FAOs NO. 2629,2630,2633 & 4119 of 2008 1 IN THE HIGH COURT OF PUNJAB & HARYANA AT CHANDIGARH FAO NO. 2629 of 2008 Date of order: 13.10.2011 Shamsher Singh ..... Appellant Versus The New India Insurance Company Ltd. and others .... Respondents 2- FAO NO. 2630 of 2008 Date of order: 13 .10.2011 Shamsher Singh ..... Appellant Versus The New India Insurance Company Ltd. and others .... Respondents 3- FAO NO. 2633 of 2008 Date of order:13 .10.2011 Shamsher Singh ..... Appellant Versus The New India Insurance Company Ltd. and others .... Respondents 4- FAO NO. 4119 of 2008 Date of order: 13 .10.2011 Smt. Santosh ..... Appellant Versus Naresh Kumar and others .... Respondents FAOs NO. 2629,2630,2633 & 4119 of 2008 2 -- CORAM: HON'BLE MR. JUSTICE VIJENDER SINGH MALIK Present: Mr. S.K. Yadav, Advocate for the appellant in FAOs No.2629,2630 & 2633 of 2008 and for respondent no.2 in FAO No.4119 of 2008. Mr. R.D. Yadav, Advocate for the appellant in FAO No.4119 of 2008. Mr. Gautam Bhardwaj, Advocate for Mr. N.K. Khosla, Advocate for the insurance company. **** Vijender Singh Malik, J. FAO No. 2629 as also the other FAOs No. 2630, 2633 and 4119 of 2008 arise out of the same award and for this reason the four appeals are being disposed of by way of this common judgment. The claim petitions had been brought on account of the loss suffered in the road side accident that took place on 11.03.2006 . Claim petition no. 146 of 2006 was brought by Smt. Santosh and others on the death of Sher Singh; claim petition no.147 of 2006 had also been brought by Smt. Santosh individually on the death of her son named Anil Kumar and claim petition No.148 of 2006 had been brought by Ms.Rajni minor through her mother Smt. Santosh for the injuries she suffered in the said accident. The facts necessary to be noticed for disposal of the aforesaid four appeals are as under:- On 11.03.2006 Sher Singh, deceased alongwith his son Anil Kumar and daughter Rajni was going from his house to Baba Jai Ram Dass Public School Riwasa on bicycle. He was pedalling the bicycle at a moderate speed on his extreme left side of the road. At about 8.30 am, he FAOs NO. 2629,2630,2633 & 4119 of 2008 3 reached just ahead of bus stop of his village Sisoth. In the meanwhile, a Mahindra Max Jeep bearing registration no.HR-66/T-2000, driven by Naresh Kumar, respondent no.1 came at a very high speed and in a rash and negligent manner. It was moving in a zig-zag manner. It came from the side of Dadri and had hit the bicycle of Sher Singh, on account of which, Sher Singh, Anil Kumar and Ms. Rajni fell down on the road and suffered injuries. Anil Kumar died on the way to the hospital. Sher Singh and Rajni, who had reached the hospital were referred to S.M.S. Hospital, Jaipur, where during treatment Sher Singh also died. Lala Ram saw the accident and reported the matter to the police. Smt. Santosh and others claimed compensation in a sum of Rs.30,00,000/- on the death of Sher Singh in claim case No.146 of 2006. They have averred that Sher Singh was aged 45 years and was earning Rs.7000/- per month by doing agricultural work including rearing cattle. Sher Singh remained at the hospital at Jaipur with effect from 11.3.2006 to 16.03.2006 and died on 16.3.2006. A sum of Rs.40,000/- was spent on his treatment and a sum of Rs.15,000/- was spent on his last rites and a sum of Rs.1600/- on the transportation charges of the dead body. In claim case No.147 of 2006 Smt. Santosh sought compensation in a sum of Rs.10,00,000/- on the death of her son Anil Kumar, who was aged 5 years at the time of accident and was a student, who assisting the claimant in her domestic chores and was having a monthly income of Rs.3,000/- per month. FAOs NO. 2629,2630,2633 & 4119 of 2008 4 Ms. Rajni in claim petition no.148 of 2006 claimed compensation in a sum of Rs.5,00,000/-, on account of the injuries suffered by her in the accident in question. She has claimed that she was aged 9 years at the time of accident and was a student, helping her mother in her daily chores and have a monthly income of Rs.6000/-. The claim petitions were resisted by the respondents. Respondents no.1 and 2 have