Gayanti Devi vs Rajeshwar Prasad Yadav and Others

Amitav Kumar Gupta, J.—This appeal is directed against the judgment/award dated 17.8.2010 passed by learned District Judge-cum-Motor Accident Claims Tribunal, Garhwa in M.V. Case No. 17 of 2009 whereby the respondent-owner of the offending vehicle was directed to pay the balance amount of Rs. 50,000 (Fifty Thousand) to the Claimants/Respondent Nos. 1 or 2 within a month, failing which the owner shall be liable to pay interest @ 6% per annum from the date of the order till its realization and ordered the appellant to return Rs. 50,000 to the Insurance Company. The brief facts of the case is that Pankaj Yadav aged about 8 years died on account of accident involving Truck bearing registration No. JH0-3A-4538, for which Meral P.S. Case No. 20 of 2008 was registered under Sections 279 /304 of the Indian Penal Code against one namely, Jitendra Yadav who is alleged to be Khalasi of the vehicle which was insured by respondent No. 3-The New India Assurance Co. Ltd.

Learned Counsel for the appellant has submitted that the impugned order/judgment/award has been passed against the provisions of law and without considering and appreciating the material on record. That the Trial Court has failed to consider the claim application is bad for non-joinder of the driver of the vehicle namely, Jitendra Yadav, who is a necessary party. That the Court below failed to consider that the Insurance Company i.e. respondent No. 3 did not lead any evidence on the point that the driver of the vehicle did not have a valid driving licence and mere pleading is no substitute of proof. That the learned Tribunal should have considered the insurance policy and the copy of registration of the vehicle which are sufficient to exonerate the owner appellant of the liability and the liability should have been fastened on respondent No. 3 The New India Assurance Co. Ltd. That the appellant-owner had satisfied herself regarding the driving skill of the driver and had also examined the licence. That the witnesses namely, P.Ws. 1, 2, 3 and 4 have stated that the truck was being driven by said Jitendra Yadav and the onus was on the Insurance Company to prove that he did not have a valid driving licence. Thus, in view of the decision in the case of Lal Chand Vs. Oriental Insurance Co. Ltd., , the insurer cannot be absolved of his liability and the burden was on the Insurance Company to show that the driver did not have a valid driving licence. In support of his contention, he has relied upon decision in the case of National Insurance Company Ltd. Vs. Smt. Abha Sinha and Others, .

On the other hand, learned Counsel for the respondent-Insurance Company has submitted that the owner is the appellant and in the written statement filed by the owner it was stated that Jitendra Yadav was the driver of the said vehicle. However, the said Jitendra Yadav was a Khalasi and he did not have valid driving licence. That the insurer is liable to indemnify the insured only when the terms and conditions of the insurance policy are adhered to. That the Counsel for the appellant had not produced any papers to show that said Jitendra Yadav was holding a valid driving licence at the time of accident.

That the Trial Court has discussed and evidence and reached at the conclusion that P.Ws. 1, 2 and 3 were not the eye-witnesses. P.W. 4 is the informant on whose statement, the F.I.R. was registered and he has stated that the Truck was being driven rashly and negligently which ran over the deceased. He has stated that the vehicle was being driven by Jitendra Yadav. In terms of Section 158 of the M.V. Act, the driver is supposed to produce driving licence and duty is cast upon the owner in terms of Clause 4 to give information whether the vehicle was or was not being driven in contravention of Section 146 . Thus, the onus lies on the owner to give information regarding the details of the driving licence.

The contention of the learned Counsel that the case is bad for nonjoinder of the driver as a necessary party is not acceptable as the police case was instituted on the basis of information given by the informant with regard to the rash and negligent driving of the driver of the offending vehicle. The arraying of the driver would have only been for the purpose to determine whether he was not driving the vehicle rashly or negligently and this aspect has been dealt with by the Trial Court and it is held that the vehicle was being driven by Jitendra Yadav, the Khalashi and hence there is no mis-joinder of the parties in this case and decided the issue in favour of the claimants. The finding of the learned Trial Court is in consonance with the evidence on record and the same requires no interference by this Court. Another limb of the argument of the learned Counsel is that the owner had satisfied herself regarding the driving skill of Jitendra Yadav and was satisfied that he had a valid driving licence, as such the burden of proof lay upon the Insurance Company to show that he did not have a valid driving licence. Such argument is not acceptable as the decisions relied on by the learned Counsel in the case of Lal Chand v. Oriental Insurance Company Ltd. (supra), it was held that the owner had not only seen and examined the driving licence produced by the driver but also took the test of driving skill of the driver and found that the driver was competent to drive the vehicle and thereafter appointed him as the driver of vehicle in question. Thus, the owner had satisfied herself that the driver had a valid driving licence and is driving competently, therefore in such circumstances there was no breach of Section 149(2)(a)(ii) of the Motor Vehicles Act, 1988. In the said case, it was held that the insurer i.e. the Insurance Company, has to prove that the owner i.e. the insured of the vehicle was guilty of negligence and failed to exercise reasonable care in the matter of fulfilling the terms and conditions of the policy regarding use of the vehicles by a duly licensed driver or one who was not disqualified to drive at the relevant point of time and more or less the same ratio has been followed in the decision in the case of National Insurance Company v. Smt. Abha Sinha & Ors. (Supra).

In view of the decisions, it is evident from the recitals in the impugned order that the owner of the vehicle has not examined herself and she has not explained as to how the vehicle came in possession of Jitendra Yadav or how it was found on the place of occurrence. At this stage, learned Counsel has submitted that in the written statement it has been averred that the driver, without the consent of the owner, took away the vehicle. Firstly, the onus lies on the owner to come with positive evidence that she had examined the driving licence of the driver namely, Jitendra Yadav and tested the driving skill. Apparently, the owner did not examine herself in the Court below moreover she could have filed an application in the Court below to call for the driving licence from the District Transport Office in support of the claim that Jitendra Yadav was holding a valid and effective driving licence for driving a truck whereupon the onus would have shifted on the Insurance Company, when such details of the driving licence was brought forward, to show that the driving licence was not valid or was fake or forged.

The Trial Court has held that Jitendra Yadav was Khalashi of the offending vehicle and there was breach of the terms and conditions of the insurance policy. Accordingly, it has rightly fastened the liability on the appellant-owner to pay the remaining amount of Rs. 50,000. Thus, the Tribunal has rightly directed the appellant-owner to pay the balance amount of Rs. 50,000 and for reimbursement of Rs. 50,000 paid under Section 140 of the M.V. Act to the Insurance Company. However, the multiplier of 10 adopted by the Trial Court was not proper and it should have been 15 as the deceased was aged 8 years. Accordingly, applying the multiplier of 15, the loss of dependency is computed at Rs. 10,000 x 15 : Rs. 1,50,000 out of which Rs. 50,000 has been paid by the Insurance Company, the appellant-owner shall pay the remaining balance amount of Rs. 1,00,000 within two months from the date of the judgment. The owner is liable to reimburse the amount of Rs. 50,000 to the Insurance Company which has been paid as interim compensation under Section 140 of M.V. Act.

In view of the discussions made above, I find that the impugned judgment and order requires no interference by this Court on the point of liability and stands modified on the point of quantum as stated above. The appellant-owner is directed to pay the compensation within two months of this order failing which she shall be liable to pay interest @ 9% per annum from the date of order till the realization of the amount. Accordingly, this appeal is hereby dismissed.