argued and contested the award on the ground that the
claim petition, in so far it relates to claimant No.1, was
not maintainable because as per law she cannot be the
wife of two brothers at the same time. The said
question was raised before the Tribunal and the
Tribunal, after making discussion held that a custom is
prevailing in Kinnaur District known as “kinnauri
custom” which provides that a woman can marry two
brothers or more at the same time. The claimants
have also placed on record copy of Wazib-ul-Arz,
which does contain the customs and that stands
proved as Ext. PF. While going through the said
document, one comes to an inescapable conclusion
that the said custom is prevailing in Kinnaur, but it is to
be pleaded and proved. It is apt to reproduce relevant
portion of Wazib-ul-Arz Ext. PF, in English version,
herein.
“(G) In this District, for solemnizing marriage,
inheritance, and taking in adoption etc. there are its
own rules and customs which are based on polygamy
and joint marriage. Therefore, in the event of polygamy,
if two or more brothers are having one wife in that
event, the offspring shall be deemed to be of the
husband who will die last………….”
28. Having said so, the Tribunal has rightly
held that the claim petition was maintainable on behalf
of the claimants. It is worthwhile to record herein that
the claimants are the dependents as averred in the
claim petition. No other relatives or legal
representatives related directly or remotely, have
questioned the filing of the claim petition by the
claimant and have not questioned her status. Thus, the
insurer has no right to question the same.
IN THE HIGH COURT OF HIMACHAL PRADESH
SHIMLA
FAO (MVA) No. 362 of 2011.
Dated: 12th August, 2016.
Oriental Insurance Co. Ltd. V Smt. Sartabi and others
Coram:
Mr. Justice Mansoor Ahmad Mir, Chief Justice.
Citation: 2017(2) ALL MR (JOURNAL) 30
This appeal is directed against the
judgment and award dated 8.6.2011, made by the
Motor Accident Claims Tribunal Kinnaur Civil Division,
at Rampur Bushahr, in MAC Petition No. 66 of 2007,
titled Smt. Sartabi and others versus Sh. Bal Raj and
another, for short “the Tribunal”, whereby
compensation to the tune of Rs.5,00,200/- alongwith
interest @7.5% came to be awarded in favour of the
claimants and insurer was saddled with the liability with
right of recovery from the owner/insured, hereinafter
referred to as “the impugned award”, for short.
2. Claimants and insured-cum-driver have not
questioned the impugned award on any ground. Thus,
it has attained the finality so far as it relates to them.
3. The learned counsel for the insurer at the
outset argued that the claimant namely, Smt. Sartabi
respondent No. 1 herein was the wife of Rama Nand
and also the wife of deceased Maidub which is not
legally permissible. She has no right, locus or cause to
file claim petition and claim compensation. Learned
counsel for the insurer has not questioned the locus
standi of other two claimants, namely Pushap Lata and
Hem Lata, respondents No. 2 and 3 herein, who are
daughters of Maidub deceased. He also argued that
the deceased was a gratuitous passenger, the driver
was not having a valid and effective driving licence to
drive the offending vehicle and the insured has
committed willful breach. Thus, the insurer was not to
be saddled with the liability.
4. In order to determine the said issues, it is
necessary to give a flash back of the relevant facts, the
womb of which has given birth to the instant appeal.
5. The claimants being the victims of a
vehicular accident has filed claim petition before the
Tribunal for the grant of compensation to the tune of
Rs.8,00,000/-, as per the break-ups given in the claim
petition. It is specifically averred that Bal Raj
respondent No.1, in the claim petition had driven the
offending vehicle i.e. applied for Tata Sumo rashly and
negligently at about 7 P.M. near Janakpuri, due to
which the vehicle went off the road in which deceased
Maidub 25 years of age sustained the injuries and
succumbed to the injuries on the spot. FIR was lodged
in police station Bhabanagar. It is averred that as per
the custom prevailing in Kinnaur known as “Kinauri
custom”, a woman can marry two real brothers at the
same time or can be wife of two brothers. It is stated
that the claimants have lost source of dependency
being widow and minor daughters of deceased Maidub.
