Himachal Pradesh High Court
Narender Singh Shekhawat vs Jasbir Singh And Others on 12 August, 2016
Author: Mansoor Ahmad Mir
Bench: Mansoor Ahmad Mir
IN THE HIGH COURT OF HIMACHAL PRADESH, SHIMLA
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FAOs No. 167 & 171 of 2011
Decided on: 12.08.2016
FAO No. 167 of 2011
Narender Singh Shekhawat ...Appellant.
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Versus
Jasbir Singh and others ...Respondents.
rt
.........................................................................................................
FAO No. 171 of 2011
The New India Assurance Company Limited ...Appellant.
Versus
Jasbir Singh and others ...Respondents.
Coram
The Hon'ble Mr. Justice Mansoor Ahmad Mir, Chief Justice.
Whether approved for reporting? Yes.
FAO No. 167 of 2011
For the appellant: Mr. Naveen K. Bhardwaj, proxy
counsel.
For the respondents: Nemo for respondent No. 1.
Mr. P.S. Chandel, proxy counsel for
respondent No. 2.
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Mr. Praneet Gupta, Advocate, for
respondent No. 3.
.
........................................................................................................
FAO No. 171 of 2011
For the appellant: Mr. Praneet Gupta, Advocate.
For the respondents: Nemo for respondent No. 1.
of
Mr. Naveen K. Bhardwaj, proxy
counsel, for respondent No. 2.
rt Mr. P.S. Chandel, proxy counsel for
respondent No. 3.
Mansoor Ahmad Mir, Chief Justice. (Oral)
Both these appeals are outcome of judgment and award, dated 31st January, 2011, made by the Motor Accident Claims TribunalII, Fast Track Court, Hamirpur, H.P. (for short "the Tribunal") in MAC Petition No. 4 of 2008, titled as Jasbir Singh versus Narendra Singh and others, whereby compensation to the tune of ₹ 10,78,548/ with interest @ 6% per annum from the date of the petition till its realization came to be awarded in favour of the claimantinjured and the insurer was directed to satisfy the award at the first instance with right of recovery (for short "the impugned award"). Thus, ::: Downloaded on - 15/04/2017 21:01:15 :::HCHP 3 I deem it proper to determine both these appeals by this common judgment.
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2. The claimantinjured and the driver of the offending vehicle have not questioned the impugned award on any count, thus, has attained finality so far it relates to them.
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3. The ownerinsured has questioned the impugned award by the medium of FAO No. 167 of 2011 on the ground rt that the Tribunal has fallen in an error in granting right of recovery to the insurer.
4. By the medium of FAO No. 171 of 2011, the insurer has called in question the impugned award on the ground that the Tribunal has fallen in an error in commanding the insurer to satisfy the impugned award at the first instance as the driver of the offending vehicle was not having a valid and effective driving licence and the ownerinsured has committed a willful breach, thus, the insured was to be saddled with liability.
5. In order to determine both these appeals, it is necessary to give a flashback of the case, the womb of which has given birth to the appeals in hand.
::: Downloaded on - 15/04/2017 21:01:15 :::HCHP 46. The claimantinjured, namely Shri Jasbir Singh, invoked the jurisdiction of the Tribunal for grant of .
compensation, as per the breakups given in the claim petition, on the ground that he became the victim of a motor vehicular accident, which was caused by the driver, namely Shri Pawan of Kumar, while driving Hydraulic Mobile Crane, bearing registration No. RJ 14EA0478, rashly and negligently, on rt 19th August, 2007, at place Sangroh, NH70, District Hamirpur.
