HON’BLE SRI JUSTICE GHULAM MOHAMMED C.M.A.No.65 of 1997 Between P. Purnachandra Rao, S/o.Seshachalam v. 1. K. Prasada Rao, S/o.Lakshmayya & others THE HON’BLE SRI JUSTICE GHULAM MOHAMMED CMA No.65 of 1997 JUDGMENT: This appeal is filed by the claimant aggrieved by the award dated 26-9-1996 passed in MVOP No.242 of 1992 by the Motor Accident Claims Tribunal, Vijayawada. The said MVOP was filed by the claimant-appellant herein seeking compensation of Rs.3,50,000/- for the injures sustained by him in a motor accident that took place on 15- 12-1991 at about 7-00 pm at Padavalarevu on NH-9 road, Vidyadharapuram, Vijayawada, involving the accident lorry bearing registration no.AIK 7016 owned by the 1st respondent, insured with the 3rd respondent and driven by the 2nd respondent, its driver. 2. The brief facts stated are:- on the fateful day i.e. 15-12-1991 at about 7-00 pm the claimant was proceeding on his bajaj chetak scooter bearing registration no.AEK 7681 keeping the scooter to the left margin of the road, when he reached near Padavalarevu, suddenly the accident lorry being driven in a rash and negligent manner came from back side and dashed against the back portion of his scooter, as a result of which he fell down from the scooter and sustained injuries and his right ankle was operated in the hospital owned by one Dr. Y.Purnachadra Rao. 3. The Tribunal considering the oral and documentary evidence adduced, on the issue as to the culpability in causing the accident, held that the driver of the accident lorry was responsible for the accident. As to the liability for the payment of compensation, inasmuch as the driver of the accident lorry bearing registration no.AIK 7016 was not holding a valid driving licence to drive the lorry as on the date of the accident and it violates the terms of the policy conditions, exonerated the 3rd respondent-insurance company from payment of compensation. The Tribunal considering the age, income and other expenses incurred for the treatment of the claimant, granted a sum of Rs.80,000/- payable by the owner and driver of the accident lorry, i.e. respondents 1 and 2, with interest at the rate of 12% per annum from the date of petition till the date of payment. 4. Heard the learned counsel for the appellant and the learned counsel for 3rd respondent-insurance company. 5. In the instant case, it is not in dispute that the claimant-appellant was aged 39 years as on the date of accident and he sustained injuries in the accident involving the accident lorry registration no.AIK 7016. As regards the culpability in causing the accident, the Tribunal on evidence held that the accident occurred due to the rash and negligent driving of the driver of the accident lorry and in the absence of any rebuttal evidence, as against the evidence of the appellant examined as PW-1, this finding of the Tribunal does not warrants any interference. 6. So far as the liability to pay the compensation awarded, it is the contention of learned counsel for the claimant that the Tribunal below failed to consider the plea taken by the owner of the lorry that there is no relationship of employer and employee with the 2nd respondent and the 2nd respondent also did not admit as to his employment under respondent no.1 and in these circumstances, the question of 2nd respondent holding valid driving licence or not is immaterial. It is also further contended that the insurance company has to prove that the owner of the accident lorry appointed a driver and he was not holding a valid driving licence to drive the accident lorry and in the absence of so doing the question of exonerating the insurance company from paying the compensation does not arise. 7. In light of the consistent authoritative pronouncements of the Supreme Court in SKANDIA INSURANCE COMPNAY LTD. Vs. KOKILABEN CHANDRAVADAN (AIR 1987 SC 1184) & BV NAGARAJU vs. M/S.ORIENTAL INSURANCE COMPNAY LIMITED (1996 (4) SCC 647), the question as to the liability of the owner of the vehicle and the insurer is made clear and observed that the Court has to examine whether the accident occurred during the course of the employment of the driver with the employer, whether the vehicle had been insured with the Insurance company and whether there was a breach of specific stipulation in the insurance policy by the owner of the vehicle, and such a breach should be wilful and not sporadic or too trivial. The Supreme Court In B. V. Nagaraju's case (supra) emphatically held that the breach of carrying humans in a goods vehicle more than the number permitted in terms of insurance policy is not so fundamental a breach so as to afford to the insurer to eschew liability altogether. 8. Admittedly, in this case the policy was in force as on the date of the accident. The 3rd respondent insurance company was exonerated only on the ground that the 2nd respondent was not holding a valid driving licence to drive the accident lorry as on the date of the accident. Section 96 (2) (b) (ii) of Motor Vehicles Act extends immunity to the insurance company if a breach is committed of the condition excluding driving by a named person or persons or by any person who is not fully licensed, or by any person who has been disqualified for holding or obtaining a driving licence during the period of disqualification. It is therefore clear that the insurance company will have to establish that the insured is guilty of an infringement or violation of a promise that a person who is duly licensed will be in charge of the vehicle. The Tribunal, on evidence, held that the driver of the accident lorry was not holding a valid driving licence as on the date of accident, but nonetheless since the policy is in force, the insurance company shall have to indemnify the sufferer suffered on account of the accident by the insured accident lorry and recover the amounts paid to the claimant from the owner of accident lorry bearing no.AIK 7016. 9. Now coming to the question of award of just compensation, it has come in the evidence of the claimant who examined himself as PW-1 that as on the date of the accident, he was working as Senior Manager in Vysya Bank in Vijayawada and was aged 39 years. As per Ex.A-4 salary certificate he was drawing a monthly salary of Rs.7,000/-. PW-3 Doctor examined him stated that the claimant sustained permanent partial disability to the extent of 10 to 15 %. The income of claimant as per Ex.A-4 is Rs.7,000/- and annually it comes to Rs.84,000/-, as per the decision of the Supreme Court in SARLA VERMA vs. DELHI TRANSPORT CORPORATION (2009 (6) SCALE), the appropriate multiplier is ‘15’. The claimant is stated to have sustained disability 10 to 15 % and it can be safely taken as 12 % permanent partial disability. The loss of earning capacity comes to (7,000 x 12 x 15 = Rs.12,60,000 – 88 % = Rs.1,51,200) Rs.1,51,200. The claimant is also entitled to an amount of Rs.10,000/- towards pain and suffering and an amount Rs.10,000/- towards medical expenses, totalling Rs.1,71,200/-. The interest payable on this amount, as per the decision of the Supreme Court in Sarla Verma’s case (supra) is 6 % from the date of petition till the date of realization. 10. In the result, appeal is allowed in part and the impugned award of the Tribunal is modified accordingly. No costs. _____________________ Ghulam Mohammed, J Dated: 17-6-2010 Nrg HON’BLE SRI JUSTICE GHULAM MOHAMMED C.M.A.No.65 of 1997 17-6-2010