Allahabad High Court
M/S. Oriental Insurance Co. Ltd. vs Ram Kishan Agarwal And Others on 21 February, 2023
Author: Kaushal Jayendra Thaker
Bench: Kaushal Jayendra Thaker
HIGH COURT OF JUDICATURE AT ALLAHABAD A.F.R. Court No. - 44 Case :- FIRST APPEAL FROM ORDER No. - 4116 of 2017 Appellant :- M/S. Oriental Insurance Co. Ltd. Respondent :- Ram Kishan Agarwal And Others Counsel for Appellant :- S.K. Jaiswal,N.K.Srivastava Counsel for Respondent :- K.S. Amist And Case :- FIRST APPEAL FROM ORDER No. - 441 of 1996 Appellant :- The New India Assurance Co. Ltd. Respondent :- Sri Raghubir Singh Sani Counsel for Respondent :- S.K. Jaiswal,K.S. Amist,N.K. Srivastava And Case :- FIRST APPEAL FROM ORDER No. - 442 of 1996 Appellant :- The New Ed India Assurance Company Ltd. Respondent :- Ram Prakash And Others Counsel for Appellant :- K.S. Amist Counsel for Respondent :- S.K. Jaiswal And Case :- FIRST APPEAL FROM ORDER No. - 443 of 1996 Appellant :- The New India Assurance Co. Ltd. Respondent :- Mst. Hafizan And Another Counsel for Respondent :- V.S. Chaudhary And Case :- FIRST APPEAL FROM ORDER No. - 444 of 1996 Appellant :- The New India Assurance Co. Ltd. Respondent :- Smt. Anaro And Others Counsel for Appellant :- K.S. Amist Counsel for Respondent :- N.K. Srivastava And Case :- FIRST APPEAL FROM ORDER No. - 447 of 1996 Appellant :- The New India Assurance Co. Ltd. Respondent :- Smt. Shakuntla Devi Agrawal Counsel for Appellant :- K.S. Amist Counsel for Respondent :- N.K. Srivastava,S.K. Jaiswal And Case :- FIRST APPEAL FROM ORDER No. - 448 of 1996 Appellant :- The New India Assurance Co. Ltd. Respondent :- Km. Lovy Minor Counsel for Appellant :- K.S.Amist Counsel for Respondent :- S.K. Jaiswal And Case :- FIRST APPEAL FROM ORDER No. - 449 of 1996 Appellant :- The New India Assurance Co. Ltd. Respondent :- Sri Shyam Lal And Others Counsel for Appellant :- K.S. Amist Counsel for Respondent :- S.K. Jaiswal,N.K. Srivastava And Case :- FIRST APPEAL FROM ORDER No. - 503 of 1996 Appellant :- M/S Oriental Insurance Co.Ltd. Respondent :- Ram Prakash Counsel for Appellant :- S.K.Jaiswal,N.K. Srivastava Counsel for Respondent :- V.S. Chaudhary And Case :- FIRST APPEAL FROM ORDER No. - 3958 of 2017 Appellant :- M/S Oriental Insurance Co.Ltd. Respondent :- Smt.Urmila And Another Counsel for Appellant :- S.K.Jaiswal,N.K. Srivastava Counsel for Respondent :- K.S. Amist And Case :- FIRST APPEAL FROM ORDER No. - 3967 of 2017 Appellant :- M/S Oriential Insurance Co.Ltd. Respondent :- Km.Lovy Minor Counsel for Appellant :- S.K.Jaiswal,N.K. Srivastava Counsel for Respondent :- Rajeev Chaddha,K.S. Amist And Case :- FIRST APPEAL FROM ORDER No. - 4078 of 2017 Appellant :- M/S Oriental Insurance Co.Ltd. Respondent :- Smt.Anaro And Another Counsel for Appellant :- S.K.Jaiswal,N.K. Srivastava Counsel for Respondent :- K.S. Amist And Case :- FIRST APPEAL FROM ORDER No. - 41 of 2018 Appellant :- M/S. Oriental Insurance Co. Ltd. Respondent :- Narpat And Others Counsel for Appellant :- S.K. Jaiswal,N.K. Srivastava Counsel for Respondent :- K.S. Amist And Case :- FIRST APPEAL FROM ORDER No. - 56 of 2018 Appellant :- M/S Oriental Insurance Co.Ltd. Respondent :- Rajendra Singh And Another Counsel for