7. The respondents in the claim petition resisted the same on the grounds taken in the respective memo of objections.
8. On the pleadings of the parties, following issues came to be framed by the Tribunal on 5th March, 2009:
"1. Whether the respondent No. 2 had driven the vehicle No. RJ 14EA0478 on public highway rashly and negligently as alleged? OPP
2. If issue No. 1 is proved in the affirmative, whether with rash and negligent driving on the part of respondent No. 2, driving the vehicle No. RJ 14EA0478 caused crushed injury to petitioner Jasbir Singh resulting him to permanent disability as alleged? OPP ::: Downloaded on - 15/04/2017 21:01:15 :::HCHP 5
3. If issue No. 1 and 2 proved, to what amount of compensation the petitioner is entitled to and from whom? OPP .
4. Whether the petition is not maintainable in view of preliminary objection raised in the reply filed by respondent No. 3 as alleged? OPR3
5. Whether the petitioner has no locus standi to file the present petition against of respondent No. 3 as vehicle No. RJ14EA 0478 was being plied in utter violation of the terms and conditions of insurance as rt alleged? OPR3
6. Whether no notice was served upon respondent No. 3 regarding the accident as alleged? OPR3
7. Whether respondent No. 2 was not having valid driving licence to drive the vehicle No. RJ 14EA0478, if so its effect? OPR3
8. Relief."
9. The claimantinjured has examined HC Ravinder Kumar as PW2, Dr. P.K. Soni as PW3, Dr. Dinesh Podar as PW4 and himself stepped into the witness box as PW1. The insurer has examined Shri Sanjeet Singh as RW1, Shri Sanjay Kumar as RW2, Shri Jitender Singh as RW4 and Shri Sanjeet Kumar as RW5. The ownerinsured, namely Shri ::: Downloaded on - 15/04/2017 21:01:15 :::HCHP 6 Narender Singh Shekhawat, himself appeared in the witness box as RW3.
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Issues No. 1 and 2:
10. The findings returned by the Tribunal on issues No. 1 and 2 are not in dispute. However, I have gone through of the evidence, oral as well as documentary, and am of the considered view that the Tribunal has rightly recorded the rt findings that the claimantinjured has proved that he has sustained injuries in the accident, which was caused by the driver, namely Shri Pawan Kumar, while driving Hydraulic Mobile Crane, bearing registration No. RJ 14EA0478, rashly and negligently, on 19th August, 2007, at place Sangroh, NH 70, District Hamirpur. Accordingly, the findings returned by the Tribunal on issues No. 1 and 2 are upheld.
11. The only dispute which is to be determined in these appeals revolves around part of issue No. 3 so far it relates to 'from whom' and issues No. 5 and 7. Thus, before dealing with issues No. 3, 5 and 7, I deem it proper to determine issues No. 4 and 6.
::: Downloaded on - 15/04/2017 21:01:15 :::HCHP 7Issues No. 4 and 6:
12. The onus to prove both these issues was upon the .
insurer, has not led any evidence to this effect. Even, the findings returned by the Tribunal on both these issues have not been questioned before this Court. Accordingly, the of findings returned by the Tribunal on issues No. 4 and 6 are also upheld.
rt Issues No. 3, 5 and 7:
13. Learned counsel for the insurer argued that the insurer has filed the appeal (FAO No. 171 of 2011) in view of the law, which was occupying the field at the time of filing of the appeal. However, he frankly conceded that by now, the law has changed, which mandates that the third party rights are to be protected in terms of Sections 146, 147 and 149 of the Motor Vehicles Act, 1988 (for short "MV Act").
14. The mandate of Sections 146, 147 and 149 of the MV Act is to protect the rights of third parties and that is why, compulsory duty has been imposed on the owners to get the vehicles insured, so that, claim of third parties cannot be defeated.
::: Downloaded on - 15/04/2017 21:01:15 :::HCHP 815. The Apex Court has also discussed this aspect in a case titled as S. Iyyapan versus United India Insurance .
