Andhra HC (Pre-Telangana)
The National Insurance Company, Rep. By ... vs Pasupuleti Subbamma And Others on 30 March, 2015
Author: A. Shankar Narayana
Bench: A. Shankar Narayana
HONBLE SRI JUSTICE A. SHANKAR NARAYANA
MACMA No. 1808 of 2005
30-03-2015
The National Insurance Company, rep. by its Branch Manager, Chittoor, Chittoor
District. Appellant
Pasupuleti Subbamma and others Respondents
Counsel for the Appellant: Sri P. Phalguna Rao
Counsel for Respondents 1 and 2: Sri Sivalanka Ramachandra Prasad
Counsel for Respondent No.3: ----
<Gist :
>Head Note:
?Cases Referred:
1.(2004) 3 SCC 297 = 2004(2) ALD 36(SC) = 2004 ACJ 1
2.(2008) 12 SCC 701
3.(2004) 13 SCC 224
4.(2007) 10 SCC 650
5.(2009) 15 SCC 761
6.(2011) 6 SCC 425
7.2013(2) ALD 233
8.AIR 2012 Ker.116
HONBLE SRI JUSTICE A. SHANKAR NARAYANA
MACMA No. 1808 of 2005
Judgment:
The National Insurance Company, represented by its Branch
Manager, Chittoor, the second respondent in MVOP No. 174 of 2002 on
the file of the Chairman, Motor Accidents Claims Tribunal-cum-I Additional
District Judge, Kadapa, is the present appellant. Aggrieved of the order,
dated 16th March 2005, whereby and whereunder a sum of Rs.3,00,000/-
was awarded as compensation with interest at 9% p.a., the instant appeal
is preferred seeking to set aside the said award on the ground that the
driving licence of the driver of the insurance vehicle had expired well
before the accident and, in such a case, the owner of the vehicle/insured
alone is liable to pay compensation.
2. For the sake of convenience, the parties hereinafter referred to as
arrayed in the Original Petition before the Tribunal.
3. The facts, in brief, are that on 19.10.2001, one Pasupuleti
Krishnaiah (hereinafter referred to as deceased), the son of the first
petitioner and brother of the second petitioner respectively, boarded a
Jeep bearing registration No.AP-04-C-6699 along with others on their
personal work to go to Kadapa, as no buses were plying on 19.10.2001,
and when the said jeep reached near Kondapeta cross roads on Kadapa
Kurnool National Highway near Chennur bridge, at about 9.00 PM, a lorry
came in opposite direction driven in a rash and negligent manner and
dashed the jeep, due to which, he sustained injuries and he was shifted to
Government Hospital, kadapa, for treatment, where he succumbed to
injuries while undergoing treatment. The petitioners claim that the said
Krishnaiah was aged about 45 years on the date of accident and doing
Class-III contract works earning Rs.1,00,000/- per annum and he died in
unmarried status and he was contributing the entire earnings for the
family and the respondents 1 and 2, who are the owner and insurer of the
lorry, are responsible to pay the compensation of Rs.3,00,000/-, laid
under Section 166 of the Motor Vehicles Act 1988 (for short the Act) read
with Rule 475 of the Andhra Pradesh Motor Vehicles Rules, 1989.
4. Before the Tribunal, the first respondent owner of the lorry
remained ex parte.
5. The second respondent - Insurance Company opposed the claim.
It is according to the second respondent that in the said accident two
persons died, who were travelling in the said jeep, which shows that the
jeep was heavily loaded with the passengers and there was contributory
negligence on the part of the driver of the jeep and, thus, the driver of
the jeep was responsible for the said accident and, therefore, the owner
and Insurance Company of the jeep are proper and necessary parties. It
is also specifically stated that the driver of the lorry did not possess valid
and effective driving licence and, therefore, the second respondent
Insurance Company is not liable to pay the compensation.
6. The Tribunal framed the following three issues about the
responsibility for the accident.
1. Whether the death of the deceased by name Pasupuleti
Krishnaiah, S/o Subbarayudu (late) occurred on 19.10.2001 at
3.00 PM due to rash and negligent driving of lorry No.APD-9756
by its driver belonging to respondent No.1?
