Jharkhand High Court
The National Insurance Company Limited vs Vaso Devi on 2 August, 2022
Author: Ananda Sen
Bench: Ananda Sen
Miscellaneous Appeal No. 54 of 2013
[Against the impugned judgment/award dated 18.12.2012, passed by the
Principal District Judge-cum-Motor Accident Claims Tribunal, Bokaro in TMV
Claim Case No. 03/2011]
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The National Insurance Company Limited, Bokaro ...Appellant(s)
-Versus-
1. Vaso Devi
2. Rajnish Kumar Singh
3. Laljee Prasad ....Respondent(s)
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PRESENT HON'BLE MR. JUSTICE ANANDA SEN.
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For the appellant(s): M/s Alok Lal and Santosh Kumar, Advocates. For the Owner: M/s Navin Kumar and Harsh Chandra, Advocates. For the Claimant: M/s Suman Kr. Ghosh and Atanu Banerjee, Advocates.
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13/02.08.2022: This appeal has been filed at the instance of the Insurance Company challenging the Award dated 18.12.2012, passed by the Principal District Judge- cum-Motor Accident Claims Tribunal, Bokaro in TMV Claim Case No. 03/2011. The main ground of challenge is that the Insurance Company should be given a right of recovery on the amount of compensation.
2. The case in brief is that the deceased was a cleaner (Khalasi) of Truck bearing registration No. JH 02N 5202. On 24 th July, 2010, the said truck was coming from Dehri to Bermo and when the vehicle reached near Barun village, the driver asked the Khalasi to check the pressure of the tyre. When the Khalasi was alighting from the truck, the driver advanced the vehicle abruptly with a jerk in a rash and negligent manner, as a result of which, the said Khalasi fell down from the truck and sustained injury and became unconscious. He was taken to a hospital, where he was declared dead. The claim of the claimants is that the deceased was the bread winner of the family and due to his death, the family is in distress.
3. The Tribunal noticed the owner, driver and the insurer of the vehicle. All of them appeared and filed their respective written statements.
4. The Insurance Company in their written statement in para 5 raised the question about the driving licence and particulars of the driver of the offending vehicle. Further, in the said para they have stated that the driving licence of the driver was not effective on the date of accident. In para 10, the question exists about the road/route permit and the licence of the driver, registration documents, fitness certificate and others. Though they admitted that the said vehicle was duly insured with them, in para 12 they had taken a plea that the deceased was a gratuitous passenger, thus, the Insurance Company is -2- not liable to indemnify the owner.
5. The owner and the driver of the vehicle filed their written statement jointly stating therein that the vehicle was insured with the Insurance Company from 6.11.2009 to 5.11.2010, thus the date on which the accident occurred, the truck was insured. They further denied that the deceased- Ruplal Mahato died due to rash and negligent act of the driver of the vehicle. In para 3 they had taken a plea that the truck was being plied with valid up-to-date papers and the driver had valid driving licence.
6. On the basis of the aforesaid pleadings, three issues were framed by the Tribunal, which are as follows;
(i) Whether the claim petition as framed and filed is maintainable?
(ii) Whether the death of Ruplal Mahto resulted from an accident at 8:00 AM on 24.7.2010 at G.T. Road, near Poll Factory, Barun by rash and negligent divining of the driver of the truck bearing registration No.JH 02N 5202?
(iii) To what amount of compensation the claimant is entitled for and from whom?
7. Before the Tribunal, the claimants examined two witnesses. C.W.1 Vaso Devi, who was the mother of the deceased, stated that her son was a Khalasi of Truck bearing registration No. JH 02N 5202 and died because of rash and negligent act of the driver of the vehicle. She stated that the deceased was earning Rs.6000/- per month at the time of accident. Nothing contrary was extracted from her during cross-examination.
