Gauhati High Court
Siba Prasad Ghosh vs Mrs. Anima Neog & Ors on 21 June, 2017
Author: Kalyan Rai Surana
Bench: Kalyan Rai Surana
THE GAUHATI HIGH COURT
(THE HIGH COURT OF ASSAM, NAGALAND, MIZORAM &
ARUNACHAL PRADESH)
MAC APPEAL NO. 212 OF 2010
SRI SIBA PRASAD GHOSH .....Petitioners
-Versus-
MRS. ANIMA NEOG & 2 ORS. .....Respondents
BEFORE HON'BLE MR. JUSTICE KALYAN RAI SURANA Advocates for the Petitioners : Mr. S. Banik, Ms. B. Sarma, Mr. K.N. Suri, : Mr. P. Bhuyan.
Advocates for the Respondents : Mr. B.K. Bhattacharjee, Dr. R. Sarmah, : Mr. R. Sarma, Mr. D. Mozumdar, : Mr. B. Deori, Mrs. P. Saha.
Date of hearing : 08.06.2017.
Date of judgment and order : 21.06.2017.
JUDGMENT AND ORDER (CAV)
Heard Mr. S. Banik, learned counsel appearing for the appellant. Also heard Dr. R. Sarmah, learned counsel for appearing for the respondent No. 1/ claimant and Mr. R. Sarma, appearing for the respondent No. 3.
2) By filing this appeal under Section 173 of the Motor Vehicles Act, 1988, the appellant has challenged the judgment and award dated 26.04.2010 passed by the learned Member, M.A.C.T., Jorhat in M.A.C. Case No. 38/2007. The appellant herein was arrayed as Opp. Party No.1 in the said MAC Case and he is the registered owner of the motorcycle bearing No. AS-03 D/2588, which was involved in a road accident on 06.05.2005.
MAC Appeal 212/2010 Page 1 of 113) Smt. Anima Neog, the Respondent No.1 herein was the claimant before the Motor Accident Claims Tribunal, Jorhat (hereinafter referred to as the "Tribunal") and she had filed a claim for Rs.10,50,00/- as compensation on account of death of her husband, Late Suresh Neog, in a road traffic accident.
4) As revealed from the judgment impugned herein, while the deceased was proceeding towards his residence, a motorcycle owned by the appellant, which was being given by Sri Guddu Singh, the respondent No. 2 herein and Opp. Party No.2 before the learned Tribunal, dashed against him, resulting in head injury to the deceased. He was immediately taken to Jorhat Civil Hospital and then he was shifted to Guwahati Medical College and Hospital and after nine days of continuous treatment, he succumbed to his injuries. At the time of the accident, the offending vehicle was insured with National Insurance Co. Ltd., the respondent No.3 herein and Opp. Party No.3 before the learned Tribunal.
5) On receipt of notice of notice to appear in the said M.A.C.T case, the appellant filed his written statement, inter alia, taking a plea that he had sold his motorcycle to one Harbans Singh, who took no steps for transfer of the registration of vehicle and at the time of the accident. He also pleaded that the offending vehicle was duly insured with the respondent No. 3. The respondent No. 3 in their written statement, took usual standard pleas, contending that the driver did not hold a valid license at the time of accident and they are also dispute age and income of the deceased and the quantum of compensation claim. In course of trial, the learned Tribunal framed the following issues:
i. Whether the accident took place due to rash and negligent driving by the vehicle No. AS-03-D-2588?
ii. Whether the driver of the offending vehicle had a valid and effective driving licence at the time of the accident?