2. Whether the petitioners are entitled for compensation and if so
to what amount and from whom?
3. To what relief.
7. During enquiry, the first petitioner examined herself as PW.1,
besides examining an eye witness to the occurrence as PW.2, and marked
Exs.A1 to A5 in order to substantiate the claim laid by them. On behalf of
the second respondent Insurance Company, two witnesses were
examined and Exs.B1 to B3 were marked, even Ex.X1, which is copy of
the extract of issue of driving licence, was also marked.
8. The Tribunal, on issue No.1, basing on the evidence of PW.2
supported by Exs.A1 to A4, held it in favour of the petitioners.
9. On issue No.2, placing reliance on the decision of the Honble Apex
Court in National Insurance Company Limited v. Swaran Singh ,
held that it was not open for the second respondent to avoid its liability on
the ground that the lorry driver of the first respondent had no valid licence
at the time of accident, thus, a finding was recorded to the said effect. As
regards the quantum of compensation, taking the age of the deceased as
45 years and the age of PW.1 as 60 years and the income of the deceased
as 75,000/- per annum, deducted 1/3rd amount towards personal
expenses and taken the remainder of Rs.50,000/- as contribution to the
family and applied multiplier 8 and arrived at Rs.3,00,000/- towards loss
of dependency and awarded the same under all counts by fastening joint
and several liability on the respondents 1 and 2.
10. It is the aforesaid order which is under challenge in the instant
appeal filed by the second respondent Insurance Company contending
in the grounds of appeal that despite its specific plea and proof that the
driving licence of the driver of the insurance vehicle had expired well
before the date of accident, in which case the owner of the vehicle alone
is liable to pay the compensation, the Tribunal went wrong in fastening
liability on the Insurance Company. It is also stated that the Tribunal has
not properly appreciated the evidence of RW.2, an employee summoned
and examined from RTO Office, who has categorically stated that Ex.X1,
the driving licence No.297/1973 was not renewed after the year 1995 and,
thus, did not possess valid driving licence at the time of accident and that
the same accounted for a clear violation of terms and conditions of the
policy on the part of the insured/owner of the vehicle, still, fastening
entire liability on the insurer/appellant instead of fastening the same on
the insured/owner of the vehicle is incorrect and, thereby, sought to set
aside the order and decree passed by the Tribunal.
11. Heard Sri P. Phalguna Rao, learned Standing Counsel for the
Insurance Company, and Sri Sivalenka Ramachandra Prasad, learned
Counsel for the respondents 1 and 2 - claimants. Despite service of notice
on the third respondent, none appears for him.
12. Perused the award and the evidence on record let in by both sides
and also the authorities on which reliance was placed by respective sides.
13. So far as fact-situation is concerned, there is no dispute between
the parties. Admittedly, the licence obtained by the driver of the accident
vehicle had expired in 1995. In the said context, the submission of the
learned counsel for the appellant is, that it amounts to a clear violation
and, therefore, no liability can be fastened on the Insurance Company. In
support of his contention, he placed reliance on a decision of the Honble
Supreme Court in National insurance Company Limited v.
Vidhyadhar Mahariwala , in the context, whether a driving licence,
which had expired on a particular date and renewed subsequently, was
valid in the intervening period. The Tribunal, finding from the facts
therein that the drivers licence was initially valid from 15.12.1997 to
14.12.2000 and, thereafter, from 29.12.2000 to 14.12.2003 and,
thereafter, it was again renewed from 16.05.2005 to 15.05.2008 and that
the accident had taken place on 11.06.2004, on which date the driving
licence of the driver of the offending vehicle was not valid since it was
renewed on 16.05.20005 for a further period of three years, held that it
cannot be said that during the intervening period, the driver was
incompetent and disqualified to drive the Truck. The High Court held that
the insurer was liable to indemnify the award confirming the order of the
Tribunal, while adverting to the decisional law on which reliance was
placed by the respective parties in the said decision. The Honble Apex
Court, while agreeing with the view taken in earlier decisions in Oriental
Insurance Company Limited v. Nanjappan , and Ishwar Chandra
v. Oriental Insurance Company Limited , allowed the appeal setting
aside the order of the High Court, however, observing that it was open to
the claimant therein to recover the amount from the second respondent
owner of the offending vehicle. It would be appropriate to refer to the
contentions and the conclusion of the Honble Apex Court contained in
paragraphs 5 to 11, thus:
5. In appeal by the impugned judgment the High Court
referred to three judgments of this Court in National Insurance
Co. Ltd. v. Swaran Singh and Ors. (supra), National Insurance Co.