6. The claim petition was resisted and
contested by the respondents and following issues
came to be framed by the Tribunal.
“(i) Whether on 18.4.2007, at about 7 P.M. near
village Janakpuri Sh. Maidub died on account of
rash and negligent driving of applied for Tata
Sumo by respondent No.1? OPP
(ii) If issue No. 1 is proved, to what amount the
petitioners are entitled to and from whom? OPP
(iii) Whether the drive of applied for Tata Sumo
was not holding a valid and effective driving
license at the time of the accident? OPR-2
(iv) Whether the applied for Tata Sumo was being
plied without valid registration-cum-fitness
certificate at the time of the accident? OPR-2.
(v) Whether the deceased was travelling in applied
for Tata Sumo as gratuitous passenger? OPR-
2.
(vi) Relief.”
7. Claimant has examined Bhagat Singh as
PW2 and claimant Sartabi herself stepped into the
witness box as PW1.
8. Respondents, on the other hand have
examined three witnesses, namely Devinder Kumar,
RW1, Mohinder Sharma RW2 and driver Bal Raj
stepped into the witness box as RW3.
9. The claimants and respondents have also
placed on record the documents, details of which are
given at pages 16 and 17 of the impugned award.
10. The Tribunal, after discussing the pleadings
and scanning the evidence, held that the claimants
have proved issue No.1 and decided the same in
favour of the claimants and against the respondents.
Driver-cum-owner/ respondent No. 2 Bal Raj has not
questioned the said findings. Accordingly, the findings
returned by the Tribunal on issue No. 1 are upheld.
11. Before I deal with issue No. 2, I deem it
proper to deal with issues No. 3 to 5 at the first
instance.
12. It was for the insurer to lead evidence and
prove that the driver was not having a valid and
effective driving licence, has failed to discharge the
onus. The driving licence is on record which does
disclose that he was competent to driver the light motor
vehicle. This Court in series of cases held that the
driver in whose favour driving license LMV (Nontransport)
is granted, is competent to drive all types of
light motor vehicles.
13. Admittedly, the driver was driving the offending
vehicle, i.e. applied for Tata Sumo, at the relevant point of
time, as per the Certificate of Registration, Ext. RW-3/B, is
a light motor vehicle.
14. I deem it proper to reproduce the definitions of
“driving licence”, “light motor vehicle”, “private service
vehicle” and “transport vehicle” as contained in Sections 2
(10), 2 (21), 2(35) and 2 (47), respectively, of the MV Act
herein:
“2. …..............
(10) “driving licence” means the licence issued by
a competent authority under Chapter II
authorising the person specified therein to drive,
otherwise than a learner, a motor vehicle or a
motor vehicle of any specified class or
description.
xxx xxx xxx
(21) “light motor vehicle” means a transport
vehicle or omnibus the gross vehicle weight of
either of which or a motor car or tractor or roadroller
the unladen weight of any of which, does
not exceed 7,500 kilograms.
xxx xxx xxx
(35) “public service vehicle” means any motor
vehicle used or adapted to be used for the
carriage of passengers for hire or reward, and
includes a maxicab, a motorcab, contract
carriage, and stage carriage.
xxx xxx xxx
(47) “transport vehicle” means a public service
vehicle, a goods carriage , an educational
institution bus or a private service vehicle.”
15. Section 2 (21) of the MV Act provides that a
“light motor vehicle” means a transport vehicle or omnibus,
the gross vehicle weight of either of which or a motor car or
tractor or road roller the unladen weight of any of which,
does not exceed 7500 kilograms. Section 2 (35) of the MV
Act gives the definition of a “public service vehicle”, which
means any vehicle, which is used or allowed to be used for
the carriage of passengers for hire or reward and includes a
maxicab, a motorcab, contract carriage and stage carriage.