iii. Whether the claimant is entitled to any compensation. And, if so, what would be the quantum of compensation and by whom it shall be paid?MAC Appeal 212/2010 Page 2 of 11
6) The issue No. 1 was decided in the favour claimant on the basis of evidence on record. The respondent No.1 examined herself as PW-1 and the sister of the deceased was examined as PW-2. An eye-witness to the accident was examined as PW-3. The learned Tribunal relied on Exhibit-4 i.e. Police Report in Form No. 54, exhibited by the respondent No.1, which formed the basis of decision of the Tribunal on the said issue No. 1. While deciding issue No. 2, the learned Tribunal had relied on the evidence of DW-1 who was the Senior Assistant in the office of respondent No.3. He had deposed that the driver of the vehicle, at the time of the accident was not holding a license. He also deposed that an investigator was appointed to inquire about all aspects of the accident, who, on completion of his investigation, had submitted his report along with information given by the police. The learned Tribunal relied on Exhibit- A, which the report of the investigator, i.e. DW- 2, and Exhibit-B, i.e. the information given by the police. As per the said exhibits, the driver of the vehicle i.e. respondent No. 2 was not holding any driving license. The learned Tribunal has given a finding that there was no cross-examination of that point and the learned Tribunal also relied on the written statement by the respondent No.1, where it was not stated that the driver had a valid licence. The learned Tribunal had stated that the cross-examination of D.W.2 i.e. Investigator was also declined.
7) Accordingly, the learned Tribunal by relying on the case of United India Co. Insurance Ltd. vs. Rakesh Kumar Arora, AIR 2009 SC 24, held that there was a breach of the condition of policy as per Section 149(1)(2) of the Motor Vehicles Act, 1988 and decided the issue No.2 in the negative against the Respondents No.1 and 2 and in favour of the insurer. The learned Tribunal held that the appellant was the owner of the vehicle the compensation was computed at Rs.3,69,500/- and the appellant as well as the respondent No. 2 were jointly and severally directed to pay the compensation within two months, failing which it was ordered that the award would carry interest @ 6% per annum.MAC Appeal 212/2010 Page 3 of 11
8) Challenging the finding of the learned Tribunal, the learned counsel for the appellant has submitted at the outset that the appellant is not challenging the liability of the driver of the vehicle and that the present appeal is confined to the liability which has been saddled on the appellant as the owner of the vehicle.
9) In support of his argument, the learned counsel for the appellant has referred to the additional affidavit filed by the appellant on 24.03.2011 in support of this appeal and he has specifically referred to the enclosure to the said affidavit, which is (a) a photocopy of the Certificate of Insurance, (b) photocopy of the money receipt dated 22.03.2011 towards premium paid by the appellant to the respondent No. 3, as well as (c) a photocopy of the driving license in the name of S. Gurinder Singh, S/o. S. Harbans Singh, purportedly issued by the said R.T.O., Mokokchung, Nagaland. The learned counsel for the appellant heavily relied on the cross- examination of PW-3, the eye-witness, who had specifically stated that he knew Guddu Singh and that he holds a driving licence. It was submitted that the respondent No.2, who was driving the vehicle did not contest the case and, as such, the driving licence could not be proved, but now he could collect the photocopy of the driving licence of respondent No.2, which was valid on the date of the accident and is still valid till 26.09.2012. He had referred to his statement made in the said additional affidavit and submits that Guddu Singh and Gurinder Singh is one and the same person, hold a valid license as on the date of the accident. It is submitted that on the relevant point of time, the appellant could not prove the license, but now it has been brought on record and, as such, his liability continued to stand duly indemnified by a valid insurance policy and there was no breach of conditions of insurance.
10) In support of his argument, the learned counsel for the respondent No.1 relies on the case of Pushpa alias Leela & Ors. Vs. Shakuntala & Ors., (2011) 2 SCC 240 (paragraphs 1, 6, 14 and 17). It is submitted that in the present case, the vehicle was transferred to Harbans Singh, whose son Guddu Singh was driving the vehicle. Thus, if the sale is not held to be valid, he MAC Appeal 212/2010 Page 4 of 11 continued to remain the registered owner of the vehicle with the registration certificate still continuing to be in his name, thus, he must be held to have full indemnity under a valid insurance policy. It is submitted that he being the registered owner of the vehicle is required to be indemnified by the respondent No. 3 as per the ratio of the aforesaid cited case. It would be relevant to quote the aforesaid paragraph of the said judgment.
