Jharkhand High Court
Opposite Party No.2/ vs Shakila Khatoon on 20 September, 2022
Author: S.N. Pathak
Bench: S. N. Pathak
IN THE HIGH COURT OF JHARKHAND AT RANCHI
M.A. No. 381 of 2015
United India Insurance Co. Ltd., 2nd Floor, Jamnadas Building, Church
Road, Sanvordem, Churchorem, Goa, through Branch Manager, United
India Insurance Co. Ltd. Hazaribagh Stadium, Hazaribagh
... Opposite Party No.2/Appellant
-VERSUS-
1. Shakila Khatoon
2. Mohd. Rafique
3. Novidadate Godinho, R/o House No.2067/2, Gonvoll, Shiroda Ponda, Goa
(Owner of Tipper Truck No.GA-05T-1070
... Claimants/O.Party No.1/Respondents
With C.O. No. 1 of 2016
1. Shakila Khatoon
2. Mohd. Rafique .... Claimants/Cross Appellants
-V E R S U S -
1. Novidadate Godinho, R/o House No.2067/2, Gonvoll, Shiroda Ponda, Goa (Owner of Tipper Truck No.GA-05T-1070
2. United India Insurance Co. Ltd., 2nd Floor, Jamnadas Building, Church Road, Sanvordem, Churchorem, Goa, through Branch Manager, United India Insurance Co. Ltd. Hazaribagh Stadium, Hazaribagh ...Opposite Parties/ RESPONDENTS CORAM: HON'BLE DR. JUSTICE S. N. PATHAK For the Appellant/Insurance Co. : Alok Lal, Advocate.
For Claimants/Cross Appellants : Md. Asghar, Advocate
For Respondent No.3 : XX
06/20.09.2022 These Miscellaneous Appeal and C.O. arise out of Award dated
30.05.2015, passed by learned Presiding Officer, Motor Vehicles Accident Claims Tribunal, Hazaribag in Claim Case No.176/2010. The said the Insurance Company has challenged the entire award in Misc. Appeal whereas, C.O. has been filed by the claimants for enhancement of interest.
2. The facts of the case as has been delineated in the original claim application is that on 27.12.2009 at about 3:30 hours near K.K. Petrol Pump, Tisk, Usgao, P.S. Ponda Goa, District Goa, the deceased was travelling in Tipper Truck No.GA-05-T-1070 and the same was dashed by another Tipper Truck No. 2 GA-04-T-1004 due to which, he received multiple injuries and taken to the hospital, but could not survived. Accordingly, an FIR bearing No.273/2009 dated 31.12.2009 under Section 279/337/304-A IPC was registered at Ponda Police Station.
3. The owner of Tipper Truck No.GA-05-T-1070/ respondent No.3 (herein) failed to appear before the learned Tribunal as well as this Court in spite of valid service of notice and as such, case was proceeded ex-parte.
4. Insurance Company/Insurer/Appellant in M.A. No.381/2015 appeared and filed his written statement by stating therein that the driving licence of the deceased was found fake vide certificate of DTO, Koderma. It is a case of contributory negligence and owner and insurer of vehicle bearing No. GA-04-T- 1070 were not made parties in the case and as such, claim application was liable to be dismissed. .
5. On the basis of pleadings of the parties, learned Tribunal framed following issues:
(i) Whether the claim case is maintainable in the eyes of law ?
(ii) Whether the deceased Mohd. Saddam was killed due to rash and negligent driving of Tipper Truck No. GA-05-T-1070 ?
(iii) Whether the claimants are entitled for compensation arising out of the motor accident and if so to what extent and against whom of the O.P.'s ?
6. After framing of issues and after examining records of the case, learned Tribunal discussed the issues in details and claim application filed by the claimant has been allowed on contest and Opposite Party No.2/Insurance Company was directed to pay a sum of Rs.3,28,500/- to the claimants in equal proportion along with simple interest @ 4 % p.a. from the date of filing of the claim petitioner within 30 days of the order of this Award. If the said amount is not paid, within the stipulated time, the Award amount shall be payable @ 9 % per annum.
