Abdul Nafis [Minor] vs Adarsh Shiksha Samiti & Ors on 14 October, 2010

HIGH COURT OF MADHYA PRADESH : JABALPUR

S.B: HON. SMT. SUSHMA SHRIVASTAVA, J.

Misc. Appeal No.539/03

Abdul Nafis (minor)

through his father Abdul Shafiq

VERSUS

Adarsh Shiksha Samiti & two others

______________________________________________________ Ms. Aparna Singh, Advocate for the

appellant. Shri Harpreet Ruprah, Advocate for respondents no.1 and 2. Ms. Amrit Ruprah, Advocate for
respondent no.3/Insurance Co.

ORDER

Being aggrieved by the award dated 18.11.2002 passed by Additional Motor Accident Claims Tribunal,
Narsinghpur (in short 'the tribunal') in Claim Case No.6/98, appellant/claimant has preferred this appeal under
Section 173 of Motor Vehicle Act, 1988 (for brevity 'the Act').

2. Appellant/claimant filed a claim petition under Section 166 of the Act through his father and natural
guardian before the Tribunal for compensation to the tune of Rs.21,00,000/- for injuries sustained by him in
the motor accident due to rash and negligent driving of minibus No.MP-20H-2408 by respondent no.2,
belonging to respondent no.1 and insured with respondent no.3/Oriental Insurance Co. As per averments made
in the claim petition, the accident occurred on 4.2.97 at 5:15 in the evening, when appellant/ claimant, a minor
boy aged about five years while going by the roadside in front of the house of Soni compounder at Hardaul
Bag, Gotegaon was dashed by minibus No.MP-20H-2408 being driven rashly and negligently by respondent
no.2. As a result, appellant/claimant sustained grievous injuries in his both legs and other parts of the body
resulting into permanent disablement in his right leg. Appellant/claimant was treated in various hospitals,
remained hospitalized for several days and incurred heavy medical expenses amounting to Rs.1,00,000/- in his
treatment. Appellant/claimant had to undergo surgical operation twice and 2

suffered mental pain and suffering. Appellant/claimant, therefore, claimed compensation of Rs.21,00,000/-
from the respondents.

3. The claim petition was opposed by the driver and owner of the minibus as well as by its insurance
company. Respondents no.1 and 2 denied the factum of accident with their vehicle and any negligence on the
part of bus driver. It was contended that the appellant/claimant did not suffer any grievous injury or permanent
disablement and was not entitled to compensation. The plea of the insurance company was that the minibus
was being driven without valid driving licence and in breach of the condition of policy, as such insurance
company was not liable to pay the compensation.

4. The Tribunal, after enquiry, came to hold that the appellant/claimant sustained simple injuries in the motor
accident due to rash and negligent driving of minibus No.MP-20H-2408 by respondent no.2 and awarded a
sum of Rs.5,000/- to the appellant as compensation. The tribunal also held that respondent no.2 was having a
licence to drive light motor vehicle and heavy goods vehicle, but he was not entitled to drive heavy passenger
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 Abdul Nafis [Minor] vs Adarsh Shiksha Samiti & Ors on 14 October, 2010

vehicle, as such not authorized to drive the vehicle in question at the time of accident, therefore, exonerated
the insurance company from its liability to pay the compensation on the ground of breach of terms and
condition of the insurance policy, and passed the impugned award for Rs.5,000/- against respondents no.1 and
2, which has given rise to this appeal.

5. Appeal is preferred inter alia on the ground that the tribunal did not appreciate the evidence properly and
failed to consider that appellant sustained grievous injuries resulting into permanent disability and awarded a
meagre sum as compensation and erroneously absolved the insurance company from its liability to pay
compensation, though the driver of the offending vehicle had a valid and effective driving licence at the time
of accident.

6. Respondents no.1 and 2 also filed cross-objection in the appeal, which was opposed mainly by learned
counsel for respondent no.3/Insurance Co. It was submitted that respondents no.1 and 2 did not deposit the
amount, as required by 3

Section 173(1) of the Act and when no appeal lies against the award for less than Ten Thousand rupees, the
cross-objection was not maintainable.

