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2002 DIGILAW 754 (PAT)

Mahesh Kumar v. Khurshid Anwar

2002-07-16

ASHOK KUMAR VERMA

body2002
Judgment Ashok Kumar Verma, J. 1. This miscellaneous appeal had been filed against the order dated 29.7.1998, passed by the District Judge, Madhubani in Claim Case No. 44 of 1997, whereby the learned District Judge has ordered that both driver and owner shall pay Rs. 25,000 each to the applicants by way of interim compensation and the applicants shall be entitled to receive Rs. 50,000 in total. 2. Appellant No. 1 is the owner of the vehicle and appellant No. 2 is the driver of the vehicle. Respondent Nos. 1 to 3 are the claimants and respondent No. 4 is National Insurance Co. Ltd. 3. According to the appellants, claim case had been filed u/s. 140 of the Motor Vehicles Act without filing any case u/s. 166 of the said Act and independent claim u/s. 140 of the Act is not maintainable without filing a claim case u/s. 166 of the Act. Further according to the appellants for any action of the driver, the owner of the vehicle is vicariously liable. According to the appellants the expiry of the period of driving licence will not absolve the insurance company of its liability. 4. In short, the case of the applicants is that the son of petitioners, respondent Nos. 1 and 2 and brother of petitioner, respondent No. 3, who was aged about thirteen years had died on 7.2.1997 in the accident caused by rash, negligent and reckless driving of the tractor and trailer bearing registration No. BPG 9994 and BPG 9995 by its driver Bhagwat Yadav, who is appellant No. 2. The first information report had been lodged by petitioner-respondent No. 1 Khurshid Anwar at the police station as Rahika (Town P.S. Madhubani) P.S. Case No. 41 of 1997, district Madhubani. The post-mortem examination of the body of the deceased had been conducted. The claim petition was filed u/s. 140 of the Motor Vehicles Act before the District Judge-cum-Motor Accidents Claims Tribunal against appellant No. 1, Mahesh Kumar, owner of the vehicle; appellant No. 2, Bhagwat Yadav, driver of the vehicle and respondent No. 4, National Insurance Co. Ltd. 5. Separate written statement had been filed by opposite party Nos. 1, 2 and 3. Ltd. 5. Separate written statement had been filed by opposite party Nos. 1, 2 and 3. Appellant No. 1 (opposite party No. 1 in court below) has denied that the deceased had died on 7.2.1997 due to accident of tractor bearing registration No. BPG 9994 and 9995, due to high speed, rash and negligent driving by the driver. It has been stated in the written statement filed by opposite party No. 1 that tractor bearing registration No. BPG 9994 and 9995 was insured by National Insurance Co. Ltd., Madhubani, and so liabilities are covered by the said insurance company. According to this opposite party the accident had taken place due to the fault of the deceased. 6. According to appellant No. 2 (opposite party No. 2 in court below) he was not driving the tractor with high speed and rashly and the accident had taken place due to fault of the deceased. 7. According to opposite party No. 3, National Insurance Co. Ltd., the driver of the vehicle did not hold a valid driving licence at the time of alleged accident and the owner had violated the condition of insurance policy and insurance company is not liable to pay any claim to the applicants and the liability is of the owner of the vehicle. The owner of the tractor had proposed for insurance of the vehicle for agricultural purpose and had obtained policy from the insurance company accordingly and it has contravened the contract and used the vehicle for commercial purpose. The owner of the vehicle operates brickkiln (itta bhathd) and he had used his vehicle at the time of accident for carrying bricks and has violated the condition of policy and the insurance company is not liable to indemnify the award amount of compensation and the liability is of the owner of the vehicle. 8. It was submitted by learned lawyer for the appellants that it has been held by Patna High Court in L.P.A. No. 1070 of 2001 reported in 2001 (4) PLJR 557 , that the Motor Vehicles Act does not create any bar to the filing of any application u/s. 140 directly without filing claims u/s. 166. 8. It was submitted by learned lawyer for the appellants that it has been held by Patna High Court in L.P.A. No. 1070 of 2001 reported in 2001 (4) PLJR 557 , that the Motor Vehicles Act does not create any bar to the filing of any application u/s. 140 directly without filing claims u/s. 166. The learned lawyer of appellants did not press the plea taken by him in the memo of appeal that the father, mother and sister of the deceased had filed claim case only u/s. 140 of the Motor Vehicles Act claiming compensation of Rs. 50,000 without filing any case u/s. 166 of the Motor Vehicles Act. It was submitted by the learned lawyer for the appellants that the said accident had taken place on 7.2.1997 and the driving licence of the driver of the vehicle had expired on 13.12.1996 and he had filed the application for renewal of licence on 11.2.1997 and it should be presumed that the driver had a valid licence in continuity. It was also submitted by him that it has been held by the Ranchi Bench in the case of National Insurance Co. Ltd. V/s. Abha Sinha 1999 ACJ 450 (Patna), that merely because of the expiry of the period of licence and omission of the driver to get the licence renewed it cannot be said that there is breach of condition of policy for which insurance company can be exonerated from the liability. It was submitted by the learned lawyer appearing for the insurance company that it has been held by the Supreme Court in the case of United India Insurance Co. Ltd. V/s. Gian Chand 1997 ACJ 1065 (SC), that where insured had given vehicle for driving to unlicensed driver insurance company gets exonerated of its liability. According to sec. 3 (1) of the Motor Vehicles Act, 1988, no person shall drive a motor vehicle in any public place unless he holds an effective driving licence issued to him authorising him to drive the vehicle, and no person shall so drive a transport vehicle other than a motor cab or motor cycle hired for his own use or rented under any scheme made under Sub-sec. (2) of sec. 75 unless his driving licence specifically entitles him so to do. sec. 15 of the Motor Vehicles Act provides for renewal of driving licenses. According to sec. (2) of sec. 75 unless his driving licence specifically entitles him so to do. sec. 15 of the Motor Vehicles Act provides for renewal of driving licenses. According to sec. 15 (1) of the said Act any licensing authority may, on application made to it, renew a driving licence issued under the provisions of this Act with effect from the date of its expiry, provided that in any case where the application for the renewal of a licence is made more than thirty days after the date of its expiry, the driving licence shall be renewed with effect from the date of its renewal. Admittedly, in the present case the driving licence of the driver of the vehicle in question had expired on 13.12.96 and he had filed application for renewal of his licence on 11.2.1997, that is, much after the expiry of thirty days. The said accident had taken place on 7.2.1997 and so the driver had no effective driving licence on that date. 9. In the facts and circumstances of the case the owner of the vehicle has committed a breach of the condition of the insurance policy. 10. In the facts and circumstances of this case the insurance company is not liable to pay the amount of interim compensation u/s. 140 of the Motor Vehicles Act. 11. Learned District Judge has ordered that both driver and the owner shall pay Rs. 25,000 each to the applicants by way of interim compensation and the applicants shall be entitled to receive Rs. 50,000 in total as interim compensation. 12. In the facts and circumstances of the present case the owner of the vehicle is alone liable to pay Rs. 50,000 as interim compensation to the applicants. Therefore, owner of the vehicle will pay Rs. 50,000 as interim compensation to the applicants. 13. With the above modification in the order of the learned District Judge, this miscellaneous appeal is dismissed.