It cannot be said that a person holding a learner’s licence is not entitled to drive the vehicle.: High Court of Chhattisgarh
A learner’s licence is, also a licence within the meaning of the provisions of the said Act. It cannot, therefore, be said that when a vehicle is being driven by a learner subject to the conditions mentioned in the licence, he would not be a person who is not ‘duly licensed’ resulting in conferring a right on the insurer to avoid the claim of the third party as upheld by the High Court of Chhattisgarh through the learned bench led by Justice Deepak Kumar Tiwari in the case of Oriental Insurance Company Limited the Branch Manager Branch Office Ambikapur, District Surguja, Chhattisgarh. v. Bhagwanti W/o Late Parshu and Ors. (MAC No. 1237 of 2018). Facts of the matter, in brief, are that the claimants are the mother, wife and children of deceased Parshuram, who died in an accident on 16.6.2016. The claim petition was filed before the Tribunal on the ground that deceased Parshuram was working as a Mason. The offending vehicle i.e., Tractor, which was coming from the opposite side, dashed the deceased, as a result of which the deceased sustained grievous injuries and died on the spot. It was further averred that the accident occurred on account of rash and negligent driving by the Chotu @ Rajkumar Khalkho. The deceased was aged about 35 years and was working as Mason and thereby used to earn Rs.15,000/- per month. It was alleged that the accident happened on account of fault on the part of the deceased and the deceased himself was responsible for the accident. After hearing learned counsel for the parties and material available on record, the learned Tribunal passed the impugned award and granted compensation of Rs.9,20,500/- fastening liability on the Insurance 4 Company as well as the Owner and Driver of the vehicle jointly and severally. The Claimants have assailed the impugned award on the ground that it is illegal, erroneous and contrary to law. After the perusal of the facts and arguments by the learned counsels, the Hon’ble Court held that “It is directed that Insurance Company shall firstly pay the award amount of Rs.10,17, 200/- to the claimants with 6% interest per annum from the date of filing of claim petition i.e. 27.8.2016 till its realization within a period of 2 months and thereafter shall recover the said amount from the Owner in the same execution proceeding without filing separate suit. Accordingly, preferred by the Oriental Insurance Company is disposed of For the foregoing, MAC No.1707 of 2018 filed by the Claimants is allowed in part to the extent as indicated above.”
1AFRHIGH COURT OF CHHATTISGARH BILASPUR MAC No. 12318Judgment Reserved On : 12 11 2021 Judgment Delivered On : 18 11 2021Oriental Insurance Company Limited The Branch Manager BranchOffice Ambikapur District Surguja Chhattisgarh. Appellant Non Applicant No. 3Versus 1.Bhagwanti W o Late Parshu Aged About 32 Years 2.Jumanti D o Late Parshu Aged About 18 Years 3.Devnarayan S o Late Parshu Aged About 12 Years 4.Tijnarayan S o Late Parshu Aged About 10 Years 5.Gurucharan S o Late Parshu Aged About 3 Years 6.Malti Wd o Sawal Sai Aged About 65 Years No.3 to 5 are minor represented through mother and legal guardianSmt. Bhagwanti wife of late Parshu All are by Caste Kanwar R o Village Amatoli Police Station And TahsilSitapur District Surguja 7.Chhotu @ Rajkumar Xalxo S o Nehru Xalxo @ Nawal Sai Xalxo AgedAbout 22 Years Caste Uraon R o Village Bhanvradand Police StationAnd Tahsil Sitapur District Surguja (Driver Of The Vehicle C.G. 15 A 7469).8.Surendra Choudhari S o Rajendra Choudhari Aged About 43 Years R o Village Namnakala Police Station Gandhi Nagar Tahsil Ambikapur District Surguja Chhattisgarh.(Owner Of The Vehicle C.G. 15 A. 7469) RespondentsMAC No. 170181.Bhagwanti Wd o Parshu Aged About 32 Years 22.Jumanti D o Parshu Aged About 18 Years 3.Devnarayan S o Parshu Aged About 12 Years 4.Tijnarayan S o Parshu Aged About 10 Years 5.Gurucharan S o Parshu Aged About 3 Years 6.Malti Wd o Sawal Sai Aged About 65 Years Appellant No.3 to 5 are Minor through their natural guardian motherBhagwanti Wd o Parshu aged about 32 years All above R o Village Aamatoli Police Station And Tahsil Sitapur District Surguja Chhattisgarh. AppellantsVersus 1.Chotu @ Rajkumar Khalkho S o Nehru Khalkho @ Nawal Sai KhalkhoAged About 22 Years R o Bhawaradand Police Station And TahsilSitapur District Sarguja Chhattisgarh. 