1 These three appeals under Section 173 of the Motor Vehicles Act, 1988, (for short, 'the Act'], at the instance of the Insurance Company, arise out of the judgment and award dated 5th January 2001 passed by the Motor Accident Claims Tribunal (Main), Kutch at Bhuj, in M.A.C. Petition Nos.663 of 1994, 664 of 1994 and 658 of 1994. In M.A.C. Petition No.663 of 1994 and M.A.C. Petition No.664 of 1994 [both fatal], the tribunal awarded Rs.95,000/-; whereas in M.A.C. Petition No.658 of 1994 [injury], the Tribunal awarded Rs.24,999/- .
2 The short facts for which the three appeals are under consideration are as under:
3 On 5th September 1994, Babu Rakhia Ahir, Rava Ruda Ahir and Gela Jabu Ayar were travelling in Chhagada rickshaw bearing registration No. GJ-12-T-9281, owned by Bachubhai Mulubhai Sodha and driven by Babu Rata Ahir. When the vehicle reached Moti Reldi and Saiyedpar village board, the vehicle turned turtle and the persons,namely, Babu Rakhya Ahir and Rava Ruda Ahir sustained injuries and succumbed to such injuries, whereas Gela Jabu Ayar sustained serious injuries and survived. It was the case of the Insurance Company that the driver of the vehicle was holding only 'learner's licence' and it was not legal and valid and necessary 'L' sign-board was not displayed. Further, the rickshaw in question was a transport vehicle as defined under Section 2(47) of the Act and, therefore, the Insurance Company was not liable to pay the amount of compensation for breach of condition of policy, since the driver of the rickshaw was not holding valid licence. The above contention was negatived by the Tribunal and, on appreciation of material on record, the Tribunal found that the policy cover note includes 'risk of passengers' and the extra premium was charged by the Insurance Company. Since the policy and cover note was not produced by the Insurance Company before the Tribunal, the Tribunal believed coverage of risk of passengers on the basis of acceptance of extra premium by the Insurance Company. Inter-alia, upon consideration of income of the deceased/injured, income, age and family unit of the deceased/injured, the Tribunal awarded compensation to the claimants, which is the subject matter of challenge in all these three appeals by the Insurance Company.
4 Learned counsel appearing for the appellant would contend that the the driver of the rickshaw held invalid licence and the 'learner's licence' held by the driver of the rickshaw, which was valid for light motor passenger vehicle, was not legal and valid for driving transport vehicle and chhagada rickshaw, which turned turtle. It is further submtited that the 'learner's licence', which was valid for light motor passenger vehicle, was not legal and valid for driving transport vehicle and chhagada rickshaw and, therefore, holding the Insurance Company liable for compensation is illegal. In support of the above submission, the learned counsel for the appellant has placed reliance on the decision of the Apex Court in the case of National Insurance Co. Ltd vs. Kusum Rai, reported in 2006 ACJ 1336, where, the driver, who had licence to drive light motor vehicle was driving a jeep which was being plied as a taxi, a commercial vehicle, and, for breach of conditions of contract of insurance by the insured, the insurance company is exempted from liability.
5 Per contra, learned counsel for the claimants would submit that the Insurance Company has failed to produce any documentary evidence to show that the extra cover note of the policy had not covered the risk and the registration book of the vehicle in question would reveal that the driver of the vehicle had valid licence and was duly licensed to drive light motor vehicle like chhagada rickshaw, which was ordinarily used as a passenger vehicle. It is further submitted that the claimants belong to poorest strata of society and a bare minimum compensation is awarded by the Tribunal and the dependents have no other source of income. It is submitted that in the case of National Insurance Company Limited vs. Swarna Singh, reported in 2004 ACJ 1 (SC), the Apex Court has considered the case of a driver having 'learner's licence' and the facts of each case are to be examined independently and a decision has to be taken whether the fact of the driver possessing licence for one type of vehicle but found driving another type of vehicle, was the main or contributory cause of accident, and, if the above law laid down by the Apex Court is applied, it cannot be said that, because of sole negligence or fault on the part of the driver, the vehicle turned turtle; it may be a case of mechanic failure.
6 Having heard the learned counsels for the parties and on perusal of the record and the judgment impugned, it appears that in the back-drop of the materials produced on record before the Tribunal, it is evident that the Insurance Company had failed to produce original policy nor examined anyone in this regard. On the contrary, the cover note produced by the claimants would reveal that extra premium was paid and accepted as per the cover note and, therefore, the adverse inference drawn against the Insurance Company by the Tribunal that the liability of the Insurance Company was unlimited, does not require any interference by this Court. The decision relied upon by the learned counsel for the appellant in the case of Kusum Rai [supra] does not require any further discussion since the facts of the case on hand are different and, as held in the case of Swarna Singh [supra], just because the driver held a 'learner's licence' would not be a ground to refute the claim. Considering overall facts of the case, the judgment and award passed by the Tribunal does not require any interference by this Court. All the three appeals are dismissed with no order as to costs.
(ANANT S. DAVE, J.) (swamy) Top