Andhra Pradesh High Court - Amravati
The Royal Sundaram Alliance Insurance ... vs Chin Reddy Rama Devi 4 Others on 15 June, 2020
Author: Battu Devanand
Bench: Battu Devanand
THE HON'BLE SRI JUSTICE BATTU DEVANAND
M.A.C.M.A.NO.1669 OF 2010
J U D G M E N T:
Challenging the award dated 19.07.2010 in M.V.O.P.No.38 of 2009 passed by the Chairman, Motor Accidents Claims Tribunal-cum- Principal District Judge, Kadapa (for short "the tribunal"), the insurance company preferred this appeal.
2) The parties hereinafter called as petitioners and respondents as arrayed in the Tribunal.
3) The factual matrix of the case of the claimants is that on 25.08.2008 at about 11-00 a.m., the deceased was proceeding on a motorcycle from Bayanapalli to Vonthadu along with petitioners 1 and 2. The deceased was driving the motorcycle. The petitioners 1 and 2 were the pillion riders. By the time the motorcycle reached Kumbagiri cross road, tractor and the trailer of the 1st respondent bearing No.A.P.04U 4354 and A.P.04W 4355 (hereinafter referred to as "offending vehicle") carrying sand load was driven by its driver in a rash and negligent manner at high speed, which came from a byroad on to the main road and dashed the motorcycle proceeding on the main road. The petitioners 1 and 2 sustained injuries in the said accident. The deceased met with instantaneous death in the said accident. The accident was purely due to the rash and negligent driving of the driver of the offending vehicle and the 2nd respondent is the insurer thereof. The petitioners assessed compensation at Rs.50,00,000/-, however, they confined the claim to Rs.15,00,000/-. The petitioners claimed 2 compensation jointly and severally from the respondents 1 and 2 at Rs.15,00,000/- for the death of the deceased.
4) The 1st respondent filed counter putting the petitioners to strict proof. The 1st respondent contended that he has been running a medical stores at Kadapa. He handed over the offending vehicle to his uncle by name Siva Reddy, a resident of Yerraballi. The villagers are under the impression that the offending vehicle belongs to Siva Reddy, uncle of the 1st respondent. The offending tractor and trailer are insured with the 2nd respondent. He did not commit any breach of the terms and conditions of the policy. He further contended that in the event, the 1st respondent becomes liable to the claim, the 2nd respondent is liable to indemnify the 1st respondent.
5) The 2nd respondent filed a counter putting the petitioners to strict proof and contended that the tractor and trailer of the 1st respondent were not involved in the accident. Perhaps, the tractor and trailer of Siva Reddy of Yerraballi were involved in the accident. The 1st respondent is arrayed as the owner of the offending vehicle by the petitioners for a wrongful gain. The accident was on account of the rash and negligent driving of the deceased himself. The 2nd respondent is not liable to answer the claim as the tractor and trailer insured with the 2nd respondent were not involved in the accident and prayed to dismiss the O.P. The 2nd respondent was accorded permission under Section 170(b) of M.V. Act to take up all defences.
6) During trial PWs.1 and 2 were examined and Exs.A.1 to A.12 were marked on behalf of the petitioners. On behalf of the respondents, R.Ws.1 to 3 were examined and Exs.B.1 to B.10 were marked. 3
7) On perusal of the award would show that tribunal basing on the oral and documentary evidence has held that the accident was occurred due to rash and negligent driving of the offending tractor and trailer by its driver. With regard to the compensation is concerned, the tribunal awarded Rs.12,75,000/- with costs and interest at the rate of 6% per annum from the date of the petition till the date of the deposit. Aggrieved by the award passed by the tribunal, the appeal filed by the 2nd respondent-insurance company disputing the liability and quantum of compensation.
8) Heard Sri Kota Subba Rao, learned counsel for the appellant-2nd respondent and Sri D. Kodananda Rami Reddy, learned counsel for the respondents/petitioners.
9) The learned counsel for the 2nd respondent-insurance company argued that the driver of the tractor and trailer bearing No.A.P.04 U 4354 and 4355 was not having a valid and requisite driving licence at the time of the accident and as such, the insurance company is not liable to pay compensation. The tribunal failed to follow the judgments of the Hon'ble Supreme Court relied by the insurance company. The learned counsel further submits that the compensation awarded by the tribunal is on higher side and out of all proportions.
10) Per contra, while supporting the award, the learned counsel for the petitioners-respondents 1 to 4 argued that the compensation awarded by the tribunal was just and reasonable in the light of the evidence produced by the claimants and there is no need to revise the same and prayed for dismissal of the appeal.
