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Himachal Pradesh High Court · body

2025 DAILYLAW 4069 (HP)

Oriental Insurance Company Limited v. Gopal

2025-12-09

Sushil Kukreja

body2025
JUDGMENT : SUSHIL KUKREJA, J. 1. The instant appeal is maintained by the appellant/Oriental Insurance Company (hereinafter referred to as “the appellant”), under Section 173 of the Motor Vehicles Act (for short “the Act”) against the award dated 24.04.2013, passed by the learned Motor Accidents Claims Tribunal, Kinnaur Civil Division at Rampur Bushahr, H.P., in MAC Petition No.0100069 of 2010, with a prayer to reduce/modify the impugned award. 2. Briefly stated the facts giving rise to the present appeal are that on 19.10.2009, the petitioner was travelling in HRTC bus from Shimla to Kingal and when the said bus reached at Jabli near Kumarsain, at about 4:00 PM, it met with an accident with a Tanker bearing registration No.HR37C-1283, due to rash and negligent driving of the drivers of both the vehicles. In the said accident, the petitioner sustained multiple injuries all over the body, his nose and mouth were badly damaged/injured and his teeth had also broken. He was taken to Government Hospital Baragaon for treatment, from where he was shifted to Kumarsain and thereafter he was referred to Dental Hospital, Shimla, where he remained admitted from 22.10.2009 to 31.10.2009. As per the petitioner, he spent more than Rs.2 lacs on his treatment including travelling expenses. The petitioner further alleged that before the accident, he was hale and hearty and also good in his studies, but due to the accident, his mouth had become ugly and it had become difficult to chew properly as iron plate had been inserted in his mouth. Hence, he prayed for grant of compensation to the tune of Rs.4,65,0000/- alongwith interest @ 18% per annum. 3. Respondents No.1 and 2 contested the petition and filed separate replies, wherein preliminary objections regarding maintainability and cause of action were taken. On merits, they averred that the accident had occurred due to rash and negligent driving of HRTC bus, hence, respondent No.4 is liable to pay compensation, if any, to the petitioner. It was further averred that in fact respondent No.2 was not driving the vehicle at the relevant time as he had gone to a roadside temple. 4. On merits, they averred that the accident had occurred due to rash and negligent driving of HRTC bus, hence, respondent No.4 is liable to pay compensation, if any, to the petitioner. It was further averred that in fact respondent No.2 was not driving the vehicle at the relevant time as he had gone to a roadside temple. 4. In the reply filed on behalf of respondent No.3/ Insurance Company, preliminary objections regarding maintainability, driver of the Tanker was not holding a valid and effective driving licence, the vehicle was not having any valid registration, fitness, permit and it was being plied in violation of the terms of the insurance policy. On merits, it was averred that the compensation, as claimed, was highly excessive. 5. On the pleadings of the parties, the learned Tribunal below framed the following issues on 18.11.2011:- “1. Whether the petitioner had sustained injuries due to rash and negligent driving of Tanker No.HR-37C-1283 being drive by respondent No.2 and Bus No.HP-64- 1093, being driven by respondent No.5 in which he was travelling, as alleged? OPP 2. If issue No.1 is proved, to what amount of compensation is the petitioner entitled to and from whom? OPP 3. Whether respondent No.3 was not possessed of a valid and effective driving licence, at the relevant time? ...OPR-3. 4. Whether the offending Tanker No.HR-37C-1283 was being driven in contravention of the terms and conditions of the insurance policy, as alleged? ...OPR-3 5. Relief.” 6. The parties led their evidence and after hearing learned counsel for the parties, the claim petition was allowed and the petitioner was held entitled for compensation of Rs.1,74,000/- alongwith interest, which was to be paid by respondents No.1 and 2 jointly and severally, but since the Tanker was insured with respondent No.3, it was directed to deposit the said amount in order to indemnify the insured/ respondent No.1. 7. Feeling aggrieved/dissatisfied, the appellant/insurance company preferred the instant appeal against award dated 24.04.2013 passed by the learned Tribunal below, with a prayer to reduce/modify the impugned award. 8. I have heard the learned counsel for the parties and also carefully examined the entire record. 9. 7. Feeling aggrieved/dissatisfied, the appellant/insurance company preferred the instant appeal against award dated 24.04.2013 passed by the learned Tribunal below, with a prayer to reduce/modify the impugned award. 8. I have heard the learned counsel for the parties and also carefully examined the entire record. 9. Learned Senior Counsel for the appellant first contended that the award passed by the learned Tribunal below is on the higher side as the same is based upon no evidence and the finding of the learned Tribunal below on this aspect deserves to be modified by reducing the amount of compensation. 