Appellant :- S.K.Jaiswal,N.K. Srivastava Counsel for Respondent :- K.S. Amist,V.M. Zaidi And Case :- FIRST APPEAL FROM ORDER No. - 63 of 2018 Appellant :- M/S Oriental Insurance Co.Ltd. Respondent :- Shyam Lal And Others Counsel for Appellant :- S.K.Jaiswal,N.K. Srivastava Counsel for Respondent :- Rajeev Chaddha,K.S. Amist And Case :- FIRST APPEAL FROM ORDER No. - 64 of 2018 Appellant :- M/S Oriental Insurance Co.Ltd. Respondent :- Nawab Ali And Another Counsel for Appellant :- S.K.Jaiswal,N.K. Srivastava Counsel for Respondent :- V.S. Chaudhary,K.S. Amist And Case :- FIRST APPEAL FROM ORDER No. - 445 of 1996 Appellant :- The New India Assurance Co. Ltd. Respondent :- Sri Narpat And Others Counsel for Appellant :- K.S. Amist Counsel for Respondent :- N.K. Srivastava And Case :- FIRST APPEAL FROM ORDER No. - 450 of 1996 Appellant :- M/S. U.P.S.R.T.C. And Others Respondent :- Smt. Baijanti And Others Counsel for Appellant :- Samir Sharma Counsel for Respondent :- V.S. Rajput And Case :- FIRST APPEAL FROM ORDER No. - 446 of 1996 Appellant :- The New India Assurance Co. Ltd. Respondent :- Ram Kishan Agrawal And Others Counsel for Appellant :- K.S. Amist Counsel for Respondent :- N.K. Srivastava Hon'ble Dr. Kaushal Jayendra Thaker,J.
1. This group of matters are preferred by Oriental Insurance Co. Ltd and The New India Assurance Company Ltd respondents in the claim petitions which arose out of the same accident. The Insurance Companies have requested for settling the liability on the other insurance company as far as negligence of the driver driving the vehicle involved in accident.
2. The Insurance Companies have raised the issue of driving licence but it is held by tribunal that have not proved the same to be defective before the tribunal which would permit the tribunal to exonerate them. The insurance companies have not proved that there is breach of policy condition. The second contention raised by both the appellants-Insurance companies is that the tribunal did not apportion the negligence of drivers of both the vehicles. The tribunal having not apportioned the negligent, the amount receivable by heirs of driver is not deducted which is bad in law.
3. The brief facts of the case are that on 19.6.1988 at about 11.15 a.m., Bus No. URJ 7389, in which all the deceased/injured persons along with the other passengers were traveling, met with an accident at Bijoli Tiraha, Meerut-Hapur Road, within the circle of P.S. Kharkhoda, District Meerut with Truck No. DHL 3616. It was a head on collision. The bus was going from Meerut to Hapur where as the truck was coming from the opposite direction towards Meerut, when the accident took place. As a result of collusion, the aforesaid bus over turned to left side. On account of this accident, Km. Kaushalya Devi, Ajay Kumar Agarwal, Smt. Mithlesh Agarwal, Bashir, Hariya, Devendra and Ashraf died where as the claimants Smt. Urmila, Km. Lovy, Shyam Lal, Raghuvir and Rajendra Singh sustained various injuries which will be described and narrated later on. The petitioners have alleged that the accident in question is the result of gross rash and negligence in driving the vehicles on the part of the drivers involved in the accident.
