Chhotu Lal v. Chamali Bai — 1996 DIGILAW 942 (RAJ)

Honble DALELA, J. – This appeal is directed against the judgment and award dated 13.4.1994 passed by the learned Motor Accident Claim Tribunal, Baran, in claim case No. 29/89, whereby a compensation of Rs. 70,200/- has been awarded in favour of claimants-respondents No. 1 to 4 against the appellants-driver and owner of the vehicle in question, Tractor RRO 4676 for the accident occurred on 29.4.1985 on Kota-Shivpuri Road near village Rani Barod wherein Ram Chandra who was stricken by the tractor, died. The claim against the Insurance Company respondent No. 5 was however dismissed as the driver the appellant No.1 did not have the valid driving licence at the time of accident. (2). I have heard the arguments of both the sides on merits at this stage. (3). The learned counsel for the appellants has argued that in criminal case No. 101/85 arising out of the same accident, the learned Munsif and Judicial Magistrate, Baran, vide his order dated 11.9.1987 acquitted the appellant No.1, who was alleged to have been driving the tractor at the time of alleged accident and consequently it cannot be held that the appellant was driving the vehicle rashly and negligently. (4). In N.K.V. Brothers (P) Ltd. vs. M Karumal Anmal (1), the Honble Supreme Court has held that the plea that a criminal case had ended in acquittal has no bearing in the claim case under Motor Vehicles Act, the requirement of culpable rashness under Section 304-A, IPC, is more drastic than the negligence sufficient under law of Torts to create a liability and the court in the accident claims cases should not succumb to niceties and technicalities and mystic may bes. Technical rules of evidence should not be applied in the accident claim cases. In Smt. Prem Kanwar vs. R.S.R.T.C. (2), this court has held that the acquittal in criminal case is of no avail because in criminal case, prosecution has to be proved beyond the rea- sonable doubt and the cases in compensation matter, it is the preponderance of probabilities that decides the matter. (5). It is well established legal principle that findings given in the criminal court judgment cannot be taken aid and cannot be taken advantage in the civil or compensation claim matter. Therefore, the claim petition cannot fail merely beca- use there has been an acquittal in the criminal case. (5). It is well established legal principle that findings given in the criminal court judgment cannot be taken aid and cannot be taken advantage in the civil or compensation claim matter. Therefore, the claim petition cannot fail merely beca- use there has been an acquittal in the criminal case. The plea that the criminal cases ended in acquittal and therefore, the compensation claim must follow suit cannot be accepted and as such rejected. (6). Upon consideration of evidence on record I find myself broadly in agreement with the conclusions of the learned Tribunal that the accident took place on account of rash and negligent driving of the tractor by the appellant No.1 and there was no contributory negligence on the part of the deceased. The reasons given by the learned Tribunal in support of the said conclusions also seem to be correct. In the case of Girijanandini Devi & Ors. vs. Bijendra Narain Choudhary (3), it has been laid down by the Apex Court that where the appellate court agrees with the views and conclusions of the trial court, the former need not repeat the narration of evidence or reiterate the reasons given by the trial court and the expression of general agreement with the reasons given by the trial court would suffice. Therefore, it is sufficient to say that I broadly agree with the conclusions and findings given by the learned Tribunal in respect of the issues No. 1 and 7 to the effect that the accident took place by use of the tractor in question on account of the rashness or negligence of the appellant No. 1 and that there was no contradictory negligence on the part of the deceased. (7). Next, it was argued that the plea against the Insurance Company (respondent No.5) was incorrectly rejected by the Tribunal merely because the driver appellant No.1 did not have a valid driving licence at the time of accident. (8). The appellant No.2 is the owner of the tractor in question and is also father of the appellant No.1. It has been admitted by the appellant No. 1 while appearing in the witness box as NAW 1 that he did not possess the driving licence when the alleged accident took place through after wards he has taken one. (9). (8). The appellant No.2 is the owner of the tractor in question and is also father of the appellant No.1. It has been admitted by the appellant No. 1 while appearing in the witness box as NAW 1 that he did not possess the driving licence when the alleged accident took place through after wards he has taken one. (9). A perusal of the reply of the Insurance Company (respondent No.5) to the claim petition would show that it has not been pleaded therein that the owner-insu- red-appellant No.2 was at fault in allowing the appellant No.1 to drive