Oriental Insurance Co. Ltd. vs Tirath Kaur and Others

V.K. Gupta, J.—By this common judgment, C.I.M.A. No. 99 of 1987 and the unnumbered and unregistered cross-objections shall be

disposed of together.

This appeal is directed against the judgment and award of the Motor Accidents Claims Tribunal, Jammu, delivered in File No. 48/Claim of 1978

on 31.8.1987. The appellant in this Court is the insurer of the offending vehicle. The brief facts leading to the filing of the present appeal are: that

deceased Hira Singh aged 45 years died on 26.4.1978 as a result of an accident because of rash and negligent driving of vehicle No. JKN 6193

by respondent Jasbir Singh. The accident in question took place at about 9 a.m. on 24.4.1978 when the deceased Hira Singh was standing on the

extreme left side of Jammu-Satwari Road near New Transport Yard and was talking to one Devi Singh, who was also injured during this accident.

The vehicle in question was driven at the relevant time by respondent Jasbir Singh rashly and negligently. The deceased was removed to S.M.G.S.

Hospital, Jammu where he died on 26.4.1978 at 1.30 a.m. The vehicle in question was insured with the appellant insurance company for the

relevant time vide policy No. 2616/ 2/15/MB/71/77. The ownership and the insurance of the vehicle have been admitted by the appellant but it

was averred by the appellant before the Claims Tribunal that the vehicle was not being driven by an authorised person at the relevant time. On the

basis of the pleadings of the parties the following issues were framed by the Tribunal for adjudication:

(1) Whether respondent No. 4, Jasbir Singh, while in the employment of respondent No. 1, was on 24.4.1978 driving vehicle No. JKN 6193

rashly and negligently near the Tawi Bridge Octroi Post and as a result of his rashness and negligence the deceased Hira Singh was knocked down

by the vehicle which resulted in his death and injuries to one Devi Singh? OPP.

(2) On proof of issue No. 1, are the petitioners entitled to receive compensation from the respondents? If so, to what extent and in what

proportion ? OPP

(3) Relief.

After a detailed discussion of the evidence recorded by the Claims Tribunal, findings on all the aforesaid three issues were returned by it in favour

of the claimants. By its findings the Claims Tribunal held that the accident in question was caused because of the rashness and negligence of the

respondent Jasbir Singh, who even though originally was conductor of the vehicle was driving it at the relevant time. As per the factual findings of

the Tribunal, the original driver Rattan Lal was not driving the vehicle at the relevant time nor was he in any way involved in the accident. Because

Jasbir Singh was driving the vehicle at the relevant time and was admittedly in the employment of respondent Manjit Singh, the owner of the

vehicle, both Jasbir Singh and Manjit Singh were held liable, Manjit Singh vicariously being the employer of Jasbir Singh. Since the vehicle was

insured with the appellant company an award of Rs. 50,000/- with interest at the rate of 6 per cent per annum from the date of filing of claim

petition till the payment of the amount with costs of Rs. 1,000/- was passed. Because of the contract of insurance, the appellant company was

directed to make entire payment of the awarded amount with interest and costs. The amount of compensation was directed to be apportioned

between the claimants in equal shares.

During the course of hearing of this appeal, the only ground urged by Mr. H.L. Choudhary, learned Counsel appearing for the appellant, was

that the offending vehicle at the time of the accident was driven by an unauthorised person and, therefore, the insurance company was not liable to

indemnify the owner of the vehicle in satisfying the award passed by the Tribunal. By the expression 'unauthorised person' by way of elaboration,

Mr. Choudhary explained that Jasbir Singh was employed as a conductor of the offending vehicle at the relevant time when respondent Rattan Lal

was, in fact, employed as the driver of the vehicle. Since respondent Jasbir Singh was working and employed as the conductor of the vehicle, he

was not authorised to act as its driver and thus by driving the vehicle at the relevant time when the accident was caused, he had acted

unauthorisedly, thus absolving the insurance company of its liability to satisfy the award. In other words, Mr. Choudhary's argument is that because

Jasbir Singh respondent was not a driver or that he did not hold a driving licence, his having driven the vehicle was a violation of the terms and

conditions of the insurance policy absolving the appellant of its liability. The argument of Mr. Choudhary even though appears to be attractive is

devoid of any force and hence rejected.