7. Learned counsel for respondents no.1 and 2 conceded that the amount required to be deposited under
Section 173(1) of the Act was not deposited. In such a situation, cross-objection filed by respondents no.1 and
2 is not tenable, especially when the amount of impugned award was less than Rs.10,000/- and not appealable,
the same could not have been challenged by respondents no.1 and 2 by way of cross-objection. The cross-
objection filed by respondents no.1 and 2, therefore, deserves to be dismissed and the same is accordingly
dismissed as not maintainable.

8. As regards the merits of the appeal, there was no challenge to the finding that the appellant sustained
injuries in the motor accident due to rash and negligent driving of minibus no. MP-20H-2408 by respondent
no.2. There was also no dispute at bar that the offending vehicle belonged to respondent no.1 and was insured
with respondent no.3.

9. Learned counsel for the appellant, however, submitted that the tribunal failed to consider the bulk of oral
and documentary evidence that appellant sustained grievous injuries in his both the legs and had to undergo
surgery, remained hospitalized for number of times and was disabled permanently on account of injuries, yet
the tribunal awarded a meagre sum as compensation to the appellant.

10. Learned counsel for respondents, on the other hand, supported the sum awarded by the tribunal and
submitted that there was no authentic evidence that appellant sustained any grievous injury or any permanent
disablement due to injuries in the motor accident.

11. Perused the evidence on record. There was no evidence of the doctor to the effect that appellant/claimant
sustained any fracture or permanent disablement on account of injuries sustained by him in the motor
accident. None of the doctors, who issued the disability certificate filed on record, was examined in the 4

case. The Apex Court in the case of Rajesh Kumar alias Raju Vs. Yaduvir Singh and another reported in AIR
2008 Supreme Court page 2396 observed that unless the author of the certificate examined himself, it is not
admissible in evidence. Thus, the disability certificate filed on record, which was neither proved, nor
exhibited, could not be acted upon to hold that the appellant sustained any permanent disablement. There was
also no X-ray report of the appellant to indicate that he sustained any fracture in the accident.

12. The certified copy of MLC report (Ex.P-3) of the appellant, however, indicated that the appellant/claimant
had sustained injuries in his right leg and he was also referred to Medical College, Jabalpur for further
treatment. There was also oral evidence of father and uncle of the appellant, namely, Abdul Shafiq (A.W.-3)
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 Abdul Nafis [Minor] vs Adarsh Shiksha Samiti & Ors on 14 October, 2010

and Abdul Aziz (A.W.-2) to the effect that appellant sustained injuries in his both the legs and he was treated
in various hospitals. The tribunal, however, discarded the discharge tickets (Ex.P-5 to P-7) of Victoria
Hospital, Jabalpur on the ground that father of appellant/claimant, namely, Abdul Shafiq never stated in his
evidence that his son was treated in Victoria Hospital, Jabalpur and the gender of the patient in discharge
tickets (Ex.P-5 and P-6) was shown as female, while appellant, Abdul Nafis was a boy. The tribunal also held
that discharge tickets pertained to years 1998 and 1999, while the accident in question occurred on 4.2.97, and
were thus not acceptable.

13. No doubt, the age and gender mentioned in the various columns of discharge tickets (Ex.P-5 and P-6), as
submitted, were not correctly written and there was also some overwriting in these documents, but there was
nothing wrong with the discharge ticket (Ex.P-7) filed on behalf of the appellant. There was also oral evidence
of the uncle of the appellant, namely, Abdul Aziz (A.W-2), that appellant was also treated in Victoria
Hospital, Jabalpur, besides other hospitals and he also remained hospitalized in Victoria Hospital. There was
also no cross-examination on the point that the discharge tickets, particularly Ex.P-7 did not relate to the
treatment of the appellant, so it could not be brushed aside. 5

