Mangal Sain and Another vs Ghulam Rasool and Others

Viney Mittal, J.—This order shall dispose of 9 appeals as all the appeals have been filed by the claimants and have arisen out of a common award dated 27.5.1997, passed by the Motor Accidents Claims Tribunal, Sangrur (for short ''the Tribunal'').

On 6.8.1989, a car No. PUN 7723 carrying the passengers was going from Ludhiana to Malerkotla. The aforesaid car was hit by a truck No. PBS 138, being driven by Ghulam Rasool, the driver. The truck in question was owned by the Century Iron and Steel Mills, Malerkotla, the respondent No. 2.

In the accident, 7 persons, namely, Usha Rani, Ridhma, Krishan Lal, Ricky, Nidhi, Som Nath and the driver Paramjit died at the spot and Navdeep died later on. Sudershan Lal and Kamla suffered injuries. Consequently, the claim petitions were filed before the learned Tribunal. All the claimants claimed that the driver of the offending truck, namely, Ghulam Rasool was rash and negligent in his driving and thereby the accident in question had been caused. On this account, the learned Tribunal held that the claimants were entitled to compensation. A plea was raised by the insurance company that the driving licence of the driver Ghulam Rasool was fake and, therefore, the insurance company was not liable to pay any compensation. The aforesaid plea of the insurance company was accepted. The compensation was assessed separately and independently in each claim petition. It was held that Ghulam Rasool, driver and the Century Iron and Steel Mills, Malerkotla, the owner of the truck would be jointly and severally liable to pay the amount of compensation to the claimants.

The claimants have remained dissatisfied and have approached this Court through the present appeals.

I have heard the learned Counsel for the parties and have also gone through the record of the case.

Two grounds have been raised in the present appeals. The claimants have prayed for further enhancement of compensation. Additionally, it has been contended that insurance company was liable to pay the compensation and could not be absolved of its liability.

Having considered the aforesaid contention of learned Counsel for appellants, I find as far as enhancement of compensation is concerned, the learned Tribunal has gone into the details of evidence and thereafter has determined compensation in each case. From the perusal of the award of learned Tribunal, I do not find that there is any error in the assessment of compensation in any of the claim petitions. The entire evidence led by claimants has been duly dealt with. Therefore, neither the dependency is shown to be erroneous nor the multiplier applied in each case can be held to be on lower side. Thus, there is no scope for further enhancement.

However, I find merit in the argument of learned Counsel for the appellant with regard to the liability of the insurance company.

The Hon''ble Supreme Court of India in the case of National Insurance Co. Ltd. Vs. Swaran Singh and Others, , has held as follows:

102 (iii) The breach of policy conditions, e.g., disqualification of driver or invalid driving licence 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 licence 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 the 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 view of the aforesaid fact, it is apparent that a mere absence, fake or invalid driving licence 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. No evidence has been led by the insurance company in the present case to show that the insured was in any manner guilty of negligence and had failed to exercise reasonable care while employing the driver. Consequently, in view of the law laid down by the Supreme Court in National Insurance Co. Ltd. Vs. Swaran Singh and Others, it has been held that the insurance company is liable to pay the compensation jointly and severally along with the driver and owner of the offending vehicle.

Consequently, the present appeals are allowed to the limited extent that the award passed by the learned Tribunal shall be executable jointly and severally against the respondents including the insurance company.

Before parting with this judgment, a liberty is granted to the insurance company that in case it finds that insured was negligent in employing the driver, who had a fake driving licence, then it would be entitled to seek its remedy for recovery from the insured before a regular court, in accordance with law.