AO/63/2006 of NATIONAL INSURANCE CO. LTD. Vs DEEPAK NEGI AND ANR

IN THE HIGH COURT OF UTTARAKHANDAT NAINITAL

A.O. No. 63 of 2006

National Insurance Co. Ltd.

Versus

…Appellant

Sri Deepak Negi & another … Respondents

Sri Bindesh Kumar Gupta, Advocate for appellant Sri Lok Pal Singh, Advocate for respondent no. 1

Dated: September 12, 2008

Hon’ble B.C. Kandpal, J.

This appeal, under Section 173 of Motor Vehicles Act, 1988, has been filed against the judgment and award dated 25.11.2005, passed by Motor Accident Claims Tribunal/District Judge, Pauri Garhwal in Motor Accident Claim Case No. 17 of 2004, Sri Deepak Negi vs. Sri Nafees Ahmad and another.

Brief facts, as emerged out from the record, are that on 30.11.2002 when claimant-Deepak Negi was going on foot to his village Raita at Dugadda-Kotdwar Road on his left side, Motorcycle No. U.A.12/1822 coming from Kotdwar towards Dugadda, being driven by its driver rashly and negligently, hit the claimant, due to which he sustained multiple injuries on his person. It has been alleged that claimant-injured remained admitted in hospital upto 14.12.2002 and the treatment is going on. It has also been alleged that apart from mental agony and pain suffering the claimant-injured had spent about Rs. One Lac. It has further been alleged that claimant was earning

Rs.6000/- per month from the work of sale and supply of Ret, Bajri etc. The claimant claimed sum of Rs.14,00,000/- as compensation against the opposite parties.

Opposite party no. 1 contested the claim by filing written statement denying the contents of claim petition. In the additional pleas, it has been pleaded that amount of compensation has been demanded exorbitantly and vehicle in question at the time of accident was insured and said vehicle was being plied by its driver-Vinod Dhasmana slowly and carefully. The claimant-injured was himself was liable for the accident and driver of vehicle in question was not liable for accident. It has also been pleaded that on the date of accident driver of vehicle in question was having valid and effective driving licence. The liability to pay the amount of compensation, if any, is of opposite party no. 2-insurance company and opposite party no. 1 was not liable to pay any compensation.

Opposite party no. 2-insurance company filed written statement and in the additional pleas, has pleaded that on the alleged date vehicle in question was being plied by the driver without having valid driving licence, which is breach of conditions of insurance policy and therefore answering opposite party was not liable to pay any compensation. The accident had taken place due to own negligence of claimant himself, therefore, he was not entitled to get any compensation.

The learned Tribunal on the basis of pleadings of parties framed relevant issues in the claim

petition. Parties led evidence in support of their cases. The learned Tribunal after having considered the entire material available on record and hearing learned counsel for the partiesdecreed the claim petition for sum of Rs.2,40,000/- and directed that amount so awarded shall be paid by opposite party no. 2-National Insurance Co. Ltd. to the claimant and in case if the said amount is not paid within period of two months, the awarded amount shall be paid to the claimant along with interest at the rate of 9% per annum from the date of filing the petition till the date of actual payment.

Feeling aggrieved by the aforesaid impugned judgment and award, the appellant-insurance company has preferred the present appeal before this Court.

Heard Sri Bindesh Kumar Gupta, learned counsel for appellant, Sri Lok Pal Singh, learned counsel for respondent no. 1 and perused the record.

As far as factum of accident is concerned, the Tribunal has discussed all the evidence adduced by the parties and thereafter has recorded categorical finding that on 30.11.2002 the accident occurred due to rash and negligent driving of driver of Motorcycle No. U.A. 12/1822, in which claimant-Deepak Negi sustained injuries on his person. I do not find any illegality in the finding recorded by the Tribunal in this regard.

Insurance company has raised objection that accident had occurred due to own negligence of

claimant himself, but no evidence has been adduced by it in this regard. The claimant stated on oath that he was going on foot on his left side and motorcyclist hit the claimant due to rash and negligent driving. Pankaj Singh Negi, who is an eye-witness of the accident, has been produced as A.P.W.-2 and this witness has deposed that he and Deepak Negi were going on foot to their village Aita on their left side and motorcyclist hit them due to rash and negligent driving. A.P.W.-1 has been cross-examined by insurance company and he denied that Deepak Negi himself was driving the motorcycle in question. It is therefore established that claimant was not at fault in the accident.