Ltd. v. Kusum Rai and Ors. (2006 (4) SCC 250) and Oriental
Insurance Co. Ltd. v. Nanjappan and Ors. (supra) and came to
hold that the insurance company, the insurer was liable to
indemnify the award. It was held that merely there was a gap in
the renewal of driving licence that cannot be a ground for
exoneration.
6. In support of the appeal, placing reliance on the
decision of this Court in Ishwar Chandra and Ors. v. Oriental
Insurance Co. Ltd. and Ors. (supra), it was contended that the
High Court's view is unsustainable.
7. Learned counsel for respondent No.2 the owner of the
vehicle on the other hand supported the judgment of MACT.
8. In Swaran Singh's case (supra) whereupon the
respondent No.2 relied, it was held as follows:
"45. Thus, a person whose licence is ordinarily renewed in
terms of the Motor Vehicles Act and the Rules framed
thereunder, despite the fact that during the interregnum
period, namely, when the accident took place and the date
of expiry of the licence, he did not have a valid licence, he
could during the prescribed period apply for renewal
thereof and could obtain the same automatically without
undergoing any further test or without having been
declared unqualified therefor. Proviso appended to Section
14 in unequivocal terms states that the licence remains
valid for a period of thirty days from the day of its expiry.
46. Section 15 of the Act does not empower the authorities
to reject an application for renewal only on the ground
that there is a break in validity or tenure of the driving
licence has lapsed, as in the meantime the provisions for
disqualification of the driver contained in Sections 19, 20,
21, 22, 23 and 24 will not be attracted, would indisputably
confer a right upon the person to get his driving licence
renewed. In that view of the matter, he cannot be said to
be delicenced and the same shall remain valid for a period
of thirty days after its expiry."
9. In Kusum Rai's case (supra) it was held as follows:
14. This Court in Swaran Singh (supra) clearly laid
down that the liability of the Insurance Company vis-a-vis
the owner would depend upon several factors. The owner
would be liable for payment of compensation in a case
where the driver was not having a licence at all. It was the
obligation on the part of the owner to take adequate care
to see that the driver had an appropriate licence to drive
the vehicle. The question as regards the liability of the
owner vis-a-vis the driver being not possessed of a valid
licence was considered in Swaran Singh stating: (SCC pp.
336-37, para 89)
"89. Section 3 of the Act casts an obligation on a
driver to hold an effective driving licence for the type of
vehicle which he intends to drive. Section 10 of the Act
enables the Central Government to prescribe forms of
driving licences for various categories of vehicles
mentioned in sub-section (2) of the said section. The
various types of vehicles described for which a driver may
obtain a licence for one or more of them are: (a)
motorcycle without gear, (b) motorcycle with gear, (c)
invalid carriage, (d) light motor vehicle, (e) transport
vehicle, (f) road roller, and (g) motor vehicle of other
specified description. The definition clause in Section 2 of
the Act defines various categories of vehicles which are
covered in broad types mentioned in sub-section (2) of
Section 10. They are `goods carriage', `heavy goods
vehicle', `heavy passenger motor vehicle', `invalid
carriage', `light motor vehicle', `maxi-cab', `medium
goods vehicle', `medium passenger motor vehicle',
`motor-cab', `motorcycle', `omnibus', `private service
vehicle', `semi-trailer', `tourist vehicle', `tractor', `trailer'
and `transport vehicle'. In claims for compensation for
accidents, various kinds of breaches with regard to the
conditions of driving licences arise for consideration before
the Tribunal as a person possessing a driving licence for
`motorcycle without gear', [sic may be driving a vehicle]
for which he has no licence. Cases may also arise where a
holder of driving licence for `light motor vehicle' is found
to be driving a `maxi- cab', `motor-cab' or `omnibus' for
which he has no licence. In each case, on evidence led
before the Tribunal, a decision has to be taken whether
the fact of the driver possessing licence for one type of
vehicle but found driving another type of vehicle, was the
main or contributory cause of accident. If on facts, it is
found that the accident was caused solely because of
some other unforeseen or intervening causes like
mechanical failures and similar other causes having no
nexus with the driver not possessing requisite type of
licence, the insurer will not be allowed to avoid its liability
merely for technical breach of conditions concerning
driving licence."
