Madhya Pradesh High Court
Sheela vs Deepak Verma on 21 February, 2019
1
In the High Court of Madhya Pradesh
MA 897/2016
Sheela and Others vs. Deepak Verma and Others
&
MA 736/2016
The New India Assurance Co. Ltd. vs. Smt. Sheela and Others
Gwalior, dtd. 21-02-2019
Shri Ram Kishor Sharma, counsel for the appellants in MA No.897/2016
and respondents No.1 to 4 in MA No.736/2016.
Shri RP Gupta, counsel for the respondent No.2 in MA No.897/2016 and respondent No.6 in MA No.736/2016.
Shri BN Malhotra, counsel for the respondent No.3/ Insurance Company in MA No.897/2016 and appellant/ Insurance Company in MA No.736/2016.
This common order shall dispose of MA No.897/2016 filed by the claimants for enhancement of compensation amount and MA No.736/2016 filed by The New India Assurance Co. Ltd.
The appellant No.3 in MA No.897/2016 and respondent No.3 in MA No. 736/2016, namely, Dharmendra has expired. The name of the appellant No.3 in MA 897/2016 has already been deleted as his legal representative are already on record.
IA No.318/2018 has been filed in MA No.736/2016 for deleting the name of the respondent No.3 from the cause title.
For the reasons mentioned in the application (IA No. 318/2018), the same is allowed. Accordingly, the counsel for the appellant- Insurance Company in MA No.736/2016 has carried out the necessary amendment in the Court itself and has deleted the name of the respondent No.3.
2
Both MA No. 897/2016 and MA No. 736/2016 have been filed against the Award dated 13th May, 2016 passed by Motor Accident Claims Tribunal, Lahar, District Bhind in Claim Case No.63/2014, by which the Insurance Company has also been held liable to pay the compensation amount jointly and severally, with the owner and driver.
The necessary facts for the disposal of the present appeals in short are that respondent No.2 Mahendra Gupta is the owner of the offending bus bearing registration no. MP 07F-0870, whereas the respondent No.1 Deepak Verma was driving the bus at the time of accident and the respondent No.3 in MA No.896/2016 and the appellant in MA No.736/2016 is the Insurance Company of the offending vehicle.
It is the case of the claimants that on 16/06/2014, the deceased Sudama Prasad after having his meal at about 11 in the night, was returning to his room. The respondent No.1 by driving the offending bus in a rash and negligent manner, dashed the deceased, as a result of which the deceased sustained fatal injuries and died on the spot itself. While dashing the deceased, the driver of the vehicle had also caused damage to three shops. The FIR was lodged by one Arvind Sahu. Accordingly, the police registered Crime No.40/2014 and after completing the investigation, the police filed the charge sheet under Section 304-A of IPC against the respondent No.1. It was further pleaded that the deceased Sudama Prasad was aged about 55 years at the time of accident and was working on the post of Ward Boy in a Community Health Centre, Bhander and was getting Rs.16,762/- per month by way of salary. The deceased would have got promotion in future also and there would have been hike in the salary as a result of which the claim 3 petition for compensation of Rs.60 lac was filed.
The respondent No.1 filed his written statement and denied the factum of accident. He admitted that the respondent No.2 is the registered owner of the bus, however, the factum of accident was denied. It was further pleaded by the respondent No.1 that for the last of six months he was working as a cleaner in the bus and he was not driving the bus at the time of accident.
