Punjab-Haryana High Court
National Insurance Company Limited vs Smt.Kusam Kumari And Others on 8 February, 2012
Author: K.C.Puri
Bench: K.C. Puri
FAO No.694 of 1991 1
IN THE HIGH COURT OF PUNJAB AND HARYANA AT
CHANDIGARH
FAO No.694 of 1991
Date of decision 08.02.2012.
National Insurance Company Limited
...... Appellant.
versus
Smt.Kusam Kumari and others
...... Respondents.
CORAM:- HON'BLE MR. JUSTICE K.C. PURI
1. Whether Reporters of Local Newspapers may be allowed to see the judgment?
2. To be referred to the Reporters or not?
3. Whether the judgment should be reported in the Digest?
Present : Mr. Anil Kumar, Advocate for Mr. R.K.Bashamboo, Advocate for the appellant. Mr. B.S.Rana, Advocate for respondent.
K.C.PURI. J.
Appellant-National Insurance Company Limited has directed the present appeal against the award dated 31.1.1991 passed by Shri C.R.Goel, learned Motor Accident Claims Tribunal, Faridabad vide which the claimants were awarded compensation amounting to Rs.96,000/- along with 12% interest from the date of petition till the payment.
2. Briefly stated claimants widow and minor sons filed claim petition under Section 166 of the Motor Vehicles Act claiming FAO No.694 of 1991 2 compensation on account of death of Ram Lagan in a motor vehicular accident.
3. The claim set up by the claimants is that on 9.1.1990 at about 4.00p.m. Ram Lagan, was walking on feet on the left side of the road on way to his place of employment in NH-3 when a scooter bearing registration No.DAM-6050 being driven by Saran Lal-respondent No.1 came from behind and hit the Ram Lagan. On account of the same, Ram Lagan received multiple injuries and fractures. After that Om Parkash who was selling fruits on the nearby Rehri along with others as well as Saran Lal, erring driver of the offending scooter shifted him to B.K. Hospital, Faridabad and later on he succumbed to the injuries.
4. On put to notice respondents appeared and filed written statement and denied that the vehicle in question was involved in the accident and stated that rather when his scooter happened to pass through the site of this accident he stopped there and found that a person was lying injured on the road and he along with others shifted him to the hospital and he has been falsely implicated in this case. Denying other averments respondent No.1 prayed for dismissal of the claim petition.
5. Respondent No.2 did not file any written statement and ultimately his defence was struck off.
6. Respondent No.3 National Insurance Company denied its liability as driver of the offending vehicle was not holding valid driving licence at the time of accident.
7. Following issues were framed :-
1. Whether the petitioners are heirs of deceased Ram FAO No.694 of 1991 3 Lagan ? OPP
2. Whether Ram Lagan died in an accident on account of rash and negligent driving of respondent no.1 Saran Lal, driver of scooter No.DAM 6050 ?OPP
3. Whether the petitioners are entitled to claim compensation on account of death of Ram Lagan. If so to which extent and from whom ?OPP
4. Whether this petition is not maintainable, as alleged OPR
5. Whether the petition is barred by time ?OPR
6. Whether the insured vehicle was being driven without proper driving licence and the insured violated the terms and conditions of the Insurance policy, if so, its effect ?
OPR.
7. Relief.
8. The parties have led their respective evidence on the aforesaid issues. The Tribunal after appraisal of the same, vide Award dated 31.01.1991 granted compensation to the tune of Rs.96,000/- to the claimants along with interest @ 12% per annum from the date of petition till the date of payment of the amount. All the respondents were held jointly and severally liable for payment.
9. Feeling dissatisfied with the aforesaid Award dated 31.01.1991, the National Insurance Company Limited has preferred present appeal against the said award from absolving it from its liability to pay compensation amount.
10. I have heard learned counsel for the parties and have gone through the records of the case with their able assistance.
