Rajasthan High Court - Jodhpur
Baksha Ram vs Ladu Singh And Ors on 16 September, 2019
Equivalent citations: AIRONLINE 2019 RAJ 829, (2020) 1 WLC (RAJ) 298
Author: Pushpendra Singh Bhati
Bench: Pushpendra Singh Bhati
HIGH COURT OF JUDICATURE FOR RAJASTHAN AT
JODHPUR
S.B. Civil Misc. Appeal No. 626/2002
Baksha Ram
----Appellant
Versus
Ladu Singh And Ors.
----Respondent
Connected With
S.B. Civil Misc. Appeal No. 632/2002
Om Prakash
----Appellant
Versus
Ladu Singh And Ors.
----Respondent
S.B. Civil Misc. Appeal No. 745/2002
Ladhu Singh And Anr
----Appellant
Versus
Baksha Ram And Anr
----Respondent
S.B. Civil Misc. Appeal No. 751/2002
Ladhu Singh And Anr
----Appellant
Versus
Om Prakash And Anr
----Respondent
For Appellant(s) : Mr. Rajesh Panwar
For Respondent(s) : Mr. J. Gehlot
Mr. Jagdish Vyas
HON'BLE DR. JUSTICE PUSHPENDRA SINGH BHATI
REPORTABLE Judgment
16/09/2019
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(2 of 12) [CMA-626/2002]
All the four appeals are arising out of the same judgment rendered by the Motor Accident Claims Tribunal, Sojat, Pali on 18.4.2002 while dealing with the particular accident which occurred on 11.5.1998 at about 9.45. p.m.on Nimaj Asarlai Road.
In the accident one motor-cycle bearing Number RJ 22 M116 was driven by Baksharam and Om Prakash which was struck by a jeep being driven by Ladu Singh bearing number RJ 19 C 814 in which Baksharam and Om Prakash received injuries.
The FIR was lodged at Reserve Centre, Jaitaran bearing No. 139/1998 and after investigation, a challan was also filed against Ladu Singh driver under Sections 279, 337 and 338 of IPC.
The first CMA No. 626/2002 is by Baksha Ram for enhancement as well as on account of the aspect of the appellant not having any contributory negligence.
The Second CMA No. 632/2002 filed by Om Prakash is also on the same lines.
The Third CMA No. 745/2002 and fourth CMA No. 751/2002 are filed by Ladu Singh, who is the driver and owner of the jeep for which learned counsel makes submissions of pay and recovery and negligence of the motor-cycle driver.
Learned counsel Mr. Rajesh Panwar representing Baksha Ram and Om Prakash submits that the learned court below has rightly arrived at the conclusion in para 12 while deciding the issue Nos. 1 & 5 that there was no contributory negligence on the part of the motor-cycle riders.
Counsel for Ladu Singh (owner and driver) Mr. Gehlot submits that Ladu Singh being owner was having valid license and thus, was not liable for the accident. Mr. J. Gehlot further submits that once the learned court below could not arrive at a finding that (Downloaded on 23/09/2019 at 08:24:06 PM) (3 of 12) [CMA-626/2002] the collusion was head on, therefore, the contributory negligence of the motor-cycle riders could not have been denied. Mr. Gehlot also submits in his third submission that the principle of pay and recovery will apply and compensation awarded has to be paid by the Insurance Company and recovered later.
Learned counsel for the Insurance Company Mr. Vyas submits that this was a case of no license as the appellant was not having a valid license in between 31.12.1997 to 12.5.1998 whereas the accident happened on 11.5.1998. Mr. Vyas further submits that the pay and recovery principle will not apply as the judgment of National Insurance Co. Ltd. Vs. Swaran Singh & Ors. 2004 DNJ (SC) 154 will not cover the field. The Hon'ble Apex Court has categorically laid down that no license part of the judgment shall have no precedent value.