4
11) Upon perusal of the evidence on record and hearing both sides, it appears that the foremost contention of the appellant is that the offending tractor and trailer of the 1st respondent was not involved in the accident and when some other tractor and trailer perhaps caused the accident, the petitioners brought the 1st respondent to fore in connivance with the 1st respondent and showed as if the tractor and trailer of the 1st respondent were involved in the accident. The basis of the contention of the insurance company is for the reason that in the complaint which was registered as FIR, which was marked as Ex.A.1 it was claimed that the tractor of Yerraballi Siva Reddy caused the accident and in the charge sheet the 1st respondent was described as Subba Reddy @ Siva Reddy.
12) PW.1 is the 1st petitioner and she was eye witness to the accident. She deposed about the mode and manner of the accident and she deposed that the offending tractor and trailer caused the accident. PW.2 is Siva Reddy of Yerraballi. He deposed that he is a native of Yerraballi and that he is also known as Yerraballi Siva Reddy, albeit he is Pinnapureddy Siva Reddy in fact. He deposed that the offending tractor and trailer is owned by the 1st respondent, who is his son-in-law and that the tractor was with PW.2 as the 1st respondent kept the tractor and trailer after purchasing the same. He also deposed that the tractor dashed the motorcycle of the deceased.
13) The 1st respondent examined himself as R.W.1 and he deposed that PW.2 is his father-in-law and that he kept the offending tractor and trailer after purchasing with PW.2 and that the villagers used to consider the tractor as of the tractor of the PW.2. R.W.3 is the Senior Assistant 5 of D.T.C. Office, Kadapa. He deposed that Exs.B.9 and B.10 are the authenticated copies of the registration certificates of the tractor and trailer and that the record shows that the tractor and trailer belonged to the 1st respondent.
14) The evidence of PW.2 as well as R.Ws.1 and 3 clearly proves that the 1st respondent is the owner of the tractor and trailer and the offending tractor and trailer was with PW.2 and that the villagers used to prefer to the same as the tractor of PW.2. It is further to be noted that the appellant failed to establish that PW.2 owned tractor and trailer other than the offending tractor and trailer and in the absence of any evidence in this regard from the appellant, its contention is not acceptable. On perusal of the evidence of PW.2 and R.Ws.1 and 3 and Exs.B.9 and B.10, it can be safely held that the offending tractor and trailer referred to in Ex.A.1 as the tractor of Siva Reddy of Yerraballi is the tractor of the 1st respondent and insured with the 2nd respondent is the tractor of the 1st respondent which was involved in the accident.
15) The learned counsel for the appellant also argued that there is no negligence on the part of the driver of the tractor and trailer and the deceased himself was negligent for causing the accident. But in the light of the evidence of PW.1, who was eye witness that the accident occurred when the driver of the tractor and trailer rashly and negligently drove the tractor from a byroad on to the highway disregarding ongoing traffic, and upon perusal of Ex.A.1 FIR, Ex.A.2 inquest report, Ex.A.4 charge sheet and Ex.A.5 copy of the rough sketch clearly proves that the accident was occurred due to the rash and negligent driving of the offending tractor and trailer by its driver. In the light of the evidence of 6 PWs.1 and 2, R.Ws.1 and 3, Exs.A.1 to A.7 and Exs.B.1 to B.9, this Court holds that the offending tractor and trailer bearing No.A.P.04 W4354 and 4355 of the 1st respondent driven by its driver Naripogu Chinnaiah and the accident occurred on account of his rash and negligent driving. As the 1st respondent is the owner of the offending tractor and trailer, he is responsible for the accident as he is vicariously liable to answer the claim of the petitioners.
16) Learned counsel for the appellant further contended that the driver of the offending tractor and trailer did not hold valid and effective driving licence at the time of the accident which is violation of the policy conditions and that the appellant is not liable to indemnify the 1st respondent. Ex.A.4 charge sheet discloses that one Naripogu Chinnaiah was the driver of the offending tractor and trailer at the time of the accident. Ex.B.1 is the driving licence of the driver of offending tractor and trailer. Ex.B.8 is the authenticated copy of the driving licence of Chinnaiah. R.W.3 who was the Senior Assistant of D.T.C. office, Kadapa proved Ex.B.8. Ex.B.1/B.8 shows that Chinnaiah, driver of the offending tractor and trailer at the time of the accident, possessed driving licence to drive non transport type of tractor and trailer. The tribunal after considering the various judgments of the Hon'ble Apex Court and various High Courts relied upon by the insurance company and the petitioners opined that the driver of the offending tractor and trailer did not hold valid and effective driving licence. At the same time, the tribunal held that the driver of the offending tractor and trailer cannot be held to be a person not holding valid and effective driving licence to drive the offending tractor and trailer merely because his driving licence was always in respect of non transport type of tractor and trailer only. 7 The violation on the part of the driver of the 1st respondent and on the part of the 1st respondent are not fundamental violation and held that the 2nd respondent consequently is jointly and severally liable with the 1st respondent to answer the claim of the petitioners.