4. The owners of bus No. URJ 7389 have contested the claim petitions mainly on the ground that their driver-Ashraf, who also died in the accident was not rash and negligent in causing the accident. On the other hand, the driver of the motor truck No. DHL 3616 was negligent who caused the accident and collided with the bus no. URJ 7389 on their wrong side.
5. The claim petitions had been filed by the legal representatives of the deceased and by the injured persons, who sustained injuries in a motor accident which occurred on 19.6.1988 at about 11.15 a.m. at Bijoli Tiraha on Meerut-Hapur Road, within the circle of Police Station Kharkhoda, District Meerut, for compensation under Sections 92-A and 110-A of Motor Vehicle Act, 1939.
6. It may be stated that since claim petitions related to the same accident, by an order dated 17.1.1990 the claim petitions No.197/88, 198/88 & 230/88 were consolidated and the claim petition No.197/88 was treated as leading case, by order dated 22.5.1990 M.A.C. No.154/88, 155/88 and 156/88 were consolidated with M.A.C. No.197/88, by an order dated 8.11.1995 M.A.C. No.312/88 were consolidated with M.A.C. No.197/88. M.A.C. No.243/88 was consolidated with the M.A.C. No.197/88 vide order dated 29.7.1991 in M.A.C. No.243/88. M.A.C. No.298/88, 299/88 and 311/88 were consolidated with leading case No.197/88 vide order dated 4.7.1991, M.A.C. No.28/1989 was consolidated with the leading case M.A.C. No.197/88 vide order dated 22.9.1993 were to be heard together.
7. The owners of the motor truck No. DHL 3616 have not contested the claim petitions.
8. New India Insurance Company is the insurer of the bus URJ 7389, the Insurance Company has contested the claim petitions mainly on the ground that the alleged accident took place due to rash and negligence of the driver of motor truck No. DHL 3616.
9. The Oriental Insurance Company being the insurer of motor truck DHL No.3616 have contested the claim petitions on the ground that the driver of the motor truck DHL No.3616 was not having any valid driving licence to drive the said truck on the date of accident. Hence the Insurance company was not liable to pay the compensation as per Section 96 of Motor Vehicle Act, 1939.
10. The applicant M/s. Oriental Insurance Co. Ltd in some of the connected appeals has raised the following grounds to challenge the common judgment/award of tribunal.
"(i). that the award of compensation granted by the learned Tribunal suffers from illegality and perversity on behalf of the appellant, it was specifically pleaded through Additional Written Statement that the driver of Truck No.DHL 3616 Zahid Husain was not holding any valid driving licence. In view of Section 96 of the Motor Vehicles Act and also in terms of the policy of Insurance the appellant/was not liable at all. The liability if any, was fixed, the truck owners were liable.
(ii). The learned Tribunal failed to giving finding on rash and negligent driving. All the passengers of the bus had deposed that the bus, was at a very high speed.
(iii) The learned Tribunal failed to give a clear finding as to the quantum of the liability fixed on the appellant and the new India Assurance Co. the Insurer of the bus. Thus vitiates the finding.
(iv) The tribunal committed an error of law as he ignored the vital pleading with regard to the driving licence not held by the driver of the said truck. Although attested true copies of the driving licence and its verification from the office have been produced before the learned Tribunal.
(v) In a written argument filed on behalf of appellant it was clearly stated that in view of law laid down by the Hon'ble Supreme Court and this Hon'ble Court also, the insurance company (appellant) is absolved to indemnify the insured truck as its driver was not holding a valid licence (driving licence)
(vi) Even otherwise the findings given by the learned Tribunal is erroneous arbitrary and against the well settled principal of law and hence is liable to be set aside."
