Jharkhand High Court
Tripurari Mandal vs Oriental Insurance Corpn. & An on 16 December, 2008
Equivalent citations: 2009 (1) AIR JHAR R 938, 2009 A I H C 1533, (2009) 3 TAC 245, (2009) 1 JCR 335 (JHA), (2010) 1 ACC 73, (2010) 1 ACJ 95, (2009) 1 TAC 724
Author: M. Y. Eqbal
Bench: M. Y. Eqbal, Jaya Roy
IN THE HIGH COURT OF JHARKHAND AT RANCHI
M.A. No. 141 of 2007
Tripurari Mandal.. ... ... Appellant
Versus
Oriental Insurance Corporation & Anr.. ... Respondents
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CORAM: THE HON'BLE MR. JUSTICE M. Y. EQBAL
THE HON'BLE MRS. JUSTICE JAYA ROY
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For the Appellant: M/s S.L. Agarwal
For the Respondents: M/s Prasant Vidyarthi.
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9/16.12.2008Heard Mr. S.L. Agarwal, learned counsel appearing for the appellant, and Mr. Prasant Vidyarthi learned counsel appearing for the respondent-Insurance Company and also counsel for the claimant and with their consent this appeal is disposed of at the admission stage.
By the impugned order and award passed by the Motor Vehicles Claims Tribunal in Compensation Case No. 169 of 2005, a sum of Rs. 1,38,436/-has been awarded for the death of the deceased and liability was fixed upon the appellant-owner of the vehicle.
The fact which is not in dispute is that the deceased was driving the Tractor belonging to the appellant-owner which turtled as a result of which the deceased came under the wheels of the Tractor and died.
The case of the claimant-respondent was that he was working as driver under the appellant and was earning Rs. 3000/- per month. The Claim Case was contested by the Insurance Company, stating inter alia that the deceased was not holding a valid driving licence and therefore, the Insurance Company has no liability for payment of any compensation. The Tribunal after hearing the parties and after considering the evidence came to the conclusion that the claimant as also the owner of the vehicle failed to prove that the deceased was holding a valid driving licence. Accordingly, the liability was fastened upon the appellant-owner of the vehicle for payment of compensation.
Mr. S.L. Agarwal, learned counsel for the appellant-owner of the vehicle, assailed the aforesaid finding particularly the liability fastened upon the owner of the vehicle on the ground that the Tribunal failed to consider the fact that the Insurance Company has not established that the deceased was not holding the valid driving licence. In this regard, learned counsel relied upon a decision in a case of Rukmani & Others V. New India Assurance Company & Others 1998 (9) S.C.C. 160.
On the question of fixing the liability in a case where a person drives a vehicle without having a valid driving licence, has been discussed by the Supreme Court in catena of decisions. In a case of Skandia Insurance Company Limited V. Kokilaben Chandravadan & Others [(1987) 2 S.C.C. 654], a very interesting question arose when a insured had handed over a vehicle to a licenced driver and the licenced driver because of negligence allowed the cleaner, who was unlicensed, to drive the vehicle. The Supreme Court held that it could not be said that there was breach committed by the insured. It was held that Insurance Company is liable to pay compensation. The aforesaid principle was followed by the Supreme Court in a subsequent decision in the case of Sohan Lal Passi Vs P. Sesh Reddy [(1996) 5 S.C.C. 21]. However, in the case of Kashiram Yadav &Anr. Vs. Oriental Fire & General Insurance Company & Others [(1989) 4 S.C.C. 128], the Supreme Court held that when the insured had handed over the vehicle for being driven by an unlicensed driver, the Insurance Company get exonerated from its liability. In another decision in the case of United India Insurance Company Limited Vs. Gian Chand & Others [(1997) 7 S.C.C. 558], the fact was that a car was allowed by the owner-insured to be driven by a person having no driving licence and the insured contended that he did not know that the person was having no driving licence. The Supreme Court held that in such a case the Insurance Company has no liability. In the aforesaid decision the Supreme Court held that there is no conflict in the earlier decision reported in (1995) 5 S.C.C. 21. The law, therefore, is well settled that in a case where a defence is taken by the Insurance Company that the driver was not holding a valid driving licence, it is incumbent upon the insured to assert that the driver was holding a valid driving licence and/or at the time of handing over the vehicle he verified or seen the driving licnece of the person to whom the vehicle was handed over to drive the said vehicle. In the instant case the owner of the vehicle even did not examine himself as a witness and has not either said that he saw the driving licence while handing over the vehicle to the deceased or the deceased was holding a valid driving license. The ratio laid down in Gian Chand's case is fully applicable in the facts of the present case. Be that as it may, in a recent decision the Supreme Court in the case of Sardari & Os Vs. Sushil Kumar and Ors [2008 A.I.R. S.C.W. 2075] considered all the earlier decisions including the decisions referred by us in the preceding paragraphs and held that if the driver is not holding a driving licence the Insurance Company gets exonerated.
Having regard to the fact that there is lack of evidence from the side of the appellant-owner of the vehicle and in the light of the ratio laid down by the Supreme Court, in our considered opinion the Tribunal has taken a right approach in exonerating the respondent-Insurance Company from its liability for payment of compensation.
We, therefore, do not find any merit in this appeal, which is accordingly, dismissed.
(M. Y. Eqbal, J) (Jaya Roy, J) Alankar/-A.F.R.