Reliance General Insurance Company Ltd And Others vs Asha Sood And Others

Jiya Lal Bhardwaj, J

Both these appeals arise out of award dated 30.07.2016, passed by the Motor Accident Claims Tribunal, Shimla in MAC Case No.19-S/2 of 2014, titled, Asha Sood and another vs. Urmil Sharma and others, whereby he claim petition preferred by the claimants has been allowed, thereby awarding a sum of Rs.20,86,000/- as compensation in their favour on account of death of Manoj Kumar So d along with interest @ 9% per annum from the date of filing of the claim petition till the realization. The insurance-Company was directed to pay amount of compensation at the first instance with right to recover the same from the owner and driver.

The parties in the appeal are referred as they were in the claim petition.

Being aggrieved by the impugned award, the Insurance-Company and the claimants have preferred FAO Nos. 580 of 2016 and 543 of 2017, respectively. The insurance-Company is aggrieved by the award to the extent of directing it to pay the amount at the first instance and driver has challenged the award holding him liable to pay the amount jointly and severally with the owner. The owner has not filed the appeal against the award.

The claim petition was filed by the claimants Smt. Asha Sood and Sh. Ashok Kumar Sood, under Section 166 of the Motor Vehicles Act, 1988 on account of death of their son Manoj Kumar Sood. On 30.04.2012, deceased Manoj Kumar was driving the motorcycle bearing No.HP-51A-1497 and when he reached near Jubbar, Tehsil and District Shimla, H.P., vehicle No.HP-30A-1900 came there being driven by respondent No.2 in the claim petition in a rash and negligent manner and hit the motorcycle. The deceased sustained injuries and succ mbed to the same.

The deceased at the time of accident was 26 years of age and was working as Technical Assistant with Forest Survey of India, Northern Zone, Shimla and was earning Rs.15,000/- per month.

The Tribunal issued notice in the claim petition. The owner was served, but he did not come forward to contest the claim petition and proceeded against ex-parte. Respondent No.2-driver filed reply to the claim petition and not disputed the accident. However, pleaded that it was not due to rash and negligent driving by him. Rather, the deceased was driving the motorcycle in a rash and negligent manner.

The Insurance-Company filed reply to the claim petition and took preliminary objections that vehicle No.HP-30A-1900 was being driven by its driver in violation of the terms and conditions of the policy and the vehicle was not having a valid fitness certificate inasmuch as the driver was not holding a valid and effective driving licence.

The Tribunal on the basis of pleadings of the parties, framed the following issues:-

Whether Sh. Manoj Kumar Sood alias Appu died in a road side accident on 30.04.2012 at 4.00 P.M., near Jubbar involving vehicle No. HP-30A-1900 being driven by respondent No.2 in a rash and negligent manner? OPP.

If issue No.1 is proved in affirmative, for what amount of compensati n, the claimants are entitled and from whom? OPP.

Whether the driver of the vehicle involved in the accident was not having a valid and effective driving licence at the time of accident to drive the vehicle involving in the accident, if so, its effect? OPR-3.

Whether the vehicle involved in the accident was being permitted to ply in violence to the terms and conditions of the insurance policy as well as in violence to the provisions of M.V. Act, if so, its effect? OPR-3.

Whether the claim petition is notmaintainable? OPR-3

Whether the claim petition is not maintainable?OPR-3.

Relief.

After recording the evidence led by the parties, the Tribunal returned the findings that the driver of the vehicle was not holding a valid and effective driving licence at the time of accident and further the vehicle was being plied in violation of the terms and conditions of the insurance policy. However, the Tribunal on the basis of evidence led by the claimants came to the conclusion that they are entitled for a sum of Rs.20,86,000/- as compensation to be paid by the owner and driver of the vehicle. Since the vehicle in question was insured with the Insurance-Company, as is evident from Ext.RW-4/C, the Insurance-Company was directed to pay the compensation amount first and thereafter rec ver the same from the owner and driver of the vehicle.

