The Anand Insurance Company Ltd. vs Hasanali and Others

O.S. Sohani, J.—This appeal is directed against the order dated 10th February, 1972 passed by the Motor. Accident Claims Tribunal, Mandsaur, in Motor Accidents Claim case No. 35 of 1970.

The facts giving rise to this appeal briefly are as fellows: On 2nd November, 1.968, at about 6 p. m. a truck bearing registration No. MPE-9916, belonging to Respondent No. 3 and driven by Respondent No. '', dashed against one Kasamali, a boy aged fourteen years, as a result of the accident, Kasamali died when he was removed to the hospital. Respondents No. 1 and 2 the parents of Kasamali, lodged a claim u/s 110A of the Motor Vehicles Act, 1939. (hereinafter referred to as the Act) before the Tribunal claiming a sum of Rs. 40,000 as compensation. The applicant-Respondents No. 1 and 2 averred that the accident resulting in the death of their son was caused as a result of rash and negligent driving of the truck. It was further averred that Respondent No. 4 who was driving the truck, did not possess a driving licence for driving the truck. The present Appellant, who were the insurers of the truck in question, were also impleaded as non-applicant No. 3.

The claim was resisted by Respondents No. 3 and 4 contending that the truck was not being driven by Respondent No. 4 but by Respondent No. 3 and that Respondent No. 3 was not driving the truck rashly or negligently. It was also denied that Respondent No 4 did not possess a driving licence. It was further contended that the claimants were not entitled to any amount of compensation. On behalf of the Appellant, the claim was resisted inter alia on the ground that it could not be held liable as the truck in question was driven at the time of accident by Respondent No. 4 contrary to the terms oft the insurance policy issued by the appellant in-as-much-as Respondent No. 4 the driver, did not possess, at the material time, a driving licence for driving the said truck.

On the basis of the evidence led by the parties, the Tribunal found that Respondent No 4 was driving the truck at the time of the occurrence, that he had learner''s driving licence for driving light motor vehicles, and that the death of Kasamali took place as result of the accident caused by the rash and negligent driving of the truck by Respondent No. 4. The Tribunal further held that, in the circumstances of the case, the claimants were entitled to compensation of a sum of Rs. 10,000. Accordingly, the Tribunal awarded a sum of Rs. 10,000 as compensation to the claimant-Respondents Nos. 1 and 2 payable by all the non-applicants i.e. the Appellant and Respondents Nos. 3 and 4 Aggrieved by the award against the Appellant, the Appellant has preferred this appeal. Respondents Nos. 3 and 4 have also filed cross objections assailing the quantum of compensation awarded.

Mr. Samdani, learned Counsel for the Appellant, contended that in view of the finding given by the Tribunal that Respondent No. 4, who was driving the vehicle at the time of the accident, had a learner''s licence for driving light motor vehicles and as that expression admittedly did not include the truck which caused the accident, no liability could be fastened on the Appellant for payment of the amount of compensation in view of the terms of the policy (Ex. A 8) Mr. Mehta, appearing for the claimant-Respondents No. 1, and 2, did not oppose the prayer made by the Appellant in this behalf. Mr. Saxena, learned Counsel for Respondents Nos. 3 and 4, however, vehemently opposed the contentions urged on behalf of the Appellant. He contended that from the material on record it was not proved that Respondent No. 4 was driving the truck or that he had no driving licence to drive the truck. Mr. Saxena however, very fairly conceded that the expression ''light motor vehicles'' does not included the truck in question. He tried to urge that even if it was held that the truck was driven by Respondent No. 4, who had no driving licence in that behalf, the Appellant was in any event liable to pay compensation in terms of the policy of insurance issued is that behalf. But this submission was later on not pressed by the learned Counsel in view of the terms contained in the schedule annexed to the policy (Ex. A-8) stipulating that the insured would not be indemnified if the vehicle was driven otherwise than in accordance with the schedule which provided for use of the vehicle by a driver holding a licence for driving the vehicle. It was, however, urged in support of the cross-objections that in any event, the quantum of compensation awarded by the Tribunal was excessive in the circumstances of the case.

In the light of the submissions made by learned Counsel for the parties, the first question that arises for consideration is whether Respondent No. 4 was driving the truck in question at the time of the accident. It is not disputed that the accident took place as a result of rash and negligent driving of truck No. MPF-9916 by its driver. The only question for consideration, therefore, is whether the said truck was at the material time driven by Respondent No. 4 or by Respondent No. 3. Now, PW-5 Chhaju Singh, a constable, who had witnessed the accident as he was just near the scene of occurrence, deposed that he rushed to the scene of occurrence and caught hold of the driver Respondent No. 4, Mohammad Yusuf. Not a single question has been asked to this witness in cross-examination on behalf of Respondent Nos. 3 and 4 to suggest that the constable had apprehended a wrong person as the driver of truck. It was not even suggested to PW-5 Chhaju Singh that immediately after the accident, the occupants of the truck had tried to escape, but as Respondent No. 4 was unable to do so, he was by mistake taken to be the driver.

