Rajasthan High Court - Jodhpur
Mst. Ranjana Pandey & Ors vs Iqbal & Ors on 3 January, 2014
Author: Arun Bhansali
Bench: Arun Bhansali
1
IN THE HIGH COURT OF JUDICATURE FOR RAJASTHAN
AT JODHPUR
:JUDGMENT:
S.B. CIVIL MISC. APPEAL NO.303/2002
Smt. Ranjana Pandey & Ors.
Vs.
Iqbal & Anr.
Date of Judgment :: 03rd January, 2014
PRESENT
HON'BLE MR. JUSTICE ARUN BHANSALI
Mr. Sabir Khan, for the appellant.
Mr. Jagdish Vyas, for respondent No.2.
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BY THE COURT:
This appeal is directed against judgment and award dated 10.04.2002 passed by the Motor Accident Claims Tribunal, Bikaner ('the Tribunal'), whereby, for death of one O.P. Pandey ('the deceased'), who was then serving as Executive Engineer, the Tribunal has awarded a sum of Rs.21,89,800/- alongwith interest @ 9% per annum from 25.08.1999 i.e. the date of filing application for compensation ('the application'), however, the insurer of the offending vehicle has been exonerated.
The facts in brief may be noticed thus: on 17.03.1999 when the deceased was travelling in a car bearing registration No.RRB-2027, a truck bearing registration No.RNM-7749 collided with the said car, which resulted in the occupants of the car including the deceased suffering grievous injuries, to which, the deceased later succumbed; application was filed by the legal 2 representatives of the deceased against the truck driver, owner of the truck and its insurer seeking compensation to the tune of Rs.38,87,860/- alongwith interest @ 24% per annum; the claimants included wife, major son and mother of the deceased; in the application it was contended that the accident occurred on account of rash and negligent driving by the driver of the truck, which resulted in the death of O.P. Pandey, aged 53 years, who was then serving as Executive Engineer with P.H.E.D. Department, whose monthly salary was Rs.14,579/-.
No reply to the application was filed by the driver and owner of the truck, however, the insurer filed its reply, whereby, the general averments contained in the application were denied; however, it was admitted that on the date of accident, the truck was insured with the said Insurance Company; the liability to pay the compensation was denied and it was contended in the additional pleas that the driver of the truck was not in possession of effective and valid driving licence and the owner, who despite knowing the said fact handed over the vehicle to such a driver has violated the policy conditions.
The Tribunal framed four issues which, inter alia, included issue No.3 relating to liability of the Insurance Company on the objections raised in the written statement.
On behalf of the claimants, three witnesses were examined and on behalf of the Insurance Company NAW-1 Banwari Lal Manavat - Branch Manager was examined.
After hearing the parties, the Tribunal came to the conclusion that the accident occurred on account of rash and 3 negligent driving by the driver of the truck.
While deciding the issue relating to liability of the Insurance Company, the Tribunal came to the conclusion that the vehicle in question was a Heavy Transport Vehicle ('H.T.V.') and the driver was holding driving licence to drive Light Transport Vehicle ('L.T.V.') and, therefore, found that the driver was not authorized to drive H.T.V. and, consequently, the Insurance Company was not liable for payment of compensation.
While dealing with the issue relating to quantum of compensation, the Tribunal determined the monthly salary of the deceased at Rs.14,579/-, age at 53 years, future prospects at 50%, deduction for personal expenses at 1/4th and awarded compensation at Rs.21,64,800/- for the loss of income, Rs.10,000/- for loss of consortium to the wife, Rs.5,000/- each to the son and mother of the deceased for loss of love and affection and Rs.5,000/- towards funeral expenses and in all awarded sum of Rs.21,89,800/-.
When this appeal came up for admission before this Court, by interim order dated 05.08.2005 this Court, inter alia, directed as under:-
"The question is whether the appellants/claimants can take the claim amount from the insurance company or not.
The record has not yet reached and the appeal is pending since last more than three years and, therefore, the appeal cannot be heard as appeal required consideration of facts also in the light of the arguments of the insurance company but at the same time, it is clear that even if the quantum is reduced, then also prima-facie, there is a chance of direction against the insurance company to pay the compensation amount and right to insurance company to recover the amount from the insured. Therefore, in the interest of 4 justice, it is ordered that the respondent insurance company shall deposit 50% of the award amount before MACT, Bikaner and the Tribunal may disburse the amount as per the award to the claimants after obtaining solvent security for refund of the above amount from the appellants. The insurance company may deposit the amount as ordered within a period of two months from today."
During pendency of the present appeal, the mother of the deceased expired on 22.11.2002 and the wife i.e. appellant No.1 Ranjana Pandey also expired on 14.02.2009.