It was for the insurance company to have proved before the Claims Tribunal by leading positive and affirmative evidence that respondent Jasbir

Singh did not hold a valid driving licence in order to absolve the insurance company of its liability to satisfy the award. The onus of proving the fact

of Jasbir Singh not being a qualified driver was upon the appellant and that onus could be discharged only by means of the appellant placing on

record sufficient material which would lead to a positive inference that Jasbir Singh did not hold a driving licence. The mere allegation that because

Jasbir Singh was employed as a conductor and was thus not authorised driver of the vehicle, is of no substance. u/s 110-A of the Motor Vehicles

Act, as it stood at the relevant time, a person was entitled to apply for grant of compensation and u/s 96 of the Motor Vehicles Act, as it stood at

the relevant time, an insurer was under an obligation to indemnify the award passed against the owner and pay the compensation amount.

There is no law in this country under which a person employed as a conductor is debarred from being eligible to hold a driving licence. Holding

a driving licence or being a qualified and competent driver is one thing and being employed as a driver is quite another. It is quite natural and

common that persons holding valid driving licences and being trained and qualified and competent drivers, may still be working as conductors. If

there is no bar for a conductor being eligible to hold a driving licence, there is equally no bar for a qualified and trained driver being employed as a

conductor on a vehicle. The mere fact that a person is employed as a conductor in a vehicle does not lead to an inference or presumption that he

cannot be or could not be a qualified trained driver in possession of a valid driving licence. If an insurer wants itself to be absolved of the liability of

indemnifying the owner in satisfying the award on the ground that the person driving the offending vehicle at the relevant time did not hold a valid

driving licence, the onus of proving such fact squarely rests upon the insurer and the only way of discharging this onus is by the insurer leading

positive evidence, during the trial of the claim petition, to the effect that the person driving the vehicle did not, in fact, possess a driving licence.

Mere accusation cannot be the substitute of positive proof in support of the assertion. Mere presumptions or inference based on assertions cannot

be allowed to weaken the case of the claimants for the grant of compensation against the insurance company.

Because the appellant did not make any effort to lead any evidence before the Claims Tribunal whereby it could even remotely be suggested

that Jasbir Singh was not a qualified and authorised driver, the Claims Tribunal did not return any finding on this aspect of the case and, very rightly

so. I am in full agreement with all the findings of the Claims Tribunal on all the issues, including the question of respondent Jasbir Singh being an

authorised person to drive the vehicle.

In the result, therefore, the only ground taken by the appellant in this appeal fails.

In the cross-objections filed by the claimants (respondent Nos. 1 to 7), the part of the impugned judgment and award granting 6 per cent

interest to the claimants has been challenged. The case of the claimants is that interest at the rate of 6 per cent per annum is too meagre and

insufficient and is grossly on the lower side. I am in agreement with the Counsel appearing for the claimants that the interest awarded by the Claims

Tribunal was on the lower side. The interest of justice would be fully met if the rate of interest is enhanced from 6 per cent to 12 per cent from the

date of the pronouncement of the judgment and award by the Claims Tribunal to the date of its actual payment.

The cumulative effect of the aforesaid discussion is that the appeal of the appellant, insurance company, is dismissed and the cross-objections of

the respondent Nos. 1 to 7 are allowed to the extent that the judgment and award of the Claims Tribunal dated 31.8.1987 is modified to the extent

that the appellant herein shall be liable to pay interest on the principal awarded amount of Rs. 50,000/- at the rate of 12 per cent per annum with

effect from 1.9.1987, the date of the judgment and award, till the date of its actual payment. The rate of interest awarded by the Tribunal at the

rate of 6 per cent per annum shall remain applicable and operative from the date of filing of the claim petition till 31.8.1987.

The net result is that the appellant shall be liable to pay interest on the principal awarded amount of Rs. 50,000/- at the rate of 6 per cent per

annum from the date of filing of the claim petition till 31.8.1987 and interest at the rate of 12 percent per annum on the aforesaid amount of Rs.

50,000/- from 1.9.1987 till the date the entire amount is paid. The appellant shall also be liable to pay the costs awarded by Claims Tribunal

amounting to Rs. 1,000/-.

No order of awarding costs is being passed in this appeal and the parties are left to bear their own costs.

The appeal and the cross-objections are disposed of accordingly, along with all connected C.M.Ps.