11) It is submitted that the appellant is liable to be absolved of the liability saddled on him by the impugned judgment and the respondent No. 3 ought to be directed to satisfy the award.
12) The simple submission of the learned counsel for the respondent No. 1/claimant is that the accident in reference took place in the year 2005, when the poor lady had lost the only bread earner in the family, yet in the legal mire, the respondent No.1 had not got the benefit of the meager award of Rs.3,69,500/- passed on 26.04.2010.
13) In support of the impugned judgment and award, the learned counsel for the respondent No. 3 has placed reliance on Section 50 of the Motor Vehicles Act, 1988 which relates to transfer of the motor vehicle. He has also referred to the provisions of Section 151 of the said Act, which relates to duty to give information to the insurer. It is submitted that the appellant, being the registered owner of the vehicle did not comply with the requirement of section 151 of the Act by not informing the respondent No. 3 about transfer of the vehicle. Even the new owner did not apply for transfer of the vehicle or the insurance in his name. Therefore, when it is the admitted case of the appellant that he had sold the offending to a third party, the liability to indemnify the appellant had ceased on and from the date of transfer of the vehicle and the appellant was not entitled to be indemnified by the respondent No. 3, admittedly not being the owner of the vehicle at the time of the accident.MAC Appeal 212/2010 Page 5 of 11
14) It is submitted that in course of trial, the appellant could not prove that the respondent No.2, who was then driving the offending vehicle was holding a valid driving license. There was also no pleading about the existence of a valid licence and therefore, no cognizance ought to be taken of the unproved photocopy of driving licence additional affidavit filed before this appellant court for the first time. It is submitted that production of the said photocopy was not sufficient to dislodge the evidence of the DW-1 and DW-2, who had duly proved that the respondent No.2 was not having a valid driving license.
15) The learned counsel for the respondent No. 3 places reliance on the provisions of Section 149(2)(a)(ii) of the Motor Vehicles Act, 1988 and submits that as the driver was not having a valid license at the time of the accident was a fact which was duly proved at the time of trial, the respondent No. 3 was not liable to satisfy the award passed against jointly and severally against the appellant and respondent No.2. In support of his argument, the learned counsel for the respondent No. 3 had relied on the case of National Insurance Co. Ltd. Vs. Roshan Lal and another, (2017) 4 SCC 803. It is submitted that as per the said order, the legality and validity of directions being issued to the insurer to pay the compensation amount and then recovered the same with interest from the owner of the vehicle has been placed before the Hon'ble the Chief Justice of India for constitution of a larger Bench. It is submitted that in the present case in hand, the finding of the learned Tribunal was a driver was not holding a valid driving license and, as such, under the provisions of Section 149 (2)(a)(ii), the respondent No. 3 cannot be compelled to indemnify the appellant herein under the principles of "pay and then recover".
16) This Court has considered the arguments advanced by the learned counsel for the parties and perused the records received from the learned Tribunal. None of the parties have challenged the quantum of the compensation awarded and, as such, there is no point in making the exercise to re-calculate the quantum of the award. The only point raised by the learned counsel for the MAC Appeal 212/2010 Page 6 of 11 appellant is that as he had got the insurance coverage for the offending vehicle, the compensation awarded against him ought to be settled and paid by the respondent No.3 insurer.
17) Before appreciating the rival arguments of the learned counsels appearing for the appellant, respondent No.1 and respondent No.3, it would be relevant to quote the relevant paragraphs of the case Pushpa @ Leela (supra):
"1. Whether in the fact and circumstances of the case the liability to pay the compensation amount as determined by the Motor Accident Claims Tribunal was of the purchaser of the vehicle alone or whether the liability of the recorded owner of the vehicle was coextensive and from the recorded owner it would pass on to the insurer of the vehicle? This is the short question that arises for consideration in this appeal by special leave filed at the instance of the claimants.
