Allahabad High Court
Raj Pal Singh vs Usha Devi And 4 Others on 4 March, 2020
Equivalent citations: AIRONLINE 2020 ALL 735
Author: Vivek Agarwal
Bench: Vivek Agarwal
HIGH COURT OF JUDICATURE AT ALLAHABAD ?Court No. - 53 Case :- FIRST APPEAL FROM ORDER No. - 3953 of 2018 Appellant :- Raj Pal Singh Respondent :- Usha Devi And 4 Others Counsel for Appellant :- Arvind Kumar,Brij Bhushan Upadhyay,Satya Deo Ojha Counsel for Respondent :- Nripendra Mishra Hon'ble Vivek Agarwal,J.
Heard Sri Satya Dev Ojha, learned counsel for the appellant and Sri Nripendra Mishra, learned counsel for the respondents.
This appeal has been filed by the owner being aggrieved of award dated 16.01.2016 passed by learned Motor Accident Claims Tribunal, Court No. 8, Etawah in Claim Case No. 106 of 2014.
Before adverting to the merits of the case, it will be important to point out that appellant filed copy of his own driving license i.e., the driving license of the owner- Rajpal Singh which is supported with form-54 issued by the Licensing Authority, Agra. An opportunity was granted to Sri Nripendra Mishra, learned counsel for the insurance company to verify the license as produced by the appellant. This opportunity was afforded on 31.01.2020, thereafter on request, again time was granted on 11.02.2020 and again on 25.02.2020. Sri Mishra submits that he has not received any instructions, therefore, his objection on record be taken into consideration.
Considered Civil Misc. Application No. 5 of 2018 filed by the appellant under provisions contained in Order 41 Rule 27 C.P.C. It is submitted that insurance company had taken a ground of defense before the claims tribunal that it was the owner of the motor vehicle, who was driving the offending vehicle rather than the driver who has been named in the claim case.
In view of such defense taken by the insurance company, owner of the motor vehicle while filing this appeal has produced copy of his driving license bearing no. UP 8020040000909 issued on 26.02.2004 having validity upto 25.02.2024 for non-transport vehicle and validity upto 19.02.2018 for transport vehicle. This license has been issued in favour of Raj Pal Singh S/o Mahavir Singh resident of Ganga Vihar Colony, Zandupura Road near Shilpgram, Taj Ganj, Agra- 282001 by the Licensing Authority from Agra. In support, Form-54 too has been enclosed giving details of the license number etc. Sri Nripendra Mishra objects in allowing such application, however, despite three opportunities granted to him to verify the license, when no instructions have been issued by the insurance company represented by Sri Nripendra Mishra, such objection is not sustainable and is overruled.
Learned counsel for the appellant submits that it has come in the award that at the time of the accident, offending vehicle Tavera was used and driven by the owner of the vehicle and not by the named driver i.e., Upendra Singh whose name has been mentioned in the claim petition. Therefore, it is submitted that since owner was having valid driving license to drive a Tavera vehicle, insurance company should not have exonerated and claim petition should have been allowed jointly and severally against the owner, driver and the insurance company.
Sri Mishra in his turn submits that firstly, provisions contained in Order 41 Rule 27 are not applicable to the Motor Vehicles Act, 1988. Secondly, Form-54 as has been produced is dated September 2017 whereas appeal was filed in April 2017 challenging the award dated 16.01.2016 and therefore, these documents have been procured afterwards. Thirdly, it is submitted that no copy of driving license has been enclosed along with the application under Order 41 Rule 27 and therefore, on all these three grounds, it is submitted that the award which has been passed by the learned claims tribunal does not call for any interference.
As far as submission that the driving license has not been enclosed, is not made out as driving license is enclosed along with an application under Order 41 Rule 27, number of such has been mentioned above while deciding application under Order 41 Rule 27.
As far as objection that provisions contained in Order 41 Rule 27 are not applicable to the claim cases is concerned, it is also settled that the provisions of the Act are benevolent in the nature. Technicality should not defeat the just and correct plaint. In view of such facts, even if the provisions contained in Order 41 Rule 27 are not applicable stricto sensu, but the analogy of Order 41 Rule 27 can be borrowed to allow a document which could not be filed for just and proper reason. Therefore, the second objection also needs to be overruled and is not sustainable.
Thirdly, as far as plea of sustaining the award is concerned, once a finding has been recorded by the learned claims tribunal that vehicle was being driven by the owner of the vehicle and not the driver, then under such facts and circumstances, when it is evident from the record that owner was having a valid driving license to drive a Tavera vehicle on the date of accident and further when insurance company has despite taking three opportunities did not bother to deny or question the validity of the driving license, it cannot be said that driving license is not valid. If driving license was available with the owner-cum-driver of the vehicle as per the findings of the insurance company, then merely because claimant impleaded somebody as a driver, is not a sufficient cause to deflect the liability from the insurer, though, the motor vehicle in question was duly insured with the insurer on the date of the accident and now in terms of the driving license produced by the owner who was allegedly driving the motor vehicle at the time of the accident, it cannot be said that motor vehicle was being driven in violation of the conditions of the policy or any of the provisions contained in the Motor Vehicles Act 1988.
In view of such facts, the insurance company cannot be exonerated and to this extent appeal deserves to be allowed and is allowed.
It is directed that the claim amount as ascertained by the learned claims tribunal shall be paid jointly and severally by the owner and insurer of the motor vehicle.
In above terms, appeal is disposed off.
Order Date :- 4.3.2020 Vikram/-