High Court · 2012

2. The brief facts of the case, as set out in the claim petition, are that on 21.12.1993 at around 5 PM, the son of the claimant, Saiful Islam, a 16 year o ld student and HSLC Final examinee, was hit by the scooter bearing registration No.AS-16/1436 which was being driven by its owner Shri Kapil Nath near Futkibari State Dispensary, Village - Futkibari on the PWD Road.

3. The owner-driver Shri Kapil Nath filed a written statement denying that the alleged accident was caused due to his rash and negligent driving and statin g that the scooter was insured under coverage of United India Insurance Co. Ltd. and that he was not liable to pay any compensation for the alleged incident. The insurer United India Insurance Co. Ltd. also contested the case by f 4. iling written statement contending inter alia that Shri Nath had only a Learner’ s Licence and was not authorised to drive any motor vehicle in any public p lace and thus the insurer was not liable to pay any compensation to the claimant .

5. The claimant Nazir Hussain examined himself and three others as witness and also produced certain documents in support of his case. The opposite parties , i.e. the owner-driver and the insurer produced no witness of their own though they either cross-examined the witnesses adduced by the claimant or declined to cross. However, both the opposite parties declined to adduce any evidence in the ir defence. Thereafter, the learned Tribunal gave its verdict in the manner as set f 6. orth in the first paragraph of the judgment. Being aggrieved by the award so giv en, the owner-driver has approached the court by filing the instant appeal. The insurance company has filed a cross-objection seeking modification of the award by reducing the compensation amount on the ground that the multiplier adopted wa s unjustly high and interest at the rate of 10% was arbitrary.

7. I have heard Mr. MH Ahmed, learned counsel appearing for the appellant. Also heard Mr. J Ali Ahmed, learned counsel appearing for the respondent No.1/cl aimant and Mr. S Dutta, learned counsel appearing for respondent No.2/Insurance Company. Mr. Ahmed, learned counsel for the appellant has submitted that the liab 8. ility ought to have been affixed on the insurance company as the appellant had a valid insurance policy and the insurance company had failed to prove before the learned Tribunal that the appellant had violated the terms of the insurance po licy.

9. Mr. J Ali Ahmed, learned counsel for the respondent No.1, Nazir Hussain, has supported the judgment of the learned Tribunal by submitting that the depos itions of the prosecution witnesses themselves make it clear that the appellant had been driving his scooter negligently which caused the accident leading t o the death of the deceased and he was liable for the same, more so, as at the time of accident, the appellant was riding the scooter and his wife was riding p illion which is a violation of the terms of the policy as he had only a learner ’s licence . Mr. Dutta, learned counsel for the respondent No. 2 i.e. the insura nce company, has supported the contentions of Mr. Ahmed, learned counsel for res pondent No.1, but has further contended that the quantum of compensation was als o on the higher side and needs to be decreased.

10. The court has perused the pleadings of the parties. The evidence of the PWs particularly that of PW 3 would indicate that the deceased (son of the claim ant) was traveling on the left side of the road when the scooter being driven in a rash and negligent manner struck the deceased from the front which ultimately led to his death. The evidence of PW 4 would again prove that the appellant had a learner’s licence .

11. In view of the evidence adduced, there is no question that the accident leading to the death of the deceased was caused due to the rash driving and negl igence of the appellant, Shri Kapil Nath. Therefore, the claimant was entitled t o compensation.

12. However, the real issue of the case, which was also the thrust of the ap pellant’s appeal is as regards the affixation of liability upon the parties as r egards the payment of the compensation amount. The appellant contends that the l iability to pay the compensation is upon the insurance company as the appellant had an effective insurance policy when the accident had occurred. The insurance company of course, supports the judgment and award dated 25.05.2000 wherein the liability for payment of compensation was fixed upon the appellant.

13. To answer this issue, it would be apposite to again look at the evidence so adduced before the learned Tribunal. The evidence, especially that of PW 2 a nd PW 3, would make it clear that during the time of accident, the appellant was driving the scooter while his wife was in the pillion seat.