The driving licence of Vinod Kumar who was driving the motorcycle at the time of accident shows that the driver of motorcycle was having licence for LMV (NT). The driving licence indicates that driver was not having valid driving licence for either to drive the motorcycle without gear or motorcycle with gear. In view of Section 10(2) of Motor Vehicles Act (hereinafter referred to as the ‘Act’) the motorcycle without gear and motorcycle with gear as well as light motor vehicle are separate classes. Therefore, without their being any endorsement in regard to this fact that license holder is entitled to drive to specific class of vehicle, it will not be inferred that the driver of light motor vehicle was entitled to drive the motorcycle also. In view of Section 11 of the Act, person holding driving licence for light motor vehicle, is not entitled to drive motor cycle for which either separate licence or endorsement on the licence already obtained by him for another class of motor vehicle, is required. Thus, I am of the view

that conditions of insurance policy in this case have been violated as from perusal of provisions of Sections 10 and 11 of the Act it is quite clear that by driving licence, person is authorized to drive motor vehicle of any class as specified therein. Motor cycle falls in class of motor vehicle having two-wheels and engine capacity as per the definitions of motor car, motor cycle and motor vehicle. The vehicle of different classes cannot be driven in any public place unless its driver holds an effective driving licence issued to him authorizing him to drive the vehicle as provided under Section-3 of the Act.

This Court in decision United India Insurance Co. Ltd. vs. Smt. Satish Dora and others, reported in 2007(1) U.D.,462, has also held as under:

“17.Therefore, after perusal of the aforesaid provisions of the Act and the Rules, it becomes quite clear that person holding driving licence for light motor vehicle, which has four wheels, is not entitled to drive motor vehicle having two wheels, i.e., motor cycle for which either separate licence or endorsement on the licence already obtained by him for another class of motor vehicle in required.”

In the instant case, the driver of motorcycle did not having the separate licence for the motor cycle in question or endorsement on the licence of light motor vehicle held by him, hence he was not entitled to drive the said motor cycle. I am, therefore, of the view that insurance company in this case cannot be held to be liable for payment of compensation to the claimant. However, I am of the view that in the facts and circumstances of the

present case, the insurance company shall pay the amount of compensation to the claimant subject to condition that insurance company shall have recoverable rights from the owner of motorcycle in question.

As far as amount of compensation awarded by the Claims Tribunal is concerned, the claimant filed bills and prescription of Himalyan Institute, Jollygrant, Dehradun and Tribunal keeping in view of the nature of injuries has awarded sum of Rs.90,000/- against the expenses incurred on medical treatment of claimant. The Tribunal has further awarded sum of Rs.1,50,000/- for suffering pain and mental agony of the claimant.

I have to consider as to whether the amount awarded by the Tribunal to the claimant appears to be reasonable and justified or not.

The record reveals that the claimant has stated that he remained admitted in Himalyan Institute, Jollygrant, Dehradun for 14 days w.e.f. 1.12.2002 to 14.12.2002. The claimant has stated that he spent sum of about Rs.90,000/- on his medical treatment and he produced the bills for sum of Rs.90,000/- incurred on his medical treatment. However, I am of the view that the claimant has pleaded that sum of Rs.90,000/- was incurred by him on his medical treatment, which appears to be justified. I am, therefore, of the view that the claimant must have incurred sum of Rs.90,000/- against his medical expenses including the purchase of medicines. The Tribunal has further awarded sum of Rs.1,50,000/- against pain and

suffering which does not appear to be convincing. If it is admitted that the claimant had been remained admitted in hospital w.e.f. 1.12.2002 to 14.12.2002 i.e. for 14 days on account of injuries sustained by him, even then the claimant was entitled for sum of Rs.20,000/- for pain and mental suffering. The amount awarded by the Tribunal under the head of pain and suffering is without any basis and evidence available on record.

For the reasons stated above, I am of the view that the claimant is entitled for sum of Rs.90,000 + Rs.20,000=Rs.1,10,000/- as compensation on account of injuries sustained by him in the accident. The record further indicates that the claimant did not suffer any permanent disability on account of injuries sustained by him in the accident.

Accordingly, the appeal is partly allowed. The impugned judgment and award is modified to the extent that claimant is entitled for sum of Rs.1,10,000/- (Rupees One Lac One Thousand only), instead of Rs.2,40,000/- awarded by the Tribunal. However, the claimant is entitled for an interest of 7% per annum from the date of filing the petition till the actual payment (instead of conditional interest of 9% per annum awarded by the Claims Tribunal).

The statutory amount deposited by the appellant before this Court be remitted to the Tribunal concerned.

The excess amount, if any, has been deposited by the appellant-insurance company, the appellant shall be entitled to withdraw the same.

(B.C. Kandpal, J.)