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2017 Supreme(P&H) 2776
IN THE HIGH COURT OF PUNJAB AND HARYANA
Before
Hon’ble Mrs. Justice Daya Chaudhary
F.A.O. No. 54 of 2013 (O&M)
Oriental Insurance Company Limited
v.
Rajinder Kumar Sharma & Ors.
{Decided on 17/02/2017}
For the Respondents:Mr. K.S. Dhillon & Mr. Bhoop Singh, Advocates.
Accident – License – Simply because the driver did not get any endorsement on the driving license to drive containing hazardous substance, it cannot be held to have committed any error under law – License held to be valid.
Headnote:(A) Motor Vehicles Act, 1988, S.166 – Accident – License – Endorsement – Driver was holding a license to drive a tanker – Simply because the driver did not get any endorsement on the driving license to drive containing hazardous substance, it cannot be held to have committed any error under law – License held to be valid. (Para 11)
Admittedly, the driver was holding a licence to drive a tanker. The endorsement neither increases the efficiency of a driver nor decreases in case of its absence. It only authorizes to carry goods of dangerous or hazardous nature. For driving such a vehicle, no further experience of driving is required. This could be said to be a lapse on the part of the driver as well on the part of the appellant but this lapse was not responsible for the cause of any accident. The crux of the matter is that if the driver was not having necessary endorsement as required under the Rules, it cannot be said to be the cause of accident. The endorsement is not required to be given to the driver after having gone through any special training or after having passed any special test. Any driver who is possessing a driving licence to drive a tanker would also be entitled to have this endorsement subject to fulfilling all other conditions as required under the Motor Vehicles Rules/Motor Vehicles Act with regard to professional skill of driving. It has been certified by the licensing authority at the time of granting licence to him that he was entitled to have driving licence on the basis of test and other driving skills. It is not the case of the appellant that his driving licence was not obtained properly.
(B) Motor Vehicles Act, 1988, S.166 – Accident – License – Same Category – In case a person has been given a license for a particular type of vehicle specified therein, it cannot be said to have no license for driving another type of vehicle which is of the same category but of different type – For example, if a person is granted a license for driving a light motor vehicle, he can drive either a car or a jeep and it is not necessary that he must have driving licenses for car as well as jeep separately. (Para 12)
Mrs. Daya Chaudhary, J.:- The appellant-Insurance Company has filed the present appeal challenging impugned award dated 12.11.2012 passed by the Motor Accident Claims Tribunal, Ludhiana (hereinafter referred to as ‘The Tribunal’) whereby claimants have been awarded compensation of Rs. 14,73,280/- on account of death of Santosh Rani in an accident which took place on 21.12.2010.
2. Briefly, the facts of the case as made out in the claim petition are that on 21.12.2010, deceased Santosh Rani along with her husband Rajinder Kumar Sharma was going on a scooter bearing registration No. PB-10AQ-6091. At about 9.30 a.m., on reaching near Dharaur, one car came from the backside and hit the scooter, resultant whereupon, the claimant and deceased fell on the road and run over by the offending tanker bearing registration No. PB-11L9846 which came from the opposite side being driven in a rash and negligent manner due to which she died on the spot. FIR No. 152 dated 21.12.2010 under Sections 279 and 304-A IPC was also registered in this regard against the driver of offending vehicle. Claimants i.e. husband and children of deceased, filed a claim petition under Section 166 of the Motor Vehicles Act (hereinafter referred to as ‘the Act’) claiming Rs. 20 lacs as compensation averring that deceased was 43 years of age at the time of accident and she has died due to rash and negligent driving of the driver of the offending vehicle which was insured with the appellant-insurance company. She was having monthly income of Rs. 13065/- per month as she was doing the stitching work on contract basis.
3. On issuance of notice of motion, the claim petition was contested by the respondent-Insurance company, driver and owner of the offending vehicle. A primary objection with regard to maintainability of the claim petition was raised by the insurance company on the ground that the tanker was being plied in violation of terms of insurance policy and there was no valid registration certificate, permit and fitness certificate of the offending vehicle. However, the factum qua age and earning of the deceased were denied for want of knowledge. The following issues were framed by the Tribunal:-
“1. Whether the accident has occurred due to rash and negligent driving of Tanker bearing No. PB- 11L-9846 by respondent No. 1 ? OPP.
2. Whether the claimants are entitled to claim compensation from the respondents ? OPP.
3. Whether the claim petition is not maintainable ? OPD.
4. Whether the present claim petition is bad for misjoinder and non-joinder of necessary parties ? OPR-3.
5. Whether the driver i.e. Respondent No. 1 was not having a valid driving licence at the time of alleged accident ? OPR-3.
6. Relief.”
4. Ultimately, vide order dated 12.11.2012, the claim petition was allowed and an amount of Rs. 14,73,280/- was awarded as compensation to the claimants. They were held entitled to 1/3rd share each i.e. to the extent of Rs. 4,91,093/-. Besides said amount, claimant-husband was also awarded Rs. 10,000/- for loss of consortium. The amount qua share of respondent No. 3, namely, Hira Sharma, was ordered to be deposited in the nationalized bank in the shape of FDR till he attains majority. The claimants were also held entitled for interest @ 8% from the date of filing the claim petition till its realisation. The impugned award dated 12.11.2012 passed by the Tribunal is the subject-matter of challenge in the appeal filed by the appellant insurance company.
5. Learned counsel for the appellant submits that the offending vehicle, which was registered as a oil tanker as per Exhibit R-5, was not being driven as per the terms and conditions of the insurance policy. The driver of the offending vehicle was not having valid and effective driving licence. Learned counsel also submits that the driving licence was issued for driving motorcycle, LMV and HMV only and for driving oil tanker, the endorsement for driving vehicle carrying hazardous substances is mandatory, whe