17) The tribunal on one hand agreeing with the contention of the insurer that the driver of the offending tractor and trailer did not hold valid and effective driving licence. On the other hand, the tribunal holds that it is not a fundamental violation. Though, the tribunal accepting that the insurance company could able to prove that at the time of accident, the driver had no valid driving licence to drive the transport vehicle, on the other hand, the tribunal fastened the liability on the insurance company holding that it is not a fundamental violation. In my considered opinion the finding of the tribunal on this aspect is not correct. Now, we will examine the relevant provisions of Motor Vehicles Act, 1988 to decide this issue.
18) Chapter-II of the Motor Vehicles Act, 1988 deals with the licencing of drivers of motor vehicles and the relevant provisions are extracted hereunder:
Section-3 Necessity for driving licence:-
(1) No person shall drive a motor vehicle in any public place unless he holds effective driving licence issued to him authorizing him to drive the vehicle; and no person shall so drive a transport vehicle (other than (a motor cab or motor cycle) hired for his own use or rented under any scheme made under sub-section (2) of section 75) unless his driving licence specifically entitles him so to do.8
(2) The conditions subject to which sub-section (1) shall not apply to a person receiving instructions in driving a motor vehicle shall be such as may be prescribed by the Central Government.
Section 4: Age limit in connection with driving of motor vehicles:-
(1) No person under the age of eighteen years shall drive a motor vehicle in any public place:
Provided that (a motor cycle with engine capacity not exceeding 50cc) may be driven in a public place by a person after attaining the age of sixteen years.
(2) Subject to the provisions of section 18, no person under the age of twenty years shall drive a transport vehicle in any public place.
(3) No learner's licence or driving licence shall be issued to any person to drive a vehicle of the class to which he has made an application unless he is eligible to drive that class of vehicle under this section.
Section 5: Responsibility of owners of motor vehicles for contravention of sections 3 and 4:- No owner or person in charge of a motor vehicle shall cause or permit any person who does not satisfy the provisions of section 3 or section 4 to drive the vehicle.
19) On plain reading of Sections 3 and 5 of the Motor Vehicles Act, it will be clear that no person shall drive the motor vehicle in any public place unless he holds effective driving licence issued to him authorizing him to drive the vehicle and no person shall so drive a transport vehicle unless his driving licence specifically entitles him so to do. Section 5 manifest that the responsibility of owners of motor vehicles and no owner or person in charge of a motor vehicle shall cause or permit any 9 person who does not satisfy the provisions of section 3 or section 4 to drive the vehicle. On combined reading of the above provisions provides that no person shall drive a motor vehicle without holding an effective driving licence and no owner shall permit any person who does not having the valid licence to drive the vehicle. In my opinion, it is the duty and responsibility of the owner of the vehicle to satisfy himself whether such person is properly licenced or not as required under Sections 3 and 4 of the Act before entrusting the vehicle to such person.
20) A three Judges' Bench the Hon'ble Apex Court in National Insurance Co. Ltd. Vs. Swaran Singh and Others1, upon going through the provisions of the Act as also the precedents operating in the field, laid down the following dicta:
"84. We have analysed the relevant provisions of the said Act in terms whereof a motor vehicle must be driven by a person having a driving licence. The owner of a motor vehicle in terms of Section
5 of the Act has a responsibility to see that no vehicle is driven except by a person who does not satisfy the provisions of Section 3 or 4 of the Act. In a case, therefore, where the driver of the vehicle, admittedly, did not hold any licence and the same was allowed consciously to be driven by the owner of the vehicle by such person, the insurer is entitled to succeed in its defence and avoid liability. The matter, however, may be different where a disputed question of fact arises as to whether the driver had a valid licence or where the owner of the vehicle committed a breach of the terms of the contract of insurance as also the provisions of the Act by consciously allowing any person to drive a vehicle who did not have a valid driving licence. In a given case, the driver of the vehicle may not have any hand in it at all e.g. a case where an accident takes place owing to a mechanical fault or vis major. (See Jitendra Kumar 22 .)"
