AI Structured Summary
Not yet generated for this judgment
Judgment
Rajesh Tandon, J.—Heard Sri B.K. Gupta counsel for the appellant and Sri Sri Puran Singh Bisht, counsel for the respondents.
The present appeal has been filed by the insurance company against the judgment and award dated 26.9.2003 passed by the Motor Accident Claims Tribunal, Minora.
Briefly stated respondent Smt. Deoki Dolia has filed a claim petition before the Motor Accident Claims Tribunal, for the grant of compensation on account of the death of Kalip Singh Doha in a motor vehicle accident on 8.3.1999 at 8.00 AM near Gupta Hotel P.S. Pasganwa Kheri, District Lakhimput Kheri. According to the claimant she along with bar husband Diwan Singh and deceased son was travelling from Lucknow to Dharchula by Maruti Car No. DL 2/7986 on 8.3.1999. At about 8.00 AM when they were at the place of occurrence, the driver of the offending Truck No. H.R. 29 G.A./0427 dashed against the Maruti Car from the opposite direction due to which her son and husband succumbed to the injuries sustained in the accident at the spot. According to the claimant the accident took place due to rash and negligent driving by the truck driver.
The claimant has submitted that her son deceased Dalip Singh was 24 years old and was earning Rs. 2,500/- per month by tuition.
The opposite party Smt. Harbansh Kaur contested the claim petition has and filed the written statement or the ground inter-alia that the truck in question was insured with the New India Insurance Company and the driver of the truck was holding a valid driving licence on the date of accident. According to her the accident did not take place due to rash and negligent driving by the truck driver.
The National Insurance Company has filed the written statement and denied the allegations made by the claimant in the claim petition and has stated that the insurance company is not liable to pay compensation as the insured has violated the terms and conditions of the insurance policy and the driver had no valid driving licence.
On the basis of pleadings of the parties the following issues were framed:
Whether on 8.3.19099 at 8.00 AM near Gupta Hotel, Jang Bahadur Ganj, District Kheri an accident took place due to rash and negligent driving of Maruti Car No. D.L. 2 C/7986 by its driver or due to the rash and negligent driving by the driver of ruck No. H.R. 29 GA/0427? If so, its effect?
Whether in thesaid accident Dalip Singh son of Diwan Singh Doha received grievous injuries and died on the spot? If so, its effect?
Whether the driver of both the vehicles had a valid driving licence? If not, its effect?
Whether the claimant is entitled to any compensation? If so, to what amount and from which of the parties?
To prove her case, the claimant has examined herself as P.W. 1 and has filed photo copies of the report dated 8.3.1999 with the police, post mortem report dated 9.3.99, extract of Pariwar register and copy of charge sheet.
Respondent no. 2 owner of the truck has filed photo copies of registration certificate of vehicle No. HR 29 G.A./0427, insurance cover note, permit and driving licence of Sri Krishna Thakur and has examined Krishna Thakur as D.W. 1.
The Insurance Company has filed Photostat copy of certificate issued by D.T.O. Hazari Bagh and report of its investigator and has examined the Investigator Rana Rahul Pratap as D.W. 2.
The Claims Tribunal on the basis of the evidence on record has held that the accident had taken place due to rash and negligent driving of the truck No. HR 29 GA/042/ The truck driver and the driver of the Maruti car had valid driving licences. So far as the amount of compensation is concerned the Claims Tribunal has assessed the compensation on the basis of notional income and after selecting multiplier of 13 according to the age of the claimant has awarded a sum of Rs. 1,30,000/- as compensation along with pendente lite and future interest @ 9% per annum. The vehicle was insured with the National Insurance Company, therefore the insurer of the truck was directed to pay compensation to the claimant.
Feeling aggrieved the present appeal has been filed by the insurer of the vehicle. The only contention of counsel for the appellant is that the driver of the truck as well as the driver of Maruti car had no valid driving licence and as such the insurance company appellant is not liable to pay compensation.
