HON’BLE SRI JUSTICE K.S. APPA RAO M.A.C.M.A.No.331 of 2008 Date: 01-07-2011 Between: United India Insurance Co. Ltd …… Appellant and Syed Arifulla and another …. Respondents HON’BLE SRI JUSTICE K.S. APPA RAO M.A.C.M.A.No.331 of 2008 JUDGMENT: This appeal is filed aggrieved by the order dated 24-09-2007 passed in M.V.O.P.No.240 of 2005 on the file of the Motor Accident Claims Tribunal-cum-Principal District Judge, Kadapa. The appellant herein is the second respondent-insurance company in the said O.P. The parties hereinafter will be referred to as they are arrayed in the O.P. The brief facts of the case are that on 25-11-2004 the petitioner and some other passengers boarded the auto bearing No.AP 04 T 7719 at Chennur bus stop in order to go to Yeguvapalli village. When the auto reached near Prakasampalli bus stop on Kadapa-Pulivendula main road, as the driver of the said auto could not control the speed, the said auto hit the RTC bus bearing No.AP 10 Z 7368 which was stationed there, due to which the inmates of the auto have fallen and sustained grievous injuries. The petitioner sustained fracture to his left thigh, right leg and knee, femur and tibia and other injuries to left leg, left eye lid and left maxilla, ear and other parts on his body. He was treated as inpatient in Government Hospital, Kadapa at the first instance and later he took treatment in a private hospital at Kadapa. Therefore, the petitioner filed the O.P. before the Tribunal claiming compensation of Rs.3,00,000/- from the respondents. In order to prove the accident, the petitioner examined PWs.1 and 2 and marked Exs.A-1 to A-8. On behalf of the respondents, RW-1 was examined and Exs.B-1 to B-3 and Ex.X-1 were marked. The Tribunal, after considering the oral and documentary evidence adduced by either side, allowed the petition with costs through the order, dated 24-09-2007 awarding compensation of Rs.3,00,000/- together with interest at 7.5% per annum from the date of filing of the petition till the date of deposit of the said amount into Court. Aggrieved thereby, the second respondent- insurance company filed the present Appeal. The contention of the learned counsel for the appellant-insurance company is of three fold, firstly the granting of compensation of Rs.3,00,000/- by the Tribunal is exorbitant and unjustified, secondly the finding of the Tribunal fastening the liability against the insurance company, when there is violation of the policy conditions, cannot sustain and thirdly granting of compensation on the ground of future damages by the Tribunal is erroneous. To substantiate his contentions, the learned counsel placed reliance on the decision reported in NEW INDIA ASSURANCE CO. LTD. v. PRABHU LAL [1] and mainly urged that in the cases where there is absence of valid driving licence, the compensation against the insurer cannot be claimed and it cannot be awarded. Now the point for consideration is whether the order of the Tribunal dated 24-09-2007 is sustainable? In the case on hand, the factum of the accident is not disputed. It is the main contention of the appellant-insurance company that the offending auto was overloaded at the time of accident and therefore, the driver of the auto lost control over the auot and thereby the policy conditions are violated and further the driver of the said auto was not holding valid driving licence to drive the offending auto on the date of accident. In order to prove the same, the Insurance Company examined it’s Administrative Officer as RW-1. According to him, as per the terms and conditions of the policy, the first respondent-owner shall use the vehicle adhering to the permit issued to him and as per the registration certificate, the seating capacity of the offending auto is 7 in all, but 11 persons were travelling at the time of accident due to which the driver of the said auto lost control over the auto and thereby caused the accident. He has further deposed that the driver of the offending auto must hold light motor vehicle transport driving licence, but the driver held only light motor non transport Vehicle licence and therefore, he is not qualified to drive the offending vehicle, which is a transport vehicle. As seen from the impugned order, the learned Judge agreed with the contention of the insurance company that the driver of the offending auto had no valid driving licence to drive the light motor transport vehicle. It is noted in the impugned order that the driver of the auto was having valid driving licence, but it is not for a light motor transport vehicle, but the offending auto is a light motor transport vehicle. In the aforesaid decision, the driver was having valid driving licence to drive the light motor vehicle and there is no endorsement authorising him to drive a transport vehicle, and in such circumstances, the owner of the offending vehicle was held to be not entitled to claim any compensation from the insurer. In the aforesaid decision, it was categorically observed that the vehicle registered as “goods carrier” will be a “transport vehicle” under Section 2(47) of the Motor Vehicles Act, 1988. Admittedly in the present case, the driver, without having valid licence to drive the light motor transport vehicle, drove the offending auto, which is a transport vehicle. Therefore, it is a clear violation of the policy conditions and hence, the liability cannot be fastened against the insurance company. Therefore, the finding of the Tribunal fastening the liability against the insurance company, while observing that the driver of the offending auto had no valid driving licence to drive the light motor transport vehicle, is not sustainable. Further, as seen from the impugned order, the Tribunal awarded Rs.75,000/- towards the grievous injuries sustained by the petitioner. According to Ex.A-2, wound certificate, the petitioner sustained six injuries, which are as follows: 1. Multiple lacerated dorsum of knee, medical side of leg poster, knee joint and chronic deformity of upper 1/3 of leg. 2. Contusion of right knee joint. 3. Deformity of left thigh 4. Swelling of left leg of small lacerated wound short of leg; 5. Lacerated wound over left eye lid over left maxilla of face; skin deep bleeding. 6. Bleeding over left fracture femur and on X-ray reports shows that (1) fracture of femur chronic and tibia; (2) left thigh fracture femur; (3) right leg chronic fracture femur and tibia were present. The Tribunal observed that the petitioner suffered three fracture injuries involving five bones and accordingly granted compensation of Rs.75,000/- i.e. Rs.15,000/- per each of the fracture bone injury. Admittedly the petitioner sustained only three fractures and therefore, he can be granted compensation for three fractures only, which comes to Rs.45,000/-, i.e., @ Rs.15,000/- per fracture. Accordingly, the amount of Rs.75,000/- awarded by the Tribunal is reduced to Rs.45,000/-. Further, the Tribunal awarded Rs.1,50,000/- towards compensation for future loss of income which, in my view, cannot sustain as there is no positive evidence on that score and the petitioner also did not adduce any evidence about the loss of his future earnings. Therefore, the amount of Rs.1,50,000/- granted towards future loss of income is disallowed. In view of the aforesaid circumstances, the amount of compensation awarded by the Tribunal is reduced to Rs.45,000/-. The petitioner-first respondent herein is entitled to claim the said amount of Rs.45,000/- against the owner of the offending vehicle i.e., the second respondent herein with interest @ 7.5% per annum from the date of petition till the date of realisation. Accordingly, the M.A.C.M.A. is allowed in part. No costs. _______________ K.S. APPA RAO, J Date: 01-07-2011 YCR [1] (2008) 1 SCC 696