1
(2004) 3 SCC 297= 2004 ACJ 1 (SC) 10
21) In Premkumari & Ors. Vs. Prahlad Dev & Ors.2, the Hon'ble Apex Court opined that:
"10. In the case of National Insurance Co. Ltd. v. Kusum Rai and Ors. (2006) 4 SCC 250, the vehicle was being used as a taxi. It was, therefore, a commercial vehicle. The driver of the said vehicle was required to hold an appropriate licence therefor. Ram Lal, who allegedly was driving the said vehicle at the relevant time, was holder of a licence to drive light motor vehicle only. He did not possess any licence to drive a commercial vehicle. Therefore, there was a breach of condition of the contract of insurance. In such circumstances, the Court observed that the appellant-National Insurance Co. Ltd., therefore, could raise the said defence while considering the stand of the Insurance Company. This Court, pointing out the law laid down in Swaran Singh (supra) concluded that the owner of the vehicle cannot contend that he has no liability to verify the fact as to whether the driver of the vehicle possessed a valid licence or not."
22) The Hon'ble Apex Court in United India Insurance Co. Ltd. Vs. Gian Chand and Others3, wherein it was held that:
"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 the third party who might have suffered on account of vehicular accident caused by such unlicensed driver...."
23) In National Insurance Co. Ltd. Vs. Kusum Rai and Others4, the Hon'ble Apex Court held that:
11. It has not been disputed before us that the vehicle was being used as a taxi. It was, therefore, a commercial vehicle. The driver of the said vehicle, thus, was required to hold an appropriate licence there for. Ram Lal who allegedly was driving the said 2 (2008)1 SCALE 531 3 (1997) 7 SCC 558 4 (2006) 4 SCC 250 11 vehicle at the relevant time, as noticed hereinbefore, was holder of a licence to drive a light motor vehicle only. He did not possess any licence to drive a commercial vehicle. Evidently, therefore, there was a breach of condition of the contract of insurance. The appellant, therefore, could raise the said defence.5
24) In Sardari Vs. Sushil Kumar the Hon'ble Apex Court held that:
It was the obligation on the part of the owner to take advocate care to see that the driver had an appropriate licence to drive the vehicle.
25) The learned single judge of this Court while dealing with the similar issue in Bajaj Allianz General Insurance Company Limited 6 vs. Penugumatla Dhanalakshmi and another held while answering point No.1 as under:
"The 1st respondent is owner-cum-driver of the auto which is transport LMV and R.Ws.1 and 2 examined on behalf of the insurer with reference to Ex.B.1 to B.6 also deposed that it is a transport LMV and as per Ex.B.5 and B.6 and as per Ex.B.2, the owner-cum- driver got only LMV non transport licence but not for transport and even Ex.B.3 notice issued to produce the licence particulars covered by Ex.B.4 acknowledgement, the owner-cum-driver of the auto did not comply. It establishes that but for no valid licence he could have produced by non-giving reply to draw inference adversely against the owner-cum-driver. However, said violation of the policy terms or permit even it is to the conscious knowledge to attribute being owner-cum-driver nothing to show willful and fundamental to exonerate the insurer once the policy covers the risk admittedly within the scope of Section 149 read with 168 of the Act to direct the owner to pay and then to recover. Thus, fixing of joint liability against the Insurer and insured is thereby unsustainable but for to fasten liability on the Insurer to pay to the claimant and recover. Accordingly, Point No.1 is answered."5
2008 LawSuit (SC) 206 6 MACMA No.690 of 2011 12
26) In view of the expressions of the Hon'ble Apex Court and this Hon'ble Court stated supra, in the light of the evidence of R.W.1 and Ex.B.1, it can be safely conclude that the driver of the crime vehicle is not holding valid and effective driving licence at the time of the accident and thereby, the 1st respondent i.e., insured of the crime vehicle has committed statutory violation as well as violation of terms and conditions of the insurance policy and as such, it is held that there is no liability on the insurer to indemnify the insured to pay compensation to the petitioners and the liability cannot be fastened on the insurance company.
27) In the light of the law laid down as stated supra, basing on the evidence available on record in the present case, it is held that the driver of the tractor and trailer bearing NO.A.P.04 W 4354 and 4355 is not holding a valid and effective driving licence at the time of the accident and as such, the insurer-appellant is not liable.
28) However, the Hon'ble Apex Court in S. Iyyappan Vs. United India Insurance Company7 held that even though the insurer's defence that there is a breach of conditions of the policy excluding from liability, from the driver is not duly licenced in driving the crime vehicle when met with accident, third party as a statutory right under Section 149 read with 168 of the Act to recover compensation from insurers and for the insurer to proceed against the insured for recovery of amount paid to third party in case there was any fundamental breach of condition of insurance policy.