10. On the other hand, learned Senior counsel for respondent No.1/petitioner supported the award passed by the learned Tribunal below. 11. She contended that the impugned award has been passed by the learned Tribunal below after appreciating the evidence in its proper perspective. 12. Perusal of the impugned award reveals that the learned Tribunal below had awarded a sum of Rs.1,74,000/- to the petitioner as compensation. The break-up of the compensation is as under:- 13. In case titled as Kavita vs. Deepak and others , 2012 (8) SCC 604 the Hon’ble Apex Court discussed the entire law and laid down the guidelines for granting compensation. It is apt to reproduce relevant paras of the judgment here-in-below:- "17. In Raj Kumar v. Ajay Kumar (2011) 1 SCC 343 , this Court considered large number of precedents and laid down the following propositions: "5. The provision of the motor Vehicles Act, 1988 ('the Act', for short) makes it clear that the award must be just, which means that compensation should, to the extent possible, fully and adequately restore the claimant to the position prior to the accident. The object of awarding damages is to make good the loss suffered as a result of wrong done as far as money can do so, in a fair, reasonable and equitable manner. The court or the Tribunal shall have to assess the damages objectively and exclude from consideration any speculation or r fancy, though some conjecture with reference to the nature of disability and its consequences, is inevitable. A person is not only to be compensated for the physical injury, but also for the loss which he suffered as a result of such injury. A person is not only to be compensated for the physical injury, but also for the loss which he suffered as a result of such injury. This means that he is to be compensated for his inability to lead a full life, his inability to enjoy those normal amenities which he would have enjoyed but for the injuries, and his inability to earn as much as he used to earn or could have earned. 6. The heads under which compensation is awarded in personal injury cases are the following: "Pecuniary damages (Special damages) (i) Expenses relating to treatment, hospitalisation, medicines, transportation, nourishing food, and miscellaneous expenditure. (ii) Loss of earnings (and other gains) which the injured would have made had he not been injured, comprising: (a) Loss of earning during the period of treatment; (b) Loss of future earnings on account of permanent disability. (iii) Future medical expenses. Non-pecuniary damages (General damages) (iv) Damages for pain, suffering and trauma as a consequence of the injuries. (v) Loss of amenities (and/or loss of prospects of marriage). (vi) Loss of expectation of life (shortening of normal longevity). In routine personal injury cases, compensation will be awarded only under heads (i), (ii)(a) and (iv). It is only in serious cases of injury, where there is specific medical evidence corroborating the evidence of the claimant, that compensation will be granted under any of the heads (ii)(b), (iii), (v) and (vi) relating to loss of future earnings on account of permanent disability, future medical expenses, loss of amenities (and/or loss of prospects of marriage) and loss of expectation of life." 18. ............………….. …………. 19. In light of the principles laid down in the aforementioned cases, it is suffice to say that in determining the quantum of compensation payable to the victims of accident, who are disabled either permanently or temporarily, efforts should always be made to award adequate compensation not only for the physical injury and treatment, but also for the loss of earning and inability to lead a normal life and enjoy amenities, which would have been enjoyed but for the disability caused due to the accident. The amount awarded under the head of loss of earning capacity are distinct and do not overlap with the amount awarded for pain, suffering and loss of enjoyment of life or the amount awarded for medical expenses.” 14. The amount awarded under the head of loss of earning capacity are distinct and do not overlap with the amount awarded for pain, suffering and loss of enjoyment of life or the amount awarded for medical expenses.” 14. In the case on hand, so far as awarding of compensation under the heads medical expenses, transport charges, canteen bill, attendant charges and pain and sufferings is concerned, no fault can be found with the findings recorded by the learned Tribunal below. 15. So far as the amount awarded under the head, ‘inconvenience’ is concerned, petitioner Gopal Kumar, while appearing in the witness-box as PW-1 deposed that he had sustained injuries on his nose and mouth and his tooth had broken. He further deposed that he remained admitted at IGMC, Shimla and a permanent plate has to be inserted in his mouth due to the fact that his tooth had broken. He also deposed that he was facing difficulty in eating and speaking. Since the injury has affected the amenities of life of the claimant-injured and a permanent plate had to be inserted in his mouth due to the fact that his tooth had broken and would be facing difficulty in eating and speaking in future also, it can safely be held that the claimant- injured is also entitled to Rs.30,000/- under the head 'loss of amenities' instead under the head, ‘inconvenience’ as awarded by the tribunal below. 