1 FA : 1037/1999 & 325/2006 31.3.2011 IN THE HIGH COURT OF JUDICATURE AT BOMBAY CIVIL APPELLATE JURISDICTION FIRST APPEAL NO.1037 OF 1999 United India Insurance Co. Ltd. .... Appellant (Ori. Opponent no.3) Vs. Master Prajwal Vithal Memane .... Respondents & 3 others. (Ori. Applicant no.1) Mr. M.G. Barve, Advocate for appellant. Mr. M.A. Utgirkar, Advocate for respondent no.2. WITH FIRST APPEAL NO.325 OF 2006 Master Prajwal Vithal Memane .... Appellant a minor thru his natural ’ guardian, father Vithal Memane Vs. Smt. Meenabai Valchand Sancheti .... Respondents & Ors. Mr. R.S. Deshpande, Advocate for appellant. Mr. M.A. Utgirkar, Advocate for respondent no.1. Coram : SMT. R.P. SONDURBALDOTA, J. Date : 31st March, 2011 2 FA : 1037/1999 & 325/2006 31.3.2011 P.C. 1. This is a common order on the above two appeals that arise out of the same judgment and order dated 19th August 1999 passed by the Motor Accident Claims Tribunal, Pune deciding the application for compensation on account of injuries sustained in motor vehicle accident. First Appeal No. 1037/1999 is filed by the United India Insurance Company Limited, the insurer for the owner of vehicle in question. First Appeal No.325 of 2006 is filed by the original claimant seeking enhancement of the compensation awarded to him. The parties hereinafter will be referred to by their original nomenclature. Respondent no.1 to the original claim petition is the owner of the vehicle i.e. the goods truck bearing No.MH-12/5614, respondent no.2 was driving the vehicle on the date and time of the accident. Respondent no.3 is the insurer. There is no appeal filed by the owner challenging either the involvement of the vehicle in the accident or the 3 FA : 1037/1999 & 325/2006 31.3.2011 negligence on the part of the driver or the fact that the claimant had sustained injuries in the accident and the consequent permanent disability. 2. On 1st May 1993, at about 9.45 am., the claimant, then a 6 years old boy, was walking by the road, when the offending vehicle knocked him down. He sustained injuries to his leg and the entire body. He was admitted to the Hospital on the same day. The leg which was injured in the accident came to be amputated on 7th May 1993. According to the claimant, he sustained 60% disability due to the accident as indicated in the disability certificate (Exhibit 69). After receiving notice of the petition, claiming compensation, all the opponents i.e. the owner, the driver and the Insurance Company appeared before the Court. The owner and insurer filed their respective written statements. No written statement was filed by the driver. The insurer contested the claim contending that at the time of the accident, the driver did not hold driving licence to drive the transport vehicle. As such, there was breach of the insurance policy and hence the insurance 4 FA : 1037/1999 & 325/2006 31.3.2011 company was not liable to indemnify the owner and pay the compensation. 3. The evidence led in the claim petition consists of deposition of the father of the claimant, the husband of the owner and one Nita Pradip Khaledkar, Junior Clerk, R.T.O., Pune, examined by the insurer. The Tribunal held by the impugned judgment and order that the accident occurred on account of the negligence in driving on the part of the driver, in which the claimant sustained injuries. As such, he was entitled to compensation. It also held that the driver was holding valid licence at the time of the accident and hence there was no breach of condition of insurance policy. The Tribunal awarded compensation of Rs.1,00,000/-, inclusive of Rs.12,000/- of no fault liability to the claimant with interest @ 12% per annum from the date of the application till the deposit. Out of that, Rs.60,000/- was towards permanent disability, Rs.30,000/- for the pain and suffering during hospitalization and for the future, and Rs.10,000/- towards rehabilitation considering the tender age of the claimant. The 5 FA : 1037/1999 & 325/2006 31.3.2011 Tribunal refused compensation under the head of medical expenses and treatment, because the father of the claimant, being a Central Government employee, had been fully reimbursed with all the medical expenses. 4. In its appeal, the insurer contends that the decision of the Tribunal that the driver was holding valid licence at the time of the accident and as such there was no breach of law or condition of policy by the owner is erroneous and hence cannot be sustained. The claimant in his appeal contends that the compensation of Rs.60,000/- awarded for the permanent disability of 60% is abysmally low and that it requires substantial upward revision. 5. I will first take up the claimant s appeal for ’ consideration. Considering the age of the claimant, the heads under which he will be entitled for compensation are i)expenses relating to treatment, hospitalization, medicines, transportation, nourishing food and miscellaneous expenditure, ii)Future medical expenses, if any, iii)damages for pain and sufferings and trauma as a consequence of the injuries, iv) 6 FA : 1037/1999 & 325/2006 31.3.2011 loss of amenities and/or loss of prospects of marriage and vi) loss of expectation of life (shortening of normal longevity). There is no question of assessing loss of earnings either present or future. Mr.Deshpande, the learned counsel for the claimants submits that award of compensation of Rs.60,000/- is obviously without any basis whatsoever. He points out that the following sentence at paragraph 8 of the impugned judgment and the order, is the only justification of quantification