Diwan Singh Negi vs National Assurance Company Limited And Others

Lok Pal Singh, J

1) This appeal, preferred under Section 173 of the Motor Vehicles Act, 1988, is directed against the judgment/award dated 28.02.2007, passed by the Motor Accident Claims Tribunal / District Judge, Tehri Garhwal, in M.A.C.T. case no. 108 of 2006, Smt. Mohini Bisht Vs Diwan Singh Negi and another, whereby recoverable rights has been given to the Insurance Company to pay the compensation and thereafter recover the awarded amount which was awarded to the claimants from the present appellant (owner of the vehicle).

2) Brief facts of the case, are that on 08.01.2005, at 10:00 A.M., Nandan Singh Bisht, husband of Smt. Mohini Bisht (respondent no. 2 herein) and father of respondent nos. 3 to 6 herein was travelling in a Tata Spacio, bearing registration no. UA 09 / 4792. When said vehicle reached Mendkhal Tok of Village Tachhla, P.S. Narendra Nagar, it met with an accident due to rash and negligent driving on the part of the driver of the vehicle. Nandan Singh Bisht sustained injuries in the accident. Injured was taken to Govt. Hospital, Narendra Nagar from where he was referred to C.M.I. hospital, Dehradun. Since, there was no improvement in the condition of the injured, he was further referred to Safdarjang Hospital, New Delhi, where he breathed his last on 11.01.2005. It is alleged in the claim petition filed by the claimants-respondents that a total amount of Rs.50,000/- was incurred in the medical treatment of the deceased. The deceased was aged 56 years at the time of accident and was a government servant. He was the sole bread earner of the family. The claimants sought compensation to the tune of Rs. 8,88,384/. Diwan Singh Negi, owner of the vehicle and the National Insurance Company Ltd., with whom the vehicle was insured, was also made party to the claim petition.

3) O.P. no. 1 Diwan Singh Negi, filed his written statement and has denied most of the averments made in the claim petition, but the factum of accident was admitted to him. It is stated in the written statement that the driver was driving the vehicle properly and the accident took place due to mechanical failure. It is also stated that the owner has no liability to pay the compensation to the claimants and the liability, if any, is that of the insurance company.

4) O.P. no. 2 Insurance Company has filed its written statement, stating therein, that the age of the deceased was shown at lower side whereas his earning was shown on the higher side. However, it is admitted to the insurance company that the deceased was not a gratuitous passenger. It has also been stated that the vehicle in question at the date, time and place of accident was being plied in violation of terms and condition of the insurance policy.

5) On the pleadings of the parties, learned Tribunal framed following issues:

i) Whether the accident in question took place at 10:00 a.m. on 08.01.2005, at Mendkhal Tok of Village Tachhla, P.S. Narendra Nagar due to rash and negligent driving of vehicle no. UA 09 / 4792 Tata Spacio by its driver resulting into death of Sri Nandan Singh Bisht, as alleged?

ii) Whether the driver of the aforesaid vehicle did not possess valid driving license and the owner did not have valid permit and registration of the vehicle on the date of accident? If so, its effect?

iii) To what amount of compensation are the petitioners entitled and from whom?

6) The Motor Accident Claims Tribunal after hearing the parties decided all the issues against the appellant and awarded compensation to the tune of Rs. 5,23,900/- and directed the Insurance Company to pay the compensation within a period of two months to the claimants. However, the Tribunal granted recoverable rights to the Insurance Company against the appellant. Aggrieved against the same, present appeal has been preferred by the appellant (owner of the vehicle).

7) Heard learned counsel for the parties and perused the lower court record.

8) Learned counsel for the appellant at the very outset would urge that against the same accident, two claim petitions were filed and two separate awards were passed. In the award dated 19.12.2006, passed in M.A.C.T. case no. 78 of 2005, Smt. Guddi Devi and others vs Diwan Singh Negi and others, the Tribunal directed the insurance company to pay the entire amount of compensation, whereas in the present case, an award dated 28.02.2007 has been passed directing the insurance company to pay the amount to the claimants subject to the condition that the amount may be recovered from the owner. Learned counsel for the appellant submits that the appellant is only aggrieved by this part of the order where recoverable rights were given to the insurance company to pay the amount of compensation to the claimants and thereafter recover the same from the owner.