16. However, while awarding a sum of Rs.40,000/- under the head, ‘loss of studies, the learned Tribunal below has failed to apply its judicial mind and assign any cogent and satisfactory reasons in awarding the same. In fact no evidence has been led by the petitioner as to in what manner he had suffered loss of studies. In his affidavit Ext. PW1/A, the petitioner had stated that after the accident, he could not concentrate on his studies, due to which, his position/merit had suffered. But he has failed to specify that in what manner his position/merit had suffered. He has failed to specify in his affidavit what was his position in the class before the accident and what was his position after the accident. Therefore, in the absence of any cogent and satisfactory evidence on record, no amount could have been granted under the head ‘loss of studies’. Thus the petitioner is not entitled to any amount under the head, ‘loss of studies. Therefore, in the absence of any cogent and satisfactory evidence on record, no amount could have been granted under the head ‘loss of studies’. Thus the petitioner is not entitled to any amount under the head, ‘loss of studies. Accordingly, this Court deems it fit to modify the award passed by learned Tribunal below, as such, the petitioner is held entitled to total compensation to the tune of Rs. 1,34,000/- 17. Learned Senior Counsel for the appellant/Insurance Company next contended that the driver of the offending Tanker in question, i.e. respondent No.3-Kuldeep, though had a valid license to drive transport vehicle, however, had no endorsement of the transport authority authorizing him to drive the hazardous goods carrying vehicle, which constitute breach of the terms and conditions of the policy, therefore, insurance company may completely be exonerated to pay compensation to the claimant. 18. The perusal of the evidence on record reveals that respondent No.3, Kuldeep was driving the offending tanker at the time of accident which was a goods carriage carrying goods of dangerous or hazardous nature. He had tendered in evidence his driving licence Ext. R-4, which, shows that he was having the driving licence to drive transport vehicle (HTV) only and the same was valid from 25.02.2005 to 24.02.2008. Perusal of it further shows that his driving licence Ext. R-4 was got renewed from 25.02.2008 to 24.02.2011. The learned Tribunal has returned the findings on issue no.1 that the petitioner had sustained injuries due to rash and negligent driving of Tanker No.HR-37C-1283 by its driver i.e. respondent No.3. 19. Now the question, which arises for consideration, is as to whether the driver of the Tanker in question was holding a valid and effective driving licence at the time of the accident. At this stage, it would be relevant to reproduce Rule 9 of the Central Motor Vehicles Rules, 1989, which reads as under: “9. 19. Now the question, which arises for consideration, is as to whether the driver of the Tanker in question was holding a valid and effective driving licence at the time of the accident. At this stage, it would be relevant to reproduce Rule 9 of the Central Motor Vehicles Rules, 1989, which reads as under: “9. Educational qualifications for drivers of goods carriages carrying dangerous or hazardous goods.— (1) One year from the date of commencement of Central Motor Vehicles (Amendment) Rules, 1993, any person driving a goods carriage carrying goods of dangerous or hazardous nature to human life shall, in addition to being the holder of a driving licence to drive a transport vehicle, also has the ability to read and write at least one Indian language out of those specified in the VIII Schedule of the Constitution and English and also possess a certificate of having success fully passed a course consisting of following syllabus and periodicity connected with the transport of such goods:- (2) The holder of a driving licence possessing the minimum educational qualification or the certificate referred to in sub-rule (1), shall make an application in writing on a plain paper along with his driving licence and the relevant certificate to the licensing authority in whose jurisdiction he resides for making necessary entries in his driving licence and if the driving licence is in Form 7, the application shall be accompanied by the fee as is referred to in Serial No. 8 of the Table to rule 32. (3) The licensing authority, on receipt of the application referred to in sub-rule (2), shall make an endorsement in the driving licence of the applicant to the effect that he is authorised to drive a goods carriage carrying goods of dangerous or hazardous nature to human life. (4) A licensing authority other than the original licensing authority making any such endorsement shall communicate the fact to the original licensing authority.” 