1. The claim at in O. P. No. 183 of 1978, on the file of the Motor Accidents Claims Tribunal, Madras. dissatisfied with the award passed by the Tribunal, has filed the appeal claiming not only higher compensation, but also an award which is enforceable as against the Insurance Company.
2. On 11-3-1978 at about 4.30 p.m. one Kalaisekar, a boy aged about 12 years, was traveling in a cycle as a pillion rider. At that time a car TMW 2966 coming from behind knocked down the cycle as well as the pillion rider and run over him, resulting in his instantaneous death. Alleging that the accident was due to rash and negligent driving of the driver of the car, the mother of the deceased filed a claim petition claiming a compensation of Rs.25,000/- for the loss of her son, as against the owner of the car and the Insurance Company with which the car had been insured.
3. The said claim petition was not opposed by the owner of the car. He remained ex parte.
4. The Insurer opposed the claim of the petitioner on the ground that the car was driven at the relevant time by an unauthorised person, who had no valid driving licence to drive the vehicle, that the driver has been prosecuted under S. 3 read with Section 112 of the Motor Vehicles Act, for driving the vehicle without having a valid licence, that the owner of the car has also been prosecuted under Sec. 5 of the Motor Vehicles Act for permitting a person to drive the vehicle without a valid driving licence, that therefore the Insurance Company is not at all liable to meet the claim, and that in any event the claim of compensation at Rs. 25,000/- was highly exaggerated.
5. On these pleadings, the Tribunal set down the following three questions for consideration -
1. Whether the car driver was responsible for the death of the boy?
2. Whether the second respondent Insurance Company is not liable for the claim?
3. What is the quantum of compensation, if any payable by any of the respondents?
On the first question, the Tribunal after considering the evidence adduced before it, held that the accident was solely due to the rash and negligent driving of the driver of the car. That finding has become final and the same is not under challenge before us. On the same question the Tribunal found that though the driver of the car was rash and negligent in driving the vehicle, the accident was also due to the contributed negligence on the part of the deceased. Therefore, it apportioned the liability for the accident at 70 : 30 per cent as between the driver of the car and the cyclist.
6. On the quantum of compensation the Tribunal held that, having regard to the age of the boy at the time of his death and the family surroundings and the education he was having at the time of the accident, a sum of Rs. 15,000/- shall be a fair and reasonable compensation. However, based on the apportionment of the blame for the accident, it fixed the compensation payable to the claimant at Rs. 10,500/-. Not satisfied with the same sum, which has been awarded as compensation, the claimant has come before us seeking higher compensation. The Tribunal also found that at the time of the accident, the driver of the car did not have a valid licence to driver the vehicle and therefore under the terms of the policy the Insurance Company can disclaim liability. In that view, the Tribunal dismissed the claim petition as against the Insurance Company.
7. In this appeal the appellant seeks to make the Insurance Company also liable for any compensation that may be fixed by this court in appeal. Thus the questions that arise for our consideration are:
1. What is the quantum of compensation payable to the claimant?
2. Which of the respondents is liable to pay the compensation fixed by this court?
3. Whether the cyclist, in which the deceased was traveling as a pillion rider, has contributed in any way by his negligence to the accident in question?
Question No. 3: We will take up the last question first. It has been found by the Tribunal that the car was driven in an excessive speed at the time and the place of the accident and but for the rash driving of the car, the accident would not have taken lace. Therefore, the driver of the car was rash and negligent is obvious from the facts established. But the question is, whether the cyclist who drove the cycle in which the deceased was traveling was also responsible for causing the accident. It has been found by the Tribunal that the cycle was proceeding at the time of the accident in the middle of the road, that it was at 4.45 p.m. which was a peak hour when the traffic on the Beach Road is normally heavy, the three boys were going on the cycle. From these two circumstances i.e., (1) that the cycle was found on the middle of the road and (2) it carried three boys at a peak hour when the traffic was heavy, the Tribunal found that there is also contributory negligence on the part of the cyclist and those who traveled on it. Learned counsel for the claimant (appellant) would say that even if three people travel in the cycle, if the car was not driven at rash and negligent manner, the accident would not have occurred and therefore the number of persons traveling on the cycle should not be taken serious note of. However, the learned counsel for the claimant is not able to explain as to how the cycle with three persons on it could go in the middle of the road, especially during the peak hour when the traffic was heavy on that portion of the road. The learned counsel for the claimant would say that there is no acceptable evidence that the cycle was found on the middle of the road. But it is clearly seen from the sketch of the scene of the accident (Ext. P2) drawn by P. W. 2 that the cycle was found almost on the centre of the road. Therefore, it cannot be held that the cycle was proceeding very close to the pavement. If the cycle had not gone to the middle of the road, the accident would not have occurred, even if the car was driven at a hectic speed. In that view of the matter, we are inclined to agree with the Tribunal that the cyclist was also negligent in driving on the cycle. Having regard to the nature of the vehicles which involved in the accident, the Tribunal has apportioned the liability at 70 : 30 per cent as between the car driver and the cyclist. We do not see any reason to differ from the view taken by the Tribunal on the facts and circumstances of the case that both the car driver as well as the cyclist were blameworthy for the accident and the blame worthiness has to be apportioned at 70 : 30 per cent as between the car driver and the cyclist.