The discharge ticket (Ex.P-7) reveals that appellant Abdul Nafis remained hospitalized at Victoria Hospital,
Jabalpur from 9.2.98 to 27.2.98 for treatment of contracture of his right knee. Thus, the discharge ticket
(Ex.P-7) indicates that the problem in the right knee of the appellant continued even in the year 1998, for
which he remained hospitalized for more than fifteen days. Thus, it is evident that the injuries sustained by the
appellant were not minor, but it lasted long and required treatment for a long period. In the aforesaid
circumstances, the amount of Rs.5,000/- for physical injury and mental pain and suffering of the appellant, as
awarded by the tribunal, was apparently inadequate. Although, no cash memo or medical bills etc. were filed
to prove medical expenses, but evidently claimant/appellant was a resident of Gotegaon and he had to take
treatment at Jabalpur, remained in the hospital for several days. Obviously, he would have spent good amount
in staying in another city, as well as incurred other incidental expenses like conveyance charges, attendant
charges, special diet etc. The tribunal, however, did not award any compensation under other heads like
special diet and attendant charges etc. The amount of compensation, as awarded by the tribunal, therefore,
deserves to be enhanced by a lump sum of Rs.10,000/- in the facts and circumstances of the case. The amount
of compensation awarded to the appellant is, thus raised by a further sum of Rs.10,000/- (Ten thousand
rupees) only.

14. As regards the liability of insurance company to pay the compensation, learned counsel for respondent
no.3/Insurance Co. submitted that when the tribunal exonerated the insurance company on the ground of
breach of terms and conditions of insurance policy and the cross-objection filed by respondents no.1 and 2 is
not tenable, the question of liability of insurance company to pay compensation no longer remains open for
challenge. However, the submission of learned counsel for respondent no.3 has no force. When the question
of liability of insurance company to pay the compensation was urged as a ground of appeal, it can well be
examined in this appeal.

15. The tribunal has exonerated the insurance company from its liability to make payment of compensation on
the ground 6

that the driver of the offending vehicle was having a licence to drive light motor vehicle, heavy goods vehicle,
while the offending vehicle was admittedly a heavy passenger vehicle, so, he was not authorized to drive the
same.

16. A careful perusal of the copy of licence (Ex.D-1) filed and proved by driver/respondent no.2 Revaram
(NA.W-1) with the original licence, indicates that licence (Ex.D-1) was initially issued to respondent no.2
Revaram, for driving transport vehicle and it was renewed from time to time after every three years, as
required by Section 14 (2)(a) of the Act, it also remained in force and effective even at the time of accident in
question. The offending vehicle was indisputably a school bus of Saraswati Shishu Mandir belonging to
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 Abdul Nafis [Minor] vs Adarsh Shiksha Samiti & Ors on 14 October, 2010

respondent no.1 bearing registration no.MP-20H-2408. As per definition of transport vehicle, as given in
Section 2(47), an 'education institution' bus is also included in the definition of 'transport vehicle'. Thus it
could hardly be said that respondent no.2 was not authorized to drive the school minibus no.MP-20H-2408
vide licence (Ex.D-1).

17. Learned counsel for respondent no.3/Oriental Insurance Co., however, submitted that the endorsement
made in licence (Ex.D-1) indicated that respondent no.2 was granted licence to drive light motor vehicle,
medium goods vehicle and heavy goods vehicle, and he was not authorized to drive heavy passenger vehicle;
as such respondent no.2 was not authorized and had no valid driving licence to drive the offending vehicle.
Reliance was placed in this behalf on the decision of the Apex Court rendered in the case of National
Insurance Co. Ltd. Vs. Kusum Rai and others reported in AIR 2006 Supreme Court page 3440 (1), wherein
the driver of the vehicle was holding a licence to drive light motor vehicle and not possessing a licence to
drive commercial vehicle, while the offending vehicle was being used as a taxi, it was held that there was a
breach of terms and conditions of the policy. The facts of the instant case are, however, distinct and different.
In the instant case, even no such plea was specifically taken or proved by the insurance company that the
offending vehicle was a heavy passenger vehicle.

18. Needless to point out that "heavy passenger vehicle" is defined in Motor Vehicle Act under Section 2(17)
of the Act, which includes an education institution bus or a minibus, the unladen weight of which exceeds
12,000 kg. However, there was no such evidence on record to indicate that the unladen weight of the
offending vehicle, i.e. education institution bus exceeded 12,000 kg. The mere admission by the driver in his
cross-examination that the school bus was a heavy passenger vehicle per se could not be held to be such in
absence of documentary evidence in this behalf. Moreover, respondent no.2 was admittedly authorized to
drive a heavy goods vehicle by means of licence (Ex.D-1); it could, therefore, hardly be presumed that he was
not able to drive a heavy passenger vehicle, if the offending vehicle, for the sake of argument, is considered to
be one, so as to contribute to the cause of accident.