The respondent No.2 filed his written statement and denied that the deceased after having his meal in the hotel was returning back to the room and the respondent no.1 by driving the vehicle in rash and negligent manner had dashed the deceased resulting his death. It was further pleaded that the vehicle has been falsely implicated and it appears that some unidentified vehicle had dashed the deceased as a result of which the deceased Sudama Prasad expired. It was further pleaded by the respondent No.2 that in fact, one Khudabux was the driver of the offending vehicle, whereas the respondent No.1 Deepak Verma was working as a cleaner. The respondent No.1 was never employed as a driver. Khudabux on the next day had informed the respondent No.2 that after parking the bus in the bus- stand he went to answer the call of nature and handed over the key of bus to the respondent no.1 and the respondent no.1 with an intention to learn driving started the bus without knowledge or permission. The driver of bus namely, Khudabux is having a valid driving licence and the bus was also insured and in case, if any compensation amount is awarded, then the entire liability would be that of the Insurance Company.
The Insurance Company also denied the pleadings made in the claim petition. It was further pleaded that the deceased Sudama Prasad had died in an 4 accident caused by some other unknown vehicle. It was further pleaded that as per the information received by Insurance Company respondent No.1 Deepak Verma was driving the bus but he was not having a valid driving licence, therefore, the respondent no.2 has violated the terms and conditions of insurance policy and, therefore, the Insurance Company is not liable to make the payment of compensation amount.
The Claims Tribunal after recording the evidence of the parties has allowed the claim petition and has awarded Rs.15 lac by way of compensation and has held that the driver, owner as well as the Insurance Company are jointly and severally liable to pay the compensation amount.
The Claimants in MA No.897/2016 have submitted that the future prospects have not been awarded as held by the Supreme Court in the case of National Insurance Company Limited vs. Pranay Sethi and Others, reported in (2017) 16 SCC 680, whereas the counsel for the Insurance Company in MA 736/2016 by referring to the written statement of respondent No.2 has submitted that as the respondent No.1 was driving the vehicle and he was not having a valid driving licence, therefore, Insurance Company is not liable to pay compensation amount because the terms and conditions of insurance policy have been violated.
In reply to the submission made by the counsel for the Insurance Company, it is submitted by the counsel for the respondents No.1 and 2 that where the third person had taken over the charge of the bus and was driving the bus without knowledge and permission of the owner and driver of the bus, then it cannot be said that there was any violation of terms and conditions of the insurance policy.
To buttress his contention, the counsel for the owner has relied upon the 5 judgments passed by the Supreme Court in the case of United India Insurance Co. Ltd. Gian Chand and others, reported in 1997 ACJ 1065, United India Insurance Co. Ltd. vs. Lehru and Others, reported in (2003) 3 SCC 338, Lal Chand vs. Oriental Insurance Company Ltd. reported in (2006) 7 SCC 318 and the judgment passed by this Court in the case of National Insurance Company Ltd. Vs. Vidhyabai and Others, reported in ILR (2008) MP 3270.
Heard the learned counsel for the parties.
It is submitted by the counsel for the Insurance Company that in fact, the dead body of the deceased was found in the morning lying in the premises of the bus-stand and even in the FIR which was lodged by the Arvind Sahu, he had merely mentioned about the damage caused to three shops and there is no mention in the FIR that the bus had dashed anybody. Thus, it is clear that the deceased had died in an accident caused by some other unknown vehicle and the respondent No.2 has been falsely implicated.
The submission made by the counsel for the Insurance Company is based on the FIR Ex.D10 lodged by Arvind. In the FIR, it is merely mentioned that the bus has dashed three shops causing extensive damage to the shops. The FIR was lodged immediately after the bus had dashed the shops.
It is well-established principle of law that the motor accident claims are to be adjudicated on the preponderance of probabilities. The claim cases cannot be adjudicated on the basis of contents of the FIR. The FIR is not a substantive piece of evidence and is also not an encyclopedia of the incident. The accident has taken place in the night. The informant was one of the owners of the shops which were damaged by offending vehicle. Thus, the informant was more or less 6 interested in informing the police about the damage caused to his shop(s). There is a possibility that he might not have noticed that the offending vehicle had dashed the deceased. The deceased was overrun by the bus. The dead body of the deceased was found in front of one of the damaged shops as it is evident from the spot map Ex.D9. Therefore, it is clear that the bus might have overrun the deceased before dashing against the shops. While noticing the speeding bus coming towards the shops, the shopkeepers might have not noticed that one person has also been overrun by the bus. Further, Arvind Sahu, the informant has not been examined either by the Insurance Company or the owner/driver. Accordingly, it is held that the finding given by Claims Tribunal with regard to the accident caused by the offending bus bearing registration no. MP 07-F 0870 is correct and in accordance with law. Therefore, it is held that it was the respondent no.1 who while driving the offending bus, had caused death of deceased Sudama Parasad.