6. Coming next to the question of liability of payment, the issue that is most crucial for the claimants from the practical point of view, the Claims Tribunal held that no liability for payment of compensation to the claimants would attach to Jitender Gupta since he had ceased to be the owner of the vehicle after its sale to Salig Ram on February 2, 1993. It further held that even though an insurance policy for the truck was taken out from Oriental Insurance Company Ltd., the policy was in the name of Jitender Gupta, who was no longer the owner of the truck on the date the policy was taken out and there was no privity of contract between Salig Ram, the owner of the truck and the insurance company. Hence, the insurance policy was of no use for indemnifying Salig Ram, the owner of the truck. In short, Salig Ram alone was liable for payment of the compensation amount to the two claimants. In this connection, the Claims Tribunal in paragraph 46 of its judgment held and observed as followed:
"Because the subsequent policy was taken by Respondent 2 effective from 8-12-1993 to 7-12-1994 when he was not the owner having no right, title or interest to obtain the policy. The owner at that time was Respondent No.1 who never entered into any privy of contract with Respondent No.3 to cover third-party risks qua the vehicle."
14. The decision in Dr. T.V. Jose was rendered under the Motor Vehicles Act, 1939. But having regard to the provisions of section 2(30) and section 50 of the Act, as noted above, the ratio of the decision shall MAC Appeal 212/2010 Page 7 of 11 apply with equal force to the facts of the case arising under the 1988 Act. On the basis of these decisions, the inescapable conclusion is that Jitender Gupta, whose name continued in the records of the registering authority as the owner of the truck was equally liable for payment of the compensation amount. Further, since an insurance policy in respect of the truck was taken out in his name he was indemnified and the claim will be shifted to the insurer, Oriental Insurance Company Ltd.
17. Even though the claimants in the other case, the heirs and legal representatives of Nikku Ram, have not come to this Court, we consider it appropriate to give the same direction in respect of their case. There is absolutely no difference in the case of Nikku Ram and Prem Chand. Nikku Ram, being a daily wage earner was given a compensation of Rs.2,42,000/-. It is quite possible that his heirs and legal representatives were unable to come to this Court simply for want of sufficient means. The insurance company must pay the compensation amount determined in case of Nikku Ram to his heirs and legal representatives in case the amount has so far not been realised from Salig Ram as directed by the Claims Tribunal."
18) Thus, supported by the case of Pushpa alias Leela (supra), quoted above, the argument advanced by the learned counsel for the appellant appears to be attractive. However, this Court is unable to accept the same because of two reasons; firstly, the evidence on record and finding by the learned Tribunal is that the respondent No.2, who was driving the offending vehicle was not holding a valid licence; and secondly, if the driver was driving without any valid driving licence, there was a definite breach of the conditions of insurance.
19) The production of photocopy of the driving licence of respondent No.2 at this appellate stage does not and cannot take the place of a valid proof which makes the document admissible in evidence. There are four reasons for this Court to look at the said photocopy with suspicion;
a. firstly, the respondent No.2 must have given some information to the police when the concerned police prepared Accident Information Report in the Form 54, prescribed under the Motor Vehicles Act, 1988 and therefore, there must have been some overwhelming reason for MAC Appeal 212/2010 Page 8 of 11 the respondent No.2 to withheld the information of having a driving licence from the police; and b. secondly, why would respondent No.2 accept the judgment and award passed against him without contesting the claim petition when he had a valid licence; and c. when the appellant had procured a photocopy of the driving licence from the respondent No.2, the appellant must have communicated with the respondent No.2, but yet the respondent No.2 has not entered appearance in this appeal, and has allowed the award to attain finality in so far has he is concerned;
d. although the appellant had produced a photocopy of the driving licence of respondent No.2 along with his additional affidavit filed on 24.03.2011, yet no steps has been taken to adduce additional evidence in the appellate stage.
20) The cumulative result of the suspicion, as expressed above, is that this court is unable to accept the argument advanced by the learned counsel for the appellant that the respondent No.2 had a valid driving licence at the time of the accident and that as he had remained in the footsteps of the registered owner of the offending vehicle, he was required to be indemnified by the insurer i.e. Respondent No.3. Hence, this appeal is not found sustainable.