19. The Apex Court in its three Judges' Bench decision rendered in the case of National Insurance Co. Ltd.
Vs. Swaran Singh & others reported in AIR 2004 Supreme Court page 1531(1) has held that in each case 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 cause of accident had
no nexus with the driver not possessing the requisite type of licence, the insurer will not be allowed to avoid
its liability merely for technical breach of condition concerning driving licence. It would be profitable to
reproduce the following observation made by their Lordships in the case of Swaran Singh (supra) in this
behalf:- "Section 10 of the Act provides for forms and contents of licences to drive. The licence has to be
granted in the prescribed form. Thus, a licence to drive a light motor vehicle would entitle the holder there to
drive the vehicle falling within that class or description.

Section 3 of the Act casts an obligation on a driver to hold an effective driving licence for the type of vehicle
which he intends to drive. Section 10 of the Act enables Central Government to prescribe forms of driving
licences for various categories of vehicles mentioned in sub-section (2) of said section. The various types of
vehicles described for which a driver may obtain a licence for one or more of them are: (a) Motorcycle
without gear, (b) motorcycle with gear, (c) invalid carriage, (d) light motor vehicle, (e) transport vehicle, (f)
road roller 8

and (g) motor vehicle of other specified description. 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

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 Abdul Nafis [Minor] vs Adarsh Shiksha Samiti & Ors on 14 October, 2010

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'. In claims for compensation for
accidents, various kinds of breaches with regard to the conditions of driving licences arise for consideration
before the Tribunal. A person possessing a driving licence for

`motorcycle without gear', for which he has no licence. Cases may also arise where a holder of driving licence
for `light motor vehicle' is found to be driving a `maxi-cab', `motor-cab' or `omnibus' for which he has no
licence. In each case on evidence led before the tribunal, 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. If on facts, it is found that accident was caused solely because of some other
unforeseen or intervening causes like mechanical failures and similar other causes having no nexus with
driver not possessing requisite type of licence, the insurer will not be allowed to avoid its liability merely for
technical breach of conditions concerning driving licence.

The Apex Court in the aforesaid case further held as under :-

"Even where the insurer is able to prove breach on the part of the insured concerning the policy condition
regarding holding of a valid licence by the driver or his qualification to drive during the relevant period, the
insurer would not be allowed to avoid its liability towards insured unless the said breach or breaches on the
condition of driving licence is/are so fundamental as are found to have contributed to the cause of the
accident. The Tribunals in

interpreting the policy conditions would apply "the rule of main purpose" and the concept of

"fundamental breach" to allow defences available to the insured under section 149(2) of the Act."

20. In the instant case, as said hereinabove, respondent no.2/the driver of the offending vehicle was admittedly
having licence to drive heavy goods vehicle vide (Ex.D-1), and in absence of any such evidence it could not
be assumed that he was not able to drive the minibus, said to be a passenger vehicle, in an efficient 9

manner so as to have contributed to the cause of accident in question Thus, in view of the law laid down in the
case of Swaran Singh (Supra), in the instant case, insurer could not be allowed to avoid its liability merely for
technical breach of condition concerning driving licence.

21. In view of foregoing discussion, respondent no.3/Oriental Insurance Co. is held liable to pay the
compensation to the appellant. The negative finding recorded by the tribunal in this behalf is hereby set aside.

22. In the result, the appeal is partly allowed. The compensation awarded to the appellant by the tribunal is
enhanced by a further sum of Rs.10,000/- (Ten Thousand rupees) only, which shall be payable by respondent
no.3/Oriental Insurance Co. to the appellant within two months from today, failing which the enhanced
amount shall carry interest @ 6% per annum from the date of filing of claim petition till realization. The
amount of compensation awarded to the appellant by the tribunal shall also be payable by Insurance
Co./respondent no.3.

Appeal stands allowed to the aforesaid extent. No costs.

(SMT. SUSHMA SHRIVASTAVA)

JUDGE

14.10.2010
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