Learned counsel for the Insurance Company submits that the letter written by the Tribunal to the RTO was responded by the RTO while stating that Ladu Singh was having a valid driving license for heavy motor vehicle from 28.9.1987 to 27.9.1990 and thereafter from 1.9.1992 to 31.12.1997 and thereafter from 12.5.1998 to 11.5.2001 and lastly from 31.5.2001 to 30.5.2004. He further submits that accident happened on 11.5.1998 when the appellant was having no license as his pre extended license was not renewed. Mr. Vyas has relied upon the judgment of Hon'ble Apex Court in the matter of National Insurance Company Vs. Vidhyadhar Mahariwala & Others reported in (2008) 12 SCC 701, relevant paragraphs are as under:-
4. In the instant case the date of accident was 11.6.2004. The driver's licence was initially valid for the period from 15.12.1997 to 14.12.2000 and (Downloaded on 23/09/2019 at 08:24:06 PM) (4 of 12) [CMA-626/2002] thereafter form 29.12.2000 to 14.12.2003.
Thereafter, it was again renewed from 16.5.2005 to 15.5.2008. The appellant filed its objections before MACT taking the stand that since the driving licence was not valid on the date of accident it had no liability. MACT turned down the plea. According to it though on the date of accident the driving licence was not valid, since the driver's licence was renewed on 16.5.2005 for further period of three years it cannot be said that during the intervening period the driver was incompetent or disqualified to drive the truck. With reference to Section 114 of the Evidence Act, 1872 (in short" the Evidence Act") it was held that at the itme of accident the driver was competent to drive the vehicle.
5. In appeal, by the impugned judgment the High Court referred to three judgments of this Court in Naitonal Insurance Co. Ltd. V. Swaran Singh, National Insurance Co. Ltd V. Kusum Rai and Oriental Insurance Co. Ltd V. Nanjappan and came to hold that the Insurance Company, the insurer was liable to indemnify the award. It was held that merely if there was agap in the renewal of driving licence that cannot be aground for exoneration.
8. In Swaran Singh case whereupon respondent 2 relied, it was held as follows:-
"45. Thus, a person whose licence is ordinarily renewed in terms of the Motor Vehicle Act and the Rules framed thereunder, despite the fact that during the interregnum period, namely, when the accident took place and the date ofexpiry of the licence, he did not have a valid licence, he could duirng the prescribed period apply for renewal thereof and could obtain the same automatically without undergoing any furtehr test or without having been declared unqualified therefor. Proviso appended to Seciton 14 in unequivocal terms states that thel icence remains valid for a perikod of thirty days form the day of its expiry.
46. Section 15 of the Act does not empower the authorities to reject an application for renewal only on the ground that there is abreak in validity or tenure of the driving licence has lapsed, as in the meantime, the provisions for disqualificaiton of the driver contained in Secitons 19, 20,21,22,23 and 24 will not be attracted, would indisputably confer a right upon the person to get his driving licence renewed. In that view of the matter, he cannot be said to be delicensed and the same shall remain valid for a period of thirty days after its expiry."
9. In Kusum Rai case it was held as follows:
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(5 of 12) [CMA-626/2002] "14. This Court in Swaran Singh clearly laid down that the liability of the Insurance Company vis-a-vis the owner would depend upon several factors. The owner would be liable for payment of compensation in a case where the driver was not having a licence at all. It was the obligation on the part of the owner to take adequate care to see that the driver had an appropriate licence to drive the vehicle. The question as regards the liability of the owner vis-a-vis the driver being not possessed of a valid licence was considered in Swaran Singh.
"89. Section 3 of the Act casts an obligation on a driver to hold an effective driving licence for the type of vehicle which he intends to drive. Section 10 of the Act enables the Central Government to prescribe forms of driving licences for various categories of vehicles mentioned in sub-section (2) of the said section. The various types of vehicles described for which a driver may obtain a licence for one or more of them are:
(a) motorcycle without gear, (b) motorcycle with gear, (c) invalid carriage, (d) light motor vehicle, (e) transport vehicle,
(f) road roller, and (g) motor vehicle of other specified description. The definition clause in Section 2 of the Act defines various categories of vehicles which are covered in broad types mentioned in sub-section (2) of Section 10. They are `goods carriage', `heavy goods vehicle', `heavy passenger motor vehicle', `invalid carriage', `light motor vehicle', `maxi-cab', `medium goods vehicle', `medium passenger motor vehicle', `motor-cab', `motorcycle', `omnibus', `private service vehicle', `semi-trailer', `tourist vehicle', `tractor', `trailer' and `transport vehicle'. In claims for compensation for accidents, various kinds of breaches with regard to the conditions of driving licences arise for consideration before the Tribunal as a person possessing a driving licence for `motorcycle without gear', [sic may be driving a vehicle] for which he has no licence. Cases may also arise where a holder of driving licence for `light motor vehicle' is found to be driving a `maxi- cab', `motor-cab' or `omnibus' for which he has no licence. In each case, on evidence led before the Tribunal, a decision has to be taken whether the fact of the driver possessing licence for one type of vehicle but found driving another type of vehicle, was the main or contributory cause of accident. If on facts, it is found that the accident was caused solely because of some other unforeseen or intervening causes like mechanical failures and similar other causes having no nexus with the driver not possessing requisite type of licence, the insurer will not be allowed to avoid its liability merely for technical breach of conditions concerning driving licence."(Downloaded on 23/09/2019 at 08:24:06 PM)
(6 of 12) [CMA-626/2002]