7 2013(7) SCC62 (SC) 13
29) In view of the fact that the petitioners in the claim petition are third parties to the contract of insurance and the Motor Vehicles Act is being a beneficial legislation, the insurer in the instant claim petition is directed to pay the compensation to the petitioners and recover the same from the insured i.e., 1st respondent by following the procedure prescribed under the settled law laid down by the Hon'ble Apex Court in (1) Oriental Insurance Company Limited vs. Nanjyappan and others8, (2) National Insurance Company Limited vs. Baljith Kour and others9, (3) Oriental Insurance Company Limited vs. Angad 10 Kol and others , (4) Manager, National Insurance Company 11 Limited vs. Saju P. Paul and another and (5) Manuara Khatun 12 and others vs. Rajesh Kumar Singh and others .
30) With regard to the quantum of compensation awarded by the tribunal, it is to be noted that originally the petitioners assessed the compensation, for which they are entitled for the death of the deceased as Rs.50,00,000/-, but however, they have restricted it to Rs.15,00,000/-. As per the contention of the petitioners, the deceased was working at Kuwait as a Blacksmith in a Cinema Project called Salmiya Cinema Project and he was earning about 10 Kuwait Dinars per day, that each Kuwait Dinar is equivalent to Rs.140/- to Rs.150/- and that 300 Kuwait Dinars are equivalent to Rs.42,000/- to 45,000/-. As per the petitioners the deceased was earning between Rs.42,000/- to Rs.45,000/- per month. Ex.A.8 is the duty card of the deceased. Ex.A.8 shows that the deceased worked for 30 days in April. Ex.A.11 is 8 2004 ACJ 721 (SC) 9 2004 ACJ 428 10 2009 ACJ 1411 (SC) 11 2013 ACJ 554 (SC) 12 (2017) Supreme Court Cases 796 14 the Passport of the deceased which shows that the deceased went to Kuwait for the last time in October, 2005. Ex.A.7 is the driving licence of the deceased. The deceased hold driving licence to drive geared two wheeler and light motor vehicles. Ex.A.9 is the bank passbook showing that the deceased was regularly sending money from Kuwait. Ex.A.12 consists of three documents one of which is an agreement of sale entered into in January, 2008 between the 1st petitioner as proposed vendee and another. It was for a sum of Rs.5,00,000/-. Ex.A.12 consists of two other documents of sales. The second agreement of sale was for Rs.8,00,000/- in April, 2008 and third agreement of sale was for Rs.4,00,000/- in February, 2008. All the agreements of sale are in the name of the 1st petitioner, who is the wife of the deceased. The total value of the agreements of sale covered by Ex.A.12 is for Rs.17,00,000/-. Ex.A.10 consists of two receipt payments of LIC installments. The evidence of PW.1, who is the wife of the deceased and documents marked as Exs.A.8 to A.12 proves that the deceased went to Kuwait for employment purpose and he stayed there for some time and used to send money to his wife to meet family needs and also to purchase landed properties in her name and as such, the finding of the tribunal in determining notional income of the deceased at Rs.10,000/- per month cannot be find faulted. Besides that, basing on the evidence available on record, the monthly income determined by the tribunal in view of the facts and circumstances of the case appears to be quite just and reasonable. The tribunal by following multiplier method has applied relevant multiplier "14" and deducted 1/4th of the income of the deceased towards his personal and living expenses, if he is alive and awarded Rs.12,60,000/- towards loss of dependency. The tribunal further awarded Rs.10,000/- towards loss of estate; Rs.2,000/- towards 15 funeral expenses and Rs.3,000/- towards consortium in favour of the 1st petitioner. In total Rs.12,75,000/- was awarded by the tribunal which is in the opinion of this Court is quite just and reasonable and there is no necessity to revise the same.
31) Accordingly, this appeal is allowed in part and ordered as follows:
(i) the decree and order dated 19.07.2010 in M.V.O.P.No.38 of 2009 passed by the Chairman, Motor Accidents Claims Tribunal-cum-
Principal District Judge, Kadapa is set aside to the extent of fastening liability on the insurance company;
(ii) the insurance company is directed to pay the compensation to the petitioners within one (01) month from the date of receipt of the judgment and recover the same from the insured by following the procedure prescribed under the settled law laid down by the Hon'ble Apex Court as directed in para No.29 supra;
(iii) the other directions of the tribunal shall remain unaltered;
(iv) there shall, however, be no order as to costs.
Miscellaneous Petitions pending, if any, shall stand closed in consequence.
______________________ JUSTICE BATTU DEVANAND Dt.15.06.2020 PGR