9) A perusal of the award dated 19.12.2006, passed in another claim petition, being M.A.C.T. 78 of 2005, which has arisen out of the same accident, would reveal that issue no. (ii) therein was framed to the extent as below:

Whether the driver of the vehicle did not possess valid driving license as well as the owner of the vehicle did not possess valid registration and permit of the vehicle as alleged by O.P. no. 2 in paragraph no. 11 of its written statement? If so, its effect?

10) While deciding issue no. (ii), in said claim petition, the Tribunal has held that the insurance company has not denied the fact that the driver was in possession of valid driving license and has also admitted the fact that the vehicle was duly ensured with the insurance company. The owner of the vehicle (appellant herein) has produced paper no. 19C/1, permit of the vehicle; paper no. 19C/2 Registration of the vehicle; papers no. 19C/3 and 19C/4, copies of insurance certificate and paper no. 19C/5, copy of the driving license which was registered for plying the light motor vehicle on hill route. Said driving license was registered on till 17.08.2004. The Tribunal decided said issue against the insurance company and in favour of the owner of the vehicle.

11) Surprisingly, in the case in hand, the Tribunal had abruptly taken a U-turn and while deciding identical issue no. (ii) has held that the appellant could not prove the fact that his driver, who was driving the vehicle rashly and negligently on the date of incident, was having a valid driving license. The appellant even did not disclose the name of the drive of the vehicle in his written statement. It was further observed that since the appellant failed to prove the factum that the driver of the offending vehicle was having valid driving license and that the documents of the vehicle viz. permit, registration, fitness etc. were valid on the date of accident, as such, the issue is liable to be decided against the owner of the vehicle. The said issue was decided against the appellant herein.

12) It is relevant to mention here that in another claim petition, being M.A.C.T. no. 78 of 2005, arising out of the same accident, issue no. (ii) was decided against the insurance company vide award dated 19.12.2006, whereas in the instant case, claim petition arising out of the same accident was decided on 28.02.2007, i.e., on the subsequent date, wherein identical issue was decided against the owner of the vehicle (appellant herein).

13) While giving the finding on issue no. (ii) in the claim petition filed by the claimants-respondent herein, the Tribunal observed that in the absence of filing of original documents viz. Insurance cover note, registration certificate, permit and driving license of the driver, despite having the original certificates, and non-filing of the same before the Tribunal, the said action would go against the owner of the vehicle. On the basis of said finding, the Tribunal held that the owner has totally failed to prove the factum that the driver was having valid driving license and that all the documents of the vehicle were valid on the date of accident. The Tribunal also observed that the objection of the insurance company in regard to issue no. (ii) has been sufficiently proved to this effect and decided the said issue against the appellant.

14) It appears to this Court that the learned Tribunal has totally lost into oblivion in taking note of the fact that original documents were filed in another claim petition, which has also arisen out of same accident, and the Tribunal itself has directed the insurance company to pay the entire amount of compensation in that claim petition. But, while deciding the award dated 28.02.2007 (in the claim petition filed by the claimants-respondents herein), the Tribunal though has directed the insurance company to pay the amount of compensation to the claimants herein but also directed that the amount may be recovered from the owner of the vehicle. There was no occasion for the owner (appellant herein) to produce the original documents again in the claim petition filed by the claimants-respondents herein, once the same were filed in another claim petition.

15) Since, the learned Tribunal in another claim petition, being M.A.C.T. no. 78 of 2005, Smt. Guddi Devi and others Vs Diwan Singh Negi and others, also arising out of same accident, has held that the insurance company is liable to pay the compensation as the vehicle is duly ensured and the driver of the vehicle was having valid driving license and the owner was having valid documents at the time of accident, the same Tribunal should not have directed that the insurance company shall pay and recover the same from the appellant, in the instant case.

16) In view of the findings recorded above, the appeal deserves to be allowed. The same is hereby allowed. The Insurance Company is directed to pay the amount of compensation to the claimants, if not already paid.

17) The statutory amount deposited by the appellant before this Court be returned to him along with interest, if any, accrued thereon. The statutory amount be returned to the appellant on receipt of an application filed by the appellant in this regard. No order as to costs.