denied the factum of accident. According to them, no accident took place on the given date, time and place. The claim petitions are said to be false, filed just to seek compensation. The other allegations were also denied. The New India Insurance Co. Ltd., respondent no.3 has also denied the very accident to have occurred. It is pleaded that respondent no.1 was not holding a valid and effective driving licence to drive the vehicle on the date of the alleged accident. Collusion is pleaded between the claimants and respondents no.1 and 2 in bringing the claim petitions. Amount of compensation sought by the claimants is said to be highly excessive. On the pleadings of the parties, the following issues were framed by the Tribunal on 24.08.2004:- “1- Whether Sher Singh son of Ishwar Singh and Anil Kumar son of Sher Singh died and Rajni received injuries in a road accident which took place on 11.3.2006 in the revenue estate of village Sisoth (PS Mohindergarh) due to rash and negligent driving on the part of respondent no.1, the driver of Mahindra Max Jeep No.HR-06-T-2000?OPP FAOs NO. 2629,2630,2633 & 4119 of 2008 5 2- Whether respondent no.1 did not hold a valid driving licence, if so to what effect ?OPR 3- Whether petitioners are entitled to award of compensation and if so, how much and from whom” ? OPP 4- Relief” Taking evidence of the parties and hearing learned counsel representing them, learned Tribunal awarded compensation in a sum of Rs.3,96,000/- to the claimants Smt. Santosh and others in claim petition no.146 of 2006 for the death of Sher Singh; to Smt. Santosh in claim case No.147 of 2006 in a sum of Rs.1,25,000/- for the death of Anil Kumar, and to Ms. Rajni in claim case no.148 of 2006 in a sum of Rs.25,000/-. Learned Tribunal has found under issue no.2 that the insured has committed breach of conditions of the insurance policy as respondent no.1 was not having a valid driving licence authorizing him to drive the category of the vehicle he was found driving at the time of accident. Consequently, the insurance company was ordered to pay compensation to the claimants but was given right to recover the same from the insured. Shamsher Singh, owner of the vehicle in question has filed three appeals i.e. FAOs No.2629, 2630 and 2633 of 2008 challenging this part of the award whereby the insurance company has been given the recovery rights against him and Smt. Santosh has filed FAO No.4119 of 2008 for enhancement of compensation in claim case No.147 of 2006, awarded for the death of her son named Anil Kumar. FAOs NO. 2629,2630,2633 & 4119 of 2008 6 I have heard Shri S.K. Yadav, learned counsel for the appellant in FAOs no.2629, 2630 and 2633 of 2008, Shri R.D. Yadav, learned counsel for the appellant in FAO No.4119 of 2008 and Shri Gautam Bhardwaj, Advocate for Mr. N.K. Khosla, learned counsel for the insurance company and have gone through the record. There are only two points for determination in these four appeals. The first is regarding the validity of the driving licence held by Naresh Kumar, the driver of Mahindra Max Jeep bearing registration no.HR-66/T-2000, respondent no.1 and the second point is about adequacy of the compensation awarded for the death of Anil Kumar, 5 years old son of Smt. Santosh in the aforesaid accident. Mr. S.K. Yadav, learned counsel for Shamsher Singh, appellant, has submitted that the driver was possessing a licence, authorizing him to drive a light motor vehicle. According to him, Mahindra Max Jeep driven by him at the time of accident is also a light motor vehicle and, therefore, the insured had not committed any breach of the terms of the policy by handing over the same for driving to Naresh Kumar, respondent no.1. He has cited before me a decision of Hon'ble Supreme Court of India reported in National Insurance Co. Ltd. v. Annappa Irrappa Nesaria and others, 2008 ACJ 721 in support to his submissions. He has also cited some other decisions of Hon'ble Madhya Pradesh High Court at Jabalpur in cases United India Insurance Co. Ltd. V. Budhiya Bai and others 2008 ACJ 17 and New India Assurance Co. Ltd. v. Ratibai and others, 2007 ACJ 1119 of Hon'ble Patna