14. Keeping this observation in mind, let us now look at the insurance polic y. The following term is present in the insurance policy under the heading (cid:28)Pers on or classes of persons entitled to drive (cid:29): - (cid:28)Any person including insured. Provided that a person holds an effective driving licence at the time of the accident and is not disqualified from holding or obtaining such a licence. Provided also that the person holding an effective learner’s licence ma y also drive the vehicle and such a person satisfies the requirements of Rule 3 of the Central Motor Vehicles Rules 1989. (cid:29)

15. Rules 3 of the Central Motor Vehicles Rules,1989 reads as thus:- (cid:28)3.General- The provisions of sub-section (1) of section 3 shall not apply to a person while receiving instructions or gaining experience in driving with the ob ject of presenting himself for a test of competence to drive, so long as- a) such person is the holder of an effective learner’s licence issued to him in Form 3 to drive the vehicle; b) such person is accompanied by an instructor holding an effective driving licence to drive the vehicle and such instructor is sitting in such a position to control or stop the vehicle; and c) there is painted, in the front and the rear of the vehicle or on plate on car affixed to the front and the rear, the letter (cid:28)L (cid:29) in red on a white backg round as under:- L Note,- The painting on the vehicle or on the plate or card shall not be less tha n the 18 centimetres square and the letter (cid:28)L (cid:29) shall not be less than 10 centime tres high, 2 centimetres thick and 9 centimetres wide at the bottom: Provided that a person, while receiving instructions or gaining experience in dr iving a motor cycle (with or without a side-car attached), shall not carry any o ther person on the motor cycle except for the purpose and in the manner referred to in clause (b). (cid:29)

16. Section 3 of the Motor Vehicles Act, 1988 makes it mandatory for a per son to carry a driving licence and Rule 3 of the Central Motor Vehicles Rules, 1989 provides that such a driving licence shall not be required (cid:28)while receivin g instructions or gaining experience in driving with the object of presenting h imself for a test of competence to drive (cid:29), provided inter alia that he has a lea rner’s licence and that such a person is accompanied by an instructor holding an effective driving licence to drive the vehicle and such an instructor is sit ting in such a position to control or stop the vehicle, and in case of a motor c ycle (which would include a scooter as provided under the definition of (cid:28)motor c ycle (cid:29) under section 2(28) of the Motor Vehicles Act,1988), such a person is not authorised to carry any other person other than an instructor.

17. Therefore, it is clear from the aforementioned discussion that if a pers on holds a learner’s licence and is driving a motor cycle [including a scooter], he would be flouting the provisions of Rule 3 of the Central Motor Vehicles Rul es, 1989 by carrying any person except an instructor holding an effective learn er’s licence .

18. Thus, it is apparent that the appellant flouted the provisions of Rule 3 of the Central Motor Vehicles Rules, 1989 by not carrying an instructor while r iding the scooter, rather he was carrying his wife as the passenger/pillion ride r.

19. This implies that the appellant has also flouted the term of the insuran ce policy under the heading (cid:28)Person or classes of persons entitled to drive (cid:29). Th erefore, in view of the violation of the terms of the insurance policy by the ap pellant, the learned Tribunal was justified in concluding that the insurance com pany has no liability to pay the amount of compensation awarded to the claimant/ respondent No.1. Now the only question that remains is as regards the quantum of compensa 20. tion to be paid to the claimant/respondent No. 1. The learned Tribunal had come up with an amount of Rs.1,64,000/- taking 16 as the multiplier and 10,000/- as t he multiplicand (apart from other expenses like funeral expenses, etc.). The lia bility has been affixed on the owner-driver. In the instant appeal, the appellan t has not made any challenge as against the quantum of compensation awarded by t he learned Tribunal. On the other hand, no appeal or cross-objection has been fi led by the claimant seeking enhancement of the compensation amount. Viewed from this angle, there is no necessity to go into this issue, as no challenge as rega rds the compensation award has been made by any of the concerned party, which do not include the insurance company, in the facts and circumstances of the case. However, the court is of the opinion that the award so granted by the learned Tr ibunal is a ’just and fair’ compensation for the life of a 16-year old minor, mo re so as the claimant has not sought for enhancement of the amount nor has the c oncerned affected party namely the appellant has not sought for a decrease in th e quantum of compensation. Therefore the finding of the learned tribunal as rega rds the compensation amount along with the interest need not be disturbed. 21. Lastly, the learned counsel for the appellant has submitted for the peru sal of the court a case namely, National Insurance Co. Ltd. -vs- Swaran Singh an d Others [2004 ACJ 1] and argued that the burden of proof was on the insurance company to prove violation of the insurance policy on the part of the appellan t [policy holder]. But the evidence on record, especially the testimonies of the prosecution witnesses have made it crystal clear that the appellant was driving the scooter at the time of the accident with his wife in the back/pillion seat and not any instructor. As such, this argument advanced by Mr. Ahmed has no legs to stand on.

22. er as to costs. Based on the aforementioned discussions, the appeal is dismissed. No ord

23. Send down the lower court records forthwith.