This issue has been framed on the pleadings of the Insurance Company and as such the burden to prove this issue was on the insurance company. The insurance Company appellant to prove this issue has examined D.W. 2 Rana Rahul Pratap who is investigator of the insurance company This witness has stated that he obtained report from D.T.O. Hazari Bagh and licence was not issued from D.T.O. Hazari Bagh. As against this D.W. 1 Krishna Thakur has produced his original driving licence before the Court and has submitted that the licence was issued by D.T.O. Hazari Bagh but it was renewed from Siwan on the N.O.C. issued by D.T.O. Hazari Bagh. The witness of the Insurance Company D.W. 2 Rana Rahul Pratap has admitted that he did not examine the transfer and renewal aspect of the driving licence. The Claims Tribunal has considered the entire evidence on record in this respect and has held that the insurance company has utterly failed to prove that the licence of the truck driver was fake and not valid and thus decided the issue against the insurance company, appellant. I find no reason to interfere in the findings arrived at by the Tribunal on this issue.
Apex Court in the case of United India Insurance Co. Ltd v. Lehru and Ors. AIR 2003 SCW 1695. It has been held by the Apex Court that the insurance company cannot avoid its liability towards third party on the ground chat the licence of the driver of the vehicle was a fake licence. However, it can recover the amount paid to the claimants as compensation. The Apex Court has held as under:
When an owner is hiring a driver he will therefore have to check whether the driver has a driving licence. If the driver produces a driving licence which on the face of it looks genuine, the owner is not expected to find out whether the licence has in fact been issued by a competent authority or not. The owner would then take the test of the driver. If he finds that the driver is competent to drive the vehicle, he will hire the driver. We find it rather strange that insurance companies expect owners to make enquiries with RTOs, which are spread all over the country, whether the driving licence shown to them is valid or not. Thus where the owner has satisfied himself that the driver has a licence and is driving competently there would be no breach of Section 149. The insurance company would not then be absolved of liability. If it ultimately turns out that the licence was fake, the insurance company would continue to remain liable unless they prove that the owner/insured was aware or had noticed that the licence was fake and still permitted that person to drive. More importantly, even in such a case the insurance company would remain liable to the innocent third party, but it may be able to recover from the insured.
In the case National Insurance Co. Ltd. v. Swaran Singh AIR 2004 SCW 663, the Apex Court has held as under:
(iii) The breach of policy condition e.g. disqualification of the driver or invalid driving licence of the driver, as contained in Sub-section (2)(a)(ii) of Section 149, has 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 a duly licensed driver or one who was not disqualified to drive at the relevant time.
* * * * * ii) Even where the insurer is able to prove breach on the part of the insured concerning the policy condition regarding holding of a valid licence by the (sic) or his qualification to drive during the relevant period, the insurer would not be allowed to avoid its liability towards the insured unless the said breach or breaches on the condition of driving licence is/are so fundamental as are found to have contributed to the cause of the accident. The Tribunals in interpreting the policy conditions would apply "the rule of main purpose" and the concept of "fundamental breach" to allow defences available to the insurer u/s 149(2) of the Act.
In Halsbury''s Laws of England, 4th Edn. Reissue, Vol 25, it is stated:
Benefits conferred on third parties by the Road Traffic Act, 1930.--It was against the background of the Third Parties (Rights against Insurers) Act, 1930 that the Road Traffic Act, 1930 (now replaced by the Road Traffic Act, 1988), was passed. It was realised that, unless some alterations were made in the rights to which the third party was by the first-named Act subrogated, those rights would frequently be of little, if any, value. Accordingly, it was provided that certain conditions in the assured''s policy were to be of no effect in relation to a claim by a person to whom an assured was under a compulsorily insurable liability. The conditions to that extent avoided are any conditions providing (1) that no liability is to arise, or (2) that any liability which has arisen is to cease, in the event of some specified thing being done, or omitted to be done, after the occurrence of the event giving rise to the claim. If, therefore, my admission of liability is made after an accident contrary to a condition in the policy, or if, contrary to (sic) condition in the policy, proper notice of the accident is not given to the insurers, the injured third party is not affected so far as his claim is concerned.