High Court in Divisional Manager, Oriental FAOs NO. 2629,2630,2633 & 4119 of 2008 7 Insurance Co. Ltd. v. Sabita Devi and another, 2009(4) AICJ 593. Some decisions of this Court have also been cited before me, out of which the decision in National Insurance Company Limited v. Parveen Kumar, 2005(1) RCR (Civil) 485 seems to have no application to the facts of this case because in that case, the accident was found to have occurred due to mechanical failure and not because the driver was not possessing the requisite type of licence. The other decisions of this court cited before me in this regard are Sat Pal and another v. Ram Phal and others, 2006(2) RCR (Civil) 148, M/s Hyine Auto Industries and others v. Ram Niwas and others 2009(1) RCR (Civil) 295 and Jeet Alias Ajit Singh and another v. Poonam and others, 2006(4) RCR (Civil) 640. On the other hand, learned counsel for the insurance company has submitted that the decisions of learned Tribunal cannot be questioned. According to him, the latest view on the point has been expressed by Hon'ble Supreme Court of India in National Insurance Company Ltd. v. Kusum Rai and others (2006) 4 Supreme Court Cases 250 and Oriental Insurance Company Limited v. Angad Kol and others (2009) 11 Supreme Court Cases 356 . According to him, the driver did not possess any licence to drive the commercial vehicle in Kusum Rai and others' case (supra) and it was held that there was a breach of the condition of the contract of the insurance and the insurance company is entitled to raise a defence under section 149(2) of the Motor Vehicles Act, 1988. In Angad Kol and others' case (supra), it has been laid down by Hon'ble Supreme Court of India that a person holding a light motor vehicle licence cannot drive a FAOs NO. 2629,2630,2633 & 4119 of 2008 8 transport vehicle and if the driver, who was driving a transport vehicle was found to possess a licence for light motor vehicle without no endorsement of transport vehicle thereon, it would amount to violation of the terms of the contract of the insurance. In Sat Pal and another's case (supra) the driving licence possessed by the driver was authorizing him to drive car, jeep and motorcycle. He was driving a matadoor. The question for answer was whether the driver was authorized to drive a transport vehicle. It was just a case of driving a vehicle of the same category, though with different class or description and it was held that the accident had no nexus with the driver not possessing the requisite type of licence and, therefore, the insurance company was held liable to pay compensation. In M/s Hyine Auto Industries and others' case (supra) the licence possessed by the driver authorized him to drive light motor vehicle/motor car and he was driving a jeep manufactured by Mahendra and Mahendra. It was not found that the accident had been caused on account of any defect in the driving skill of the driver and, therefore, no breach of the condition of the insurance policy was found. It was only held in Jeet Alias Ajit Singh and another's case (supra) that transport vehicle of less than 7500 kilograms as also a tractor are included in the definition of light motor vehicle. The point in issue before me was directly in consideration in National Insurance Co. Ltd. v. Annappa Irrappa Nesaria and others' case (supra). The driver had licence to drive light motor vehicle but he was driving a van, which had a goods carriage permit. In the said FAOs NO. 2629,2630,2633 & 4119 of 2008 9 circumstances, insurance company sought to avoid its liability on the ground that driver did not possess effective driving licence to drive a transport vehicle. Taking into consideration, the forms prescribed for applying for licence before and after the amendment of the Central Motor Vehicles Rules, 1989, it has been observed that light motor vehicle remains as such but in place of medium goods vehicle and heavy goods vehicle, the amended rules have brought the transport vehicle. It has, therefore, been held that a driver possessing valid licence to drive a light motor vehicle was authorized to drive a light goods vehicle. The question again came into