Rajasthan High Court - Jodhpur
Sandeep Garg vs United India Insurance Company Limited on 20 December, 2021
Author: Sudesh Bansal
Bench: Sudesh Bansal
HIGH COURT OF JUDICATURE FOR RAJASTHAN AT
JODHPUR
S.B. Civil Misc. Appeal No. 1214/2020
Sandeep Garg S/o Shivchand Garg, Aged About 50 Years, B/c
Agarwal, R/o 505 Model Town Bhatinda (Panjab) At Present
Director Nambardar Devraj Carrier Private Limited Malout Road
Bhatinda (Panjab) (Vehicle Owner)
----Appellant
Versus
1. United India Insurance Company Limited, Regional Office
Station Road Barmer (Insurance Co.)
2. Bullur Yadav S/o Gopal Yadav, B/c Yadav R/o Lachhipur
Post Rakhi Nevda P.s. Jansa Janpad District Varansi (Up)
(Driver)
3. Tamku Devi W/o Late Kanti Lal, B/c Harijan, R/o
Gudamalani, Tehsil Gudamalani, District Barmer.
4. Radhika D/o Late Kanti Lal, Minor Represented By Natural
Guardian Mother Tamku Devi W/o Late Kanti Lal. B/c
Harijan, R/o Gudamalani, Tehsil Gudamalani, District
Barmer.
5. Santosh D/o Late Kanti Lal, Minor Represented By Natural
Guardian Mother Tamku Devi W/o Late Kanti Lal. B/c
Harijan, R/o Gudamalani, Tehsil Gudamalani, District
Barmer.
6. Anda Ram S/o Gokal Ram, B/c Harijan, R/o Gudamalani,
Tehsil Gudamalani, District Barmer.
7. Kuki Devi W/o Anda Ram, B/c Harijan, R/o Gudamalani,
Tehsil Gudamalani, District Barmer.
----Respondents
Connected With
S.B. Civil Misc. Appeal No. 1175/2021
Bullur Yadav S/o Gopal Yadav, Aged About 52 Years, Lachhipur
Post Rakhi Nevda P.s. Jansa Janpad District Varansi (U.p.)
----Appellant
Versus
1. United India Insurance Company Limited, Regional Office
Station Road Barmer
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(2 of 7) [CMA-1214/2020]
2. Sandeep Garg S/o Shivdhand Garg, 505 Model Town
Bhatinda (Punjab) At Present Director Nambardar Devraj
Carrier Private Limited Malout Road Bhatinda (Punjab)
3. Tamku Devi W/o Kanti Lal, Gudamalani, Tehsil
Gudamalani, District Barmer
4. Radhika D/o Kanti Lal, Gudamalani, Tehsil Gudamalani,
District Barmer
5. Santosh D/o Kanti Lal, Gudamalani, Tehsil Gudamalani,
District Barmer
6. Anda Ram S/o Gokal Ram, Gudamalani, Tehsil
Gudamalani, District Barmer
7. Kuki Devi W/o Anda Ram, Gudamalani, Tehsil
Gudamalani, District Barmer
----Respondents
For Appellant(s) : Mr. RJ Punia
Mr. JS Bhaleria
For Respondent(s) : Mr. Jagdish Vyas
HON'BLE MR. JUSTICE SUDESH BANSAL
Order 20/12/2021 S.B. Civil Misc. Appeal No. 1214/2020 The matter has come up on the application filed under Section 5 of the Limitation Act to which reply has been filed by the Insurance Company. The appellant (owner of the vehicle) has assailed the judgment and award dated 11.01.2019 by way of this appeal filed on 29.6.2020. It is alleged that the appellant is a transporter and his trucks ply in all over the country. It is alleged that the appellant was not aware about the passing of the impugned judgment dated 11.01.2019 and came to know only on 05.3.2020 when the employee form the Tehisl Bhatidna came to his office and apprised about the (Downloaded on 20/12/2021 at 09:05:39 PM) (3 of 7) [CMA-1214/2020] execution proceedings of the said judgment. Thereafter from March, 2020, due to the pandemic Covid-19, the normal working of the Courts was adversely affected and the appellant could get copy of the impugned judgment on 28.6.2020 and then he filed this appeal on 29.6.2020.
In the reply to the application, it has not been disputed that the appellant is indulged in the business of transport.
Considering the reasons mentioned in the application and in the interest of justice, the delay in filing the appeal is hereby condoned and the application under Section 5 of the Limitation Act is allowed.
With the consent of both the parties, the appeal is heard for admission.
Counsel for the appellant owner submits that the Tribunal has passed the impugned award to the tune of Rs. 12,31,670/- with interest in favour of the claimants but wrongly exhausted Insurance Company and under the principle of `pay and recovery', the Insurance Company has been allowed to recover the compensation amount after making payment to the claimants, from the owner/driver of the vehicle.
The insurance company has paid the entire compensation, which has been disbursed to the claimants and now the insurance company, under the directions of impugned judgment dated 11.01.2019 is going to recover the compensation amount from the appellant.