11. The appellant-New India Assurance Co. Ltd. in the connected appeals has challenge the award on the following grounds:
(i) Once the court below found that accident took place by Bus No.URJ 7389 and Truck No.DHL3 3616 due to contributory negligence of both the vehicles and as such the court below ought to have passed an award after apportionment of the amount liable to be paid by insurer of each vehicle this having not been done the award of the court below is wholly illegal and erroneous.
(ii) The accident took place on 19.6.1988 and at that time Motor Vehicles Act, 1939 was enforced and as per term of insurance policy under Section 92 of the Motor Vehicle Act, 1939 maximum statutory liability of the appellant could be fixed to Rs.15,000/- per passenger and since it was a case of contributory negligence has found by the court below the liability of the appellant will be of Rs.7,500/- only per passenger but view to the contrary taken by the tribunal is wholly illegal and erroneous.
(iii) The court below has awarded the compensation excessively though a maximum compensation against the appellant which could have been awarded is Rs.7500/- in this view of the matter the award of the tribunal is highly excessive and is liable to be set aside by this Hon'ble Court.
(iv) The compensation awarded against the appellant could be paid only to the dependents of the deceased or injured and where there was no dependency no amount was liable to be paid unless the claims proved before the court below that they were dependent upon the deceased or injured and in this view of the matter the quantum of compensation is highly excessive.
(v) According to the terms and condition of the Insurance Policy of Bus No.URJ 7389 which was insured by the appellant the bus was insured for carrying 69 passengers and in the premium charge from the owner was Rs.828/- only at the rate of Rs.12/- per passenger and accordingly the liability of the appellant was maximum Rs.15,000/- per passenger as per rule contained under the Act and Rules. It is further stated that Rs.75/- was charged by the appellant for enhancing the third party risk and it had nothing to do for the enhancement of compensation for the passengers but view to the contrary taken by the court below is wholly illegal and erroneous.
(vi) The Court below have wrongly applied multiplier system in the present case.
(vii) The quantum of compensation and rate of interest is highly excessive and is liable to be set aside by this Hon'ble Court.
(viii) The driver of the bus was not entitled for any compensation as he could claim compensation from the owner of the bus under the Workman compensation Act.
(ix) The claimant respondents do not come within the definition of family as provided under the Fatal Accidents Act and are not entitled to claim any compensation.
(x) The judgment and award of the Tribunal is wholly illegal and is against the weight of oral and documentary evidence available on record of this case and is liable to be set aside.
12. Heard the learned counsel for the appellant-Insurance Companies. The common ground of challenge by both the Insurance Companies relates to negligence of drivers of vehicles involved in the accident, let us consider the question of negligence from the perspective of the law laid down and where two vehicles are involved.
13. The term negligence means failure to exercise care towards others which a reasonable and prudent person would in a circumstance or taking action which such a reasonable person would not. Negligence can be both intentional or accidental which is normally accidental. More particularly, it connotes reckless driving and the injured must always prove that the either side is negligent. If the injury rather death is caused by something owned or controlled by the negligent party then he is directly liable otherwise the principle of "res ipsa loquitur" meaning thereby "the things speak for itself" would apply.
14. The term negligence has been discussed time and again. A person who either contributes or is author or co-author of the accident would be liable for his contribution to the accident having taken place.
15. The Division Bench of this Court in First Appeal From Order No. 1818 of 2012 ( Bajaj Allianz General Insurance Co.Ltd. Vs. Smt. Renu Singh And Others) decided on 19.7.2016 has held as under :
"16. Negligence means failure to exercise required degree of care and caution expected of a prudent driver. Negligence is the omission to do something which a reasonable man, guided upon the considerations, which ordinarily regulate conduct of human affairs, would do, or doing something which a prudent and reasonable man would not do. Negligence is not always a question of direct evidence. It is an inference to be drawn from proved facts. Negligence is not an absolute term, but is a relative one. It is rather a comparative term. What may be negligence in one case may not be so in another. Where there is no duty to exercise care, negligence in the popular sense has no legal consequence. Where there is a duty to exercise care, reasonable care must be taken to avoid acts or omissions which would be reasonably foreseen likely to caused physical injury to person. The degree of care required, of course, depends upon facts in each case. On these broad principles, the negligence of drivers is required to be assessed.