Company Limited and another, reported in (2013) 7 Supreme Court Cases 62. It is apt to reproduce para 16 of the judgment herein:
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"16. The heading "Insurance of Motor Vehicles against Third Party Risks" given in Chapter XI of the Motor Vehicles Act, rt 1988 (Chapter VIII of 1939 Act) itself shows the intention of the legislature to make third party insurance compulsory and to ensure that the victims of accident arising out of use of motor vehicles would be able to get compensation for the death or injuries suffered. The provision has been inserted in order to protect the persons travelling in vehicles or using the road from the risk attendant upon the user of the motor vehicles on the road. To overcome this ugly situation, the legislature has made it obligatory that no motor vehicle shall be used unless a third party insurance is in force."
16. The same principle has been laid down by this Court in a series of cases.
17. In view of the above, the claimantinjured, who is a third party, cannot be left in lurch and cannot be dragged from pillar to post and post to pillar in order to get compensation.
Thus, it is the duty of the Court to ensure that the ::: Downloaded on - 15/04/2017 21:01:15 :::HCHP 9 compensation is paid to the claimantinjured by directing the insurer to satisfy the award with right of recovery.
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18. My this view is fortified by the judgment rendered by the Apex Court in the case titled as United India Insurance Co. Ltd. Versus K.M. Poonam and others, of reported in 2011 ACJ 917. It is apt to reproduce paras 24 and 26 of the judgment herein:
rt "24. The liability of the insurer, therefore, is confined to the number of persons covered by the insurance policy and not beyond the same. In other words, as in the present case, since the insurance policy of the owner of the vehicle covered six occupants of the vehicle in question, including the driver, the liability of the insurer would be confined to six persons only, notwithstanding the larger number of persons carried in the vehicle. Such excess number of persons would have to be treated as third parties, but since no premium had been paid in the policy for them, the insurer would not be liable to make payment of the compensation amount as far as they are concerned. However, the liability of the Insurance Company to make payment even in respect of persons not covered by the insurance policy continues under the provisions of subsection (1) of Section 149 of the Act, as it would be entitled to recover the same if it could prove that one of the conditions of the policy had been breached by the owner of the vehicle. In the instant case, any of the persons travelling in the vehicle in ::: Downloaded on - 15/04/2017 21:01:15 :::HCHP 10 excess of the permitted number of six passengers, though entitled to be compensated by the owner of the vehicle, would still be entitled to receive the .
compensation amount from the insurer, who could then recover it from the insured owner of the vehicle.
25. .............
26. Having arrived at the conclusion that the liability of the Insurance Company to of pay compensation was limited to six persons travelling inside the vehicle only and that the liability to pay the others was that of the owner, we, in this case, are rt faced with the same problem as had surfaced in Anjana Shyam's case (supra).
The number of persons to be compensated being in excess of the number of persons who could validly be carried in the vehicle, the question which arises is one of apportionment of the amounts to be paid.
Since there can be no pick and choose method to identify the five passengers, excluding the driver, in respect of whom compensation would be payable by the Insurance Company, to meet the ends of justice we may apply the procedure adopted in Baljit Kaur's case (supra) and direct that the Insurance Company should deposit the total amount of compensation awarded to all the claimants and the amounts so deposited be disbursed to the claimants in respect to their claims, with liberty to the Insurance Company to recover the amounts paid by it over and above the compensation amounts payable in respect of the persons covered by the Insurance Policy from the owner of the vehicle, as was directed in Baljit Kaur's case."
::: Downloaded on - 15/04/2017 21:01:15 :::HCHP 1119. It would also be profitable to reproduce paras 19 to 21 and 25 of the judgment rendered by the Apex Court in the .
case titled as Manager, National Insurance Co. Ltd.
versus Saju P. Paul and another, reported in 2013 ACJ 554, herein:
of "19. The next question that arises for consideration is whether in the peculiar facts of this case a direction could be issued to the insurance company to first rt satisfy the awarded amount in favour of the claimant and recover the same from the owner of the vehicle (respondent no. 2 herein).