The appellant/Ins ance-company has challenged the award on the ground that since the driver was not holding the valid and effective driving licence, the Tribunal has erred while ordering to pay the amount first by the Insurance-Company and thereafter recover t e same from the owner and driver of the vehicle. The Insurance-Company has further submitted that since the claimants have not led any evidence that the deceased was earning Rs.12,000/- per month, the Tribunal below has erred to take the income of the deceased @ Rs.12,000/- per month.

The owner despite the fact that he has been held liable to pay the compensation amount has not challenged the award. On the other hand, the driver has filed the appeal, laying challenge to the award on the ground that on the date of accident, he was possessing the driving licence to drive the vehicle. He has specifically taken the plea that since there is no vehicle which is defined as ‘Medium Goods vehicle’, hence there is no licence which is termed as ‘LMV’ licence, as per M.V. Act.

I have heard the learned counsel for the parties and perused the record carefully.

The grievance of the appellant/Insurance-Company as canvassed by counsel Shri Chandan G el that vehicle was being plied in violation of the terms and conditions of the policy and further the driver was not holding the valid and effective driving licence to drive the vehicle is concerned, the Tribunal has returned the said findings in favour of the Insurance-Company, but on the other hand, has asked it to pay the amount first and thereafter recover from t e owner and the driver which is bad and illegal.

Learned counsel representing the Insurance-Company has not disputed that the vehicle, at the relevant time, when the accident took place was insured with it. Rather, the Insurance-Company has placed on record the insurance policy Ext.RW-4/C, from which, it is crystal clear that on the date of incident, the vehicle involved in the accident was duly insured and since the accident has been held as a result of rash and negligent driving of the driver of vehicle No.HP-30A-1900, no illegality has been committed by the Tribunal and thus, the said findings don’t call for any interference.

It is settled law that in case the vehicle is insured and the claimants are third party, at the first instance, the compensation has to be paid by the Insurance-Company and the claimants cannot be left in lurch to chase the owner and driver for making the recovery of the compensation amount. The purpose of insurance is only to secure the interest of third party and as per the provisions of the Motor Vehicles Act, 1988, no vehicle can be plied without coverage of the interest of the thi d parties. Since the recovery rights have been given to the Ins rance-Company, I do not see any reason to interfere with the award passed by the Tribunal below.

So far as the income of the deceased having been taken @ Rs.12,000/- per month is concerned, it is just for the reason that deceased at the time of death was 26 years old as has been pleaded n the claim petition and he was working as Technical Assistant with Forest Survey of India, Northern Zone, Shimla. The accident had taken place in the year 2012, when the income of the deceased was Rs.15,000/-, but the Tribunal has taken as Rs.12,000/- per month while computing the compensation. The deceased was graduate and was having various diploma’s like advanced dipoloma in Web-Graphics and Web Development and a certificate from NIIT in computer and was engaged in Forest Survey of India. Thus, the findings returned by the Tribunal do not suffer from any illegality.

So far as the plea having been raised by the driver is concerned, admittedly, on the date of accident, he was possessing the driving licence to drive the ‘Light Motor Vehicle’. Since the vehicle involved in the accident was ‘Medium Goods Vehicle’, as per copy of the RC Ext.RW-1/C, he was not holding the valid and effective driving licence to drive the same. Thus, the Tribunal below has rightly saddled the liability upon he owner and the driver.

Learned counsel representing the Insurance-Company has vehemently argued that since the Insurance-Company had taken a specific objecti n that the vehicle involved in the accident was not holding a valid permit as well as fitness certificate, the Tribunal oug t not to have directed the appellant-Insurance-Company to pay the compensation amount first and thereafter recover the same from the owner and the driver. Since the Tribunal has already held that there is violation of the terms and conditions of the policy and further right has been given to the appellant-Insurance-Company to recover the amount from the owner and driver, this submission does not require any consideration.

No other points have been raised and argued by the learned counsel for the parties.

In view of the above discussion, both these appeals filed by the appellant-Insurance-Company as well as by the driver fail and the same are accordingly dismissed.

Pending applications, if any, also stand disposed of accordingly.

No order as to costs.