicle, therefore, in view of the clause in the policy referred to hereinabove in para 7 of the judgment and in view of the decision of the Supreme Court in case of National Insurance Company Ltd. -v- Swaran Singh (supra), the insurer will not be allowed to avoid its liability. 11. In view of the above, the part of fhe award by which the Tribunal has directed the Insurance Company to pay and recover the compensation from fhe owner deserves to be set aside. The owner is not liable to pay the amount of cpmpensation. The Insurance Company is liable to pay the amount of compensation. 12. Therefore, the appeal filed by the owner M.A.C. No.'' 1317/2008 is also allowed to the above extent. 13. In the result, both the appeals are allowed. The am.ount of conipensation is enhanced to Rs. 4,40,000/- from Rs. 3,37,000/- along with interest at the rate of 6% per annum from the date of application till is payment, The part of fhe award by which the direction to first pay and then recover from the owner has been given to the Insurance Company, is set aside. The Insurance Company is liable to pay the amount of compensation. The Insurance Company shall not be erititled to recover any amount of compensation paid by it from the owner. However, the owner can recover the amount from the Insurance Company which has already been deposited by him. 14. No order as to costs. Sd/- I.M.Quddusi Judge Sd/- N.K. Agrawa! Judge f p,