Counsel has placed reliance on the judgment of National Insurance Company Limited Vs. Swaran Singh reported in 2004 (3) SCC 297 which has been followed by the Rajasthan High Court in case of Ranjana Pandey (smt.) and Ors. Vs. Iqbal & Anr. reported in 2014 (Downloaded on 20/12/2021 at 09:05:39 PM) (4 of 7) [CMA-1214/2020] (3) WLN 1991 (Raj.). On the strength of proposition of law propounded in the aforesaid judgments, it has been argued that burden lies on the Insurance Company to prove that the insured was guilty of negligence and fail to exercise reasonable care in the matter of fulfilling the condition of policy regarding use of vehicles by duly licenced driver or one who was not disqualified to drive at the relevant time and was required to establish breach on the part of the owner of the vehicle, the burden of proof, therefore, was on the insurer.
Since in the present case the insurance company has not adduced any evidence and has not discharged its burden that the insured (owner of the vehicle) was negligent or careless, therefore, the Insurance Company may not be exonerated from its liability and on this count the impugned judgment to the extent of allowing the Insurance Company to recover compensation amount from the insured is illegal.
On the other hand, learned counsel for the Insurance Company places reliance on the judgment of Hon'ble Supreme Court passed in case of Beliram Vs. Rajinder Kumar & Anr. in Civil Appeal No. 7220- 7221 of 2011, vide judgment and order dated 23.9.2020. In this judgment, the case of Swarn Singh (supra) was also considered and the Hon'ble Supreme Court observed in para 21 as under: -
1. The learned Judge debated the question of the consequences of the MV Act being a beneficial piece of legislation. Thus, if two interpretations were possible, it was opined that the one which is in favour of the claimants should be given, but violence should not be done to the clear and plain language of the statute. Thus, while (Downloaded on 20/12/2021 at 09:05:39 PM) (5 of 7) [CMA-1214/2020] protecting the rights of the claimants by asking the insurance company to deposit the amount, the recovery of the same from the insured would follow as the sympathy can only be for the victim of the accident. The right which has to be protected, is of the victim and not the owner of the vehicle. It was, thus, observed in para 18 as under:
"18. When an employer employees a driver, it is his duty to check that the driver is duly licensed to drive the vehicle. Section- 5 of the Motor Vehicles Act provides that no owner or person incharge of a motor vehicle shall cause or permit any person to drive the vehicle if he does not fulfil the requirements of Sections 3 and 4 of the Motor Vehicles Act. The owner must show that he has verified the licence. He must also take reasonable care to see that his employee gets his licence renewed within time. In my opinion, it is no defence for the owner to plead that he forgot that the driving licence of his employee had to be renewed. A person when he hands his motor vehicle to a driver owes some responsibility to society at large. Lives of innocent people are put to risk in case the vehicle is handed over to a person not duly licensed. Therefore, there must be some evidence to show that the owner had either checked the driving licence or had given instructions to his driver to get his driving licence renewed on expiry thereof. In the present case, no such evidence has been led. In view of the above discussion, I am clearly of the view that there was a breach of the terms of the policy and the Insurance Company could not have been held liable to satisfy the claim."
Thus, counsel for the Insurance Company submits that the owner of the vehicle is also under legal obligation to ensure the validity of licence of the driver before authorizing him to drive his vehicle.
Since in the present case, the licence of the driver has already expired on 16.2.2013 and the same was renewed on 25.1.2016, therefore, on the date of accident i.e. 26.11.2015, the driver was not having licence to drive the heavy transport vehicle. As such, on the strength of such principle of law, the owner has rightly been held liable to pay the compensation and under the principle of pay and (Downloaded on 20/12/2021 at 09:05:39 PM) (6 of 7) [CMA-1214/2020] recovery and the insurance company is entitled to recover the compensation amount from the appellant.
Considering the legal submissions made on behalf of the counsel for both the parties, the matter requires consideration.
Admit. Since the Insurance Company has already put in appearance, no need to issue fresh notice. For the respondent No. 2 driver, the counsel appearing in the connected appeal of driver gives appearance, hence service is complete. For the respondents No. 3 to 7, the service has already been dispensed with and compensation to the claimants have already been disbursed, no fresh notice for hearing of appeal is required to be issued to the claimants.
Heard on the stay application also. In order to maintain equity between the parties, this Court deems it just and proper that in case the appellants deposits an amount of Rs. 7 lacs before the Tribunal within the period of eight weeks from today; the execution proceedings at the instance of Insurance Company against the appellant pursuant to the direction passed in the judgment dated 11.1.2019 shall remain stayed during the pendency of this appeal.
The amount so deposited by the appellant-owner will be disbursed to the Insurance Company on furnishing an undertaking that same shall be restituted to appellant with interest @ 7 %, in case appellant succeeds in the appeal.
The stay application stands disposed of.
S.B. Civil Misc. Appeal No. 1175/2021 For the respondent No. 2 driver, the counsel appearing in the connected appeal of driver gives appearance, hence service is (Downloaded on 20/12/2021 at 09:05:39 PM) (7 of 7) [CMA-1214/2020] complete. For the respondents No. 3 to 7, the service has already been dispensed with and compensation to the claimants have already been disbursed, no fresh notice for hearing of appeal is required to be issued to the claimants. This is the appeal filed by the driver against the same judgment and award dated 11.01.2019. The defect pointed out by office regarding filing of certified copy of the impugned judgment is waived as the same is available in the connect appeal in SBCMA No. 1214/2020. Since the appeal filed by the owner against the same award has already been admitted, the delay in filing the present appeal is condoned and this appeal of the driver is also admitted.
(SUDESH BANSAL),J ns. 131-1/-
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