21) This leads to another question that whether under the facts and circumstances of the case it would be appropriate to direct the insurer i.e. respondent No.3 to deposit the compensation as awarded by the learned Tribunal and then recover the same from the owner.
22) In this connection, this Court in the case of National Insurance Co. Ltd., V. Md. Mahboob Alam Laskar @ Mahboob Hussain Laskar & others, judgment dated 09.03.2017, rendered in MAC Appeal No. 242/2010, had refused to direct the insurer to deposit the compensation as awarded by the learned MAC Appeal 212/2010 Page 9 of 11 Tribunal and then to recover the same from the owner. The relevant paragraphs thereof is quoted below:-
"(11) Therefore, the only question that remains to be answered in MAC Appeal No. 242/10 is whether the judgment and award, insofar as it relates to issuance of a direction to the appellant/ insurer to satisfy the award with liberty to recover the amount from the owner of the offending vehicle. In this regard, while the learned counsel for the appellant had referred to the case of (i) New India Assurance Co. Ltd.
V. Asha Rani, (2003) 2 SCC 223, (ii) National Insurance Co. Ltd. V. Bommithi Subbhayamma & others, (2005) 12 SCC 243 (iii) National Insurance Co. Ltd. V. Kaushalya Devi, (2008) 8 SCC 246, and (iv) National Insurance Co. Ltd. V. Parvathneni & another, (2009) 8 SCC 785, the learned counsel for the respondent No.1/ claimant has relied on the case of United India Insurance Co. Ltd. V. K.M. Poonam and others, (2015) 15 SCC 297.
(17) It is seen than in the said case, the insurance policy of the owner of the vehicle covered six occupants of the vehicle in question, including the driver, the liability of the insurer was held to be confined to six persons only, notwithstanding larger number of persons carried in the vehicle. But, it was held that there cannot be pick and choose method to identify five passengers, the Hon'ble Supreme Court had ordered the insurer to deposit compensation for all victims and then to recover the excess amount from the owner. In light of above, for the said limited purpose, the excess passengers were treated as third parties in the case of United India Insurance Co. Ltd. V. K.M. Poonam & Ors (supra). However, in light of the language used by the Hon'ble Supreme Court of India in the case of National Insurance Co. Ltd. V. Parvathneni (supra), while referring the matter to be placed before a larger Bench, it is apparent that such orders for pay and recover are being passed in some cases by the Hon'ble Supreme Court by invoking powers under Article 142 of the Constitution of India. This Court is of the view that such powers is reserved to the Hon'ble Supreme Court to order the insurer to make payment and then to recover and such orders ought not to be passed by this court in exercise of appellate powers under section 173 of the Motor Vehicles Act, 1988. Hence, the prayer made by the learned counsel for the respondent No.1/ claimant to maintain the direction to the appellant to deposit the compensation as awarded by the learned trial court and then to recover the same from the owner is refused.
MAC Appeal 212/2010 Page 10 of 11(18) The impugned judgment and award dated 10.4.2008 passed by the learned Additional District Judge, FTC, Cachar, Silchar in MAC Case No.1133/06, only to the extent of that part of the order directing the appellant to pay the awarded sum to the claimant first and to realize the same from the owner of the offending vehicle if it thinks fit and proper, is modified and/or set aside. The claimant may take steps to realize the awarded sum and interest thereon in terms of the award from the owner of the Tata Indica Car No. MZ-01-B-9723 (i.e. respondent No.2 herein)."
23) In view of the above referred decision rendered by this Court in National Insurance Co. Vs. Md. Mahboob Alam Laskar @ Mahboob Hussain Laskar & others - MAC Appeal No. 242/10 (supra), the prayer made by the learned counsel for the appellant to direct the respondent No.3 to satisfy the award is refused.
24) Resultantly, the appeal stands dismissed. The parties are left to bear their own cost. Return the 'lower court records' forthwith.
25) It would be open for the respondent No.1 to enforce the award in accordance with law.
JUDGE Mkumar.
MAC Appeal 212/2010 Page 11 of 11