Punjab-Haryana High Court
Rakesh Kumar Arora vs Balwant Singh on 9 October, 2000
Equivalent citations: II(2001)ACC570, 2002ACJ1246
Author: R.L. Anand
Bench: R.L. Anand
JUDGMENT R.L. Anand, J.
1. This F.A.O. has been filed by Rakesh Kumar Arora, owner of vehicle No. HR 41/3347 and has been directed against the award dated 1.8.1998 passed by Motor Accident Claims Tribunal, Kurukshetra, which awarded a sum of Rs. I lac to claimant Balwant Singh. However, it was ordered by the Tribunal that the amount of compensation shall be paid by the present appellant. Out of the awarded amount of Rs. 1 lac, Rs. 10,000/- each were ordered to be paid in cash to Balwant Singh and Kaushlya Devi and Rs. 80,000/- were ordered to be deposited in FDR for a period of 3 years.
2. The brief facts of the case can be noticed in the following manner :-
The claim petition was filed by Balwant Singh, who claimed a sum of Rs. 10 lacs by way of compensation along with interest on account of death of Virender Smgh alias Rinku, who died in a vehicular accident on 5.2.1997. The case set up by Balwant Singh is that his son was aged about 14 years of age and was a student of 8th class. He was his only son and had brilliant academic career. The claimant had four daughters. On 5.2.1997 Virender Singh alias Rinku did not go to school. His elder daughter Ms. Sharanjit Kaur and Avinash Kaur, daughter of his sister-in-law were in the house when Karan Arora came in his car and asked Virender Singh alias Rinku to accompany him to Pipli. At the first instance the deceased refused to accompany him but later on accompanied him. It is the case of the claimant that when his son and Karan Arora reached on the G.T. Road and turned towards Pipli from Umri Chowk, at that time Karan Arora was driving the car negligently, at a high speed and overtook the car of his son-in-law namely Kulwant Singh and struck the car near T-point. The car overturned and Virender Singh alias Rinku fell down. He was taken to Civil Hospital with the help of Kulwant Singh where he was declared dead. According to the claimant the accident took place due to rash and negligent driving of car by Karan Arora. With these allegations a compensation of Rs. 10 lacs was claimed.
3. The claim petition was contested by the respondents. The stand of Rakesh Kumar Arora (now appellant), owner of the vehicle was that Karan Arora was minor on the date of accident. The car in question was insured with United India Insurance Company Ltd., Ambalaand the liability, if any, is that of the Insurance Company. It was also the stand of the owner of the vehicle that, in fact, the vehicle was being driven by the deceased at the time of accident and a false story has been concocted. It was also pleaded that the deceased knew where the keys of the car had been kept in the house and, therefore, he broke open the lock and took the car for a ride. According to him, it was the deceased who was driving the car and all of a sudden he lost control due to inexperience and caused the accident and sustained multiple injuries.
4. The stand of the Insurance Company was that the claimant had no locus standi to file the claim petition which has been filed in collusion with Karan Arora and Rakesh Kumar Arora. On merits, if was denied that the deceased was 14 years of age and was a student. Karan Arora, driver of the car, was not holding nor having any valid/effective driving licence and as such the Insurance Company is not liable to pay any compensation.
5. Smt. Kaushlya Devi, mother of the deceased, accepted the contents of the claim petition and did not give any contest.
6. From the pleadings of the parties the following issues were framed :-
" 1. Whether the accident resulting in death of Virender Singh alias Rinku, took place due to rash and negligent driving of car bearing registration No. HR 41/3347 by respondent driver Karan Arora ? OPP
2. If issue No. 1 is proved, to what amount of compensation is the claimant- applicant entitled and from whom ? OPP
3. Relief."
7. The parties led oral and documentary evidence in support of their respective cases and it was observed by the Tribunal that the accident had been caused by Karan Arora and the owner of the vehicle at the relevant time was Rakesh Kumar Arora. Since Karan Arora was minor on the date of the accident and he was not holding a valid driving licence, therefore, the United India Insurance Company is not liable to pay any compensation and the compensation is payable by Rakesh Kumar Arora, the present appellant. Thus fixing the liability upon Rakesh Kumar Arora and Karan Arora jointly and severally the Tribunal passed the impugned award and aggrieved by the award, the present appeal.