It does not include light motor vehicle (LMV). Section 2
(47) of the MV Act defines a “transport vehicle”. It means a
public service vehicle, a goods carriage, an educational
institution bus or a private service vehicle.
16. Section 10 (2) (d) of the MV Act contains “light
motor vehicle” and Section 10 (2) (e) of the MV Act, was
substituted in terms of amendment of 1994, class of the
vehicles specified in clauses (e) to (h) before amendment
stands deleted and the definition of the “transport vehicle”
stands inserted. So, the words “transport vehicle” used in
Section 3 of the MV Act are to be read viz-a-viz other
vehicles, definitions of which are given and discussed
hereinabove.
17. A Division Bench of the High Court of Jammu
and Kashmir at Srinagar, of which I (Justice Mansoor
Ahmad Mir, Chief Justice) was a member, in a case titled
as National Insurance Co. Ltd. versus Muhammad Sidiq
Kuchey & ors., being LPA No. 180 of 2002, decided on
27th September, 2007, has discussed this issue and held
that a driver having licence to drive “LMV” requires no
“PSV” endorsement. It is apt to reproduce the relevant
portion of the judgment herein:
“The question now arises as to whether the
driver who possessed driving licence for driving
abovementioned vehicles, could he drive a
passenger vehicle? The answer, I find, in the
judgment passed by this court in case titled
National Insurance Co. Ltd. Vs. Irfan Sidiq Bhat,
2004 (II) SLJ 623, wherein it is held that Light
Motor Vehicle includes transport vehicle and
transport vehicle includes public service vehicle
and public service vehicle includes any motor
vehicle used or deemed to be used for carriage
of passengers. Further held, that the
authorization of having PSV endorsement in
terms of Rule 41 (a) of the Rules is not required
in the given circumstances. It is profitable to
reproduce paras 13 and 17 of the judgment
hereunder:-
“13. A combined reading of the above
provisions leaves no room for doubt that by
virtue of licence, about which there is no
dispute, both Showkat Ahamd and Zahoor
Ahmad were competent in terms of section
3 of the Motor Vehicles Act to drive a public
service vehicle without any PSV
endorsement and express authorization
in terms of rule 4(1)(a) of the State Rules.
In other words, the requirement of the State
Rules stood satisfied.
….........................................
17. In the case of Mohammad Aslam Khan
(CIMA no. 87 of 2002) Peerzada Noor-udDin
appearing as witness on behalf of
Regional Transport Officer did say on recall
for further examination that PSV
endorsement on the licence of Zahoor
Ahmad was fake. In our opinion, the fact
that the PSV endorsement on the licence
was fake is not at all material, for, even if
the claim is considered on the premise that
there was no PSV endorsement on the
licence, for the reasons stated above, it
would not materially affect the claim. By
virtue of “C to E” licence Showkat Ahmad
was competent to drive a passenger
vehicle. In fact, there is no separate
definition of passenger vehicle or
passenger service vehicle in the Motor
Vehicles Act. They come within the ambit
of public service vehicle under section
2(35). A holder of driving licence with
respect to “light Motor Vehicle” is thus
competent to drive any motor vehicle used
or adapted to be used for carriage of
passengers i.e. a public service vehicle.”
In the given circumstances of the case PSV
endorsement was not required at all.”
