United India Insurance Company Limited v. Narendra Kashyap

High Court of Kerala in case of Pareed Pillai vs. Oriental Insurance Company Co. Ltd, Ernakulam (AIR 2019 Kerala 9 FB). Lastly, he contended that Claims Tribunal erred in holding the claimant to have suffered loss of income to extent of 30%, whereas, doctor examined on behalf of claimant i.e. AW2 Dr. Lakhan Lal Thakur in his evidence has categorically stated disability for the whole body would be 19-20 % only.

#7. There is no representation on behalf of respondent No.1/ claimant though served. -5-

#8. Learned counsel for respondent No.2, owner and driver of offending vehicle, would oppose the submission of learned counsel for the appellant and would submit that learned Claims Tribunal upon appreciation of evidence and facts have rightly come to the conclusion that there was no breach of policy condition and fastened liability upon insurance company.

#9. I have heard learned counsel for the parties and also perused the record of claim case.

#10. To appreciate the first submission of learned counsel for the appellant Insurance Company that on the date of accident non-applicant No.1 was not having valid and effective driving licence, perusal of the record would show that appellant insurance company/ non-applicant No.2 had submitted copy of policy as Ex.NA1 and the extract of particulars of licence in the name of Surya Prakash Bajpai i.e. respondent No.2/non- applicant No.1. Perusal of the copy of licence Ex.NA-2 in the name of respondent No.2 would show that initially it was issued for class of vehicle Motorcycle with Gear and Light Motor Vehicle in the category of non-transport vehicle which was valid for period from 07.10.2010 till

04.06.2015. In the said document it has further been mentioned the period of DL not valid if any. Under that column date is specifically mentioned from 05.06.2016 till 18.02.2016. Renewal of licence is only from 19.02.2016 till 11.11.2035 for non-transport vehicle and

19.02.2016 till 18.02.2019 for transport vehicle.

#11. From the aforementioned particulars of licence Ex.NA-2, it is apparent that licence though issued in the name of respondent No.2 was not in force and effective for period from 05.06.2015 till 18.02.2016, whereas, -6- date of accident is in between period on which driving licence of respondent No.2 was not valid i.e. 06.02.2016. Learned Claims Tribunal escaped consideration the important dates as mentioned therein in particular period for which driving licence issued in favour of respondent No.2/non-applicant No.1 was not valid and held that on the date of accident, non-applicant No.1 was possessed with valid and effective driving licence, only considering the gross vehicle weight of offending vehicle to be less than 7500 kg placing reliance upon the decision of Hon’ble Supreme Court in the case of Mukund Dewangan vs Oriental Insurance Co. Ltd. (2017) 14 SCC 663.

#12. True it is that person holding licence to drive Light Motor Vehicle can drive the same class of transport vehicle also, however, subject to licence issued authorizing the person driving Light Motor Vehicle was effective and valid on the date of accident. In case at hand as discussed above, on the date of accident, licence issued in favour of non-applicant No.1 was not valid and therefore in opinion of this Court non-applicant No.1 was driving the vehicle without there being any licence, which is breach of policy conditions, because there is specific driver clause mentioned in policy Ex.NA-1 (Persons or Classes of Persons entitled to drive) which reads as under: "Persons of Classes of persons entitled to drive Any person including Insured provided that a person holds an effective driving licence at the time of accident and is not disqualified from holding or obtaining such a licence. Provided also that the person holding an effective -7- Learner's Licence may also drive the vehicle and such a person satisfies the requirements of Rule 3 of Central Motor Vehicle Rule, 1989."

#13. For the foregoing discussion, first ground raised by learned counsel for appellant/Insurance Company is allowed and it is held that on the date of accident non-applicant No.1/ driver of offending vehicle was not possessed with valid and effective driving licence on the date of accident.