the tractor at the relevant time. The evidence produced by the Insurance Company is also not to the effect that the owner, i.e., the insured permitted the tractor to be driven by the appellant No.1. No where the appellant No.1 as NAW 1 has deposed that he took the tractor with the permission of his father. In Babu & Ors. vs. Kamla Devi & Ors. (4), this court has held that where the vehicle has been taken by the person without driving licence without permission of the owner, there is no breach of condition of Insurance policy by the owner of allowing the vehicle to be driven by the unlicenced person and as such the Insurance Company is liable for the payment of compensation. In S. Kardia Insurance Co. Ltd. vs. K. Chandravan (5), the Apex Court has held that it must be proved by the Insurance Company that the breach of condition of the policy was on part of the insured, i.e., owner of the vehicle. Unless the insured is at fault and guilty of a breach, the insurer cannot escape from obligation to indemnify the insured. If the owner has not committed any breach of the term of the policy, the Insurance Company is liable to pay compensation. (10). In the present case in hand, a perusal of the entire evidence on record would show that it has not been established that the tractor in question was taken and driven by the appellant No.1, who was without a driving licence, with the permission of the appellant No.2, the owner of the vehicle and the father of the appellant No.1. In the present case in hand, a perusal of the entire evidence on record would show that it has not been established that the tractor in question was taken and driven by the appellant No.1, who was without a driving licence, with the permission of the appellant No.2, the owner of the vehicle and the father of the appellant No.1. Since the vehicle was taken and driven by the appellant No.1 with- out the permission of the owner, appellant No.2, there is no breach of condition of the policy by the owner. The Insurance Company, respondent No.5, therefore, cannot escape from the obligation to indemnify the insured owner appellant No.2 for the payment of the compensation. (11). Therefore, the finding and the order of the learned Tribunal that the Insu- rance Company, respondent No.5, is not liable to pay the compensation merely because the appellant No.1 was not having licence to drive the tractor cannot be sustained. (12). The plea of Insurance Company, respondent No.5 that as the premium was paid by the Bank on 14.6.1985, though the cover note, Ex. A 3, was issued on 27.3.1985 for a period from 27.3.1985 to 26.3.1986, it is not liable to pay compensation for the accident dated 29.4.1985 was not accepted by the learned Tribunal because the cover note was issued against the Bank guarantee and the insurer had accepted it. No appeal has been preferred by the respondent No.5 against this finding of the learned Tribunal. There is no dispute that the cover note was issued on 27.3.1985 for the period from 27.3.1.985 to 26.3.1986 against the Bank guarantee. NAW 2, Guru Darshan Singh has also admitted that the cover note is issued only after receiving the premium but when there is Bank guarantee, the cover note is issued provisionally. Rule 58 of the Insurance Rules, 1939, provides that if the entire amount of premium is guaranteed to be paid by the Bank, the risk in respect of the policy can be assumed by the Insurance Company. Since the cover note was issued against the Bank Guarantee, the Insurance Company ought to have enforced the guarantee and recovered the premium. The lapse on the part of the Insurance Com- pany, respondent No.5, in this regard, would not entitle to it to repudiate the police. The finding and reasons given by the learned Tribunal in this respect is legally correct. (13). The lapse on the part of the Insurance Com- pany, respondent No.5, in this regard, would not entitle to it to repudiate the police. The finding and reasons given by the learned Tribunal in this respect is legally correct. (13). The Insurance Company, respondent No.5, is therefore, liable to pay compensation to the extent of limit mentioned in the policy. (14). No other point has been argued and pressed before me. The upshot of the entire discussion is that the order and the award of the learned Tribunal so for it relates to the dismissing of claim petition against Insurance Company is required to be set aside. The Insurance Company is also liable to pay compensation jointly and severally along with the appellants. Except this, I broadly agree with the findings and the conclusions of the learned Tribunal. In the result, this appeal is partly allowed. The order and the award of the learned Tribunal so far as it relates to the dismissal of the claim petition, against the respondent No.5, Insurance Company, is set aside. The Insurance Company, respondent No.5, shall also be liable jointly and severally to pay compensation awarded by the learned Tribunal to the extent of limit mentioned in the policy. Rest of the award is maintained. There shall be no order as to costs.