Ram Prasanna Sharma, J
1. This miscellaneous civil appeal arises out of award dated 26.7.2016 passed by the Additional Motor Accident Claims Tribunal,
Raipur, Civil Distt. Raipur (CG) in Claim Case No.106/2014 awarding compensation of Rs.34,37,525/- in favour of respondents
1 & 2/claimants for death of one Dingar Sabar.
2. Facts of the case in brief are that on 29.6.2013 deceased Dingar was returning from school at about 11.30 am after duty hours
in a Motor Cycle bearing registration No.OR 26A- 1347 and at that time driver of Tata Magic bearing registration No.OD 26-
2524 dashed the motor cycle by driving the vehicle negligently causing instant death of Dingar Sabar. Jitendra Sunani who was
driving the motor cycle also sustained grievous injuries. The matter was reported to Police Station Komna Distt. Nuwapada,
Orissa. After registration of FIR, offence under Sections 279, 338, 304(a) of the IPC was registered against respondent No.3
(driver of the offending vehicle). The deceased was Assistant Teacher at Government Higher Secondary School, Tarbod, and was
getting monthly salary of Rs.24,500/-. Respondents 1 & 2 were dependent on him being wife and daughter.
3. Pleadings of the claimants have however denied by the appellant/Insurance Company.
4. After evaluating the evidence adduced on record, the Tribunal assessed the compensation as mentioned above.
5. Learned counsel for the appellant submits that respondent No.3 who is the driver of the insured vehicle was not holding the
valid and effective driving licence. The insured vehicle was Tata Magic which was registered as passenger carrying vehicle and it
is classified as transport vehicle, but the driver did not have the driving licence for driving a transport passenger carrying vehicle.
As the driver was holding the licence of LMV he was not competent to drive a passenger carrying commercial transport vehicle
and there was a clear breach of terms of insurance policy. It is further submitted that as per the State Government Policy, there is
provision for providing compassionate appointment and therefore, the claimants are not entitled for compensation from the
appellant. The Tribunal has awarded the amount which is highly exorbitant.
6. Heard learned counsel for the appellant and perused the documents on record.
7. From the pleadings of the respective parties and overall evidence on record, specially version of Ahilya Saber (AW-1) and
Trilochan Hans (AW-2) it is clear that the accident was occurred with the offending vehicle which was insured with the appellant
and was being driven by respondent No.4. From the evidence of Sharat Chandra Panigrahani (AW-3) who is the Assistant Block
Educational Officer it is established that the gross salary of the deceased was Rs.24,464/- per month and there is nothing contrary
on the record. The evidence further goes to show that the appellant examined Vibudatt Panda (NAW-1) who deposed that the
driver was not having licence to drive the commercial vehicle.
8. The core issue for consideration is whether the respondent who was having driving licence to drive light motor vehicle can
drive the light goods vehicle. This issue is no longer res integra as laid down by Hon'ble Apex Court in the matter of Kulwant
Singh and others vs. Oriental Insurance Company Limited reported in (2015) 2 SCC 186 which reads as under:
In Annappa Irappa Nesaria (National Insurance co. Ltd. v. Annappa Irappa Nesaria, (2008) 3 SCC 464 , this Court referred to the
provisions of Sections 2(21) and (23) of the Motor Vehicles Act, 1988, which are definitions of ""light motor vehicle"" and
medium goods vehicle"" respectively and the rules prescribing the forms for the licence i.e. Rule 14 and Form 4. It was
concluded: (SCC p. 468, para 20)
20. From what has been noticed hereinbefore, it is evident that 'transport vehicle' has now been substituted for 'medium goods
vehicle' and 'heavy goods vehicle'. The light motor vehicle continued, at the relevant point of time to cover both 'light passenger
carriage vehicle' and 'light goods carriage vehicle'. A driver who had a valid licence to drive a light motor vehicle, therefore, was
authorised to drive a light goods vehicle as well.
9. In S. Iyyapan (S. Iyyapan v. United India Insurance Co. Ltd., (2013)7 SCC 62, the question was whether the driver who had a
licence to drive ""light motor vehicle"" could drive ""light motor vehicle"" used as a commercial vehicle, without obtaining
endorsement to drive a commercial vehicle. It was held that in such a case, the insurance company could not disown its liability. It
was observed (SC p 77, para 18)
18. In the instant case, admittedly the driver was holding a valid driving licence to drive light motor vehicle. There is no dispute
that the motor vehicle in question, by which accident took place, was Mahindra Maxi Cab. Merely because the driver did not get
any endorsement in the driving licence to drive Mahindra Maxi Cab, which is a light motor vehicle, the High Court has committed
grave error of law in holding that the insurer is not liable to pay compensation because the driver was not holding the licence to
drive the commercial vehicle.
In the light of the pronouncement by the Hon'ble Apex Court, submission put forth by the Insurance Company is without
substance.
9. From the evidence recorded by the Tribunal it is clear that respondent No.3 was negligently driving his vehicle and there is no
contributory negligence on the part of the driver of the motor cycle. In respect of contributory negligence on the part of the
victim the law holding the field is that the burden of proof regarding breach of policy conditions or contributory negligence lies
on the insurance company as has been held by the Apex Court in the case of Usha Rajkhowa V. Paramount Industries (2009) 14
SCC 71 and also in the case of Minu Rout v. Satya Pradyumna Mohapatra (2013) 10 SCC 695.
10. In the present case though the insurance company has pleaded that the accident took place due to negligence on the part of the
deceased but no evidence in support of such pleading has been adduced by it and in these circumstances and the law laid down by
the Apex Court referred to above, it cannot be said that the victim was having contributory negligence leading to the accident and
the resultant death.
11. The Tribunal assessed the dependency on the basis of monthly salary and again awarded 30% of the assessed dependency for
future aspect which are based on the precedent in the case of Sarla Verma v. Delhi Transport Corporation and another, (2009) 6
SCC 121. The amount awarded under the conventional head also appears to be adequate and the same is not liable to be interferred
with invoking the jurisdiction of the appeal.
12. The appeal is thus liable to be and is hereby dismissed.