of compensation under that head, considering “ the fact that there is dis-figuration due to the amputation, in my opinion the amount of Rs.60,000/-would be the proper compensation for permanent disability . The learned counsel ” points out that the claim made by the applicant under this head had been of Rs.3,00,000/-, which has been drastically cut down to Rs.60,000/-. Mr. Deshpande submits that at the time of the accident, the claimant was barely 6 years old. The injury sustained by him in the accident as described in the medical case papers was of crush injury . On account of “ ” this injury, the leg of the claimant came to be amputated on 7 FA : 1037/1999 & 325/2006 31.3.2011 7th June 1993. He submits that the bleak prospects that the applicant has to face on account of amputation of leg definitely deserves higher compensation. Mr. Barve, the learned counsel for respondent no.3, insurance company and also the learned counsel for the owner submit that the medical case papers indicate that amputation of the leg had to take place not on solely account of injury sustained in the accident, but apparently because of some negligence on the part of the doctors in treating the applicant. Mr. Barve points out from the record that at the time of admission to Sancheti Hospital at Pune, there was pus developed in the injury sustained by the claimant. Even if that is so, it cannot be said that the amputation of leg was not the result of the accidental injury. It is to be noted that the amputation had to be performed within a period of 6 days from the date of the accident. Had there been a long gap of time between the date of the accident and the amputation probably it could have been argued by the owner as well as the insurer that 8 FA : 1037/1999 & 325/2006 31.3.2011 the amputation of leg was not the direct result of the accidental injury. 6. The question then to be considered is whether compensation of Rs.60,000/- awarded for permanent disability of 60% can be said to be just compensation. Apparently the Tribunal for want of any definite yardstick for computing compensation to be awarded for permanent disability, adopted the contemporary method of multiplying the percentage of disability by 1000 and awarding the amount. Considering the facts of the case where the applicant has to live rest of his long life with the handicap, I am inclined to agree with the submission advanced that the compensation of Rs.60,000/- awarded would not be the proper compensation for the permanent disability sustained by the claimant. There is obviously no yardstick for calculation of the compensation for the permanent disability sustained by the claimant. Therefore some amount of conjectures or imagination is inevitable in assessment of damages. With that, considering the year of accident, the age of the applicant and his status, In my 9 FA : 1037/1999 & 325/2006 31.3.2011 opinion, it would be fair and reasonable to enhance the amount by upward revision of about 35% of the amount awarded under the head i.e. by Rs.30,000/-. With this enhancement, compensation payable to the claimant would be Rs.1,30,000/- as against Rs.1,00,000/-. 7. Mr. Barve, the learned counsel for the insurer submits that the record and proceedings show that on the date and time of the accident, the driver did not hold valid licence to drive the goods truck as he had not even reached the qualifying age to hold the licence to drive either a goods vehicle or transport vehicle. Mr. Barve draws attention of the court to the relevant provisions of the Motor Vehicles Act at Sections 4, 5 and 7. The same read as follows : 4. Age limit in connection with driving of motor vehicles.- (1) No person under the age of eighteen years shall drive a motor vehicle in any public place: Provided that [a motor cycle with engine capacity not exceeding 50cc] may be driven in a public place by a person after attaining the age of sixteen years. (2) Subject to the provisions of Section 18, no person under the age of twenty years shall drive a transport vehicle in any public place. 10 FA : 1037/1999 & 325/2006 31.3.2011 (3) No learner s licence or driving licence shall be issued to ’ any person to drive a vehicle of the class to which he has made an application unless he is eligible to drive that class of vehicle under this section. 5. Responsibility of owners of motor vehicles for contravention of sections 3 and 4. - No owner or person in charge of a motor vehicle shall cause or permit any person who does not satisfy the provisions of section 3 or section 4 to drive the vehicle. 7. Restrictions on the granting of learner s licences for ’ certain vehicles.- [1) No person shall be granted a learner s’ licence to drive a transport vehicle unless he has held a driving licence to drive a light motor vehicle for at least one year.] (2) No person under the age of eighteen years shall be granted a learner s licence to drive a motor cycle without ’ gear except with the consent in writing of the person having the care of the person desiring the learner s licence. ’ 8. The record shows that the licence for driving light motor vehicle had been issued to the driver on 24th February 1992. The accident had taken place on 1st May 1993. The driving license shows the date of birth of the driver as 1st June 1973. This means that on the date of the accident i.e. on 1st May 1993, the driver was yet to reach the qualifying age prescribed 11 FA : 1037/1999 & 325/2006 31.3.2011 by Section 4(2) of the Motor Vehicles Act for holding licence for driving the transport vehicle in any public place. Section 5 of the Motor Vehicles Act casts responsibility upon an owner of motor vehicle that he shall not cause or permit any person, who does not satisfy the provisions of Section 3 or 4 to drive the vehicle . Not discharging this responsibility ” actually renders, the owner liable to be punished under Section 180 Motor Vehicles Act. This is also breach of the essential term of the Insurance policy. 