It is contended by learned counsel for the appellants that the Tribunal fell in error in exonerating the Insurance Company and in awarding insufficient compensation. It was submitted that the exoneration is contrary to the law laid down by Hon'ble Supreme Court in National Insurance Co. Ltd. v. Swaran Singh :
2004 ACJ 1.
On the other hand, learned counsel for Insurance Company supported the judgment impugned and submitted that admittedly the driver of the vehicle was not in possession of valid and effective driving licence to drive H.T.V. and, therefore, the Tribunal was justified in exonerating the Insurance Company from payment of any compensation.
Reliance was placed on judgments of Hon'ble Supreme Court in Prem Kumari & Ors. v. Prahlad Dev & Ors. : 2008 ACJ 776, Sardari & Ors. v. Sushil Kumar & Ors. : 2008 ACJ 1307 and judgment of Madras High Court in A. Humayur Bevi & Ors. v. S. Ganesan & Ors. : 2012 (3) (Mad.) 1595 in support of the above contentions.
It was further submitted that the award of compensation is 5 already excessive as per the parameters laid down by Hon'ble Supreme Court.
I have considered the rival submissions. The respondent Insurance Company took a specific ground in its written statement/reply by way of additional plea that the truck driver was not in possession of a valid and effective driving licence and the owner, despite knowing the same handed over the vehicle to such a person, who was not in possession of valid and effective driving licence, has violated policy conditions and, therefore, the Insurance Company was not liable to make payment of compensation.
Based on the said plea, issue No.3 was framed as to -
"Whether the Insurance Company was not liable for making payment based on the objections raised in the written statement?"
To succeed on the said issue, it was incumbent on the Insurance Company, in terms of the plea raised by it, to not only prove that the driver was not in possession of a valid and effective driving licence but also that the owner of the vehicle despite being aware of such deficiency, handed over the vehicle to the driver, who was not holding a valid and effective driving licence.
When Banwari Lal Manavat appeared in the witnesses box as NAW-1 he merely stated that the driver was not in possession of valid licence and, therefore, the Insurance Company was not liable, the insured has handed over the vehicle to the driver based on driving licence (Exhibit-17) and has violated the policy 6 conditions and, therefore, the Insurance Company was not liable.
From the statement of NAW-1, it is apparent that he has not made any allegation regarding willful breach of condition and has made statement by merely drawn inference from the fact that the driver was allegedly not holding a valid driving licence.
Hon'ble Supreme Court in Swaran Singh (supra) after examining the issue in detail concluded and summarized its findings as under:-
"102. The summary of our findings to the various issues as raised in these petitions are as follows:
(i) Chapter XI of the Motor Vehicles Act, 1988 providing compulsory insurance of vehicles against third party risks is a social welfare legislation to extend relief by compensation to victims of accidents caused by use of motor vehicles. The provisions of compulsory insurance coverage of all vehicles are with this paramount object and the provisions of the Act have to be so interpreted as to effectuate the said object.
(ii) Insurer is entitled to raise a defence in a claim petition filed under Section 163A or Section 166 of the Motor Vehicles Act, 1988 inter alia in terms of Section 149(2)(a)(ii) of the said Act.
(iii) The breach of policy condition, e.g. disqualification of driver or invalid driving licence of the driver, as contained in Sub-section (2)(a)(ii) of Section 149, have to be proved to have been committed by the insured for avoiding liability by the insurer. Mere absence, fake or invalid driving licence or disqualification of the driver for driving at the relevant time, are not in themselves defences available to the insurer against either the insured or the third parties. To avoid its liability towards insured, the insurer has to prove that the insured was guilty of negligence and failed to exercise reasonable care in the matter of fulfilling the condition of the policy regarding use of vehicles by duly licensed driver or one who was not disqualified to drive at the relevant time.
(iv) The insurance companies are, however, with a view to avoid their liability must not only establish the available defence(s) raised in the said proceedings but must also establish 'breach' on the part of the owner of the vehicle; the burden of proof where for would be on them.
(v) The court cannot lay down any criteria as to 7 how said burden would be discharged, inasmuch as the same would depend upon the facts and circumstance of each case.
(vi) Even where the insurer is able to prove breach on the part of the insured concerning the policy condition regarding holding of a valid licence by the driver or his qualification to drive during the relevant period, the insurer would not be allowed to avoid its liability towards insured unless the said breach or breaches on the condition of driving licence is/ are so fundamental as are found to have contributed to the cause of the accident. The Tribunals in interpreting the policy conditions would apply "the rule of main purpose" and the concept of "fundamental breach" to allow defences available to the insured under Section 149(2) of the Act.
(vii) The question as to whether the owner has taken reasonable care to find out as to whether the driving licence produced by the driver, (a fake one or otherwise), does not fulfil the requirements of law or not will have to be determined in each case.