18. The mandate of Sections 2 and 3 of the MV
Act came up for consideration before the Apex Court in a
case titled as Chairman, Rajasthan State Road
Transport Corporation & ors. versus Smt. Santosh &
Ors., reported in 2013 AIR SCW 2791, and after examining
the various provisions of the MV Act held that Section 3 of
the Act casts an obligation on the driver to hold an effective
driving licence for the type of vehicle, which he intends to
drive. It is apt to reproduce paras 19 and 23 of the
judgment herein:
“19. Section 2(2) of the Act defines articulated
vehicle which means a motor vehicle to which a
semi-trailer is attached; Section 2(34) defines
public place; Section 2(44) defines 'tractor' as a
motor vehicle which is not itself constructed to
carry any load; Section 2(46) defines `trailer'
which means any vehicle, other than a semitrailer
and a side-car, drawn or intended to be
drawn by a motor vehicle. Section 3 of the Act
provides for necessity for driving license; Section
5 provides for responsibility of owners of the
vehicle for contravention of Sections 3 and 4;
Section 6 provides for restrictions on the holding
of driving license; Section 56 provides for
compulsion for having certificate of fitness for
transport vehicles; Section 59 empowers the
State to fix the age limit of the vehicles; Section
66 provides for necessity for permits to ply any
vehicle for any commercial purpose; Section
67 empowers the State to control road transport;
Section 112 provides for limits of speed; Sections
133 and 134 imposes a duty on the owners and
the drivers of the vehicles in case of accident
and injury to a person; Section 146 provides that
no person shall use any vehicle at a public place
unless the vehicle is insured. In addition thereto,
the Motor Vehicle Taxation Act provides for
imposition of passenger tax and road tax etc.
20. to 22. ..............
23. Section 3 of the Act casts an obligation on a
driver to hold an effective driving license for the
type of vehicle which he intends to drive. Section
10 of the Act enables the Central Government to
prescribe forms of driving licenses for various
categories of vehicles mentioned in sub-section
(2) of the said Section. The definition clause in
Section 2 of the Act defines various categories of
vehicles which are covered in broad types
mentioned in sub-section (2) of Section 10. They
are 'goods carriage', 'heavy goods vehicle',
'heavy passenger motor vehicle', 'invalid
carriage', 'light motor vehicle', 'maxi-cab',
'medium goods vehicle', 'medium passenger
motor vehicle', 'motor-cab', 'motorcycle',
'omnibus', 'private service vehicle', 'semi- trailer',
'tourist vehicle', 'tractor', 'trailer' and 'transport
vehicle'.”
19. The Apex Court in another case titled as
National Insurance Company Ltd. versus Annappa
Irappa Nesaria & Ors., reported in 2008 AIR SCW 906,
has also discussed the purpose of amendments, which
were made in the year 1994 and the definitions of 'light
motor vehicle', 'medium goods vehicle' and the necessity of
having a driving licence. It is apt to reproduce paras 8, 14
and 16 of the judgment herein:
“8. Mr. S.N. Bhat, learned counsel appearing on
behalf of the respondents, on the other hand,
submitted that the contention raised herein by the
appellant has neither been raised before the
Tribunal nor before the High Court. In any event,
it was urged, that keeping in view the definition of
the 'light motor vehicle' as contained in Section
2(21) of the Motor vehicles Act, 1988 ('Act' for
short), a light goods carriage would come within
the purview thereof.
A 'light goods carriage' having not been defined
in the Act, the definition of the 'light motor vehicle'
clearly indicates that it takes within its
umbrage, both a transport vehicle and a nontransport
vehicle.
Strong reliance has been placed in this behalf by
the learned counsel in Ashok Gangadhar
Maratha vs. Oriental Insurance Company Ltd.,
[1999 (6) SCC 620].
9. to 13. …........
14. Rule 14 prescribes for filing of an application
in Form 4, for a licence to drive a motor vehicle,
categorizing the same in nine types of vehicles.
Clause (e) provides for 'Transport vehicle' which
has been substituted by G.S.R. 221(E) with effect
from 28.3.2001. Before the amendment in 2001,
the entries medium goods vehicle and heavy
goods vehicle existed which have been
substituted by transport vehicle. As noticed
hereinbefore, Light Motor Vehicles also found
place therein.
15. ….............
16. From what has been noticed hereinbefore, it
is evident that 'transport vehicle' has now been
substituted for 'medium goods vehicle' and
'heavy goods vehicle'. The light motor vehicle
continued, at the relevant point of time, to cover
both, 'light passenger carriage vehicle' and 'light
goods carriage vehicle'.