2.Surendra Chowdhary S o Rajendra Chowdhary Aged About 43 YearsR o Village Namnakala Police Station Ghandhinagar District Surguja in Motor Accident ClaimCase No.201 2016.2.MAC No.1707 2018 has been preferred by the claimants seekingenhancement of the impugned award whereas MAC No.1237 2018has been preferred by the Oriental Insurance Company Limitedseeking setting aside the impugned award dated 30.1.2018.3.Facts of the matter in brief are that the claimants are the mother wifeand children of deceased Parshuram who died in an accident on16.6.2016. The claim petition was filed before the Tribunal on theground that deceased Parshuram was working as a Mason. On thedate of the accident at about 8 am the deceased was going to VillageBhawradandh to fetch labours. The offending vehicle i.e. TractorNo.CG 15A 7469 which was coming from the opposite side dashedthe deceased as a result of which the deceased sustained grievousinjuries and died on the spot. It was further averred that the accidentoccurred on account of rash and negligent driving by the Chotu @Rajkumar Khalkho. The deceased was aged about 35 years and wasworking as Mason and thereby used to earn Rs.15 000 per month. 4.The respondents filed their reply and denied all the averments. It wasalleged that the accident happened on account of fault on the part ofthe deceased and the deceased himself was responsible for theaccident. 5.After hearing learned counsel for the parties and material available onrecord the learned Tribunal passed the impugned award and grantedcompensation of Rs.9 20 500 fastening liability on the Insurance 4Company as well as the Owner and Driver of the vehicle jointly andseverally. MAC No. 170186.The Claimants have assailed the impugned award on the ground thatit is illegal erroneous and contrary to law. The Claims Tribunal haserred in assessing the monthly income of the deceased to the tune ofRs.4 500 . The multiplier of 15 has wrongly been applied. TheTribunal has failed to appreciate the law laid down by the Hon’bleSupreme Court in the matter of National Insurance Company Ltd Vs.Pranay Sethi and Others {(2017) 16 SCC 680} wherein it has beenheld that the addition towards the future prospects between the agegroup of 35 40 years should be 50% of the salary. The compensationawarded by the Tribunal is not just and proper. The amount awardedby the Tribunal towards consortium love and affection and funeralexpenses is on the lower side. While determining the income of thedeceased the Tribunal has failed to appreciate the future prospects. MAC No. 123187.The Insurance Company has also assailed the impugned award onthe ground that the deceased died due to his own negligence. On thedate of the accident the deceased was in inebriated condition andwas trying to sit in a moving vehicle. In support of their defence theInsurance Company has examined Rambhagatwho is theClerk in RTO Ambikapur. He has stated that the driving licence wasissued in favour of respondent No.7 which was valid for the period23.6.2016 o 22.6.2036 and the said licence was issued for drivingLight Motor Vehicle whereas the subject vehicle is a Goods Carriage 5vehicle. The Driver was not possessing valid licence to drive theheavy vehicle. Therefore the impugned award fastening the liabilityupon the Insurance Company is unsustainable in law. 8.I have heard learned counsel for the parties at length and perused therecord.9.It is not disputed that on the date of the accident i.e. 16th June 2016 the respondent No.7 Driver was holding learning licence and theInsurance Company has specifically raised the issue before theTribunal. Ramnath Rambhagat Clerk of RTO Ambikapur has beenexamined on behalf of the Insurance Company as Witness No.3. Hehas also admitted in the cross examination that at the time ofaccident respondent No.7 Driver was holding Learning Licence andhis permanent licence was issued from 23rd June 2016. In this case the Driver and Owner have not been examined and their counsel onthe date of