10. Nanjappan case was referred to in Kusum Rai case.
11. In Iswhar Chandra case the three decisions referred to by the High Court were considered and it was held that the insurance company would have no liability in the case of this nature. We are in agreement with the view. The appeal deserves to be allowed which we direct. The impugned order of the High Court is set aside. It is open to the claimant to recovery the amount from the respondent 2.
Mr. Vyas further relies upon the judgment of Bhuwan Singh Vs. Oriental Insurance Co. Ltd. And Anr. Reported in 2009 ACJ 1426 in which the Hon'ble Apex Court has categorically laid down the law that a driver not having valid and effective licence was rendered the insurance company not liable for the claim towards the claimants. Relevant paras are as under:
11. Concededly the appellant had been holding a learner's licence. It expired on 22.12.2000. Ther accident took place on 5.1.200. He applied for grant of a regular licence only on 22.1.200, whereafter only the licence was granted to him.
14. The Act provides for grant of a learner's licence. It indisputably is a licence within the meaning of provisions thereof. A person holding a learner's licence is also entitled to drive a vehicle but it is granted for a specific period. The terms and conditions for grant of a learner's licence are different from those of a regular licence. Holding of a learner's licence is imperative for filing an application for grant of licence as provided for in rule 4 of the Rules. Converse, however, is not true.
Only because the appellant held a learner's licence which had expired and was not valid on the date of accident, he cannot be said to be duly licensed. It is true that despite expiry of a regular licence, it may be renewed, but no provision has been brought to our notice providing for automatic renewal of learner's licence.
In Ram Babu Tiwari V. United India Insurance Co. Ltd, 2008 ACJ 2654 (SC) this Court held as under:
"18 It is beyond any doubt or dispute that only in the event an application for renewal of licence is filed within a period of 30 days form the date of expiry thereof, the same would be renewed automatically which means that even if an (Downloaded on 23/09/2019 at 08:24:06 PM) (7 of 12) [CMA-626/2002] accident had taken place within the aforementioned period, the driver may be held to be possessing a valid licence. The proviso appended to sub-section (1) of Section 1.5, however, clearly states that the driving licence shall be renewed with effect from the date of its renewal in the event the application for renewal of a licence is made more than 30 days after the date of its expiry. It is, therefore, evident that as, on renewal of the licence on such terms, the driver of the vehicle cannot be said to be holding a valid licence, the insurer would not be liable to indemnify the insured..."
Mr. Vyas further submits that the jurisprudence from Rambabu Tiwari till today is consistent and in the aforementioned precedent law also the Apex Court has held the insurance company not to be liable for the claim in question. In his rejoinder of the argument, Mr. J. Gehlot submits that the pay and recovery principle is absolute and its operation cannot be denied in the present case. He has further relied upon para 109 of the National Insurance Company Ltd. Vs. Swaran Singh & Ors. Reported in 2004 DNJ (SC) 154. Relevant para of which reads as under:-
109. The summary of our findings to the various issues as raised in these petitions are as follows: -
(i) Chapter XI of the Motor Vehicles Act, 1988 providing compulsory insurance of vehicles against third party risks is a social welfare legislation to extend relief by compensation to victims of accidents caused by use of motor vehicles. The provisions of compulsory insurance coverage of all vehicles are with this paramount object and the provisions of the Act have to be so interpreted as to effectuate the said object.
(ii) Insurer is entitled to raise a defence in a claim petition filed under Section 163 A or Section 166 of the Motor Vehicles Act, 1988 inter alia in terms of Section 149(2)(a)(ii) of the said Act.
