1. Heard Shri Arun Kumar Shukla, learned counsel for the appellant Insurance Company, Shri S.D. Ojha, learned counsel for the claimant-respondent and Ms.Ishita Sand holding brief of Shri Ajit Kumar Singh, learned counsel for respondent No.2 U.P.S.R.T.C.
2. The appellant Insurance Company has challenged the order/award dated 6.02.2007 passed by the Court of the Motor Accident Claims Tribunal/ Additional District Judge/Special Judge (E.C. Act), Azamgarh awarding Rs. 4,44,072/- with 6 % interest per annum as compensation to the claimant-respondent no.1 for the injuries alleged to have been suffered by him in an accident on 18.11.1997.
3. The claimant-respondent instituted the claim petition contending therein that he was travelling in Mini Bus No.UP50/7442 and the Mini Bus met with an accident with Truck No.UP-65/7485. In the said accident, he suffered serious injuries and he prayed for a compensation of Rs.19,70,000/-.
4. The claim petition was contested by the Insurance Company by filing written statement, wherein it was stated that the Insurance Company was not liable to pay compensation and the owner of the Mini Bus was responsible for the same. It was further pleaded that the accident was outcome of negligence of the drivers of both the vehicles and the compensation claimed by the claimant is highly excessive.
5. The U.P. State Road Transport Company also filed statement it denied its liability to pay compensation on the ground that the Mini Bus was insured with the Oriental Insurance Company. The Tribunal has framed as many as seven issues.
6. Learned counsel for the appellant- Insurance Company has challenged the findings on issue no.1 regarding the negligence of the driver of Mini Bus in the accident; issue no.3 with regard to breach of policy by the owner of Mini Bus and issue no.7 with regard to quantum of compensation.
7. Three contentions have been raised by the learned counsel for the appellant that the finding of the Tribunal that the accident was outcome of the sole negligence of driver of Mini Bus is illegal and is not supported by any evidence on record inasmch, as it was the case of accident of two vehicles coming from opposite side, and therefore, there was some negligence on the part of the driver of the Mini Bus in the accident. In view of the said fact, the Tribunal erred in holding that the accident had occurred due to negligence of driver of Mini Bus.
8. Second contention of the learned counsel for the appellant is that finding of Tribunal with regard to driving licence of driver of Mini Bus is wholly illegal inasmuch, as the driver of the Mini Bus was authorised to drive the light motor vehicle, whereas at the time of accident, he was driving transport vehicle and the driving license did not contain any endorsement by the Licensing Authority authorizing him to drive transport vehicle. Thus finding of the Tribunal with regard to the fact that the driver of Mini Bus was having a valid driving licence is not sustainable in the eye of law.
9. The third contention raised by the counsel for the appellant Insurance Company is that the compensation awarded by the Tribunal is excessive inasmuch as the Tribunal on presumption assessed the income of the deceased to be Rs.5,000/- per month.
10. Per contra, learned counsel for the respondents submits that the Tribunal in deciding the issue with regard to negligence of driver of Mini Bus has considered in detail, the evidence of the claimant with regard to negligence of the driver of the Mini Bus in the accident. The evidence of the claimant being unrebutted, and hence, the findings of the Tribunal on the said issue is based on the unrebutted evidence of claimants, the same is not liable to be interfered with in appeal as it is a finding of fact.
11. He further submitted, that in so far as the contention of the counsel for the appellant- Insurance Company regarding Mini Bus is concerned, the matter is settled by the Judgment of the Supreme Court in the case of Mukund Dewangan Vs. Oriental Insurance Company Limited 2017 AIR (SC) 3668. The Apex Court has held that light motor transport vehicle includes transport vehicle also and a holder of light motor vehicle license can drive all the vehicles of the class including transport vehicle is required. In this regard paragraph no. 46 of the judgment is extracted herein below:-
"46. Section 10 of the Act requires a driver to hold a licence with respect to the class of vehicles and not with respect to the type of vehicles. In one class of vehicles, there may be different kinds of vehicles. If they fall in the same class of vehicles, no separate endorsement is required to drive such vehicles. As light motor vehicle includes transport vehicle also, a holder of light motor vehicle licence can drive all the vehicles of the class including transport vehicles. It was pre-amended position as well the post-amended position of Form 4 as amended on 28.3.2001. Any other interpretation would be repugnant to the definition of "light motor vehicle" in section 2(21) and the provisions of section 10(2)(d), Rule 8 of the Rules of 1989, other provisions and also the forms which are in tune with the provisions. Even otherwise the forms never intended to exclude transport vehicles from the category of ''light motor vehicles' and for light motor vehicle, the validity period of such licence hold good and apply for the transport vehicle of such class also and the expression in Section 10(2) (e) of the Act ''Transport Vehicle' would include medium goods vehicle, medium passenger motor vehicle, heavy goods vehicle, heavy passenger motor vehicle which earlier found place in Section 10(2) (e) to (h) and our conclusion is fortified by the syllabus and rules which we have discussed. Thus we answer the questions which are referred to us thus:
(i) ''Light motor vehicle' as defined in Section 2 (21) of the Act would include a transport vehicle as per the weight prescribed in Section 2 (21) read with Section 2 (15) and 2 (48). Such transport vehicles are not excluded from the definition of the light motor vehicle by virtue of Amendment Act No.54/1994."
12. With regard to compensation, the counsel for the respondents submits that claimant-respondent suffered 40% disability, which was proved by him by filing the disability certificate issued by the Chief Medical Officer, Azamgarh. The said disability certificate was not disputed by the Insurance Company. He further submitted in respect of income of the claimant that it has come on record that the claimant had taken a loan from the bank for the purpose of running a shop and he had repaid the loan, which itself was the proof of income of the claimant and in view of the said fact, the finding of the Tribunal holding the income of claimant to be Rs.5,000/- per month is just and proper and is not liable to be interfered with in appeal.
13. I have considered the submissions of the learned counsel for the parties and perused the record.
14. With regard to the submissions of the counsel for the appellant- Insurance Company on the issue of negligence of driver of Mini Bus, the finding on the said issue clearly reveals that the same was based on the testimony of PW-1 Santosh Kumar Agrawal- claimant respondent, and in the absence of any evidence contrary to the testimony of PW-1 in the opinion of the Court, Tribunal has not erred in holding the negligence of driver of Mini Bus in the accident. Thus the finding of the Tribunal in respect of negligence of driver of Mini Busin in the accident is affirmed.
15. So far as the contention with regard to driving licence is concerned, it is evident from record that the Bus involved in the accident was Mini Bus, which falls in the category of light motor vehicle. The Apex Court in the case of Mukund Dewangan (supra) has held- that to drive vehicles which falls in the category of light motor vehicle, though it may be transport vehicle, no authorization from the Licensing Authority to driver a transport vehicle is required. Thus the issue raised by the learned counsel for the appellant is settled by the Apex Court. Thus, the said contention is also misconceived.
16. With regard to the compensation, the Tribunal has held that the deceased had taken a loan from the bank for the purpose of running a shop, which he had repaid and this fact has not been disputed by the Insurance Company. In view of the aforesaid evidence on record, the Tribunal has rightly assessed the income of deceased to be Rs.5,000/- per month. The Court is of the opinion that the assessment of the income by the Tribunal is based on proper assessment of evidence on record. Thus for the reasons stated above, the contentions of the learned counsel for the appellant with regard to compensation is not sustainable and deserves to be rejected.
17. For the reasons stated above, the appeal lacks merit and is dismissed. There shall be no order as to costs.
Order Date :-20.9.2018 SFH