7. Being aggrieved by and dissatisfied by the Award/ Judgment dated 30.05.2015, passed by learned Presiding Officer, Motor Vehicles Accident Claims Tribunal, Hazaribag in Claim Case No.176/2010, The Insurance Company/O.P. No.2/Appellant in M.A. No.381/2015 has challenged the entire award, whereas, the claimants have filed the said C.O. for enhancement of interest, whereas,.
38. Md. Asghar, learned counsel appearing for the Cross Appellants submits that the learned Tribunal has committed a grave error, while allowing the rate of interest @ 9% per annum only instead of @ 12 % p.a. from the date of filing of the claim petition till realization of the awarded amount and as such, award is liable to be modified to the extent that claimants are entitled for interest @ 12 % p.a. from the date of filing of the claim petition till realization of the awarded amount.
9. Mr. Alok Lal, learned counsel appearing for the appellant-Insurance Company in M.A. No. 381 of 2015 submits that the learned Tribunal has failed to appreciate the fact that accident has occurred due to rash and negligent driving of the vehicle by the deceased himself and as such, one cannot claim compensation for his own fault. The claim application filed by the claimants under Section 163 A was not maintainable as the rashness and negligence was attributed solely on the part of the deceased himself. It is a case of contributory negligence and owner and insurer of vehicle bearing No. GA-04-T-1070 were not made parties in the case and as such, claim application was liable to be dismissed. The insurer has no liability to indemnify the insured if death or bodily injury is caused due to ones' own rash and negligent driving of the vehicle, meeting with an accident. He further submits that there is involvement of two vehicle in this accident and as such, learned Tribunal ought have apportioned the liability between the owner-insurers of other vehicle as well. He lastly submits that driving licence of the deceased was forged and fabricated and as such, appellant-insurer is not liable to pay any compensation on account of violation of conditions of Policy even if the claim application is filed under Section 163 A of the Motor Vehicles Act, 1988. Learned counsel submits that it is a case where owner of the vehicle is liable to pay amount of compensation awarded by learned Tribunal as the deceased was not having a valid driving licence. Learned counsel submits that in the circumstances, this appeal may be allowed by setting aside impugned Judgment and Award or alternatively the amount of compensation awarded be directed to be paid by owner of the vehicle. This is a fit case where insurer may be absolved from liability to pay compensation or alternatively insurer may be directed to pay the same and recover it from owner of the vehicle i.e., respondent No.3. Learned counsel has placed reliance on a Judgment passed by Hon'ble Supreme Court in the case of Amrit Paul Singh and Another Vs. Tata AIG General Insurance Co. Ltd. And others reported in 2018(3) T.A.C. 1 (SC) and submits that said case has been 4 disposed of in light of orders and directions passed in the case of National Insurance Co. Ltd. Vs. Swaran Singh and others reported in AIR 2004 SC 1531 wherein Court has held that liability of the insurance company is to satisfy decree at the first instance and to recover the awarded amount from owner thereof.
10. Be that as it may, having gone through the rival submissions of the parties and on perusal of the records, it appears that in spite of valid service of notice, the respondent No.3 has chosen not to appear before this Court and as such, the order is passed ex-parte against him. Further, the argument of the learned counsel for the appellant in M.A. No.381/2015 is totally misconceived since the same has rightly been answered by the learned Tribunal by holding that the Insurance Company has failed to establish that the owner of the offending vehicle was aware that the driver was not authorized to drive the vehicle in question, but also permitted him to drive the same and thereby breached the conditions of insurance policy. In absence of any reliable evidence, the contention of the Insurance Company cannot be entertained. This Court is in full agreement with the view expressed by the learned Tribunal. However, if the driving licence has been found to be fake as stated by the learned counsel for the appellant-Insurance Company, there is no breach of Section 149 (2)(a)(ii) of the Motor Vehicles Act and as such, rightly the learned Tribunal had fixed the liability upon the Insurance Company to pay the compensation to the claimants and there is no illegality or infirmity in the said order. Similar issue fell for consideration before the Hon'ble Apex Court in case of United India Insurance Company Ltd. Vs. Lehru & Ors., reported in 2003 (2) TAC 1 (SC), wherein, it has held that :-
"18. Now let us consider Section 149(2). Reliance has been placed on Section 149(2)(a)(ii). As seen, in order to avoid liability under this provision it must be shown that there is a "breach". As held in Skandia [(1987) 2 SCC 654] and Sohan Lal Passi [(1996) 5 SCC 21 :
1996 SCC (Cri) 871] cases the breach must be on the part of the insured. We are in full agreement with that. To hold otherwise would lead to absurd results....................."