10. Nanjappan's case (supra) was referred to in Kusum Rai's case
(supra).
11. In Ishwar Chandra's case (supra) the three decisions referred
to by the High Court were considered and it was held that the
insurance company would have no liability in the case of this
nature. We are in agreement with the view. The appeal deserves
to be allowed which we direct. The impugned order of the High
Court is set aside. It is open to the claimant to recover the
amount from respondent No.2.
14. In New India Assurance Company Limited v. Suresh
Chandra Aggarwal , the facts would reveal that the driving licence was
expired four months prior to the accident and renewed 25 days after the
accident. Holding that the proviso to Section 15(1) attracted as the
renewal could not be held to be from the date of expiry as per the said
proviso and that the same amounted to violation of special condition 5 of
the insurance policy, while rejecting the contention that the driver was not
disqualified from holding valid driving licence on the ground that it was
irrelevant, the Honble Supreme Court held in paragraphs 26 and 27
thus.
26. The claim of the insured having been rejected by the
Insurance Company which was upheld by the National
Commission, the complainant in Ashok Gangadhar ((1999) 6 SCC
620) approached this Court. Allowing the appeal, it was held that
the driver of the vehicle was holding a valid driving licence for
driving a Light Motor Vehicle and there was no material on record
to show that he was disqualified from holding an effective and
valid driving licence at the time of accident. On those facts, the
Court held that the policy, which was not even placed on record,
did not insist on the driver to have a licence to drive a transport
vehicle by obtaining a specific endorsement and therefore, the
Insurance Company was not justified in rejecting the claim by the
insured. It was observed that the Insurance Company had neither
pleaded nor proved that the vehicle was a transport vehicle. The
permit issued by the transport authority had not been placed on
record.
27. In the present case, it stands proved that the driver
did not have an effective and valid driving licence on the date of
accident. For the aforesaid reasons, in our opinion, the decision
of the National Commission cannot be sustained. Accordingly, the
appeal is allowed and the impugned order is set aside. There
will, however, be no order as to costs.
15. On the other hand, learned counsel for the respondents 1 and 2
claimants placed reliance on the decision of the Honble Apex Court in
Jawahar Singh v. Bala Jain . It can be gathered from the observations
contained in paragraph 13 that the Honble Apex Court had limited the
controversy to the question regarding liability to pay compensation on
account of contributory negligence of the deceased who was riding the
scooter, who has caused the accident to happen. It is further clear from
the observations made by the Honble Apex Court in paragraph 16 that
the Special Leave Petition was confined to the question of contributory
negligence, if any, on the part of the deceased, thus.
16. Accordingly, since the notice on the special leave
petition was confined to the question of contributory negligence, if
any, on the part of the deceased, we see no reason to interfere
with the award of the Motor Accidents Claims Tribunal, as
confirmed by the High Court. The special leave petitions are,
accordingly, dismissed, but without any order as to costs.
16. The next decision, on which reliance was placed by the learned
counsel for the respondents 1 and 2 - claimants, is in Oriental
Insurance Company Limited, Vijayawada v. Banavathu Gopi
(died) per LRs , rendered by this Court in the context of breach of
conditions of policy being found, held that the insurance company should
first indemnify the claimant and then recover the same from the owner of
the vehicle. This Court placing reliance on the decision of a Full Bench of
Kerala High Court in Oriental Insurance Company limited v. Joseph
V.V. @ Johny , wherein the insured was a third party to the proceeding,
it was held that the Insurance Company was bound to satisfy the claim of
the third party and, applied the said principle and directed the Insurance
Company to first indemnify the claimant and then recover the same from
the owner of the vehicle.
