B. Rajendranc
1. The Insurance Company has come forward with the Civil Miscellaneous Appeal as against the grant of award of Rs. 1,82,000/-passed by the learned Additional District Judge, FTC-II, Motor Accidents Claim Tribunal, Chennai, in M.C.O.P. No. 2707 of 2004, dated 15.04.2008, questioning the award on the ground that the driver of the vehicle do not have a valid licence on the date of accident.
2. In this case, though, the Insurance Company admitted the accident as well as the Insurance, but, only questioning the liability the appeal has been filed.
3. According to Mr. S. Arun Kumar, learned counsel for the appellant-Insurance Company the driver had the license, which has expired and he has renewed it only subsequently. Therefore, when on the date of accident he did not have a license they are not liable to pay any compensation. Further, they would also contend that the percentage of disability as given by the Doctor is very high and the award given by the court below is on the higher side, hence the appeal.
4. The owner of the vehicle is represented by an Advocate. He would mainly contend that it is not a case of no license at all but it is a case where there was a license but it got expired on 05.08.2001. Even then, the insurance company would be liable to pay. The claimant though was served did not appear and their names are printed.
5. Heard both sides. By consent, the main Civil Miscellaneous Appeal itself is taken up for final disposal.
6. In this case, the accident is admitted and the insurance company has come forward with this appeal against liability and compensation. The main and only point raised by learned counsel for the appellant insurance company is that the vehicle was driven by a driver who did not have a valid license. In this case, they have examined RW-2, the Regional Transport Officer to prove that the driver of the vehicle did not have a valid license. According to evidence, the driving license expired even as early as 05.08.2001, whereas the accident took place on 06.03.2003 and he has renewed it, after the accident i.e. only on 28.05.2003. Admittedly, on the date of accident there is no license at all. As far as the owner is concerned, knowing fully well permitted the driver who does not hold valid license, had violated valid terms of the contract. When there is a violation, the insurance company cannot be held responsible or liable to pay the amount. In this connection, learned counsel for the appellant brought to the notice of this court the rulings in Jawahar Singh v. Bala Jain & ORs. reported in 2011 (5) LW 416, wherein the Supreme Court in an identical case, wherein it is found to be driven by a minor, the Supreme Court by following the earlier Supreme Court decisions had stated that it is the duty of the insurance company to pay and recover.
10. Having heard learned counsel for the respective parties, we are inclined to agree with the respondents that this is not a case for interference in view of the fact that admittedly the motorcycle belonging to the petitioner was being driven by Jatin, who had no license to drive the same and was, in fact, a minor on the date of the accident. While issuing notice on 2nd April, 2009, we had limited the same to the question regarding liability to pay compensation on account of contributory negligence by the deceased who was riding a scooter, in causing the accident to happen.
11. We cannot shut our eyes to the fact that it was Jatin, who came from behind on the motorcycle and hit the scooter of the deceased from behind. The responsibility in causing the accident was, therefore, found to be solely that of Jatin. However, sine Jatin was a minor and it was the responsibility of the petitioner to ensure that his motorcycle was not misused and that too by a minor who had no license to drive the same, the Motor Accident Claims Tribunal quite rightly saddled the liability for payment of compensation on the petitioner, and accordingly, directed the Insurance Company to pay the awarded amount to the awardees and, thereafter, to recover the same from the petitioner. The said question has been duly considered by the Tribunal and was correctly decided. The High Court rightly chose not to interfere with the same.
No doubt ,in this case it is very clearly proved that he had a license but had not been renewed. But the policy was there in force. Therefore, at best, the insurance company can only be directed to pay and recover the same from the owner of the vehicle.
7. As far as the quantum is concerned, the accident took place on 06.03.2003 and the claimant, first respondent, had taken treatment in Jaya Hospital for Traumatic closed dislocation of left shoulder joint, closed fracture shaft of middle third of left humerus and she was advised to, "ORIF plate with screws". But later on she was admitted in the hospital on 23.09.2003 and discharged on 29.09.2003 and was operated for ''non-union shaft of left humerus, surgery was done on 25.09.2003. But there were no records produced for the intervening period. The Doctor has certified 45% disability. Even this 45% disability has not been clearly explained. It is not a functional disability, the claimant who was working in a bank as a clerk, it is not the case that she has lost the job entirety, she continues in the work and therefore the lower court award of Rs. 1,00,000/-for disability and Rs. 50,000/-for loss of income cannot be accepted. The lower court theory of awarding Rs. 50,000/-as she was not able to do OT is without any specific evidence. Therefore, on analysing the injury, treatment and the disability certificate, at best, even granting Rs. 1500/-per percentage of disability, accepting 45% disability comes to Rs. 67,500/-which can be rounded of to Rs. 70,000/-.The lower court has awarded Rs. 5000/-towards transport expenses, which is fair, reasonable and correct. Towards extra nourishment the lower court has awarded Rs. 2000/-which can be increased to Rs. 5000/-. Towards medical expenses, the lower court has awarded Rs. 10,000/-as per bills produced by the claimant, on which there is no impediment. As against Pain and Suffering Rs. 15,000/-has been awarded by the lower court, which could be granted.
8. Thus, totally, the Claimant is entitled to a compensation of Rs. 1,05,000/-under the following heads, as against the award of Rs. 1,82,000/-passed by the Court below, with interest of 7.5% which is fair and reasonable :
|
1. |
Disability |
... Rs. 70,000/- |
|
2. |
Transport Expenses |
... Rs. 5,000/- |
|
3. |
Extra-Nourishment |
... Rs. 5,000/- |
|
4. |
Medical Expenses |
... Rs. 10,000/- |
|
5. |
Pain and Suffering |
... Rs. 15,000/- |
|
|
Total |
... Rs. 1,05,000/- |
9. In the result, the appeal is allowed, reducing the compensation from Rs. 1,82,000/-to Rs. 1,05,000/-with interest at the rate of 7.5% per annum from the date of petition till the date of payment and directing the insurance company to pay the amount and recover the same from the owner of the vehicle. Since, the appellant-Insurance Company has deposited Rs. 25,000/-along with interest, they are directed to deposit the modified award amount with the accrued interest, within a period of eight weeks from the date of receipt of a copy of this order. On such deposit, the Claimant is permitted to withdraw the award amount along with the accrued interest. It is open to the appellant-insurance company to recover the same from the owner of the vehicle, the second respondent herein. No costs. Consequently, connected M.P. No. 1 of 2010 is closed.
