Gayatri Singh (Smt.) and Others vs Santosh Chaturvedi and Others

N.K. Mody, J.—Being aggrieved by the award dated 31.1.2011 passed by 2nd Addl. MACT, Shahdol in Claim Case No. 64/2009, whereby claim petition filed by appellants on account of death in a motor accident was allowed and deceased was held equally liable for the accident, therefore, after deducting 50% on account of contributory negligence a sum of Rs. 2,22,500/- was awarded for which respondents No. 1, 2 and 4 were held liable to the extent of Rs. 1,22,500/- and respondent No. 4 was held liable to the extent of Rs. 1,00,000/-, present appeal has been filed. Short facts of the case are that appellants filed a claim petition before the learned Tribunal alleging that on 26.6.2009 Deepak Singh was going on his motor bike towards Shahdol met with an accident with the truck bearing registration No. CG-04-G-2576, which was being driven by respondent No. 1 rashly and negligently, owned by respondent No. 2 and insured with respondent no. 3. It was alleged that the motor bike was driven and owned by the deceased, which was insured with respondent No. 4. It was prayed that claim petition be allowed and the compensation be awarded. Respondent No. 1 remained exparte before the Tribunal. Respondent No. 2 filed reply, wherein it was denied that any accident was occurred because of the negligence of respondent No. 1. However, it was submitted that in case any award is passed then it is respondent No. 3, who is liable to pay the amount of compensation. Respondent No. 3 contested the claim petition on various grounds including on the ground that respondent No. 1 did not possess valid driving license, therefore, respondent No. 3 is not liable to pay the compensation. Respondent No. 4 contested the claim petition on the ground that the motor bike was not insured with the respondent No. 4, therefore, claim petition be dismissed. After framing of issues and recording of evidence learned Tribunal allowed the claim petition holding that accident occurred because of negligence-on the part of respondent No. 1 and deceased Deepak Singh himself and assessed the income @ Rs. 3,000/- per month and after deducting 1/4th towards personal expenses and applying multiplier of 15 assessed the compensation of Rs. 2,22,500/- after deducting 50% on account of contributory negligence on the part of deceased himself and further held that appellants are entitled to recover Rs. 1,22,500/- from respondent Nos. 1 & 2 and Rs. 1,00,000/- from respondent No. 4, against which present appeal has been filed.

Learned counsel for appellants submits that income assessed by the learned Tribunal is on lower side as the accident is of the year 2009. It is submitted that on other heads also amount awarded is on lower side. It is also submitted that learned Tribunal was not justified in deducting 50% on account of contributory negligence. Respondent No. 1 remained exparte. Criminal case was registered against respondent No. 1 for the offence punishable u/s 304-A IPC. In the circumstances learned Tribunal was not justified in holding that deceased was equally liable for accident. It is submitted that deduction of 50% on account of contributory negligence on the part of deceased is illegal. It is submitted that appeal be allowed, amount be enhanced and the findings regarding deduction of 50% on account of contributory negligence be set aside.

Learned Counsel for respondents No. 3 and 4 submit that after due appreciation of evidence learned Tribunal found that deceased was equally liable for the accident. It is submitted that findings recorded by the learned Tribunal are based on due appreciation of evidence, which requires no interference. It is submitted that respondent No. 1 was not possessing valid driving license. It is submitted that since respondent No. 1 was possessing driving license, which was valid from 30.5.2002 to 15.2.2009, therefore, learned Tribunal was justified in exonerating respondent No. 3. It is submitted that compensation assessed by the learned Tribunal is just and proper, which requires no interference. It is submitted that appeal be dismissed.

Learned counsel for respondent No. 4 supports the contention of respondent No. 3 so far as the amount assessed by the learned Tribunal is concerned. Learned counsel submits that learned Tribunal was not justified in holding the respondent No. 4 liable to the extent of Rs. 1,00,000/- on the ground that under the policy respondent No. 4 is liable to pay compensation upto the extent of Rs. 1.00,000/-. It is submitted that since the claim petition was filed u/s 166 of the Motor Vehicles Act and it was found that deceased himself was also liable for the accident, therefore, no liability could be fastened over respondent No. 4. It is submitted that appeal be dismissed.