8. Question No. 1: The next question is as to whether the compensation fixed by the Tribunal is fair and adequate. In this case, the deceased was 12 years of age at the time of his death and he was reading in the sixth standard in a local school. Taking into consideration the age of the boy, the family environment and the prospects of his future life the fixation of a sum of Rs. 15,000/- for the death of the boy cannot be said to be too low. The amount fixed appears to be fair and reasonable. We do not therefore, like to interfere with the quantum of compensation fixed by the Tribunal.
9. Question No. 2: The only question then remains to be considered is whether the Insurance Company can be made liable to pay the said sum of Rs. 10,500/- fixed as compensation by the Tribunal which has been upheld by us as fair and reasonable. The Insurance Company disclaimed its liability from the beginning on the ground that the person who drove the vehicle, which caused the accident, did not have valid licence to drive the same. It also called upon the driver as well as the owner of the vehicle to produce the driver's licence to establish its case that the driver had no valid licence to drive the vehicle. However, in spite of the notice to produce the licence, neither the driver of the vehicle nor the owner of the vehicle had produced the licence. However, it is seen from the evidence of P. W. 2, the investigating officer, that the driver of the vehicle at the time of the accident had a driving licence. But the said driving licence did not contain an endorsement that the owner of the licence was entitled to drive a tourist car. In this case, it is not in dispute that the vehicle involved in this accident i.e. car (TMW 2966) is registered as a tourist car. Relying on the evidence of P. W. 2, who deposed that the licence produced before him by the driver did not have an endorsement enabling him to drive a tourist car, the Tribunal held that the driver did not have a valid licence to drive the tourist car at the time of the accident and therefore the Insurance Company is entitled to disown its liability as per the terms of the policy. In that view the Tribunal exonerated the Insurance Company from the suit claim. The question is whether the Insurance Company can disown its liability in this case on the ground that the driver of the tourist car did not have a valid licence to drive the vehicle. From the evidence of P. W. 2 it is clear that the driver of the car had a licence to drive the car. However, according to the learned counsel for the Insurance Company since the car is a tourist car, unless the licence contains an endorsement duly authorising the owner of the licence to drive the car which caused the accident. Learned counsel for the appellant claimant would, however, contend that though the car is a tourist car, it is nonetheless a light motor vehicle and the driver of the car was found to have produced the licence before P. W. 2. Therefore, the Insurance Company cannot disclaim liability to pay compensation in this case.
10. The substantial question that arises in this case is to determine whether a driver of a tourist car is required under the Motor Vehicles Act, to have a special authorisation in addition to the usual licence to drive a light motor vehicle to enable him to drive the tourist car as contended by the learned counsel for the Insurance Company. Section 3 (1) of the Motor Vehicles Act reads as follows:
'No person shall drive a motor vehicle in any public place unless he holds an effective (driving licence) issued to himself authorising him to drive the vehicle; and no person shall so drive a (transport vehicle) unless his (driving licence) specially entitles him so to do'.
Thus, Section 3 (1) of the Motor Vehicles Act contemplates an effective driving licence to drive a motor vehicle and if the vehicle happens to be a tourist vehicle, the driving licence should contain a special endorsement. In this case though the vehicle involved is a car, it comes within the definition of a 'transport vehicle as defined in S. 2 (33) of the Act, wherein the 'transport vehicle' has been defined as a public service vehicle of a goods vehicle. 'Public service vehicle' is defined in S. 2 (25), which means any motor vehicle used or adapted to be used for the carriage of passengers for hire or reward and includes a motor cab, contract carriage and a stage carriage. In this case, the car has been registered as a tourist car. Thus the car having been registered as a public service vehicle, coming under the definition of 'public service vehicle', which in turn comes within the definition of 'transport vehicle', it attracts the latter part of S. 3 (1) which says, that for driving a transport vehicle a special endorsement is necessary. In this case as per the evidence of P. W. 2 there was no special endorsement as contemplated by the later part of S. 3 (1) in the licence produced by the driver before P. W. 2. Since no licence has been produced before the Tribunal or before this Court, we have to fall back only on the evidence of P. W. 2, that the licence produced before him did not contain the endorsement contemplated by the latter half of S. 3 (1). Therefore, the vehicle should be taken to have been driven by the driver in contravention of S. 3 of the Motor Vehicles Act.
11. The insurance policy in relation to the car in question has been produced and marked as Ext. P8. That policy clearly shows that the vehicle has been registered as a tourist taxi and it can be used only in connection with the insurer's business of running as a tourist vehicle. Under the head 'driver', it says that the vehicle could be driven by the insured or by any other person in his employ holding a licence to drive the vehicle. having regard to the fact that the vehicle has been registered as a tourist taxi, as per the terms of the policy it should be driven by a person who held a licence to drive a tourist taxi. As already stated, Section 3 contemplates a driver of a tourist taxi having a special endorsement in his licence to drive such a vehicle. In this case, there being no proof that the driver who drove the vehicle had the necessary endorsement in his licence as contemplated by Section 3 and for the purpose of driving the tourist taxi, he cannot be taken to have a valid licence to drive a tourist taxi. In this view of the matter, the Tribunal appears to be right in holding that the Insurance Company is not liable to meet any portion of the claim in this case.
12. In the result, the appeal fails and it is hereby dismissed; but, however, there will be no order as to costs in this appeal.
13. Appeal dismissed.