A driver who had a valid licence to drive a light
motor vehicle, therefore, was authorised to drive
a light goods vehicle as well.”
20. The Apex Court in the latest judgment in the
case titled as Kulwant Singh & Ors. versus Oriental
Insurance Company Ltd., reported in JT 2014 (12) SC
110, held that PSV endorsement is not required.
21. Having glance of the above discussion, I hold
that the endorsement was not required.
22. It is apt to record herein that the learned
counsel for the insurer has not seriously questioned the
findings returned on issue No.3. Accordingly, the
findings returned by the Tribunal on issue No. 3 are
upheld.
Issue No.4.
23. Learned counsel for the insurer has not
questioned the findings returned by the Tribunal on this
issue, merits to be upheld. However, I have gone
through the record. The insurer has failed to prove
issue No. 4. Accordingly, the findings returned by the
Tribunal on this issue are upheld.
Issue No.5.
24. It was for the insurer to prove that the
deceased was travelling in the offending vehicle as a
gratuitous passenger, has not led any evidence and
has failed to discharge the onus. The learned counsel
for the insurer has also not questioned the findings
returned by the Tribunal on this issue, are accordingly
upheld.
Issue No.2.
25. The deceased was 25 years of age at
the time of accident, was a carpenter and was also
performing agricultural vocations. The claimants have
specifically pleaded that he was earning Rs.8000/- per
month. The Tribunal, after making guess work held
that the deceased was earning Rs.3300/- per
month, deducted 1/3rd towards his personal
expenses and held that the claimants have lost
source of dependency to the tune of Rs.2200/- per
month, appears to be meager. The claimants have not
questioned the same, is accordingly upheld.
26. The Tribunal has rightly applied the
multiplier of “18”, is just and appropriate multiplier
applied. The Tribunal has awarded Rs.25,000/-
towards funeral expenses, loss of love and affection,
loss of consortium and loss of estate, is meager, the
same is upheld.
27. Learned counsel for the appellant seriously
argued and contested the award on the ground that the
claim petition, in so far it relates to claimant No.1, was
not maintainable because as per law she cannot be the
wife of two brothers at the same time. The said
question was raised before the Tribunal and the
Tribunal, after making discussion held that a custom is
prevailing in Kinnaur District known as “kinnauri
custom” which provides that a woman can marry two
brothers or more at the same time. The claimants
have also placed on record copy of Wazib-ul-Arz,
which does contain the customs and that stands
proved as Ext. PF. While going through the said
document, one comes to an inescapable conclusion
that the said custom is prevailing in Kinnaur, but it is to
be pleaded and proved. It is apt to reproduce relevant
portion of Wazib-ul-Arz Ext. PF, in English version,
herein.
“(G) In this District, for solemnizing marriage,
inheritance, and taking in adoption etc. there are its
own rules and customs which are based on polygamy
and joint marriage. Therefore, in the event of polygamy,
if two or more brothers are having one wife in that
event, the offspring shall be deemed to be of the
husband who will die last………….”
28. Having said so, the Tribunal has rightly
held that the claim petition was maintainable on behalf
of the claimants. It is worthwhile to record herein that
the claimants are the dependents as averred in the
claim petition. No other relatives or legal
representatives related directly or remotely, have
questioned the filing of the claim petition by the
claimant and have not questioned her status. Thus, the
insurer has no right to question the same.
29. Viewed thus, the Tribunal has rightly
returned the findings on issue No.2 and also awarded a
just and appropriate compensation which cannot be
said to be either excessive or meager.
30. Accordingly, the impugned award is upheld
and the appeal is dismissed.
31. The insurer is directed to deposit the
amount, within six weeks from today before this
Registry. On deposit, the entire amount be released to
the claimants, strictly, in terms of the conditions
contained in the impugned award, through payees’
cheque account or by depositing the same in their bank
accounts.
32. Send down the record forthwith, after
placing a copy of this judgment.
August 12, 2016. (Mansoor Ahmad Mir)
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