(iii) The breach of policy condition e.g., disqualification of driver or invalid driving licence of the driver, as contained in sub-section (2)(a)(ii) of section 149, have to be proved to have been committed by the insured for avoiding liability by (Downloaded on 23/09/2019 at 08:24:06 PM) (8 of 12) [CMA-626/2002] the insurer. Mere absence, fake or invalid driving licence or disqualification of the driver for driving at the relevant time, are not in themselves defences available to the insurer against either the insured or the third parties. To avoid its liability towards insured, the insurer has to prove that the insured was guilty of negligence and failed to exercise reasonable care in the matter of fulfilling the condition of the policy regarding use of vehicles by duly licensed driver or one who was not disqualified to drive at the relevant time.
(iv) The insurance companies are, however, with a view to avoid their liability must not only establish the available defence(s) raised in the said proceedings but must also establish 'breach' on the part of the owner of the vehicle; the burden of proof wherefor would be on them.
(v) The court cannot lay down any criteria as to how said burden would be discharged, inasmuch as the same would depend upon the facts and circumstance of each case.
(vi) Even where the insurer is able to prove breach on the part of the insured concerning the policy condition regarding holding of a valid licence by the driver or his qualification to drive during the relevant period, the insurer would not be allowed to avoid its liability towards insured unless the said breach or breaches on the condition of driving licence is/ are so fundamental as are found to have contributed to the cause of the accident. The Tribunals in interpreting the policy conditions would apply "the rule of main purpose" and the concept of "fundamental breach" to allow defences available to the insured under section 149(2) of the Act.
(vii) The question as to whether the owner has taken reasonable care to find out as to whether the driving licence produced by the driver, (a fake one or otherwise), does not fulfil the requirements of law or not will have to be determined in each case.
(viii) If a vehicle at the time of accident was driven by a person having a learner's licence, the insurance companies would be liable to satisfy the decree.
(ix) The claims tribunal constituted under Section 165 read with Section 168 is empowered to adjudicate all claims in respect of the accidents involving death or of bodily injury or damage to property of third party arising in use of motor (Downloaded on 23/09/2019 at 08:24:06 PM) (9 of 12) [CMA-626/2002] vehicle. The said power of the tribunal is not restricted to decide the claims inter se between claimant or claimants on one side and insured, insurer and driver on the other. In the course of adjudicating the claim for compensation and to decide the availability of defence or defences to the insurer, the Tribunal has necessarily the power and jurisdiction to decide disputes inter se between insurer and the insured. The decision rendered on the claims and disputes inter se between the insurer and insured in the course of adjudication of claim for compensation by the claimants and the award made thereon is enforceable and executable in the same manner as provided in Section 174 of the Act for enforcement and execution of the award in favour of the claimants.
(x) Where on adjudication of the claim under the Act the tribunal arrives at a conclusion that the insurer has satisfactorily proved its defence in accordance with the provisions of section 149(2) read with sub-section (7), as interpreted by this Court above, the Tribunal can direct that the insurer is liable to be reimbursed by the insured for the compensation and other amounts which it has been compelled to pay to the third party under the award of the tribunal. Such determination of claim by the Tribunal will be enforceable and the money found due to the insurer from the insured will be recoverable on a certificate issued by the tribunal to the Collector in the same manner under Section 174 of the Act as arrears of land revenue. The certificate will be issued for the recovery as arrears of land revenue only if, as required by sub-section (3) of Section 168 of the Act the insured fails to deposit the amount awarded in favour of the insurer within thirty days from the date of announcement of the award by the tribunal.
(xi) The provisions contained in sub-section (4) with proviso thereunder and sub-section (5) which are intended to cover specified contingencies mentioned therein to enable the insurer to recovery amount paid under the contract of insurance on behalf of the insured can be taken recourse of by the Tribunal and be extended to claims and defences of insurer against insured by relegating them to the remedy before regular court in cases where on given facts and circumstances adjudication of their claims inter se might delay the adjudication of the claims of the victims. (Downloaded on 23/09/2019 at 08:24:06 PM)
(10 of 12) [CMA-626/2002] For the reasons aforementioned, these petitions are
dismissed but without any order as to costs.
Mr. J. Gehlot submits that in view of the Swaran Singh (supra) law the pay and recovery principle envisages that insurance company cannot escape from liability of pay and recovery towards third party only on count of fact that the insured vehicle was not being driven by a driver having valid license.