20. In National Insurance Co. Ltd. v.
Baljit Kaur and others, 2004 ACJ 428 (SC), this Court was confronted with a similar situation. A threeJudge Bench of this Court in paragraph 21 of the Report held as under :
"(21) The upshot of the aforementioned discussions is that instead and in place of the insurer the owner of the vehicle shall be liable to satisfy the decree. The question, however, would be as to whether keeping in view the fact that the law was not clear so long such a direction would be fair and equitable. We do not think so. We, therefore, clarify the legal position which shall have prospective effect. The Tribunal as also the High Court had proceeded in terms of the decision of this Court in Satpal Singh. The said decision has been overruled only in Asha Rani. We, ::: Downloaded on - 15/04/2017 21:01:15 :::HCHP 12 therefore, are of the opinion that the interest of justice will be subserved if the appellant herein is directed to satisfy the awarded amount in favour .
of the claimant, if not already satisfied, and recover the same from the owner of the vehicle. For the purpose of such recovery, it would not be necessary for the insurer to file a separate suit but it may initiate a proceeding before the executing court of as if the dispute between the insurer and the owner was the subjectmatter of determination before the Tribunal and the issue is decided against the owner and in favour of the insurer. rt We have issued the aforementioned directions having regard to the scope and purport of Section 168 of the Motor Vehicles Act, 1988, in terms whereof, it is not only entitled to determine the amount of claim as put forth by the claimant for recovery thereof from the insurer, owner or driver of the vehicle jointly or severally but also the dispute between the insurer on the one hand and the owner or driver of the vehicle involved in the accident inasmuch as can be resolved by the Tribunal in such a proceeding."
21. The above position has been followed by this Court in National Insurance Co. Ltd. v. Challa Bharathamma, 2004 ACJ 2094 (SC), wherein this Court in para 13 observed as under:
"(13) The residual question is what would be the appropriate direction.
Considering the beneficial object of the Act, it would be proper for the insurer to satisfy the award, though ::: Downloaded on - 15/04/2017 21:01:15 :::HCHP 13 in law it has no liability. In some cases the insurer has been given the option and liberty to recover the amount from the insured. For the .
purpose of recovering the amount paid from the owner, the insurer shall not be required to file a suit. It may initiate a proceeding before the executing court concerned as if the dispute between the insurer and the owner was the subjectmatter of of determination before the Tribunal and the issue is decided against the owner and in favour of the insurer. Before release of the amount to the claimants, owner of the offending rtvehicle shall furnish security for the entire amount which the insurer will pay to the claimants. The offending vehicle shall be attached, as a part of the security. If necessity arises the executing court shall take assistance of the Regional Transport Authority concerned. The executing court shall pass appropriate orders in accordance with law as to the manner in which the owner of the vehicle shall make payment to the insurer. In case there is any default it shall be open to the executing court to direct realisation by disposal of the securities to be furnished or from any other property or properties of the owner of the vehicle i.e. the insured. In the instant case, considering the quantum involved, we leave it to the discretion of the insurer to decide whether it would take steps for recovery of the amount from the insured."
22 to 24. ...........
::: Downloaded on - 15/04/2017 21:01:15 :::HCHP 1425. The pendency of consideration of the above questions by a larger Bench does not mean that the course that was followed in Baljit Kaur, 2004 ACJ 428 (SC) and .
Challa Bharathamma, 2004 ACJ 2094 (SC) should not be followed, more so in a peculiar fact situation of this case. In the present case, the accident occurred in 1993. At that time, claimant was 28 years' old. He is now about 48 years. The claimant was a driver on heavy vehicle of and due to the accident he has been rendered permanently disabled. He has not been able to get compensation so far due to stay order passed by this Court. He cannot be compelled to struggle further for rt recovery of the amount. The insurance company has already deposited the entire awarded amount pursuant to the order of this Court passed on 01.08.2011 and the said amount has been invested in a fixed deposit account. Having regard to these peculiar facts of the case in hand, we are satisfied that the claimant (Respondent No. 1) may be allowed to withdraw the amount deposited by the insurance company before this Court alongwith accrued interest. The insurance company (appellant) thereafter may recover the amount so paid from the owner (Respondent No. 2 herein). The recovery of the amount by the insurance company from the owner shall be made by following the procedure as laid down by this Court in the case of Challa Bharathamma, 2004 ACJ 2094 (SC)."