20. When an owner is hiring a driver he will therefore have to check whether the driver has a driving licence. If the driver produces a driving licence which on the face of it looks genuine, the owner is not expected to find out whether the licence has in fact been issued by a competent 5 authority or not. The owner would then take the test of the driver. If he finds that the driver is competent to drive the vehicle, he will hire the driver. We find it rather strange that insurance companies expect owners to make enquiries with RTOs, which are spread all over the country, whether the driving licence shown to them is valid or not. Thus where the owner has satisfied himself that the driver has a licence and is driving competently there would be no breach of Section 149(2)(a)(ii). The insurance company would not then be absolved of liability. If it ultimately turns out that the licence was fake, the insurance company would continue to remain liable unless they prove that the owner/insured was aware or had noticed that the licence was fake and still permitted that person to drive. More importantly, even in such a case the insurance company would remain liable to the innocent third party, but it may be able to recover from the insured. This is the law which has been laid down in Skandia [(1987) 2 SCC 654] , Sohan Lal Passi [(1996) 5 SCC 21 :
1996 SCC (Cri) 871] and Kamla [(2001) 4 SCC 342 : 2001 SCC (Cri) 701] cases. We are in full agreement with the views expressed therein and see no reason to take a different view."
11. Recently, by the Hon'ble Apex Court in case of Rishi Pal Singh Vs. New India Assurance Co. Ltd. & Ors. passed in Civil Appeal No.4919/2022 , considering the above legal propositions made in case of United India Insurance Company Ltd. Vs Lehru (supra) as also in case of National Insurance Co. Ltd. Vs. Swaran Singh & Ors., reported in (2003) 3 SCC 338, United India Insurance Company Ltd. Vs Lehru (supra) has reiterated the same view as has been observed in United India Insurance Company Ltd. Vs Lehru (supra), which reads thus:-
"10. The owner of the vehicle is expected to verify the driving skills and not run to the licensing authority to verify the genuineness of the driving license before appointing a driver. Therefore, once the owner is satisfied that the driver is competent to drive the vehicle, it is not expected from the owner thereafter to verify the genuineness of the driving license issued to the driver."
12. So far as contention of the learned counsel for the claimants in Cross Objection regarding interest part is concerned, the learned Tribunal has rightly 6 held that Opposite Party No.2/Insurance Company shall pay a sum of Rs.3,28,500/- to the claimants in equal proportion along with simple interest @ 4 % p.a. from the date of filing of the claim petitioner within 30 days of the order of this Award. If the said amount is not paid, within the stipulated time, the Award amount shall be payable @ 9 % per annum. There is no illegality or infirmity in the impugned Award. This Court is in full agreement with the view taken by the learned Tribunal.
13. In this view of the matter this Court does not find any substance in the appeal as well as C.O. and as such, same are hereby dismissed. Accordingly, the appellant/ Insurance Company is directed to satisfy the Award within a period of six weeks from the date of receipt/ production of a copy of this order and in terms and conditions mentioned in the Award.
14. Insurance Company is permitted to withdraw statutory amount deposited at the time of filing instant appeal.
15. Let the lower court record be returned to the court concerned immediately.
(Dr. S.N. Pathak, J.) Punit/-