It was not put to this witness that on his apprehension Respondent No. 4 had protested that he was not the driver but that Respondent No. 3. who was the driver, had run away from the scene of occurrence. The Tribunal has relied on the testimony of PW-5 Chhaju Singh in this behalf. We see no reason, nor any reason has been brought to our notice, to disbelieve the testimony of this witness. Learned Counsel for Respondents Nos. 3 & 4 referred to the testimony of NAW-1 Mohammad Yunus, NAW-2 Mohammad Yusuf and NAW-3 Mohan Lal in this behalf. In the reply to the statement of claim, it was contended on behalf of Respondents Nos. 3 & 4 that soon after the incident Respondent No. 3, who was driving the truck, rushed to the Police Station to escape from the wrath of the public gathered at the scene of occurrence. In the witness-box, Respondent No. 3 has stated that when he approached the Sub-Inspector, he was asked to go away as the driver was already apprehended. He has admitted that in the information, which he sent to the insurance company, he had not mentioned that he was driving the truck. His testimony that he was driving the truck does not inspire: any confidence. NAW-2 Mohammad Yusuf (Respondent No. 4) has stated that; soon after the accident everyone else in the truck had managed to escape, but as he was about to get down from the truck he was apprehended by the constable. The testimony of this witness is directly contrary to the statement made by NAW-3 Mohanlal who claimed to be one of the occupants of the truck at the time of the accident. This witness has stated that he, along with Respondent No 4, got down from the truck and that Respondent No 4 was the first to get down from the truck. This witness did not disclose to anyone that at the time of the accident it was not Respondent No. 4 but Respondent No 3 who was driving the truck. No reliance can be placed on the testimony of these witnesses produced on behalf of Respondents No. 3 & 4 We, therefore, see no reason to interfere with the finding given by the Tribunal that at the time of the accident the truck in question was being driven by Respondent No. 4.

It was not disputed before us that the expression ''light motor vehicle'' does not include the truck in question and that a certificate was produced on behalf of the Respondents, showing that a learner''s licence for a period from 17th September, 1968 to 16th December, 1968 for driving a light motor vehicle was issued to Respondent No. 4. It was, however, urged that the burden to prove that Respondent No. 4 did not have a driving licence for driving the truck was on the Appellant, and the Appellant having failed to prove the absence of a driving licence in favour of Respondent. No. 4 the issue should be decided against the Appellant Our attention as invited to a decision of a Division Bench of this Court in Shantibai and Others Vs. The Principal, Govindram Sakseria Technological Institute and Others, From the facts set out in that case, it is clear that the insurance company had not pleaded that the driver, who was driving the vehicle at the time of the accident, did not have a driving licence. The facts of the present case, however, are entirely different here, the Appellant has specifically pleaded that the driver of the truck was a person not authorised to drive the insured truck as he had no driving licence. Having pleaded that the driver of the vehicle in question did not have a driving licence, it was for the driver to produce the licence, and the only document produced on behalf of Respondent No. 4 was a certificate showing that he had at the material time a learner''s licence for driving a light motor vehicle which did not include the truck in question. The Appellant company cannot be expected to call for the record of the Regional Transport Authority of each and every place in the country. As was urged during the course of arguments, for proving absence of entry relating to the issue of a driving licence to Respondent No. 4.

Under the circumstances, it must be held that Respondent No. 4 did not have a driving licence, for driving the truck in question, at the time of the accident. In view of these findings, the conclusion is inescapable, that no liability could be fastened on the Appellant in light of the terms of the policy (Ex. A/8), for the amount of compensation awarded by the Tribunal.

It was, however, contended on behalf of Respondent No. 3 and 4 that the amount of compensation awarded by the Tribunal was excessive in the circumstances of the case. Now, these Respondents, did not prefer any appeal against the claimants aggrieved by the quantum of compensation awarded. They now seek to assail the award, on the question of amount of compensation, in the cross objections filed in the appeal preferred by the insurance company. This contention urged by way of cross-objections by Respondents Nos. 3 & 4 is not maintainable. It has been held in The British India General Insurance Co. Ltd. Vs. Seth Ramnath and Others, that the right of the Respondent to urge a cross-objection is generally limited to urging to against the Appellant. In view of the decision of a Division Bench of this Court, learned Counsel for Respondents Nos. 3 & 4 urged that the contentions raised by way of cross-objections could be considered by this Court under Order 41 Rule 33 C.P.C. In our opinion, there is no scope for invoking the powers conferred by Order 41 Rule 33 CPC We respectfully agree with the following observations made in the aforesaid decision.