So far as the appeal filed by the Insurance Company i.e. MA No.736/2016 is concerned, the owner of the bus has admitted in his written statement that Khudabux is the driver of the bus and after parking the bus in the bus-stand he had gone for answering the call of nature after handing over the key of the bus to the respondent No.1, who was the cleaner of the bus. The claims Tribunal in paragraph 42 of its Award has given a finding that the respondent no.1 had driven the bus without knowledge and permission of respondent no.2. This finding has not been disputed by the counsel for the Insurance Company. Thus, the finding recorded by the Claims Tribunal that the respondent No.1 was employed by the respondent no.2 as a cleaner and not as a driver and in fact, the respondent no.1 7 had driven the bus without knowledge and permission of the respondent no.2. Therefore, the respondent no.2 had not deliberately infringed the terms and conditions of the insurance policy. Thus, the finding has attained finality that the respondent no.1 was never employed as a driver but he was employed as a cleaner and he had driven the bus without knowledge and permission of the respondent No.2.
The only question which remains to be adjudicated in the present appeal is that whether it can be said that there was any violation of terms and conditions of the insurance policy or not ?
The Supreme Court in the case of Lehru (supra) has held as under:-
''18. Now let us consider Section 149(2). Reliance has been placed on Section 149(2)(a)(ii). As seen in order to avoid liability under this provision it must be shown that there is a ''breach". As held in Skandia's and Sohan Lal Passi's cases (supra) the breach must be on part of the insured. We are in full agreement with that. To hold otherwise would lead to absurd results. Just to take an example, suppose a vehicle is stolen. Whilst it is being driven by the thief there is an accident. The thief is caught and it is ascertained that he had not license. Can the Insurance Company disown liability? The answer has to be an emphatic "No". To hold otherwise would be to negate the very purpose of compulsory insurance. The injured or relatives of person killed in the accident may find that the decree obtained by them is only a paper decree as the owner is a man of straw. The owner himself would be an innocent sufferer. It is for this reason that the Legislature, in its wisdom has made insurance, at least third party insurance, compulsory. The aim and purpose being that an Insurance Company would be available to pay. The business of the Company is to insurance. In all businesses there is an element of risk. AH persons carrying on business must take risks associated with that business. Thus it is equitable that the business which is run for making profits also bears the risk associated with it. At the same time innocent parties must not be made to suffer or loss. These provisions meet these requirements. We are thus in agreement with what is laid down in aforementioned cases viz. that in order to avoid liability it is not sufficient to show that the person driving at the time of accident was not duly licensed. The Insurance Company must establish that the breach was on the part of the insured.'' 8 The Supreme Court in the case of Lal Chand (supra) has held as under:-
''11.As observed in the above paragraph, the insurer, namely the Insurance Company, has to prove that the insured, namely the owner of the vehicle, was guilty of negligence and failed to exercise reasonable care in the matter of fulfilling the condition of the policy regarding use of vehicles by a duly licensed driver or one who was not disqualified to drive at the relevant point of time.