#14. So far as the submission made by learned counsel for the appellant that on the date of accident offending vehicle was not having valid effective fitness certificate is concerned, this issue was considered by Five Judges Bench of Kerala High Court in case of Pareed Pillai (supra) and held that absence of fitness certificate will be breach of policy conditions and held thus: "17 The stipulations under the above provisions clearly substantiate the importance and necessity to have a valid Fitness Certificate to the transport vehicle at all times. The above prescription converges on the point that Certificate of Registration, existence of valid Permit and availability of Fitness Certificate all throughout, are closely interlinked in the case of a transport vehicle and one requirement cannot be segregated from the other. The transport vehicle should be completely fit and road worthy to be plied on the road which otherwise may cause threat to the lives and limbs of passengers and the general public, apart from damage to property. Only if the transport vehicle is having valid Fitness Certificate, would the necessary -8- Permit be issued in terms of Section 66 of the Act and by virtue of the mandate under Section 56 of the Act no transport vehicle without Fitness Certificate will be deemed as a validly registered vehicle for the purpose of Section 39 of the Act which stipulates that nobody shall drive or cause the motor vehicle to be driven without valid registration in public place or such other place, as the case may be. These requirements are quite 'fundamental in nature, unlike a case where a transport vehicle carrying more passengers than the permitted capacity or a goods carriage carrying excess quantity of goods than the permitted extent or a case where a transport vehicle was plying through a deviated route than the one shown in the route permit which instances could rather be branded as 'technical violations'. In other words, when a transport vehicle is not having a Fitness Certificate, it will be deemed as having no Certificate of Registration and when such vehicle is not having Permit or Fitness Certificate nobody can drive such vehicle and no owner can permit the use of any such vehicle compromising with the lives, limbs, properties of the passengers/general public. Obviously, since the safety of passengers and general public was of serious concern and consideration for the law makers, appropriate and adequate measures were taken by incorporating relevant provisions in the Statute. also pointing out the circumstances which would constitute offence, providing adequate penalty. This being the position, such lapse, if any, can only be regarded as a fundamental breach and not a technical breach and any interpretation to the contrary, will only negate the intention of the law makers." -9-

#15. Division Bench of this Court in the case of Adesh Kumar and Anr. Vs Smt Satarupa Bai Yadav and others decided on 19.11.2020 in MAC 1289 of 2014 and other connected matters, following the judgment of Kerala High Court in case of Pareed Pillai (supra) has considered the issue with regard to breach of policy conditions for not having valid fitness certificate and held that absence of fitness certificate for a Transport vehicle to be a fundamental breach of policy conditions.

#16. For the foregoing discussions, finding recorded by learned Claims Tribunal that absence of fitness certificate will not be considered to be breach of policy condition of policy is erroneous and it is accordingly set aside.

#17. So far as the last ground raised by learned counsel for the appellant that learned Claims Tribunal erred in assessing loss of income to tune of 30% is concerned, perusal of disability certificate placed on record would show that disability certificate issued by Medical Board is of 49% mentioning the locomotor disability- fracture of tibia/fibula right, complaint of ankylosis right ankle. The disability suffered by a person may affect differently to the loss of earning looking to the nature of work in which the claimant/injured is engaged prior to date of accident. In the case at hand though there is pleading of claimant that he was doing the work of Motor Binding and Bore Repairing work however it cannot be proved before the Claims Tribunal by clinching and admissible evidence, learned Claims Tribunal held the occupation of deceased to be of unskilled worker/labourer.

#18. In the aforementioned facts of case when a labourer suffers permanent disability to the extent of 49 percent in one of his leg, it will definitely -10- affect his earning also, as a labourer has to do all kind of hard work including lifting of weight, loading of weight, to climb stairs in discharge of his labour work and therefore I do not find any error in the finding recorded by learned Claims Tribunal assessing loss of earning of claimant to the extent of 30%. Accordingly said submission of learned counsel for the appellant/Insurance Company that Claims Tribunal erred in assessing loss of earning capacity to the extent of 30% overlooking the evidence of doctor who in his deposition stated that disability of whole body to the extent of 19-20 %, is not sustainable and is accordingly repelled. As this Court has allowed the two grounds raised by learned counsel for the appellant with regard regard to licence and fitness certificate as discussed in preceding paragraph, appellant insurance company is exonerated from its liability to satisfy the award, however, keeping in mind that the claimant is a poor labourer and to protect his interest as also keeping in mind the decision of Hon'ble Supreme Court in the case of Shamanna & Anr Vs. Divisional Manager, Oriental Insurance Company Ltd. & Ors. (2018) 9 SCC 650 and Amrit Paul Singh and Anr. Vs. Tata AIG General Insurance Co. Ltd. and Ors. (2018) 7 SCC 558, I find it appropriate to direct the insurance company to first pay amount of compensation and thereafter recover the same from respondent No.2/non-applicant no.1 (owner of the offending vehicle) in accordance with law. It is ordered accordingly.

#19. For the purpose of recovery, appellant-insurance company will not be required to file any separate proceeding and it can recover the amount by filing appropriate application in the same proceeding of execution as -11- per the directive of Hobble Supreme Court in case of Oriental Insurance Co. Ltd. Vs. Nanjappan & Ors. (2004) 13 SCC 224.

#20. The appeal is accordingly allowed in part. Impugned order is modified to the extent indicated above. Sd/-/- Sd/- (Parth Prateem Sahu) Judge Praveen