8. I have heard the learned counsel for the parties and with their assistance have gone through the record of this case.
9. The proved facts in this case are that the accident took place on 5.2.1997 and Virender Singh alias Rinku died. He was a minor. It is also proved on the record that Karan Arora, who was driving the vehicle at the relevant time, was also a minor. The point for determination is whether Rakesh Kumar Arora, the present appellant, committed breach of the contract ith the In-
surance Company by handing over the vehicle to Karan Arora, who had no valid and effective driving licence at the time of accident.
10. The learned counsel appearing on behalf of the appellant submitted that Rakesh Kumar Arora, owner of the vehicle, on the date of accident was doing the job of a doctor at Pehowa and he was an ordinary resident of Kurukshetra. The accident had taken place near Pipli. The counsel further submitted that no sane father would part the custody and keys of the vehicle to a minor son aged about 14 years. Since Rakesh Kumar Arora has not committed any breach of the contract with the Insurance Company, therefore, the Insurance Company cannot exonerate itself from the liability. In support of his contention Mr. Manchanda, learned counsel for the appellant, relied upon Sohan Lal Passi v. P. Sesh Reddy and others, 1996 ACJ 1044,Skandia Insurance Co. Ltd. v. Kokilaben Chandravadan and others, 1987 ACJ 411 and V. Mepherson and another v. Shiv Charan Singh and others, 1998 ACJ 601.
11. On the contrary, learned counsel for the respondent-insurance company relied upon New India Assurance Co. Ltd. v. Surinder Paul and others, 1990 ACJ 940 and Division Bench authority Beer Singh and others v. Satbir Singh and another, 1992(2) PLR 405.
12. After considering the rival contentions of the parties, I am of the opinion that the material point for determination is whether there was any breach of contract between the owner of the vehicle and the insurance company. If the breach is committed on behalf of the owner of the vehicle, certainly the insurance company has a case. In order to bring the case within the mischief of "breach" it has to be proved that there was a wilful default on the part of the insured. I have already stated above that no sane father would like to give the custody or keys of the vehicle to his minor son aged 14 years much less to the friend of the minor. Had Rakesh Kumar Arora parted the possession of the vehicle to his son he would have contemplated very easily that by doing so he would have invited the trouble. The Hon'ble Supreme Court in 1987 ACJ 411, while interpreting the expression "breach" came to the conclusion that if it is proved on the record that the owner of the vehicle had done everything in his power to keep, honour, and fulfil the promise, in such a situation he cannot be held guilty of a deliberate breach. There is no evidence on the record to indicate that the owner of the vehicle parted the keys of the vehicle to his son deliberately or knowingly. If in the absence of the father son takes the keys of the vehicle and drives the vehicle for a fun and caused accident, it cannot be said that there was an express or implied consent on the part of the owner. The judgments which have been relied upon by the learned counsel for the insurance company may not be any assistance to him for the simple reason that in the said judgments it was proved prima facie that there was a breach of contract on the part of the insured.
13. Tn this view of the matter, I hold that the insurance company is also jointly and severally liable to pay the compensation awarded in this case to Balwant Singh and his wife Kaushlya Devi along with the owner of the vehicle. Resultantly, the appeal is hereby allowed; the award of the Tribunal is hereby modified and the amount of compensation is ordered to be paid to the parents of the deceased along with interest @12% per annum which shall be calculated from the date of the filing of the petition. It is further ordered that in the event of the payment of the amount of compensation along with interest, as stated above, by the insurance company, the appellant shall be able to withdraw Rs. 25,000/- which he deposited in the High Court. This Court expects that the insurance company shall pay the amount of compensation within one month from the receipt of the copy of the order. The entire amount of compensation awarded shall be paid in equal shares to Balwant Singh and Kaushlya Devi.
14. Appeal allowed.