17. It would be seen that burden of proof for contributory negligence on the part of deceased has to be discharged by the opponents. It is the duty of driver of the offending vehicle to explain the accident. It is well settled law that at intersection where two roads cross each other, it is the duty of a fast moving vehicle to slow down and if driver did not slow down at intersection, but continued to proceed at a high speed without caring to notice that another vehicle was crossing, then the conduct of driver necessarily leads to conclusion that vehicle was being driven by him rashly as well as negligently.
18. 10th Schedule appended to Motor Vehicle Act contain statutory regulations for driving of motor vehicles which also form part of every Driving License. Clause-6 of such Regulation clearly directs that the driver of every motor vehicle to slow down vehicle at every intersection or junction of roads or at a turning of the road. It is also provided that driver of the vehicle should not enter intersection or junction of roads unless he makes sure that he would not thereby endanger any other person. Merely, because driver of the Truck was driving vehicle on the left side of road would not absolve him from his responsibility to slow down vehicle as he approaches intersection of roads, particularly when he could have easily seen, that the car over which deceased was riding, was approaching intersection.
19. In view of the fast and constantly increasing volume of traffic, motor vehicles upon roads may be regarded to some extent as coming within the principle of liability defined in Rylands V/s. Fletcher, (1868) 3 HL (LR) 330. From the point of view of pedestrian, the roads of this country have been rendered by the use of motor vehicles, highly dangerous. 'Hit and run' cases where drivers of motor vehicles who have caused accidents, are unknown. In fact such cases are increasing in number. Where a pedestrian without negligence on his part is injured or killed by a motorist, whether negligently or not, he or his legal representatives, as the case may be, should be entitled to recover damages if principle of social justice should have any meaning at all.
20. These provisions (sec.110A and sec.110B of Motor Act, 1988) are not merely procedural provisions. They substantively affect the rights of the parties. The right of action created by Fatal Accidents Act, 1855 was 'new in its species, new in its quality, new in its principles. In every way it was new. The right given to legal representatives under Act, 1988 to file an application for compensation for death due to a motor vehicle accident is an enlarged one. This right cannot be hedged in by limitations of an action under Fatal Accidents Act, 1855. New situations and new dangers require new strategies and new remedies.
21. In the light of the above discussion, we are of the view that even if courts may not by interpretation displace the principles of law which are considered to be well settled and, therefore, court cannot dispense with proof of negligence altogether in all cases of motor vehicle accidents, it is possible to develop the law further on the following lines; when a motor vehicle is being driven with reasonable care, it would ordinarily not meet with an accident and, therefore, rule of res-ipsa loquitor as a rule of evidence may be invoked in motor accident cases with greater frequency than in ordinary civil suits (per three-Judge Bench in Jacob Mathew V/s. State of Punjab, 2005 0 ACJ(SC) 1840).
22. By the above process, the burden of proof may ordinarily be cast on the defendants in a motor accident claim petition to prove that motor vehicle was being driven with reasonable care or that there is equal negligence on the part the other side."
emphasis added
16. The Apex Court in Khenyei Vs. New India Assurance Company Limited & Others, 2015 LawSuit (SC) 469 has held as under:
"4. It is a case of composite negligence where injuries have been caused to the claimants by combined wrongful act of joint tort feasors. In a case of accident caused by negligence of joint tort feasors, all the persons who aid or counsel or direct or join in committal of a wrongful act, are liable. In such case, the liability is always joint and several. The extent of negligence of joint tort feasors in such a case is immaterial for satisfaction of the claim of the plaintiff/claimant and need not be determined by the by the court. However, in case all the joint tort feasors are before the court, it may determine the extent of their liability for the purpose of adjusting inter-se equities between them at appropriate stage. The liability of each and every joint tort feasor vis a vis to plaintiff/claimant cannot be bifurcated as it is joint and several liability. In the case of composite negligence, apportionment of compensation between tort feasors for making payment to the plaintiff is not permissible as the plaintiff/claimant has the right to recover the entire amount from the easiest targets/solvent defendant.