11. Learned counsel for the appellant has submitted that Saran Lal was not holding a valid driving licence. It is submitted that according to the FAO No.694 of 1991 4 case of Saran Lal driver of scooter No. DAM-6050 and he was holding a valid driving licence for plying LMV, HMV and having HMV. It is contended that Insurance company examined RW-1 Dinesh Kumar, Assistant Administrative Officer, who sent letter Ex.RX to licencing authority Kamrup (Assam) for giving confirmation whether Saran Lal was holding a valid driving licence. The reply Ex.RX/1 was received that Saran Lal was not holding any valid driving licence. So, in the absence of any driving licence, Insurance Company cannot be held liable for payment of compensation amount.
12. I have considered the said submission but do not find any force in that submission.
13. Learned Tribunal has rightly held that Insurance Company could have examined the witness from Licencing authority. Non- examination of the said witness of licensing authority is fatal to the case of the Insurance Company. That finding does not call for any interference. The onus to prove that Saran Lal was not holding a valid driving licence is on the Insurance Company. Mere producing the letter is not sufficient to prove this aspect. Insurance Company could have examined any witness from office of the licencing authority by appointment of Local Commissioner or could send interrogatories through the Court. Much importance cannot be given to the statement of the Officer of Insurance Company more so, he admittedly has not visited the office of the said licencing authority.
14. Second contention of the learned counsel for the Insurance Company is that even if it is admitted that Saran Lal was having a valid driving licence Ex.RX, in that case the same is valid for plying HMV and FAO No.694 of 1991 5 MMV but there is no authorization to him to drive scooter as per said licence. So, the Insurance company cannot be held liable. To support this contention learned counsel for the appellant has relied upon on authority Oriental Insurance Co. vs. Zaharulnisha & Ors. AIR 2008 Supreme Court 2218.
15. Learned counsel for the respondents has submitted that since Saran Lal was holding a valid driving licence for light one, having HMV and as such he is authorized to ply the scooter, which can be considered as a light vehicle.
16. I have considered the said submission. The arguments advanced by the counsel for the appellant in respect of these contention carries weight and has to be accepted. The driving licence Ex.RX is admitted by Saran Lal as he has stated that he was holding the driving licence to ply HMV, MMV and LMV. The question before Apex Court in authority Oriental Insurance Co. vs. Zaharulnisha & Ors' case (supra) was whether a person holding a driving licence to ply LMV can ply the scooter a two wheeler. The answer to that question has been given in negative by the Hon'ble Apex Court.
17. The relevant paragraphs No.18 and 19 are reproduced as under :-
"18. In the light of the above settled proposition of law, the appellant-Insurance Company cannot be held liable to pay the amount of compensation to the claimants for the cause of death of Shukurullah in road accident which had occurred due to rash and negligent driving of scooter by FAO No.694 of 1991 6 Ram Surat who admittedly had no valid and effective licence to drive the vehicle on the day of accident. The scooterist was possessing driving licence of driving HMV and he was driving totally different class of vehicle which act of his is in violation of Section 10(2) of the MV Act.
19. In the result, the appeal is allowed to the limited extent and it is directed that the appellant-insurance company though not liable to pay the amount of compensation, but in the nature of the case it shall satisfy the award and shall have the right to recover the amount deposited by it along with interest from the owner of the vehicle, viz. Respondent No.8, particularly in view of the fact that no appeal was preferred by him nor has he chosen to appear before this Court to contest this appeal. This direction is given in the light of the judgments of this Court in National Insurance Co. Ltd. v. Baljit Kaur and Others [(2004) 2 SCC 1] and Deddappa and others vs. Branch Manager, National Insurance Co. Ltd. [(2008) 2 SCC 595]"
18. In view of the observations made by Apex Court, I have no hesitation in holding that Saran Lal was not having a valid driving licence to drive the scooter. So, the Insurance company is not liable to pay the amount of compensation. In authority Oriental Insurance Co. vs. Zaharulnisha & Ors' case (supra) the Insurance company was directed to pay the FAO No.694 of 1991 7 amount of compensation to the claimant and was allowed to recover the same from the owner of the offending vehicle.
19. So, keeping in view that analogy, the appeal is accepted to the extent that Insurance Company shall be entitled to recover the compensation amount from the owner after making the payment of the same to the claimants.
20. The appeal stands disposed of accordingly.
21. A copy of this judgment be sent to the trial Court for strict compliance.
( K.C. PURI ) JUDGE February 08 , 2012 sv