From perusal of the record it is evident that two eye witnesses were examined by the appellants, who were also travelling at the relevant time alongwith the deceased on the road. Respondent No. 1 did not appear before the learned Tribunal. No steps were taken by respondent No. 1 to explain that in what circumstances accident occurred. Criminal case was registered u/s 304-A of IPC of which outcome is not known to any of the parties. It has also come on record that accident occurred when deceased tried to overtake the truck and the respondent No. 1 turned the vehicle towards road side. It appear that in the facts and circumstances of the case contributory negligence on the part of the deceased could be assessed @ 25% instead of 50%. So far as exoneration of respondent No. 3 is concerned, undoubtedly, respondent No. 1 was not possessing valid license to drive the offending vehicle. Respondent No. 1 was having license, which was expired prior to accident and was renewed after the accident. In the matter of National Insurance Co. Ltd. Vs. Swaran Singh and Others, , Hon''ble Apex Court observed that the breach of policy conditions, e.g., disqualification of driver or invalid driving license of the driver, as contained in sub-Section (2)(a)(ii) of Section 149, have to be proved to have been committed by the insured for avoiding liability by the insurer. Mere absence, fake or invalid driving license or disqualification of the driver for driving at the relevant time, are not in themselves defences available to the insurer against either the insured or the third parties. To avoid its liability towards insured, the insurer has to prove that the insured was guilty of negligence and failed to exercise reasonable care in the matter of fulfilling the condition of the policy regarding use of vehicles by duly licensed driver or one who was not disqualified to drive at the relevant time.

In the matter of Ram Babu Tiwari Vs. United Indian Insurance Co. Ltd. and Others, wherein driver of offending tractor was not having valid license from the time when accident took place and was not renewed within 30 days from the date of expiry, Hon''ble Apex Court held that renewal of license would not take effect from retrospective date but from the date of its renewal and breach of contract of insurance is thus established insurer is not liable to indemnify insured.

Insurance Company has examined Atul Jain who is Administrative Officer posted at Rewa. In his statement he has stated that respondent No. 1 was the driver of the vehicle, who was having the license, which was issued on 15/09/09. He has further stated that respondent No. 1 was possessing the old license on the basis of which new license was issued w.e.f. 15/09/09 to 14/09/2012. The old license which the respondent No. 1 was possessing was from 31/05/02 to 30/05/07. Since the date of accident is 26/06/09 and new license was issued on 15/09/09, therefore, undisputedly respondent No. 1 was not possessing the valid driving license to drive the offending vehicle on the date of accident. Since Deepak Singh was third party, therefore, even if respondent No. 1 was not possessing valid driving license, then too, respondent No. 3 could not have been exonerated on that account. At the most right of recovery could have been given to respondent No. 3 as respondent No. 1 was not possessing valid driving license on the date of accident. Since the liability of respondent No. 4 was limited to the extent of Rs. 1,00,000/- therefore, learned Tribunal has rightly held the respondent No. 4 liable to that extent. Since deceased Deepak Singh was on motor bike when accident took place and respondent No. 1 remained ex-parte and also criminal case was registered against respondent No. 1 for an offence punishable u/s 304-A of IPC, of which outcome is not known to any of the party, this Court finds that the learned Tribunal was not justified in holding the deceased liable to the extent of 50%. However, at the same time it can safely be said that the accident could have been avoided, if the deceased would have fully concious. In the facts and circumstances of the case negligence on the part of deceased which is assessed as 50% is reduced to 25%. Thus, appellants are entitled for a sum of Rs. 3,23,750/- instead of Rs. 2,22,500/-, out of which respondent No. 4 shall be liable to pay to the extent of Rs. 1,00,000/- and balance amount of Rs. 2,33,000/- shall be payable by respondent Nos. 1 to 3. Respondent No. 3 shall have right to recover the same from respondent Nos. 1 & 2. The amount shall carry interest at the same rate as awarded by the learned Tribunal.

The amount awarded shall be deposited by the respondent Nos. 3 & 4 with the learned tribunal and the learned tribunal is directed to invest 80% of the said amount on long term fixed deposit in the name of appellant No. 1 in the nearest Nationalized Bank, in the area where the appellant No. 1 is residing, with the condition that the bank will not permit any loan or advance. Interest on the said amount shall be credited on monthly basis in S.B. Account of appellant No. 1, which shall be opened by the appellant No. 1 from where appellant No. 1 can withdraw the amount as per her needs. However, on an application by the appellant No. 1 this condition could be modified by the learned tribunal in exceptional circumstances, if made out by the appellant No. 1. Since no amount has been enhanced by this Court and it is only percentage of contributory negligence of the deceased is reduced from 50% to 25%, therefore, no Court fee is payable on that account. With the aforesaid observations, appeal stands disposed of.