The National Insurance Co. Ltd. vs Smt. Munni Devi and Others

Heard Mr. R.C. Sharma, learned Counsel for the appellant and Mr. J.N. Singh, learned Counsel appearing for the respondents.

By means of the instant First Appeal From Order, the judgment and Award dated 30.10.2000 passed by the Motor Accident Claims Tribunal, Lakhimpur Kheri in Motor Accident Claim Petition No. 100 of 1993 Smt. Munni Devi and Ors. v. Razi Ahmad and Ors. has been challenged inter alia on the grounds that the Tribunal erred in holding that the jeep No. 421 was being driven by one Jagdish, who had a valid driving licence, whereas the evidence on record indicated otherwise. By the impugned Award, the Tribunal awarded a sum of Rs. 1,75,000/- as compensation, with 12% interest per annum from the date of filing the petition till the date of payment, in favour of respondent Nos. 1 to 3 in the manner and ratio as provided in the impugned Award, against the appellant and respondent Nos. 4 and 5 respectively, providing that in case the payment is not made within 45 days of the order, the rate of interest of would be 18% on the amount due.

Brief facts of the appellant are that one Ram Kishan, who is the son of respondent No. 1 and brother of respondents 2 and 3, died as a result of road accident which occurred on 23.10.1993 at about 9 p.m. when the jeep in which the deceased was travelling slipped and hit a tree. It was alleged that the deceased received grievous injuries and was admitted to the hospital where he died on 27.10.1993. As per allegations of the claimants, the said accident was caused due to rash and negligent driving of the driver of Jeep No. UHT 421, in which the deceased was travelling. They claimed compensation of Rs. 2 lakhs for the death of said Ram Kishan.

Learned Counsel for the appellant submits that the F.I.R. of the accident was lodged by the brother of respondent No. 1, whose son also allegedly died in the accident. It did not contain the name of deceased Ram Kishan. It specifically mentioned that the jeep was being driven by one Kamlesh Kumar against whom the F.I.R. was lodged and the police also filed charge sheet against him. The claimant also impleaded the said Kamlesh Kumar as the Driver of the Jeep involved in the accident. It is also relevant to mention here that the police charged Kamlesh Kumar for rash driving in this case. The appellant was impleaded as opposite party No. 3 and it contested the claim by filing written statement, in which in paras 22 and 26(C), it pleaded that the driver of the Jeep was not having a valid driving licence and this being breach of terms and conditions of insurance policy, therefore, the appellant was not liable to pay any compensation. Issue No. 8 was framed on this point by the Tribunal.

Further, learned Counsel for the appellant contends that the owner of the vehicle filed a photocopy of Driving Licence of the said Kamlesh Kumar, which was not legible and as such, the Tribunal held the same to be inadmissible in evidence. He was directed to file a legible copy, which was not filed by him. The appellant took steps to summon the said Kamlesh Kumar, who was opposite party No. 2, in the claim petition, but he did not turn up. Thus, the owner of the vehicle did not furnish the particulars of the driving licence of Kamlesh Kumar and put up a different case, saying that the Jeep at the time of accident was driven by one Jagish, whose driving licence was also filed by him. In addition to above pleadings in the written statement that the vehicle was being driven by one Jagdish, it was pleaded that Kamlesh Kumar was a Cleaner, but also possessed a valid driving licence. It is relevant to mention here that the said Jagdish was in fact the father of Kamlesh Kumar, as is clear from the parentage given.

The Tribunal, while reying upon the statement of DW-1 Razi Ahmad and DW-2 Ghulam Waris, held that the vehicle was being driven by Jagdish, who had a valid driving licence. The Tribunal erred in relying upon the statement of alleged eyewitnesses PW2 Jabbar Beg, who deposed that the vehicle was driven by Jagdish. He also deposed that the deceased Ram Kishan died instantaneously, which was incorrect, as the accident took place on 23.10.1993 and Ram Kishan died on 27.10.1993 in the hospital. Therefore, the testimony of PW2 was not worth credible.

Learned Counsel has vehemently argued that Kamlesh Kumar who was actually driving the Jeep had no valid driving licence. As it was the duty of the owner to give the particulars of driving licence of the person appointed by him as Driver and the said Kamlesh Kumar did not appear in the Court in spite of service of summons leads to the only inference that he had no valid driving licence. The Tribunal erred in deciding issue No. 8 and further, erred in holding the appellant to pay compensation, when there was evidence that the owner had committed breach of policy conditions.

While defending the judgment passed by the Motor Accident Claims Tribunal, learned Counsel for the respondents submits that the grounds taken in the F.A.F.O. have been considered by the Tribunal. He submits that the Apex Court in a number of cases has provided that the awarded amount shall be paid to the aggrieved party by the Insurance Company and Insurance Company can recover the same from insurer i.e. owner of vehicle etc. In support of the aforesaid submission, he has relied upon the Apex Court Judgment in Oriental Insurance Co. Ltd. Vs. Shri Nanjappan and Others, wherein the Apex Court has held that the insurer is liable to pay the quantum of compensation fixed by the Tribunal to the claimants at the first instance and recover it from insured and for the purpose of recovering the same from the insured owner of vehicle, the insurer shall not be required to file a suit. It may initiate a proceeding before the concerned Executing Court as if the dispute between the insurer and the owner was the subject-matter of determination before the Tribunal and the issue is decided against the owner and in favour of the insurer.

Learned Counsel further pointed out that the Apex Court in the case of National Insurance Co. Ltd. Vs. Challa Bharathamma and Others, after considering the object of the Motor Vehicles Act, 1988 was of the opinion that it would be proper for the insurer to satisfy the award, though in law it has no liability. In such cases the insurer has been given the option and liberty to recover the amount from the insured. For the purpose of recovering the amount paid from the owner, the insurer shall not be required to file a suit. Further, he submits that after considering the entire evidence and material on record, the impugned Judgment and Award has been passed. Therefore, there is no illegality in the impugned judgment and Award.

We have perused the impugned judgment and Award and we are of the opinion that the Award passed by the Motor Accident Claims Tribunal did not require any interference as the same has been passed on the basis of evidence as well as statements including documents, which have been filed before the Tribunal. Motor Vehicles Act is a beneficial statute and as such, in spite of the fact that the Insurance Company under law has no liability to pay the compensation but keeping in view the objects of the Act, which are beneficial in nature, it would be proper for the insurer to satisfy the award and accordingly, the Tribunal has directed the Insurance Company to pay the same and further directed to recover the same from the owner of the vehicle.

Learned Counsel for the appellant submits that the Tribunal awarded 18% interest per annum, if the amount is not deposited within 45 days from the date of order. In this connection, he has relied upon the case of National Insurance Company Ltd. v. Keshav Bahadur and Ors. 2004 (2) T.A.C. 1 (S.C.).

Consequently, in view of above, the judgment and Award dated 30.10.2000 is modified to the extent that the liberty is being given to the Insurance Company to recover the amount in question from the owner of the vehicle, in accordance with law. In the facts and circumstances, we direct that interest @ 12% per annum on the sum of Rs. 1,75,000/-, which is the liability of the insurer, from the date of claim till the date of payment, be paid within a period four weeks from today, if not already paid or deposited before the Tribunal.

The F.A.F.O. is allowed in part in above terms.