12. We respectfully agree and following the above ruling, we allow the appeal filed by the owner of the vehicle and absolve him from any liability as ordered by the High Court. It is now brought to our notice that the entire compensation has already been deposited and the same has been withdrawn by the claimants. No other point has been urged by both sides. We, therefore, allow the appeal and order no costs.'' The Supreme Court in the case of Gian Chand (supra) has held as under:-
''12. Under the circumstances when the insured had handed over the vehicle for being driven by an unlicensed driver, the Insurance Company would get exonerated from its liability to meet the claims of third party who might have suffered on account of vehicular accident caused by such unlicensed driver. In view of the aforesaid two sets of decisions of this Court, which deal with different fact situations, it cannot be said that the decisions rendered by this Court in Skandia Insurance Co. Ltd. Kokilaben Chandravadan & Ors. (1987 (2) SCC 54 (supra) and the decision of the Bench of 3 learned judges in 1996 (5) SCC 21 (supra) in any way conflict with the decisions rendered by this Court in the cases of New India Assurance Company Ltd. Vs. Mandar Madhav Tambe & ors. 1996 (2) SCC 328 (supra) and Kashiram Yadav & Anr. Vs. Oriental Fire & General Insurance Co. & Anr. 1989 (4) SCC 128.'' The Coordinate Bench of this Court in the case of Vidhyabai (supra) has held as under:-
''5. In the present case case, the tribunal has held that the Insurance Co. is liable to payment of compensation as the alleged breach of condition of policy was not within the knowledge of the owner. The claims tribunal has found that in the present case the tractor was registered only for agricultural purpose and there is no evidence on record to show that the passengers were carried in the said tractor trolley within the knowledge of the owner and thus the owner of the vehicle has not committed breach of any policy condition. For this preposition the Claims Tribunal has relied upon the decision of the Apex Court in the 9 case of Bhagwandas vs. National Insurance Company reported in 1991 ACJ 1137. The Apex Court in the case of Sohan Lal Passi Vs. P. Sesh Reddy reported in (AIR 1996 SC 2627) has considered the meaning of expression ''breach'' occurring in Section 96(20(b) and held that breach means infringement or violation of a promise or obligation. As such, the insurance company will have to establish that the insured was guilty of an infringement or violation of a promise. The insurer has also to satisfy the tribunal or the court that such violation or infringement on the part of the insurer was willful. If the insured has taken all precautions by appointing a duly licensed driver to drive the vehicle in question and it has not been established that it was the insured who allowed the vehicle to be driven by a person not duly licensed, then the insurance company cannot repudiate its statutory liability. In the present case it is not disputed that the vehicle was driven by the licensed driver. There is no evidence on record that the passengers who were carried in the tractor-trolley were carried with due knowledge or permission of the owner.'' Accordingly, it is held that where the findings of the Claims Tribunal are that the respondent No.1 had driven the bus without knowledge and permission of the respondent No.2 and the respondent No.1 was never employed as a driver but he was employed as a cleaner, this Court is of the considered opinion that there was no willful breach of terms and conditions of the insurance policy by the respondent no.2, accordingly, this Court is of the considered opinion that the Claims Tribunal did not commit any mistake in holding that the Insurance Company is also liable to make payment of compensation amount. Accordingly, the appeal i.e. MA 736/2016 filed by Insurance Company is hereby dismissed.
So far as the amount of compensation awarded by the claims tribunal is concerned, the Supreme Court in the case of Pranay Sethi (supra) has held that where the deceased is a Government employee and is aged about in between 50- 62 years, then he is entitled for future prospects. Accordingly, it is held that the Claimants are entitled for 15% by way of future prospects. Accordingly, a sum of Rs.2,05,200/- (i.e. 15% of Rs.13,68,000/- awarded by Claims Tribunal by 10 way of compensation) is awarded to the claimants in addition to the compensation amount awarded by the Claims Tribunal.
Accordingly, MA No.897/2016 filed by the Claimants is allowed. The enhanced amount shall carry interest of 6% per annum from the date of filing of the claim petition i.e. 21/11/2014.
(G.S. Ahluwalia) Judge MKB MAHENDRA KUMAR BARIK 2019.02.28 15:37:25 +05'30'