20. Thus, Rule 9 stipulates that in addition to being the holder of a driving licence to drive a transport vehicle, the driver must have the ability to read and write at least one Indian language out of those specified in the VIII Schedule of the Constitution and English and also possess a certificate of having successfully passed a course consisting of the syllabus prescribed and periodicity connected with the transport of such goods. The said period of training initially is for three days, but for a renewal, it is only one day. The place of training is at any institute recognized by the State Government. After getting a certificate as per sub-rule (1) and possessing minimum educational qualification, the holder of the driving licence has to make an application in writing along with his driving licence and the relevant certificate to the licensing authority in whose jurisdiction he resides for making necessary entries in his driving licence and if the driving licence is in Form No.7, the application shall accompany the requisite fee. The licensing authority, on receipt of the application referred to in the aforesaid manner shall make an endorsement in the driving licence of the applicant to the effect that he is authorized to drive a goods carriage carrying goods of dangerous or hazardous nature to human life. The purpose of authorization is to grant an approval to drive a transport vehicle carrying goods of dangerous or hazardous nature. Such an authorization is in the form of an endorsement. An endorsement is nothing but a public declaration or an approval granted on the driving licence so as to declare that the holder of such a licence is authorized to drive a transport vehicle carrying goods of dangerous or hazardous nature and has complied with the mandatory conditions stipulated for seeking such an endorsement on the driving licence. If the licensing authority, other than the original licensing authority makes any such endorsement, it shall communicate the fact to the original licensing authority. Thus, as per Rule 9 of the Rules, initially on complying with the conditions stated in the Rules, an application has to be made before the licensing authority for an endorsement in the driving licence that he is authorized to carry goods of dangerous or hazardous nature to human life. Subsequently, when it comes to renewal of the said licence, the condition precedent is that the driver must undergo a one day refresher course. 21. In the instant case, as observed earlier, respondent No.3 was having the driving licence to drive heavy transport vehicle (HTV) only and the same was valid from 25.02.2005 to 24.02.2008 and subsequently, it was renewed from 25.03.2008 to 24.02.2011. The driving licence (Ext. R-4) does not indicate any endorsement on it to drive the oil tanker. 21. In the instant case, as observed earlier, respondent No.3 was having the driving licence to drive heavy transport vehicle (HTV) only and the same was valid from 25.02.2005 to 24.02.2008 and subsequently, it was renewed from 25.03.2008 to 24.02.2011. The driving licence (Ext. R-4) does not indicate any endorsement on it to drive the oil tanker. In other words, the driver had neither been tested nor approved by the Licencing Authority to drive the hazardous-goods carrying vehicle. The owner, therefore, cannot claim that he had exercised his due diligence before handing over the vehicle carrying hazardous goods to the respondent no.3 for driving. 22. Thus, it has been established by the appellant insurance company that respondent No.3, i.e. driver of the offending Tanker did not possess a valid driving licence on the date of the accident inasmuch as he did not have an endorsement to drive a hazardous goods vehicle, though he had a valid licence to drive a heavy goods vehicle which is a transport vehicle. 23. Now the question, which arises for consideration before this Court, is as to who shall be liable to pay the compensation to the petitioner. Needless to state that an insurance policy is a statutory contract entered into between the insurer and the insured for the benefit of third parties. In Shamanna and another vs. Oriental Insurance Company Limited and others , (2018) 9 SCC 650 , wherein, while considering Sections 147 and 149 of the Motor Vehicles Act, it has been held by the Hon’ble Supreme Court that the victim of a motor vehicle accident is a third party, and it is the statutory duty of the insurer to satisfy the award. The principle of "pay and recover" has been reiterated, holding that if the driver had no valid driving licence and there was a breach of policy conditions, the High Court ought not to interfere with the order of "pay and recover" passed by the Tribunal. If the Insurance Company has paid any amount, the mode of recovery is also provided, and the insurer has the liberty to initiate proceedings before the executing Court concerned, if the dispute is between the insurer and the owner. Relevant portions of the judgment read as under:- “5. If the Insurance Company has paid any amount, the mode of recovery is also provided, and the insurer has the