C.W.2- Kamal Mahto, who was travelling in the said truck, stated that the deceased was a Khalasi and on the instruction of the driver he was alighting the truck to check the tyre pressure etc. when suddenly the driver started the truck with jerk, resulting in the fall of the deceased and the injury. He was taken to a hospital in an unconscious state, where he was declared dead. He was earning Rs.6000/- per month as well as some food allowance and night halting allowance. Nothing contrary was extracted from him during his cross- examination. Some documents were exhibited, which are FIR, being Barun P.S. Case No. 189/2010, final report No. 256 of 2010, arising out of the aforesaid police station case, postmortem report of the deceased, copy of the insurance certificate of the vehicle.
8. The Tribunal after considering the arguments advanced by the parties and after going through the evidence on record held that the claimants are entitled for compensation to the tune of Rs.7,78,000/- along with interest @ 6% per annum. The tribunal further held that the deceased was a Khalasi -3- working in the said truck.
9. Aggrieved by the aforesaid award, the Insurance Company has challenged the said award by filing this appeal.
10. Mr. Alok Lal, counsel for the Insurance Company submits that since there was a specific plea taken by the Insurance Company that there was violation of the terms and conditions of the insurance policy, but admits that no issue to that effect was framed. As per him, it was a specific case of the appellant that the vehicle was being driven by a person without valid driving license and that being so, it was the duty of the owner/driver of the vehicle to produce the driving licence, so that the same could have been verified. He further contended that the permit was also not produced, which drew inference against the owner. He relied upon the judgment of the Hon'ble Supreme Court rendered in the case of Pappu Vs. Vinod Kumar Lambe, reported in (2018) 3 SCC 208 and Beli Ram Vs. Rajinder Kumar and another, reported in 2020 SCC Online SC 769. As per him, In view of the aforesaid judgments and also in view of the facts of this case, the Insurance Company should get the right to recover the amount of compensation as there as violation in the terms and conditions of the policy.
11. The counsel on behalf of the owner of the vehicle opposes the prayer of the Insurance Company and submits that in view of the recent judgment of the Hon'ble Supreme Court in the case of Rishi Pal Singh Vs. New India Assurance Co. Ltd and Ors. passed in Civil Appeal No. 4919 of 2022, arising out of SLP (Civil) No. 24933 of 2019 decided on 26 th July, 2022, the owner of the vehicle cannot be saddled with the liability even in absence of driving license. He submits that in view of the aforesaid judgment the owner only has to satisfy that the person who is diving the vehicle has proper driving skills and if he is satisfied that the driver is having proper driving skills, it is not necessary to verify the driving license. According to him, in view of the aforesaid judgment, the Insurance Company, should not be granted the right to recover the amount of compensation amount from the owner of the vehicle even if the driving licence has not been produced. Relying upon the evidence led by the parties, he submits that it is established that the deceased was a Khalasi of the said truck, who died in a motor vehicle accident, wherein the driver was negligent. Since the vehicle was duly insured with the appellant-Insurance Company, the Insurance Company is liable to pay the entire compensation. The counsel for the claimants submits that the amount of compensation has already been paid and no relief has been sought for against the claimants in this appeal.
12. Considering what has been submitted by the parties, the following -4- issues need to be decided before this Court;
(i) Whether the deceased- Ruplal Mahto was a Khalasi of the vehicle or he was a gratuitous passenger?
(ii) Whether the owner of the Truck bearing Registration No. JH 02N 5202 has discharged his onus by producing necessary documents in respect of vehicle and driving licence, which suggests that there was no violation of the conditions of the insurance policy?
(iii) Whether the judgment passed by the Hon'ble Supreme Court in the case of Rishi Pal Singh (Supra) is applicable in the facts and this case or not?
(iv) Whether the principle of "pay and recover" be applied on the facts of this case or not?
