Kashiram vs Anil Jain and Others

Tej Shankar, J.—This miscellaneous appeal has arisen out of an order passed by the Motor Accidents Claims Tribunal on the claim petition filed by the appellant Kashiram with respect to an accident that took place on 10.9.1987 at the kacha rasta in front of Katora Tal, Gwalior, when the claimant was passing in the way. It was alleged that respondent No. 1 was driving scooter rashly and negligently and it was owned by respondent No. 2, Vijay Kumar Jain. The claimant-appellant suffered injuries as a result of the accident. His tibia and fibula bones were fractured. There were other injuries. Cycle was also damaged. He claimed Rs. 1,70,600/- as compensation. The claim was contested by both the respondents by filing written statements as well as by the insurance company by filing separate written statement. Respondent Nos. 1 and 2 contended that the vehicle (scooter No. CIH 5304) was being driven by respondent No. 2 and respondent No. 1 was sitting on the pillion. As soon as they reached near the crossing the claimant reached the crossing, the vehicle was stopped by respondent No. 2. No injury was caused to the claimant. Rather the vehicle was damaged. Respondent No. 1 was wrongly arrayed as a party. The cycle of the claimant dashed against the scooter due to the fault of the claimant himself. There was no rash and negligent driving. Respondent No. 3, insurance company, also denied the allegations and alleged that scooter No. CIH 5304 was not insured but in case it was found to be insured there was no liability of the insurance company as the terms had been violated. It was being driven against the provisions of the terms of the policy. The Claims Tribunal held that the accident did take place and claimant did receive injuries. He suffered 20 per cent disability. It, however, found that the accident was not caused due to rash and negligent driving. It rejected the claim. The claimant has now preferred this appeal.

The learned counsel for claimant-appellant contended that the findings of the learned Tribunal are incorrect inasmuch as it has ignored the evidence on record. There is specific statement of the claimant as well as his witness that the vehicle was being driven rashly and negligently as a result of which accident took place. Once it is found that the accident took place from the vehicle the claimant was at least entitled to award of compensation due to no fault liability and the learned Tribunal has not awarded compensation. He urged that the claimant has suffered a lot. He remained hospitalised. He suffered 20 per cent disability as said by the doctor. The vehicle was being driven by a licensed person and insurance company was also liable.

The learned counsel for respondent Nos. 1 and 2 argued that the evidence on record shows that it was being driven by Vijay Kumar Jain, as such responsibility had fallen on the shoulders of respondent No. 3. The learned counsel appearing for respondent No. 3, insurance company, contended that the vehicle was being driven by an unlicensed person and as such there is a breach of conditions of the policy and the liability cannot be fastened on the insurance company. In support of his contention he placed reliance on Kashiram Yadav and Another Vs. Oriental Fire and General Insurance Co. and Others,

The first point that needs consideration is as to who was driving the vehicle at the time of the accident. In this connection the learned Tribunal has observed that the claimant in his statement has stated that he did not know as to who was driving the vehicle at the time of occurrence. It appears from the record that, no doubt, the claimant did say that he did not know the scooter driver but he certainly stated that the scooter driver was caught by the police. There is sufficient material on record to show that Anil Kumar Jain was caught and prosecuted. Anil Kumar Jain himself stated that he was caught by the students and taken to police station, Jhansi Road. Vijay Kumar Jain escaped from the spot. He was challaned. He, however, stated in the cross-examination that he did not drive the scooter as he had no licence but this statement is not sufficient in view of the fact that it was he who was caught on the spot and he was prosecuted in a criminal case. There is nothing reliable on record to show that he ever alleged the fact that he was not driving the scooter. Rather Exh. D1C shows that Anil had accepted his claim. This all goes to show that it was he who was actually driving the vehicle. His statement also shows that he had no licence. It is, therefore, clear that the vehicle was being driven by Anil Kumar who had no licence. The other person Vijay Kumar was sitting on the pillion.

Now the next question is as to whether the vehicle was being driven rashly and negligently. In this connection there are statements of Kashiram, P.W. 1 and Chhotelal, P.W. 2. Both the witnesses have unequivocally stated that the vehicle was being driven at a high speed when it dashed against the claimant. No doubt, Anil stated that speed was 30 or 35 km. but there is no reason to disbelieve the statement of Chhotelal who is an independent witness that the vehicle was being driven rashly and negligently. The Claims Tribunal in its judgment in para 12 appears to have applied surmises and conjectures. There is no specific discussion with respect to the statements of two witnesses where they specifically stated that the vehicle was being driven at a high speed. As there is nothing reliable on record to show that the vehicle was being driven cautiously, there is no option but to accept the statements of the two witnesses that it was being driven at a high speed. It is, therefore, held that the accident took place due to rash and negligent driving.

Having found that the accident took place due to rash and negligent driving of the aforesaid vehicle, it has to be found as to what compensation can be awarded to the claimant. The claimant has claimed a sum of Rs. 1,70,600/- vide para 8 of the claim petition. But unfortunately when he came in the witness-box he stated in para 16 that he had filed a claim for Rs. 8,000 or Rs. 10,000/-. In the next breath he stated he did not know as to what amount has been claimed. It, therefore, clearly shows that the claim mentioned in para 6 of the claim petition is not within the knowledge of the claimant. The claimant has simply claimed a sum of Rs. 8,000/-or Rs. 10,000/- as mentioned in para 16 of his statement. This fact cannot be disputed and it is established from the material on record that he suffered 20 per cent disability. The claimant claimed compensation on various heads as mentioned in para 8 of the petition. But apart from the fact that he suffered injury and was hospitalised nothing else has been proved. His statement shows that his entire treatment was met in the hospital. He had purchased some medicines from market and some medicines were supplied from the hospital and nothing material has been placed on record as to what amount he spent in purchasing medicines, etc. Thus, in the absence of any material on record I think that a consolidated amount should be awarded including all the heads. I think the reasonable amount is Rs. 10,000/-inclusive of all heads.

The last question is as to who is liable to pay the aforesaid compensation. In view of my finding above that the vehicle was being driven by an unlicensed person, the insurance company cannot be fastened with liability as use was in contravention of the terms of contract. It was one of the terms of the contract that the person driving the vehicle holds a valid licence to drive the vehicle. In the aforesaid authority relied upon by the learned counsel for respondent No. 3, the Apex Court specifically ruled if vehicle is driven by an unlicensed driver the insurance company is not liable. Thus, the liability is of the owner. In that case also the Claims Tribunal held the owner liable and the order was upheld by the Apex Court. I, therefore, hold that the aforesaid liability of Rs. 10,000/- is of the owner, i.e., respondent No. 2, Vijay Kumar Jain.

The appeal is accordingly allowed and the order passed by the learned trial court is set aside. The claim is allowed to the extent of Rs. 10,000/- against the respondent No. 2, Vijay Kumar Jain. The claimant shall also get interest at the rate of 12 per cent per annum with costs from the date of application. The amount shall be recoverable from the owner of the vehicle, Vijay Kumar Jain.