liberty to initiate proceedings before the executing Court concerned, if the dispute is between the insurer and the owner. Relevant portions of the judgment read as under:- “5. In the case of third party risks, as per the decision in National Insurance Company Ltd. v. Swaran Singh, the insurer had to indemnify the compensation amount payable to the third party and the insurance company may recover the same from the insured. Doctrine of "pay and recover" was considered by the Supreme Court in Swaran Singh case wherein the Supreme Court examined the liability of the insurance company in cases of breach of policy condition due to disqualifications of the driver or invalid driving licence of the driver and held that in case of third party risks, the insurer has to indemnify the compensation amount to the third party and the insurance company may recover the same from the insured. ………. 13. Since the reference to the larger bench in Parvathneni case has been disposed of by keeping the questions of law open to be decided in an appropriate case, presently the decision in Swaran Singh case followed in Laxmi Narain Dhut and other cases hold the field. The award passed by the Tribunal directing the insurance company to pay the compensation amount awarded to the claimants and thereafter, recover the same from the owner of the vehicle in question, is in accordance with the judgment passed by this Court in Swaran Singh and Laxmi Narain Dhut cases. While so, in our view, the High Court ought not to have interfered with the award passed by the Tribunal directing the first respondent to pay and recover from the owner of the vehicle. The impugned judgment of the High Court exonerating the insurance company from its liability and directing the claimants to recover the compensation from the owner of the vehicle is set aside and the award passed by the Tribunal is restored. 15. In the result, the impugned judgment of the High Court insofar as enhancement of the compensation to Rs.4,94,700/- is affirmed. Insofar as direction of the impugned judgment directing the appellants/claimants to recover the compensation from the owner of the vehicle is set aside and the appeal is partly allowed. 15. In the result, the impugned judgment of the High Court insofar as enhancement of the compensation to Rs.4,94,700/- is affirmed. Insofar as direction of the impugned judgment directing the appellants/claimants to recover the compensation from the owner of the vehicle is set aside and the appeal is partly allowed. The first respondent insurance company shall pay the enhanced compensation to the appellants/claimants along with the accrued interest and the insurance company shall recover the same from the owner of the vehicle. No costs.” 24. In the case of Anu Bhanvara and others Vs. Iffco Tokio General Insurance Company Limited and others , (2020) 20 SCC 632 at paragraphs 11 & 12, the Hon'ble Supreme Court has observed as under:- "11. We have heard the learned counsel for the parties and perused the record as well as the various decisions cited by the learned counsel for the parties. The Insurance, of the vehicle, though as a goods vehicle, is not disputed by the parties. The claimants in the present case are young children who have suffered permanent disability on account of the injuries sustained in the accident. Thus, keeping in view the peculiar facts and circumstances of this case, we are of the considered view that the principle of "pay and recover" should be directed to be invoked in the present case. 12. Accordingly, these appeals are disposed of with the direction that the respondent No.1-insurance company shall be liable to pay the awarded compensation to the claimants in both the appeals. However, respondent No.1-insurance company shall have the right to realize the said amount of compensation from the respondents no. 2 and 3 (driver and owner of the vehicle) in accordance with law.” 25. In the instant case also, applying the aforesaid ratio and dicta to the present case, since the claimant is a third party and has no concern with the inter se terms and conditions of the insurance policy, hence, in view of the decisions (supra) of the Hon'ble Supreme Court, Appellant/Insurance Company would have to pay compensation amount to the petitioner in the first instance and thereafter it may recover the same from respondent No.2/owner of the Tanker bearing registration No.HR-37C-1283 in accordance with law. 26. Consequently, in view of detailed discussion made here-in-above, the impugned award dated 24.04.2013 stands modified. 26. Consequently, in view of detailed discussion made here-in-above, the impugned award dated 24.04.2013 stands modified. The petitioner is held entitled to a sum of Rs.1,34,000/- alongwith interest and the amount of compensation shall be first paid by the Insurance Company, who may recover the same from respondent No.2/owner of the Tanker in accordance with law. The remaining part and terms of the impugned award, including the interest component, shall remain the same. The appeal stands disposed of in the above terms, so also the pending application(s), if any.