14. There is a difference between contributory and composite negligence. In the case of contributory negligence, a person who has himself contributed to the extent cannot claim compensation for the injuries sustained by him in the accident to the extent of his own negligence;whereas in the case of composite negligence, a person who has suffered has not contributed to the accident but the outcome of combination of negligence of two or more other persons. This Court in T.O. Anthony v. Karvarnan & Ors. [2008 (3) SCC 748] has held that in case of contributory negligence, injured need not establish the extent of responsibility of each wrong doer separately, nor is it necessary for the court to determine the extent of liability of each wrong doer separately. It is only in the case of contributory negligence that the injured himself has contributed by his negligence in the accident. Extent of his negligence is required to be determined as damages recoverable by him in respect of the injuries have to be reduced in proportion to his contributory negligence. The relevant portion is extracted hereunder :
"6. 'Composite negligence' refers to the negligence on the part of two or more persons. Where a person is injured as a result of negligence on the part of two or more wrong doers, it is said that the person was injured on account of the composite negligence of those wrong-doers. In such a case, each wrong doer, is jointly and severally liable to the injured for payment of the entire damages and the injured person has the choice of proceeding against all or any of them. In such a case, the injured need not establish the extent of responsibility of each wrong-doer separately, nor is it necessary for the court to determine the extent of liability of each wrong-doer separately. On the other hand where a person suffers injury, partly due to the negligence on the part of another person or persons, and partly as a result of his own negligence, then the negligence of the part of the injured which contributed to the accident is referred to as his contributory negligence. Where the injured is guilty of some negligence, his claim for damages is not defeated merely by reason of the negligence on his part but the damages recoverable by him in respect of the injuries stands reduced in proportion to his contributory negligence.
7. Therefore, when two vehicles are involved in an accident, and one of the drivers claims compensation from the other driver alleging negligence, and the other driver denies negligence or claims that the injured claimant himself was negligent, then it becomes necessary to consider whether the injured claimant was negligent and if so, whether he was solely or partly responsible for the accident and the extent of his responsibility, that is his contributory negligence. Therefore where the injured is himself partly liable, the principle of 'composite negligence' will not apply nor can there be an automatic inference that the negligence was 50:50 as has been assumed in this case. The Tribunal ought to have examined the extent of contributory negligence of the appellant and thereby avoided confusion between composite negligence and contributory negligence. The High Court has failed to correct the said error."
18. This Court in Challa Bharathamma &Nanjappan (supra) has dealt with the breach of policy conditions by the owner when the insurer was asked to pay the compensation fixed by the tribunal and the right to recover the same was given to the insurer in the executing court concerned if the dispute between the insurer and the owner was the subject-matter of determination for the tribunal and the issue has been decided in favour of the insured. The same analogy can be applied to the instant cases as the liability of the joint tort feasor is joint and several. In the instant case, there is determination of inter se liability of composite negligence to the extent of negligence of 2/3rd and 1/3rd of respective drivers. Thus, the vehicle - trailor-truck which was not insured with the insurer, was negligent to the extent of 2/3rd. It would be open to the insurer being insurer of the bus after making payment to claimant to recover from the owner of the trailor-truck the amount to the aforesaid extent in the execution proceedings. Had there been no determination of the inter se liability for want of evidence or other joint tort feasor had not been impleaded, it was not open to settle such a dispute and to recover the amount in execution proceedings but the remedy would be to file another suit or appropriate proceedings in accordance with law.
What emerges from the aforesaid discussion is as follows :
(i) In the case of composite negligence, plaintiff/claimant is entitled to sue both or any one of the joint tort feasors and to recover the entire compensation as liability of joint tort feasors is joint and several.