(viii) If a vehicle at the time of accident was driven by a person having a learner's licence, the insurance companies would be liable to satisfy the decree.
(ix) The claims tribunal constituted under Section 165 read with Section 168 is empowered to adjudicate all claims in respect of the accidents involving death or of bodily injury or damage to property of third party arising in use of motor vehicle. The said power of the tribunal is not restricted to decide the claims inter se between claimant or claimants on one side and insured, insurer and driver on the other. In the course of adjudicating the claim for compensation and to decide the availability of defence or defences to the insurer, the Tribunal has necessarily the power and jurisdiction to decide disputes inter se between insurer and the insured. The decision rendered on the claims and disputes inter se between the insurer and insured in the course of adjudication of claim for compensation by the claimants and Se award made thereon is enforceable and executable in the same manner as provided in Section 174 of the Act for enforcement and execution of the award in favour of the claimants.
(x) Where on adjudication of the claim under the Act the tribunal arrives at a conclusion that the insurer has satisfactorily proved its defence in accordance with the provisions of Section 149(2) read with Sub-section (7), as interpreted by this Court above, the Tribunal can direct that the insurer is liable to be reimbursed by the insured for the compensation and other amounts which it has 8 been compelled to pay to the third party under the award of the tribunal Such determination of claim by the Tribunal will be enforceable and the money found due to the insurer from the insured will be recoverable on a certificate issued by the tribunal to the Collector in the same manner under Section 174 of the Act as arrears of land revenue. The certificate will be issued for the recovery as arrears of land revenue only if, as required by Sub-section (3) of Section 168 of the Act the insured fails to deposit the amount awarded in favour of the insurer within thirty days from the date of announcement of the award by the tribunal.
(xi) The provisions contained in Sub-section (4) with proviso thereunder and Sub-section (5) which are intended to cover specified contingencies mentioned therein to enable the insurer to recover amount paid under the contract of insurance on behalf of the insured can be taken recourse of by the Tribunal and be extended to claims and defences of insurer against insured by, relegating them to the remedy before, regular court in cases where on given facts and circumstances adjudication of their claims inter se might delay the adjudication of the claims of the victims."
The vehicle in question was admittedly a H.T.V., which is distinct from L.T.V., regarding which, the driver was holding driving licence and was, therefore, not in possession of a valid and effective driving licence to drive the offending vehicle. However, in view of the law laid down by Hon'ble Supreme Court in the case of Swaran Snigh (supra), the burden lay on the insurer to prove that the insured was guilty of negligence and failed to exercise reasonable care in the matter of fulfilling the condition of the policy regarding use of vehicles by duly licenced driver or one who was not disqualified to drive at the relevant time and was required to establish breach on the part of the owner of the vehicle, the burden of proof where for was on the insurer.
In the present case, as noticed above, the insurer though 9 took a plea in the written statement but failed to prove the requirement as indicated by Hon'ble Supreme Court. Merely because the driver was not in possession of a valid and effective driving licence, the same would ipso facto not discharge the said burden cast on the insurer. So far as the judgments of Hon'ble Supreme Court in the case of Prem Kumari (supra) and Sardari (supra) are concerned, the Hon'ble Supreme Court in both the above cases having noticed the judgment in the case of Swaran Singh (supra) has not done away with the requirements as noticed above and, therefore, the said judgments are of no help to the insurer. Similarly, the judgment of Madras High Court in the case of A. Humayur Bevi (supra) also does not deal with the said aspect.
In view of the above, the finding recorded by the Tribunal on issue No.3 relating to the liability of the Insurance Company cannot be sustained and the same is, therefore, reversed and the issue is decided against the Insurance Company.
So far as the quantum of compensation is concerned, while the Insurance Company has not filed any cross-objections under Order XLI, Rule 22 CPC questioning the quantum of compensation, which it felt was excessive, the claim of enhancement made by the appellant is baseless as the appellant has failed to indicate any ground and/or any head, under which, the enhancement was being sought, which from the facts and circumstances of the case, appears to be more than adequate, at least in the changed facts and circumstances of the case, wherein, the wife and mother of the deceased have expired 10 during pendency of this appeal and it is only the son of the deceased, who remains appellant in the present appeal. Though the plea regarding quantum raised by the Insurance Company may have some substance, in absence of any cross-objection, the finding on said issue is not open to scrutiny at the instance of the Insurance Company.
Consequently, the appeal is partly allowed. The impugned judgment and award passed by the Tribunal is modified to the extent that alongwith owner and driver of the offending vehicle, the Insurance Company - respondent No.2 herein would be jointly and severally liable for payment of compensation to the claimant. No costs.
(ARUN BHANSALI), J.
A.K.Chouhan/-