National Insurance Co. Ltd. vs Jayashri

S.B. Shukre, J.

1.This appeal is preferred against the judgment and award dated 11.2.1999 passed in Claim Petition No. 206 of 1994 by the Motor Accident Claims Tribunal, Nagpur.

Briefly stated, facts of the case are as under:

Deceased Jayant who died in an accident on 15.5.1993 at about 8-30 p.m. was the husband of respondent no. 1 and father of respondents 2 and 3. At that time, he was proceeding on a bicycle from Panchsheel square towards Central Jail on Wardha Road and passing through Lokmat Square, when one scooter driven by respondent no. 5 suddenly appeared from the western side and gave a dash to his bicycle. As a result of the accident, deceased Jayant fell down on the road and sustained serious injuries. When he was taken to the Hospital of Dr. Rajiv Deshmukh, he was declared dead. The respondents 1 to 3 contended that the accident occurred only due to rash and negligent driving of the scooter by respondent no. 5, which was owned by respondent no. 4. Therefore, they filed an application under Section 166 of the Motor Vehicles Act, 1988 claiming compensation for the loss occurred to them due to accidental death of their family provider.

The application was contested by the appellant as well as by respondent nos. 4 and 5. The learned Chairman, upon consideration of evidence as well as arguments of both the sides, partly allowed the claim petition granting compensation of Rs. 93,000/- together with interest at 12% per annum fastening the liability thereof jointly and severally upon respondents 4 and 5. Being not satisfied with the same, the appellant/ Insurance Company is before this Court in appeal.

After having heard Mr. Borkar, learned counsel for the appellant, Mr. Bhoskar, learned counsel for respondents 1 to 3 and Mr. Shitut, learned counsel for respondents 4 & 5, the only point that arises for my determination is whether the Insurance Company is liable to be absolved of its liability to pay compensation on account of breach of policy conditions?

Learned counsel for the appellant relying upon the provisions of Sections 3 and 5 of the Motor Vehicles Act, 1988 submitted that the Insurance Company has established breach of conditions of policy in this case and, therefore, the Tribunal ought not to have fastened any liability of payment of compensation upon the appellant. He submits that it is an admitted fact, as seen from the evidence adduced by the parties, that at the time of accident respondent no. 5 Master Yogesh was 16 years of age, well below statutory age limit for obtaining driving licence and legally driving a vehicle in public place. Therefore, in no circumstances, the appellant could have been held responsible for payment of compensation. He submits that it was the responsibility of the owner of the vehicle to ensure that the offending vehicle was not taken out of his custody and driven in public place, unless he had granted permission and in this case the evidence would show that the owner of the vehicle, i.e. respondent no. 4, did not take care to discharge his responsibility, as envisaged in Section 5 of the Motor Vehicles Act. He, therefore, submits that the Insurance Company has proved the fact that the vehicle was driven without permission of the owner.

Learned counsel for respondents 1 to 3 as well as for respondents 4 and 5 both relied upon the decision in the case of V. Mepherson Vs. Shiv Charan Singh, which has been followed by the learned Chairman in making the impugned award, to substantiate their arguments that basically it was for the Insurance Company to prove that the vehicle was driven by a minor with the knowledge of the owner and since it has not been proved by the Insurance Company, the ratio of the said case will be squarely applicable to the facts of the present case and, as such, no fault could be found with the impugned award.

Upon perusal of the evidence available on record as well as the impugned judgment and award, I am unable to find myself in agreement with the argument of learned counsel for the appellant and I find great substance in the argument of both the learned counsel for the respondents.

In the case, supra, it has been held by the learned Single Judge of Delhi High Court that it is for the Insurance Company to satisfy the Tribunal/Court that any infringement or violation of a promise under the contract of insurance on the part of the insurer was wilful and the insured had not taken all the precautions to ensure that the vehicle did not go into wrong hands, and if the Insurance Company does not succeed in that, it cannot repudiate its statutory liability under sub- section (1) of Section 96. While taking this view, the learned Single Judge has followed the principles of law laid down by the Hon''ble Apex Court in the case of Sohan Lal Passi Vs. P. Sesh Reddy and others, . Now, it would, therefore, be necessary to examine the evidence available on record so as to satisfy ourselves whether the ratio of the said case has been correctly applied or not by the learned Chairman in the facts and circumstances of the present case.

It is seen from the evidence of respondent no. 5 Yogesh that he has admitted the fact that at the time of accident he was 16 years of age. It is further seen from the admission given by him in his cross- examination that he drove the scooter without permission of his father and that at the time of accident his father was out of station. These admissions indicate that the vehicle had been driven by a minor without permission or consent of the owner and that as the owner was out of station, the owner could not be held responsible for showing any negligence in letting his scooter being driven by his son. In other words, this evidence would show that there was no wilful breach by the insured of any promise given by him or the infringement of conditions of the policy. If this is so, the only conclusion that would arise in the matter is that the ratio of V. Mepherson which, in turn, follows the case of Sohan Lal Passi decided by the Apex Court, would be squarely applicable to the facts of the instant case. It would then follow that no fault could be found with the findings recorded by the learned Chairman in fastening liability for payment of compensation by the Insurance Company.

It is also the submission of learned counsel for the appellant that since the deceased was riding the bicycle under the influence of liquor there was a contributory negligence on his part and, therefore, the compensation amount ought to have been apportioned in the ratio of 50:50. This aspect of the matter, as seen from the impugned judgment and award, has been properly dealt with by the learned Chairman. There was no medical or forensic evidence produced by any of the parties showing intoxicated condition of the deceased at the time of accident. Opinion of some witnesses on what they felt about condition of the deceased, some of them have stated that the deceased was riding the bicycle in a zigzag manner and smelt of liquor, cannot be conclusive proof of alleged intoxication, unless urine and blood samples were obtained and sent for analysis. Therefore, I find no substance in the said argument of learned counsel for the appellant.

In the result, the appeal deserves to be dismissed. The appeal stands dismissed. In the circumstances of the case, there shall be no order as to costs