focus before Hon'ble Apex Court in Kusum Rai and others' case (supra) and Angad Kol and others' case (supra) and in these two authoritative pronouncements, it has been held that if the respondent was not granted a licence to drive a transport vehicle, he was not authorized to drive a goods carriage and,therefore, there was breach of conditions of the insurance policy on the part of the insured. There is no dispute in the case before me that the vehicle driven by Naresh Kumar has been a transport vehicle, which is described as commercial vehicle by learned Tribunal. There is no endorsement of the competent authority in the driving licence of Naresh Kumar authorising him to drive a transport /commercial vehicle. He had possessed a driving licence authorizing him to drive a light motor vehicle. Though, the vehicle he was driving is a light motor vehicle, yet in the face of the fact that there was no endorsement of authorization of Naresh Kumar to drive a transport/commercial vehicle, he was not authorized to drive the same and, FAOs NO. 2629,2630,2633 & 4119 of 2008 10 therefore, learned Tribunal has rightly found breach of condition of the insurance policy on the part of the insured. Therefore, no exception can be taken to the order of learned Tribunal directing the insurance company to pay the compensation to the claimants with a right to recover the same from the insured. Coming to the question of adequacy of the compensation awarded to Smt. Santosh on the death of her five years old child, it may be seen that the amount has been awarded in lump-sum. Learned Tribunal had not been supported in his view by any decision of this court or of Hon'ble Supreme Court of India. He has just mentioned that the deceased was aged five years and was a student and so keeping in view the facts and circumstances of the case, a sum of Rs,1,25,000/- is awarded as compensation to Smt. Santosh, petitioner. This amount appeared to be inadequate to Smt. Santosh, who has questioned the award on this aspect before me in FAO No.4119 of 2008. Though, it is very difficult for a child of five years to predict as to what he would have become in his life and what would have been his income, yet the Act in second schedule lays down an income of Rs.15,000/- per annum for non-earning persons. That amount could be taken as annual income of the deceased. The age of Smt. Santosh has not come on the record. However, the age of her deceased husband has come on the record as 45 years. Generally the age of the wife is less than the age of the husband. Even if it is taken that she was 45 years old, the multiplier that would be applicable to this case as laid down by Hon'ble Supreme FAOs NO. 2629,2630,2633 & 4119 of 2008 11 Court of India in Smt. Sarla Verma and others v. Delhi Transport Corporation and another, 2009(3) RCR (Civil) 77 would be of 14. Calculated in this manner, the compensation payable to the mother would come to Rs.2,10,000/-. However, on this point, there is a decision of Hon'ble Delhi High Court in Shyam Narayan v. Kitty Tours Travels and others, 2006(1)RCR (Civil) 555 where the deceased was 5 years old and it was held that the parents are entitled to compensation in a sum of Rs.2,25,000/- on account of loss of financial support. A sum of Rs.50,000/- was added thereto on account of the loss of company of the child as also pain and suffering suffered by the parents as a result of untimely death. In the case before me, no compensation has been sought for loss of company as also pain and suffering. Therefore, a sum of Rs.2,25,000/- could at least be awarded to the claimant Smt. Santosh for the death of Anil Kumar in the aforesaid accident. Keeping in view the aforesaid discussion, the appeals brought by Shamsher Singh bearing Nos.2629, 2630 and 2633 of 2008 are dismissed while FAO No.4119 of 2008 brought by Smt. Santosh is allowed enhancing the compensation from Rs.1,25,000/- to Rs.2,25,000/-, which shall be payable by the insurance company to the appellant with interest at the rate of 7.5% per annum from the date of filing the petition till date of realization thereof. (VIJENDER SINGH MALIK) JUDGE 13 .10.2011 dinesh