Madhya Pradesh High Court
Smt.Guddi @ Raja Beti & Ors. vs Mahendra Singh & Ors. on 27 September, 2017
1
Misc. Appeal Nos.765/2003 and 916/2003
HIGH COURT OF MADHYA PRADESH
BENCH AT GWALIOR
(SB : VIVEK AGARWAL, J.)
Misc. Appeal No.765/2003
The Oriental Insurance Company.
Vs.
Smt. Guddi alias Rajabeti & Others
Shri R.V. Sharma, learned counsel for appellant-Insurance
Company.
Shri R.P. Gupta, learned counsel for respondents no.1 to 5-
Claimants.
None for respondents no.6 and 7.
Misc.Appeal No.916/2003
Smt. Guddi alias Rajabeti & Others
Vs.
Mahendra Singh & Others.
Shri R.P. Gupta, learned counsel for appellants-claimants.
None for respondents no.1 and 2.
Shri R.V. Sharma, learned counsel for respondent no.3-
Insurance Company.
Date of hearing : 18.09.2017.
Whether approved for reporting :
Law laid down :
Significant paragraph numbers :
ORDER
(Passed on 27th September, 2017)
1. These miscellaneous appeals have been filed by the Insurance Company and the Claimants respectively being aggrieved by the award dated 29.07.2003 passed in Claim Case No.62/2002 by the 7th Additional Motor Accident Claims Tribunal, Gwalior, whereby the Claims Tribunal has held the Insurance Company to be liable despite there being evidence to the effect that the driver of the offending vehicle Mahendra 2 Misc. Appeal Nos.765/2003 and 916/2003 Singh was not having a valid driving licence as was reportedly issued to him by the Regional Transport Officer, Jhansi solely on the ground that since such licence was renewed at Gwalior subsequently, therefore, the possibility of its being fake looses its sanctity.
2. Learned counsel for the Insurance Company has placed reliance on the judgment of this Court in the case of Oriental Insurance Company v. Virendra Singh Tomar & Others as reported in MACD 2010 (1) (MP) 45, wherein it has been held that if Regional Transport Officer after inspection of record, made an endorsement that no licence was issued to the deceased and alleged licence appeared to be fake and it was not the case of the owner of the vehicle that he did not know at the time of handing over the vehicle that the driver was not having a valid licence, then the Insurance Company is not liable to pay compensation. It has been further held that if any amount is paid by the Insurer, it is permitted to proceed and recover the same from the owner and the driver of the vehicle. Similarly, reliance has been placed on the judgment of Jharkhand High Court in the case of Tripurari Mandal v. Oriental Insurance Company Corporation & Another as reported in 2009 (1) TAC 724, wherein the ratio is that if the owner of the vehicle did not examine himself as a witness and has not either said that he saw driving licence while handing over the vehicle to the deceased or deceased was holding a valid licence, and if it is found that a driver was not holding a licence, then the insurer gets exonerated. He has also placed reliance on the judgment of the Hon'ble Supreme Court in the case of National Insurance Company Ltd. v.
3Misc. Appeal Nos.765/2003 and 916/2003 Laxminarain Dhut as reported in 2007 (2) TAC 398, wherein it has been held that where originally the licence was a fake one, renewal cannot cure the inherent fatality. While rendering this judgment, the judgment in the case of New India Assurance Company v. Kamla : (2001) 4 SCC 342 has been relied on.
3. On the other hand, the learned counsel for the claimants submits that there was enhancement of Rs.1,25,000/- in M.A.No.916/2003 filed by Smt. Guddi alias Rajabeti & Others vide order dated 28.06.2008 and there was another appeal namely M.A.No.765/2003, in which the Insurance Company was given liberty vide order dated 12.12.2003 to satisfy the claim of the claimants, but bestowing right of recovery against the owner. In view of such conflicting decisions, originally the Insurance Company had filed MCC No.827/2008, which was decided vide order dated 15.04.2013 so also another MCC No.87/2008 was filed by the owner of the vehicle seeking review on the ground that while passing order dated 12.12.2003, no notice was issued to him and the order was passed behind his back. To erase out such conflict, the Division Bench of this High Court maintained the order dated 28.06.2008 passed in M.A. No.916/2003 in regard to enhancement of compensation, however, it directed that both the M.As. No.765/2003 and 916/2003 be listed before the appropriate Bench for hearing on the question of fixing liability to pay compensation. In view of such judgment of the Division Bench, the learned counsel for the claimants submits that there is no dispute in regard to quantum, which has been maintained by the Division Bench in MCC No.827/2008. Now 4 Misc. Appeal Nos.765/2003 and 916/2003 the only question is in regard to right of the Insurance Company to pay and recover or to bear the responsibility totally on its own shoulders. He has placed reliance on the judgments of the Hon'ble Supreme Court in the cases of United India Insurance Co. Ltd. v. Lehru & Others :
(2003) 3 SCC 338 and Lal Chand v. Oriental Insurance Co. Ltd. : (2006) 7 SCC 318 to bring home the issue that there was no evidence on record to show that the owner insurer knew that driving licence was fake, therefore, the ratio of the judgment in the case of National Insurance Company Ltd. v. Laxminarain Dhut as reported in 2007 (2) TAC 398 will not be applicable.
4. Learned counsel for the Insurance Company, on the other hand, submits that the owner and the driver are not represented before this Court. He has pointed out from the record that the owner of the offending vehicle, namely, Banwarilal had not bothered to examine himself before the Claims Tribunal so as to say that he had seen the driving licence of driver Mahendra and it was not found to be fake. In fact, the defendants have examined only Officer of the Insurance Company, Official from RTO Gwalior and Official from RTO Jhansi. Therefore, in view of these facts on record, in the light of the law laid down by this High Court in the case of Oriental Insurance Company v. Virendra Singh Tomar & Others as reported in MACD 2010 (1) MP 45, since the owner of the vehicle had failed to put up any case that he was not knowing about the driver not holding a valid licence at the time of handing over of the vehicle, this Court is of the opinion that the appeal filed by the Insurance Company 5 Misc. Appeal Nos.765/2003 and 916/2003 deserves to be allowed to the extent that it will have a right to recover the claim compensation from the owner and the driver after satisfying the same in relation to claimants Smt. Guddi alias Rajabeti & Others.
5. Similarly, the appeal of the claimants is allowed to the extent that the owner, driver and the Insurance Company are liable to pay a sum of Rs.1,25,000/- in addition to the amount awarded by the Claims Tribunal with other terms and conditions in regard to rate of interest at 9% from the date of presentation of the claim, i.e., 02.03.2002 and the remaining award will remain intact. A further direction is issued that the aforesaid enhanced amount will also be disbursed in the same proportion in which award amount was directed to be disbursed by the Claims Tribunal. It is clarified that the Insurance Company shall satisfy this enhanced amount as well and will have a right to recover the same from the owner and driver of the vehicle. Accordingly, these appeals are disposed of.
(Vivek Agarwal) Judge 27.09.2017 Mehfooz/-