Nandubai vs Shyambai and Others

N.K. Mody, J.—Being aggrieved by the award dated 17.4.2000 passed by MACT, Mandsaur in Claim Case No. 196/1997 whereby an award of Rs. 1,07,600 has been awarded along with interest @ 12% per annum with effect from 17.4.1999, the present appeal has been filed by the owner of the vehicle, as the Insurance Company a was exonerated.

Short facts of the case are that an accident took place on 1.4.1992 wherein one Radheshyam predecessor-in-title of respondent Nos. 1 to 4 who were the claimants before the learned Tribunal died. Claim petition was filed wherein one Bhagirath was shown as owner of tractor No. 2738 and Gopal respondent No. 5 was shown as driver of the said tractor, who is respondent No. 5 herein. At the relevant time the tractor was insured with respondent No. 6. Appellant No. 1 is the legal representative of the owner of the vehicle. In the claim petition the owner came with a defence that at the relevant time the vehicle was being driven by one Radhyeshyam, who is appellant No. 2 herein. Therefore, he was also impleaded as party by the claimants respondent Nos. 1 to 4. The defence of Insurance Company respondent No. 6 was that respondent No. 5 was not having the valid driving licence, therefore, Insurance Company is not liable. On the basis of pleadings of the parties, learned Tribunal framed the issues recorded the evidence and passed an award holding that since the vehicle was being driven by Gopal (respondent No. 5). therefore, the Insurance Company respondent No. 6 is not liable for payment of compensation.

Being aggrieved by the award, appellant No. 1, who is legal representative of the deceased owner Bhagirath and the alleged driver of the vehicle, who is appellant No. 2 has filed the present appeal.

Learned Counsel for appellants submitted that the case of the appellants was right from beginning that the vehicle was being driven by Radhyeshyam appellant No. 2. It is further submitted that appellant No. 2 has also appeared in the witness box and stated that the vehicle was driven by him at the relevant time and he was possessing the valid driving licence. It is further submitted that there was no occasion for the learned Tribunal to hold that the respondent No. 5 (Gopal) who was not having driving licence was driving the vehicle at the relevant time. It is further submitted that even assuming that the vehicle was being driven by respondent No. 5 Gopal then too the Insurance Company respondent No. 6 cannot be exonerated from the liability.

Learned Counsel for appellants, placed reliance on Sohan Lal Passi Vs. P. Sesh Reddy and others, wherein the Hon''ble Supreme Court has observed as under: "Where the insured has taken all precautions by appointing a duly licensed driver to drive the vehicle in question and it has not been established that it was the insured who allowed the vehicle to be driven by a person not duly licensed due to which accident occurred, then the Insurance Company cannot repudiate its statutory liability under Sub-section (1) of Section 96. (Section 149 of new Act). On the ground of contravention of condition in policy excluding its liability in case of vehicle being driven by person not duly licensed. While interpreting the contract of insurance, the Tribunals and Courts have to be conscious of the fact that right to claim compensation by heirs and legal representatives of the victims of the accident is not defeated on technical grounds. Unless it is established on the materials on record that it was the insured who had wilfully violated the condition of the policy by allowing a person not duly licensed a to drive the vehicle when the accident took place, the insurer shall be deemed to be a judgment-debtor in respect of the liability in view of Sub-section (1) of Section 96 of the Act. "Further reliance was placed on 2002 MPJT 595, National Insurance Co. Ltd. Vs. Swaran Singh and Others, , National Insurance Co. Ltd. v. Swaran Singh wherein the Hon''ble Supreme Court has held that "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 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 c driver or one who was not disqualified to drive at the relevant time".

Mr. M.L. Chopper, learned Senior Advocate for respondent No. 6 Insurance Company placed reliance on Malla Prakasarao Vs. Malla Janaki and Others, , Malla Prakasarao v. Malla Janaki wherein the Hon''ble Supreme Court has held that "according to the terms of the contract, the Insurance Company has no liability to pay any compensation where an accident takes place � by a vehicle, driven by a driver without a driving licence." It was further submitted that since both the judgments of the Hon''ble Apex Court are from a Bench constituted by three of the Judges, therefore, the judgment reported in Malla Prakasarao Vs. Malla Janaki and Others, be followed. Learned Counsel for the respondents submit that both the judgments have been passed by a Bench headed by Hon''ble Chief Justice Shri V.M. Khare. It is submitted that in case of National Insurance Co. Ltd. Vs. Swaran Singh and Others, judgment was passed on 5.1.2004, therefore, it impliedly overrules the earlier judgment.

In the present case, right from the beginning it is Gopal, respondent No. 5 who was made a party to the petition. Upon filing of the joint reply by predecessor-in-title of appellant No. 1 and respondent No. 5 wherein it was alleged that Radhyeshyam appellant No. 2 was driving the vehicle he was impleaded as party to the claim petition. Secondly. Radhyeshyam appellant No. 2 himself appeared in the witness box and stated that at the relevant time he was driving the vehicle and was possessing the valid driving licence. In the circumstances learned Tribunal committed error in holding that respondent No. 5 was driving the vehicle.

Apart from this in view of the law laid down by Hon''ble Supreme Court in the matter of Swaran Singh (supra), even if the vehicle was being driven by respondent No. 5 who was not possessing the driving licence then too respondent No. 6 was liable to satisfy the claim along with appellant No. 1. Since respondent No. 6 has not led any evidence to the effect that the respondent No. 5 was driving the vehicle without possessing any valid driving licence under the knowledge of appellant No. 1, therefore, it cannot be said that any breach of terms of the policy has been committed by the appellant No. 1.

In view of the aforesaid facts and circumstances of the case, the appeal stands allowed. The award is modified to the extent that along with appellant Nos. 1 and 2, respondent No. 5, appellant No. 2 and respondent No. 6 shall also be 1 liable for payment of compensation to respondent Nos. 1 to 4 jointly and severally.