The Apex Court in the case Lal Chand v. Oriental Insurance Co. Ltd; AIR2006 SCW 4832 after placing reliance upon the case law enumerated in the case New India Assurance Co. v. Kamla and Ors. 2004 (4) SCC 342, United India Insurance Company Ltd. Vs. Lehru and Others, and National Insurance Co. Ltd. Vs. Swaran Singh and Others, has held as under:
In he instant case, the owner has not only seen and examined the driving licence produced by the driver but also took the test of the driving of the driver and found that the driver was competent to drive the vehicle and thereafter appointed him as driver of the vehicle in question. Thus, the owner has satisfied himself that the driver has a licence and is driving competently, there would be no breach of Section 149(2)(a)(ii) and the Insurance Company would not then be absolved of its liability.
In the case of National Insurance Co. Ltd. Vs. Kusum Rai and Others, , the Apex Court after placing reliance in the case of Swaran Singh (Supra) has observed as under:
This Court in Swaran Singh 4 clearly laid down that the liability of the Insurance Company vis-vis the owner would depend upon several factors. The owner would be liable for payment of compensation in a case where the driver was not having a licence at all. It was the obligation on the part of the owner to take adequate care to see that the driver had an appropriate licence to drive the vehicle. The question as regards the liability of the owner vis--vis the driver being not possessed of a valid licence was considered in Swaran Singh 4 stating: (SCC pp. 336-37, para 89)
Section 3 of the Act casts an obligation on a driver to hold an effective driving licence for the type of vehicle which he intends to drive. Section 10 of the Act enables the Central Government to prescribe forms of driving licences for various categories of vehicles mentioned in Subsection (2) of the said section. The various types of vehicles described for which a driver may obtain a licence for one or more of them are: (a) motorcycle without gear, (b) motorcycle with gear, (c) invalid carriage, (d) light motor vehicle, (e) transport vehicle, (f) road roller, and (g) motor vehicle of other specified description. The definition clause in Section 2 of the Act defines various categories of vehicles which are covered in broad types mentioned in Sub-section (2) of Section 10. They are ''goods carriage'', ''heavy goods vehicle'', ''heavy passenger motor vehicle'', ''invalid carriage'', ''light motor vehicle'', ''maxi-cab'', ''medium goods vehicle'', ''medium passenger motor vehicle'', ''motor-cab'', ''motorcycle'', ''omnibus'', ''private service vehicle'', ''semi-trailer'', ''tourist vehicle'', ''tractor'', ''trailer'' and ''transport vehicle''. In claims for compensation for accidents, various kinds of breaches with regard to the conditions of driving licences arise for consideration before the Tribunal as a person possessing a driving licence for ''motorcycle without gear'', [sic may be driving a vehicle] for which he has no licence. Cases may also arise where a holder of driving licence for ''light motor vehicle'' is found to be driving a ''maxi-cab'', ''motor-cab'' or ''omnibus'' for which he has no licence In each case, on evidence led before the Tribunal, a decision has to be taken whether the fact of the driver possessing licence for one type of vehicle but found driving another type of vehicle, was the main or contributory cause of accident. If on facts, it is found that the accident was caused solely because of some other unforeseen or intervening causes like mechanical failures and similar other causes having no nexus with the driver not possessing requisite type of licence, the insurer will not be allowed to avoid its liability merely for technical breach of conditions concerning driving licence.
In view of above, the insurance company respondent No. 4 is directed to satisfy the award. So far as the amount of compensation is concerned the Tribunal has awarded the amount on the basis of notional income of Rs. 15,000/- per annum after deduction 1/3 amount i.e. Rs. 5,000/- for his own expenses by the deceased the annual dependency was held to be Rs. 10,000/-. After multiplying this amount by a multiplier of 13 which was selected according to the age of claimant i.e. 45 years, the total compensation was calculated to be 1,30,000/-. The Claims Tribunal has not awarded compensation for the last rites of the deceased, loss of the estate of the deceased etc. but no cross appeal has been filed by the claimant for enhancement of the amount of compensation.
Thus I find no illegality or irregularity in the findings arrived at by the Claims Tribunal. The appeal has no merit and is hereby dismissed with costs.