17. However, in view of the decisions of the Honble Apex Court in
Vidhyadhar Mahariwalas case (2 supra) and in Suresh Chandra
Aggarwals case (5 supra) and since the fact-situation therein is akin to
the fact-situation occurring in the instant case and has direct bearing on
the point herein for the reasons hereinafter to be mentioned, it is to
observe that the decisions, on which the learned counsel for the
respondents 1 and 2 claimants placed reliance, would not assist to
support the order passed by the Tribunal.
18. In Ex.B1 copy of insurance policy, the relevant condition reads
thus:
Any person including the insured provided that the person
driving holds an effective driving licence at the time of the
accident and is not disqualified from holding or obtaining such
licence. Provided also that a person holding an effective learners
licence may also drive the vehicle when not used for transport of
goods at the time of the accident and such a person satisfies the
requirement of rule No.3 of the Central Motor Vehicle Rule, 1989.
19. Ex.B2 is a communication addressed to the Regional Transport
Authority, Kadapa, by the Standing Counsel for the Insurance Company,
dated 24.03.2003, which shows that the information in regard to driving
licence of the driver of the offending vehicle was sought, by furnishing
particulars against columns 1 to 5 giving relevant details, for which an
endorsement was made by the Additional Licensing Authority, Kadapa,
which was marked as Ex.B3, and re-transmitted it to the Standing Counsel
for the Insurance Company. The recitals are to the effect:
The applicant is informed that the DL No.297/73 issued in
favour of Sri A.S. Ameer, S/o Khasim Peera, Proddatur, is genuine.
He is authorised to drive LMV only. The DL was valid from
28.08.1973 to 27.08.1976. Renewed the DL from 22.1.77 to
21.1.80. He is authorised to drive HTV w.e.f. 8.7.82 with badge
No.4799. DL renewed from 8.7.82 to 7.7.85, 8.7.85 to 7.7.88,
20.12.88 to 19.12.91 and 30.3.92 to 29.3.95 as per this office
records.
20. Ex.X1 also makes it clear that the driving licence, originally granted
for LMV and later HGV and later HPV transport in 1973, had expired on
29.03.1995 after periodical renewals with certain interregnums and, thus,
after the last date i.e., on 29.03.1995, there was no further renewal. The
said copy was issued by the Regional Transport Office, Kadapa, on 24th
February 2005, which indicates that the licence obtained by the driver of
the first respondent had expired on 29.03.1995 and later it was not
renewed at all. These documents have been exhibited by RWs.1 and 2
and there is nothing in their cross-examination to view anything contra to
the recitals occurring in Exs.B1 to B3 and Ex.X1.
21. The accident in the instant case had taken place on 19.10.2001, on
which date, admittedly, the driver of the accident vehicle did not possess
valid and effective driving licence. Therefore, in view of the law laid down
by the Honble Apex Court in Vidhyadhar Mahariwalas case (2 supra)
and in Suresh Chandra Aggarwals case (5 supra), certainly, it has to
be held that, the driver did not have valid and subsisting driving licence at
the relevant time and that the same accounts for violation of conditions of
policy - Ex.B1, disentitling the respondents 1 and 2 claimants from
making claim against the Insurance Company appellant herein.
Therefore, the order under challenge is liable to be set aside allowing the
instant appeal.
22. Accordingly, the appeal is allowed setting aside the order and
decree passed by the Tribunal in fastening liability on the appellant
Insurance Company to pay compensation to the respondents 1 and 2
claimants for the death of the deceased is concerned, however,
confirming the award in all other respects. There shall be no order as to
costs.
23. As a sequel thereto, Miscellaneous Applications, if any, pending in
this appeal shall stand closed.
_________________________
A. SHANKAR NARAYANA, J
Date: 30.03.2015