20. The same principle has been laid down by this Court in a batch of FAOs, FAO No. 353 of 2012, titled as Dev ::: Downloaded on - 15/04/2017 21:01:15 :::HCHP 15 Raj versus Shri Krishan Lal and others, being the lead case, decided on 24th June, 2016.
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21. Having said so, the Tribunal has rightly directed the insurer to satisfy the impugned award at the first instance with right of recovery.
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22. Viewed thus, the appeal filed by the insurer, i.e. FAO No. 171 of 2011, merits to be dismissed.
23. rt Now, coming to the appeal filed by the owner insured (FAO No. 167 of 2011), there are two driving licences on record, out of which one driving licence has purportedly been issued by the Registering and Licensing Authority, Una, the mention of which has been made in para 13 of the impugned award.
24. The insurer has examined Shri Sanjay Kumar, Junior Assistant from the office of Registering and Licensing Authority, Una, who has categorically stated that the driving licence No. 9623, dated 16th October, 2002 (Ext. RW5/A) was not issued from their office.
25. It is apt to record herein that the said driving licence was made part of the criminal case, which was outcome ::: Downloaded on - 15/04/2017 21:01:15 :::HCHP 16 of the same accident and the driver, namely Shri Pawan Kumar, was facing trial before the Judicial Magistrate 1 st .
Class, Court No. IV, Hamirpur.
26. The ownerinsured has produced another driving licence No. 17112 (Ext. RW3/B) before the Tribunal of pertaining to said Shri Pawan Kumar, i.e. the driver of the offending vehicle, which has purportedly been issued by rt the District Transport Officer, Amritsar. The insurer has examined Shri Jitender Singh, License Clerk from the office of Motor Transport Authority, Amritsar, as RW4, who has categorically stated that said licence does not bear the signature of the Motor Licensing Authority and is not a genuine licence.
27. The question is - how a person can obtain two driving licences? In terms of the mandate of Section 6 of the MV Act, a person can hold only one driving licence at one point of time. Thus, on the face of it, the driver of the offending vehicle had produced copies of two driving licences, which is, prima facie, in violation of Section 6 of the MV Act.
::: Downloaded on - 15/04/2017 21:01:15 :::HCHP 1728. Be that as it may, the ownerinsured has failed to prove that the driver of the offending vehicle was holding a .
valid and effective driving licence at the time of the accident.
29. Thus, it can be safely said that the ownerinsured and the driver of the offending vehicle have tried to give a slip of to law by obtaining two driving licences by illegal means, but, at the end of the day, have failed to reap the fruits of the said rt act and conduct.
30. Having said so, the appeal filed by the owner insured (FAO No. 167 of 2011) also merits to be dismissed.
31. The adequacy of compensation is not in dispute.
Even otherwise, I have gone through the record and the am of the considered view that the amount awarded is adequate, cannot be said to be meagre or excessive in any way.
32. Viewed thus, the Tribunal has rightly recorded the findings on issues No. 3, 5 and 7, need no interference. Thus, the findings on issues No. 3, 5 and 7 are upheld.
33. Having glance of the above discussions, the impugned award is upheld and both the appeals are dismissed.
::: Downloaded on - 15/04/2017 21:01:15 :::HCHP 1834. Keeping in view the fact that the claimantinjured is not represented, the Registry is directed to send a .
communication to the claimantinjured by all modes including a communication to the District Judge concerned enabling him to receive the compensation through payee's account cheque or of by depositing the same in his bank account.
35. Send down the record after placing copy of the rt judgment on Tribunal's file.
(Mansoor Ahmad Mir) Chief Justice August 12, 2016 ( rajni ) ::: Downloaded on - 15/04/2017 21:01:15 :::HCHP