Issue No. (i)
13. To decide issue No. (I), I have gone through the evidences, led by the parties. Be it noted that the Tribunal only held that the claimants have adduced oral evidence. CW-1 is the mother of the deceased, who in para 2 has stated that at the time of accident, the deceased was a Khalasi, working in the said truck. She had further stated that on the instruction of the driver of the truck to check tyre pressure of the truck, while he was getting down from the truck, the driver started the truck with jerk, resulting in the fall of the said Khalasi. He sustained injury and later on, he died. She further stated that the deceased was getting a salary of Rs.6000/- per month and an additional amount of Rs.30/- per day as food allowance. In cross-examination, she denied the suggestion that the deceased was not earning Rs.6000/- per month. From cross-examination, the Insurance Company could not extract any contrary statement or a statement to create doubt about the employment of the deceased as Khalasi in the said truck. Similarly, Kamal Mahto, C.W.2 stated that he was in the truck at that point of time, when it was being driven by Laljee Prasad and Ruplal Mahto was the Khalasi of the said truck. He narrated how the accident had occurred. He also stated that the deceased was earning Rs.6000/- per month and Rs.30/- per day as food allowance. In his cross examination, nothing contrary could be extracted from the statement. Thus, from the oral evidence of the witnesses, undisputedly, it can be concluded that the deceased was a Khalasi of the said truck and was not a gratuitous passenger.
Issue Nos. (ii), (iii) and (iv)
14. All three issues are being taken up together for discussion. The Insurance Company has taken a plea that they are entitled for the recovery of amount of compensation from the owner of the truck on the ground that the deceased was a gratuitous passenger and there was violation of the Insurance -5- Policy. So far as gratuitous passenger is concerned, I have already held that the deceased was not a gratuitous passenger rather he was a Khalasi of the vehicle. Now, for the question whether there was violation of the terms and conditions of the policy or not. I find that the Insurance Company filed their written statement. In paragraph 5 they have taken a plea that the Insurance Company is entitled to take protection under Section 149(2) of the M.V. Act, 1988. Further, they have categorically stated that the driving licence was not effective on the date of accident. In para 10 they have stated as under;
"10. That, the Paragraph 9(a) and (b) of the claim petition, it is submitted that unless the road/route permit valid licence of the driver who was driving the vehicle of the material time registration documents fitness certificate tax token of the vehicle are produced by the owner. It will be deemed that there is/are violation of the mandatory statutory provisions of the policy and in such circumstances, the answering opposite party will not stand in law to indemnify the awarded amount of compensation if at all in future."
Thus, from the aforesaid pleadings, I find that they have pleaded that the truck was being driven by a person without a valid driving licence and without road/route permit.
15. The owner and the driver of the vehicle also appeared and they have filed their written statement jointly. In paragraph 3 they have stated that the vehicle was being plied with valid up-to-date papers and valid driving licence. Be it noted that on the aforesaid issue, the parties did not adduce any evidence. Counsel for the respondent-owner heavily relied upon the latest judgment of the Hon'ble Supreme Court reported in the case of Rishi Pal Singh (supra) submitting that in para 10 of the aforesaid judgment, it has been held that the owner of the vehicle is expected to verify the driving skills and not run to the licensing authority to verify the genuineness of the driving licence before appointing a driver. As per him, since the owner was satisfied that the driver is competent to drive the vehicle, it is not expected from the owner thereafter to verify the genuineness of the driving licence issued to the driver.
16. I have gone through the aforesaid judgment. The facts of the aforesaid case is different from the facts of the instant case. From para 2 of the aforesaid judgment, it is quite clear that the owner of the truck who was appellant therein got himself examined before the Tribunal who deposed that before employing the driver, he had taken his driving test and that he was driving the vehicle satisfactorily. In cross-examination, he stated that the driver was employed with him for three years before the date of the accident and he -6- reaffirmed that he had taken driving test of the driver before his employment. Further the driving licence was duly produced. From the aforesaid judgment, I find that through it was the case of the owner of the aforesaid vehicle that the driving licence was issued from Nagaland, but no such licence was produced on record, but later on, it was found that the said driving licence was issued by the authority of Mandi, State of Himachal Pradesh. Thus, from the aforesaid judgment, it is quite clear that the owner of the vehicle appeared and recorded his satisfaction by giving evidence before the Tribunal that the driver was competent enough to drive the vehicle and there was a valid driving licence. When I go through the facts of this case, I find that the owner of the truck has not come forward to depose before the Tribunal nor filed any affidavit stating that he was satisfied about the driving skill of the driver. I find from paragraph 10 of the aforesaid judgment that the owner of the vehicle is expected to verify the driving skills and in this case, the owner of the truck has not done even so. Therefore, the judgment of Rishi Pal Singh (supra) is not applicable on the facts of this case.