The principle generally applicable is that the decree binds the parties unless, in appropriate proceedings, it is set aside or modified. A party desiring to have the decree modified must file an appeal or cross-objection where permissible. It follows that, generally speaking, the appeal Court should not reverse or vary a decree in favour of a party who has not appealed It is true that in exceptional cases Order 41 Rule 33 CPC enables the Court to pass such a decree as ought to have been passed or as the nature of the case requires even in favour of party who has not appealed. But this is restricted to cases where, as a result of interference in favour of Appellant further interference is rendered necessary in order to adjust the rights of the parties according to justice, equity and good conscience. In Mst. Beni Begum v. Nathmal F.A. No. 18 of 1939 decided on 17.9.46 Bose and Sen, JJ. observed: The cases cited in Mulla''s Code of Civil Procedure, 11th Edn. pages 1199, 1200 and 1201 show that the Rule is widely expressed the discretion it converts must be exercised with caution and only in cases where the ends of justice would otherwise be defeated. Now, the ends of justice do not, in our opinion, require a Court to deprive a party of a valuable right which he has obtained against an opponent who has not appealed within limitation. The rule can only come into operation where it would otherwise be impossible to give a party who has appealed the relief to which he is entitled and which he has claimed. Cases sometimes arise where adequate and proper relief cannot be given to a party who has appealed unless the decree of the lower court against some other party who has not appealed is suitably modified. Then only does the power conferred by Order 41 Rule 33 Code of Civil Procedure, come into play.

Moreover, this aspect of the matter is now concluded by a decision of the Supreme Court in Nirmala Bala Ghose and Another Vs. Balai Chand Ghose and Others, Referring to the provision of Order 41 Rule 33 C.P.C. their Lordships have held as follows:

The rule is undoubtedly expressed in terms which are wide but it has to be applied with discretion, and to cases where interference in favour of the Appellant necessitates interference also with a decree which has by acceptance or acquiescence become final so as to enable the Court to adjust the rights of the parties. Where in an appeal the Court reaches a conclusion which is inconsistent with the opinion of the Court appealed from and in adjusting the right claimed by the Appellant it is necessary to grant relief to a person who has not appealed, the power conferred by Order 41 Rule 33 may properly be invoked. The rule, however, does not confer an unrestricted right to reopen decree which have become final merely because the appellate Court does not agree with the opinion of the Court appealed from.

In the instant case, Respondents Nos. 3 & 4 have not shown any reason for not filing an appeal against Respondent Nos. 1 & 2 if they were dissatisfied with the amount of compensation awarded in favour of the claimants. They cannot, therefore, be allowed to urge in this appeal that the quantum of compensation awarded is unreasonable. It was then urged that as the Appellant was allowed to contest the claim u/s 110(C)(2A) of the Act, Respondents Nos. 3 and 4 should be allowed to urge the question of the amount of compensation in this appeal. The contention is baseless. Section 110C(2A) of the Act reads as follows ;

110-C(2A)-where in the course of any inquiry, the Claims Tribunal is satisfied that:

(i) There is collusion between the person ranking the claim and the person against whom the claim is made, or.

(ii) the person against whom the claim is made has failed to contest the claim.

It may, for reasons to be recorded by it in writing direct that the insurer who may be liable in respect of such claim, shall be impleaded as a party to the proceeding and the insurer so impleaded shall thereupon have the right to contest the claim on all or any of the grounds that are available to the person against whom the claim has been made.

Appellant was impleaded by the claimants themselves in an application u/s 110A of the Act and the Tribunal did not exercise any powers or pass any order u/s 110-C(2A) of the Act directing that the Appellant be impleaded as a party to the proceeding for contesting the claim. The right to contest the claim on all grounds is available to an insurer ''so impleaded'' by an order of the Court passed in that behalf u/s 110C(2A). In those circumstances, the contention advanced on behalf of Respondents Nos. 3 and 4 cannot be upheld.

For all these reasons, this appeal is allowed and cross-objections are dismissed with costs payable by the Respondents Nos. 3 and 4 to the Appellant. Counsel''s fee Rs. 200/- (two hundred), if certified. Respondents Nos. 1 and 2 shall bear their own costs. The award dated 10th February, 19/2 made by the Tribunal is modified, and is ordered that the sum of Rs. 10,000/- awarded as compensation by the Tribunal to Respondents Nos. 1 and 2 along with costs shall be paid by Respondents Nos. 3 and 4 only, and shall not be payable by the Appellant.