(ii) In the case of composite negligence, apportionment of compensation between two tort feasors vis a vis the plaintiff/claimant is not permissible. He can recover at his option whole damages from any of them.
(iii) In case all the joint tort feasors have been impleaded and evidence is sufficient, it is open to the court/tribunal to determine inter se extent of composite negligence of the drivers. However, determination of the extent of negligence between the joint tort feasors is only for the purpose of their inter se liability so that one may recover the sum from the other after making whole of payment to the plaintiff/claimant to the extent it has satisfied the liability of the other. In case both of them have been impleaded and the apportionment/ extent of their negligence has been determined by the court/tribunal, in main case one joint tort feasor can recover the amount from the other in the execution proceedings.
(iv) It would not be appropriate for the court/tribunal to determine the extent of composite negligence of the drivers of two vehicles in the absence of impleadment of other joint tort feasors. In such a case, impleaded joint tort feasor should be left, in case he so desires, to sue the other joint tort feasor in independent proceedings after passing of the decree or award."
emphasis added
17. The latest decision of the Apex Court in Khenyei (Supra) has laid down one further aspect about considering the negligence more particularly composite/contributory negligence. The deceased or the person concerned should be shown to have contributed either to the accident and the impact of accident upon the victim could have been minimized if he had taken care.
18. While going through the records, it is clear that the tribunal below has not apportioned the negligence. It was not suppose to quantify the negligence as qua passengers, it was case of composite negligence, it is held that the tribunal cannot determine the extent of composite negligence of the drivers. There is impleadment of both the joint tortfessors and the other tortfessors, therefore, would be liable of its share and that would be 50% as two vehicles of equal magnitude had dashed with each other. However, the passengers in the bus were not the co-authors of the accident having taken place. In these appeals, there are no cross appeals by the claimants. Hence, this Court usurped the compensation granted and the compensation awarded cannot be said to be on the higher-side as the tribunal has not considered the case of the claimants and under the head of future loss of income, no amount has been granted.
19. As far as Oriental Insurance Company is concerned, the main ground of the challenge is that the driver of truck No. DHL 3616 did not hold valid driving licence and, therefore, the insurance company could not have been held liable to indemnify the owner and they have claimed breach of policy condition under Section 96 of motor vehicles Act, 1931.
20. The owner has produced the driving licence of the driver. The Insurance company before the tribunal tried to show their driving licence who has driven the vehicle. Unfortunately, the Investigating Authority rather the surveyor had gone to the RTO with licence of one Zaheer Ahmad whose father is also different, namely, Hafiz Ali Aziz. In our several cases, driver cannot be said that there was no driving licence. The judgment of the tribunal cannot be found fault with and the appeals of Insurance Companies on this ground will have to be failed.
21. Thus, the appeals preferred by Oriental Insurance Company cannot succeed. This Court now decides the contention of the New India Assurance Co. Ltd. namely that their liability was a limited liability. However, this was never pressed into service before the tribunal rather additional Rs.70 was charged by the appellants for taking higher the third party risk.
22. In that view of the matter, the contention of New India Assurance Co. Ltd. is that it was a limited policy cannot be accepted once the parties contract for unlimited liability.
23. Hence, all these appeals fail. The ground raiseds even on the compensation being awarded is on higher side cannot succeed as the compensation awarded is without granting any future loss of income. The said finding cannot be interfered with. Appeals are disposed of as the amount awarded to the heirs of driver of bus is meager, there shall be no recoveries from the claimants.
24. In view of the above, all these appeals being devoid of merits are dismissed.
25. Record be transmitted to tribunal. The tribunal shall disburse all amounts kept in fixed deposit by orders of this Court. Amount deposited in High Court be transmitted to tribunal, if yet not transmitted.
Order Date: 21.02.2023/A.N.Mishra