17. In the case of Pappu (supra), the three-judge Bench of the Hon'ble Supreme Court in para 12 has held as under:-
"12. This court in National Insurance Co. Ltd. has noticed the defences available to the Insurance Company under Section 149(2)(a)(ii) of the Motor Vehicles Act, 1988. The insurance company is entitled to take a defence that the offending vehicle was driven by an unauthorized person or the person driving the vehicle did not have a valid driving licence. The onus would shift on the insurance company only after the owner of the offending vehicle pleads and proves the basic facts within his knowledge that the driver of the offending vehicle was authorized by him to drive the vehicle and was having a valid driving licence at the relevant time."
After holding the aforesaid, in paragraph 13, the Hon'ble Supreme Court has found that in the aforesaid case, the owner only raised a vague plea that the vehicle was being driven by a person having a valid driving licence. He did not even disclose other details. In paragraph 13, the Hon'ble Supreme Court has further held that "merely producing a valid insurance certificate in respect of the offending truck was not enough for respondent to make the insurance company liable to discharge his liability arising from rash and negligent driving by the driver of his vehicle. The insurance company can be fastened with the liability on the basis of a valid insurance policy only after the basic facts are pleaded and established by the owner of the offending vehicle that the vehicle was not only duly insured but also that it was driven by an authorized person having a valid -7- driving licence. Without disclosing the name of the driver in the written statement or producing any evidence to substantiate the fact that the copy of the driving licence produced in support was of a person who, in fact, was authorized to drive the offending vehicle at the relevant time, the owner of the vehicle cannot be said to have extricated himself from his liability. The insurance company would become liable only after such foundational facts are pleaded and proved by the owner of the offending vehicle".
18. In another judgment, the Hon'ble Supreme Court in the case of Beli Ram (supra), in paragraphs 15 and 16 has held as under:
"15. We are of the view that once the basic care of verifying the driving licence has to be taken by the employer, though a detailed inquiry may not be necessary, the owner of the vehicle would know the validity of the driving licence as is set out in the licence itself. It cannot be said that thereafter he can wash his hands off the responsibility of not checking up whether the driver has renewed the licence. It is not a case where a licence has not been renewed for a short period of time, say a month, as was considered in the case of Swaran Singh where the benefit was given to a third party by burdening the insurance company. The licence in the instant case, has not been renewed for a period of three years and that too in respect of commercial vehicle like a truck. The appellant showed gross negligence in verifying the same.
16. We are conscious of the fact that in the present case the beneficiary is the driver himself who was negligent but then we are not dealing with a claim under the MV Act but under the compensation Act, which provides for immediate succor, not really based on a fault theory with a limited compensation as specified being paid. We are, thus, in the present proceedings not required to decide the share of the burden between the appellant as the owner and the first respondent as the driver as may happen in a proceeding under the M.V Act."
19. Admittedly, the truck was insured with the appellant-Insurance Company, but in absence of a driving licence and even in absence of pleadings that the owner was satisfied that the driver of the truck was well skilled to drive the same, I hold that there is violation of the terms and conditions of the insurance policy. This violation attracts the principle of "pay and recover". Thus, in view of the aforesaid facts, Issue Nos. (ii), (iii) and (iv) are decided in favour of the Insurance Company and against the owner of the vehicle.
20. In view of the aforesaid facts and circumstances of this case, this appeal stands allowed partly. Accordingly, the Insurance Company is entitled to recover the amount of compensation so paid to the claimant from the owner of the vehicle.
-8-21. Statutory amount should be refunded to the Insurance Company.
(ANANDA SEN, J.) High Court of Jharkhand at Ranchi.
Dated: 02nd August, 2022.
NAFR- Anu/CP2.