Mr. Rajesh Panwar, learned counsel for the claimants also supports the doctrine of pay and recovery by citing judgment of Parminder Singh Vs. New India Assurance Company Limited & Ors. Reported in (2019) 7 SCC 217, relevant portion of which is as under:-
7. On the issue of liability to pay the compensation awarded, we affirm the view taken by the High Court that the Respondent - Insurance Company is absolved of the liability to bear the compensation, as evidence has been produced from the office of the Regional Transport Office to prove that the drivers of the two offending trucks were driving on the basis of invalid driving licenses. It is also relevant to note that the owners and drivers of the offending trucks have not appeared at any stage of the proceedings, including this Court.
7.1. This Court in Shamanna & Ors. v. The Divisional Manager, The Oriental Insurance Co. Ltd. & Ors., held that if the driver of the offending vehicle does not possess a valid driving license, the principle of 'pay and recovery' can be ordered to direct the insurance company to the pay the victim, and then recovery the amount from the owner of the offending vehicle.
7.2. We deem it just and fair to direct the Respondent -
Insurance Company to pay the enhanced amount of compensation as indicated in Para. 6 above, to the Appellant within a period of 12 weeks from the date of this judgment. The Respondent - Insurance Company is directed to make out a Demand Draft in the name of the Appellant, which can be used for his care for the rest of his life. The Respondent - Insurance Company is entitled to recovery the amount from the owners and drivers of the two offending trucks. (Downloaded on 23/09/2019 at 08:24:06 PM)
(11 of 12) [CMA-626/2002]
8. The Civil Appeal is allowed in the aforesaid terms. All pending Applications, if any, are accordingly disposed of. Ordered accordingly.
After hearing Mr. Rajesh Panwar, learned counsel for the claimants Baksha Ram and Om Prakash, Mr. J Gehlot for driver and owner Ladu Singh and Govind Singh and after hearing Mr. Jagdish Vyas, counsel for the Insurance Company, this Court finds that the impugned order is correct on its merits. The issue of accident and the issue of raising liability has been decided by the Tribunal after taking all the evidence on record and does not call for any interference.
The very fact that Ladu Singh was not having a valid driving license form 31.12.1997 to 12.5.1998 is an undisputed fact and, therefore, the liability has to be ultimately come upon driver/owner.
The contributory negligence has been discussed while deciding the issue Nos. 1 & 5 in which the site plan has been discussed and the conclusion clearly shows the negligence of the jeep driver Ladu Singh. The jeep No. RJ 22 Mll6 being driven by Ladu singh has caused accident whereby the motor-cycle riders have been injured.
On bare reading of the complete record of the case, as well as after considering the submissions and judgment given by the counsels, no interference in the impugned order found to be made out. However, while considering the issue of pay and recovery which has been decided by the learned Tribunal in favour of the Insurance Company, this Court finds that the precedent law governing the field i.e. Swaran Singh (supra) and Parminder Singh (supra) shall have to be given precedence. The judgments given in favour of the Insurance Company i.e. Vidhyadhar (supra) and (Downloaded on 23/09/2019 at 08:24:06 PM) (12 of 12) [CMA-626/2002] Bhuwan Singh (supra) are directly not on the issue of pay and recovery and in these judgments Hon'ble the Apex Court only concluded that the liability to pay shall be of the driver/owner and the Insurance Company has been absolved. However, the judgments cited have dealt with the issue of pay and recovery and the sum and substance of the precedent law covering the field is that if a driver of the vehicle does not possess a valid license, the insurance company has to be liable to pay and recovery amount from the owner of the vehicle, which is applicable in the present case. While taking this view, this court has kept into strong consideration the fact that the driver of the vehicle was having a valid driving license of heavy motor vehicle from 28.9.1987 to 30.5.2004 but the same was not renewed at the time of accident i.e. on 11.5.1998.
The appeals are accordingly disposed of.
The impugned judgment is upheld. However, the pay and recovery principle shall apply, the insurance company shall be liable to pay the award from the owner driver. It is also made clear that the liability of pay and recovery shall be exclude already paid amount by the driver/owner for filing of appeal under Section 173 Cr.P.C.
(DR. PUSHPENDRA SINGH BHATI),J ns. 25-1/-
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