hearing i.e. 21st September 2017 stated that he does notwant to give any evidence on behalf of the driver and owner.10.In the matter of Anaal Automobiles Vs. Ashish Kumar Shukla andOthers {2009 ACJ 1184} this Court has elaborately dealt with theissue. In para 5 of the said judgment the judgment rendered by theHon’ble Supreme Court in the matter of National Insurance Co. LtdVs. Swaran Singh {2004 ACJ 1of the Central Motor Vehicle Rules 1989 while driving with learning licence liability of the InsuranceCompany was exonerated.13.In view of the aforesaid appreciation this Court is of the view thatfastening liability on the Insurance Company is not correct. Thoughthe deceased Parshuram who was coming from the opposite side was dashed by the Tractor and died. Therefore he is a third party and 7as per the judgment in the matter of Swaran Singh even afterthe Insurance Company successfully establishes breach of the policyconditions the Insurance Company would be liable under the policyand the Insurer may recover the amount from the owner in the sameexecution proceedings without filing a separate suit. Therefore thisCourt deems it appropriate to fasten the liability upon the owner i.e.respondent No.2. 14.Learned counsel for the Claimants would submit that the Tribunal haswrongly applied the multiplier of 15 though the deceased was agedbelow 36 years. According to the judgment of the Hon’ble SupremeCourt in the matter of Sarla Vermaand Others Vs. DelhiTransport Corporation and Another6 SCC 121} where thedeceased is of the age group of 31 35 years multiplier of 16 ought tohave been applied. 15.In the instant case the date of birth of the deceased is 3rd July 1980for which his marksheethas been filed by the claimants according to which on the date of the accident the age of thedeceased was below 36 years. Therefore the Tribunal ought to haveapplied multiplier of 16.16.The Tribunal has rightly assessed the notional income of thedeceased at Rs.4500 but no future prospects has been awarded. Asper the judgment in the matter of Pranay Sethi Supra 40% shouldhave been added on this head. The Tribunal has awarded towardsthe conservative head i.e. loss of spousal consortium Rs.40 000 forfuneral expenses Rs.15 000 for loss of estate Rs.15 000 and thesame is held to be proper. But the Tribunal has not awarded any 8amount towards the loss of parental consortium to the children therefore on this head Rs.40 000 ought to have been awarded. 17.Thus the claimants would be entitled for the following compensation : Sr. No.Head Amount1.Annual incomeRs.4500x12 = Rs.54 000 2.For Future ProspectsRs.54 000 x 40% = 21 600 3.IncomeRs.54 000 + Rs.21 600 =Rs.75 600 4.Total IncomeRs.75 600 x 16 =Rs.12 09 600 5.Personal expensesRs.12 09 600 x ¼ =Rs.3 02 400 6.Loss of dependencyRs.12 09 600 Rs.3 02 400 = Rs.9 07 200 7.Loss of spousal consortiumRs.40 000 8.Loss of Parental consortiumRs.40 000 9.For Funeral expenses Rs.15 000 10.Loss of EstateRs.15 000 Total Award Rs.10 17 200 Amount awarded Rs.9 20 500 Enhanced amount Rs.96 700 18.The Claimants are held to be entitled for total compensation ofRs.10 17 200 with 6% interest per annum from the date of filing ofclaim petition i.e. 27.8.2016 till its realization. 19.In view of the finding arrived at by this Court in the precedingparagraphs it is directed that Insurance Company shall firstly pay theaward amount of Rs.10 17 200 to the claimants with 6% interest perannum from the date of filing of claim petition i.e. 27.8.2016 till itsrealization within a period of 2 months and thereafter shall recover thesaid amount from the Owner in the same execution proceedingwithout filing separate suit. Accordingly MAC No.12318preferred by the Oriental Insurance Company is disposed of. 920.For the foregoing MAC No.17018 filed by the Claimants isallowed in part to the extent as indicated above.21.Other conditions of the award passed by the learned Claims Tribunalshall remain in tact.There shall be no order as to costs. Sd JudgeBarve 10HEADLINES Owner of the vehicle not entered the witness box to prove duediligence and care in allowing the vehicle to be driven by the personhaving learning licence the Insurance Company successfullyestablishes breach of policy conditions. 