9. Mr. Utgirkar, the learned counsel for the owner, however, seeks to submit that in the facts and circumstances of the case, it cannot be said that the driver did not hold valid license at the relevant time. According to him, the transport vehicle i.e. the goods vehicle involved in the accident is a Light Motor Vehicle as defined under the Motor Vehicles Act. Since the driver did hold a license to drive Light Motor Vehicle, there was no breach of the insurance policy. Light Motor Vehicle as defined by Section 2(21) is a transport vehicle or omnibus the gross vehicle weight of 12 FA : 1037/1999 & 325/2006 31.3.2011 either of which or a motor car or tractor or road-roller the unladen weight of any of which, does not exceed (7,500) kilograms; By referring to the insurance policy, Mr. Utgirkar points out that the weight of the offending vehicle is less than 7500 kg. Therefore, according to him, the license held by the driver to drive Light Motor Vehicle was sufficient and valid to drive the goods vehicle in question. 10. Undoubtedly, the definition of Light Motor Vehicle at Section 2(21) includes transport vehicle with the unladen weight of less than 7500 kg. However, the definition cannot be read in isolation to Sections 3 and 4 of the Motor Vehicle Act quoted above. Conjoint reading of Sections 2(11), Section 3 and 4 shows that for the purpose of qualifying age of license, the Motor Vehicles Act treats transport vehicles or goods vehicles separately. Because the qualifying age for a licence to drive Light Motor Vehicle is 18 years age, whereas that for a transport vehicle is of 20 years. Hence, I find no merit in the submission of Mr. Utgikar. Mr. Utgirkar, however, seeks to draw support from the decision of the Apex court in 13 FA : 1037/1999 & 325/2006 31.3.2011 National Insurance Company Limited vs. Swaran Singh and others, reported in 2004 ACJ 1, He submits that since the driver held 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. He relies upon following observations from the judgment. 41. If a person has been given a licence for a “ particular type of vehicle as specified therein, it 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 . ” Reliance upon the above observations by Mr Utgirkar, is wholly misplaced. A car and a jeep would belong to the same category, but, the category of transport vehicle is completely different. The Motor Vehicle Act itself puts them in separate categories by prescribing different units of qualifying age to hold licence to drive the vehicles. 14 FA : 1037/1999 & 325/2006 31.3.2011 10. Mr. Utgirkar, next submits, relying upon the same decision that, it is not sufficient for the insurer to establish that the driver did not hold a valid licence, but it must establish the breach on the part of the insured. For that purpose, it must prove that the insured had caused or permitted the vehicle to be used in breach of the Act and further that the damage suffered flowed from the breach. Since the driving licence produced by the driver itself indicates the age of the driver, as of less than 20 years on the date of the accident, that by itself was sufficient to put the owner of the vehicle to notice while employing the driver and permitting him to drive the vehicle. Therefore, production of the license alone was sufficient to establish the breach on the part of the insured. In the circumstances, the insurer could not have been held liable to pay the compensation to the claimant. The Tribunal, completely ignoring this aspect of the matter took notice of the fact that the driver had subsequently i.e. from 5th June 1993 been authorized to drive transport vehicle. In the instant case, 15 FA : 1037/1999 & 325/2006 31.3.2011 subsequent authorization of the driver to drive vehicle cannot be taken into consideration since on the date of the accident, the driver was not even entitled to hold the licence to drive the transport vehicle. 11. Both the appeals are allowed. The impugned judgment and order is modified. Original opponents no. 1 and 2 are directed to jointly and severally pay to the claimant an amount of Rs.1,40,000/- inclusive of Rs.12,000/- already awarded under no fault liability NFL with costs and “ ” interest @12% per annum from the date of the application ie. 29th July 1993. The interest payable on the enhanced amount of compensation shall be at the rate of 6% per annum starting to run from the date of enhancement. The other directions contained in the impugned judgment and order are maintained. 12. Learned counsel for the claimant and the insurer points out that pursuant to the order dated 4th June 2008, the claimant had withdrawn a sum of Rs.1,57,153/- deposited by the insurer in the Tribunal without furnishing security, but on 16 FA : 1037/1999 & 325/2006 31.3.2011 furnishing of personal undertaking by the guardian of the claimant. Accordingly, the guardian filed personal undertaking on 5th June 2008. In view of the fact that the claimant has already withdrawn the amount, it is directed that the Insurance Company shall recover the same from the owner of the offending vehicle, by filing appropriate proceedings for execution in the Tribunal. ( Smt. R.P. SondurBaldota, J)