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2003 DIGILAW 886 (KAR)

B. G. DEVARAJU v. M. R. CHANDRA SHEKARA

2003-10-23

H.G.RAMESH

body2003
H. G. RAMESH, J. ( 1 ) HEARD. Admit. ( 2 ) BY consent of learned Counsel, the matter was heard on merits and is being disposed of by this judgment. ( 3 ) THE findings of the Tribunal that the appellant had suffered certain injuries in a motor accident that occurred on 11-6-1996 and that the said accident was due to the rash and negligent driving of the Maxicab bearing No. KA-11/2112 are not disputed by the respondents in this appeal. ( 4 ) ON the contentions urged by learned Counsels appearing for the parties, the two questions that fall for determination in this appeal are: (I) Whether the appellant is entitled for enhancement of compensation? (II) Whether the Tribunal had erred in law in dismissing the claim against the owner and insurer of the vehicle (R1 and R2 herein) on the mere ground that the vehicle was not driven by its owner or his driver? ( 5 ) RE-QUANTUM. I have perused the impugned judgment and the record of the Tribunal. The claimant/appellant had suffered fractures of the right forearm, the right wrist joint and the third rib. On a consideration of the medical and the other evidence on record, the tribunal has assessed the total compensation at Rs. 1,13,800/- under all the permissible heads. ( 6 ) ON an overall view of the matter, particularly having regard to the nature of injuries, extent of disability suffered and the year of accident, the total compensation of Rs. 1,13,800/- cannot be said to be on the lower side so as to call for any enhancement in appeal. This takes me to the aspect of liability of the owner and insurer of the vehicle. ( 7 ) RELIABILITY of owner and insurer. The Tribunal having held that the accident was due to the rash and negligent driving of the vehicle of respondent 1 has not made him and the insurer of the vehicle liable to pay the award amount solely on the ground that the driver of the vehicle was not proved to be his employee. ( 8 ) IT was not the case of the owner of the vehicle that his vehicle had come on the road without his express or implied permission. Hence, it has to be presumed, that the vehicle was used with the permission of the owner. ( 8 ) IT was not the case of the owner of the vehicle that his vehicle had come on the road without his express or implied permission. Hence, it has to be presumed, that the vehicle was used with the permission of the owner. ( 9 ) IT is a settled position in law that when a vehicle is put to use in a public place with the permission of the owner, express or implied, the owner is vicariously liable with the user of the vehicle for the injuries caused to the victim; so also the Insurance Company having undertaken the liability to indemnify the owner. To make the owner liable, the driver need not be his employee; suffice, if the vehicle had come on the road with his express or implied permission. ( 10 ) IN this context, it is relevant to notice the following observations made by the Hon'ble Supreme Court in Narchinva V. Kamat and Another v Alfredo antonio Doe Martins and Others, which reads as follows:"12. . . . This ought to be so because a friend can always be permitted if he has a valid driving licence to drive a friend's car. If in every such situation where the person driving the vehicle is not shown to be the insurer himself or someone in his employment, the contract of insurance would afford no protection and the Insurance Company having collected the premium would wriggle out of a loophole. . . . . . ". ( 11 ) IN this case, it was not even the case of the insurer that the insurance policy does not permit any one else other than the insured or his employee to drive the insured vehicle. The Tribunal had erred in not examining the relevant term of the insurance policy-Ex. D. 1, which reads as follows: 'persons or classes of persons entitled to drive: any person including insured provided that a person driving holds an effective driving licence at the time of the accident and is not disqualified from holding or obtaining such a licence: provided also that the person holding an effective learner's licence may also drive the vehicle when not used for the transport of passengers at the time of the accident and that such a person satisfies the requirements of Rule 3 of the Central Motor Vehicles Rules, 1989'. The above term is self-explanatory and does not require elucidation. Nothing further requires to be stated to hold the Insurance Company liable for the impugned award. ( 12 ) HOWEVER, to complete the discussion, it will be relevant to refer to the decision of the Hon'ble Supreme Court in Smt. Kaushnuma Begum and others v The New India Assurance Company Limited and Others, wherein it is held that a victim of a motor vehicle accident is entitled to get compensation on the basis of the rule of 'strict liability' propounded in rylands v Fletcher. What follows from the Supreme Court judgment is that an accident victim would become entitled for compensation from the owner of the vehicle, if it is proved that the death or injury was caused due to the accident arising out of the use of the vehicle. It is not necessary to prove that the accident was due to the negligence on the part of the driver or owner of the motor vehicle. However, such liability of the owner is subject to any of the exceptions which operate vis-a-vis the tortious principle of strict liability under the rule in Fletcher case, supra. The following observations made in the aforesaid decision require to be noticed: "20. "no Fault Liability" envisaged in Section 140 of the Motor vehicles Act is distinguishable from the rule of strict liability. In the former, the compensation amount is fixed and is payable even if any one of the exceptions to the rule can be applied. It is a statutory liability created without which the claimant should not get any amount under that count. Compensation on account of accident arising from the use of motor vehicles can be claimed under the common law even without the aid of a statute. The provisions of the Motor Vehicles Act permits that compensation paid under 'no fault liability' can be deducted from the final amount awarded by the Tribunal. Therefore, these two are resting on two different premises. We are, therefore, of the opinion that even apart from Section 140 of the Motor Vehicles Act, a victim in an accident which occurred while using a motor vehicle, is entitled to get compensation from a Tribunal unless any one of the exceptions would apply. The Tribunal and the High Court have, therefore, gone into error in divesting the claimants of the compensation payable to them". The Tribunal and the High Court have, therefore, gone into error in divesting the claimants of the compensation payable to them". (emphasis supplied) in the present case, it was not the case of the owner of the vehicle that the case would fall under any of the exceptions enumerated in the aforesaid decision. ( 13 ) FOR the reasons stated above, I hold that the Tribunal had erred in law in absolving the owner and insurer of their liability to pay the award amount. Accordingly, respondents 1 and 2 are also held liable to pay the award amount along with the driver, respondent 3. ( 14 ) IN the result, I make the following order: (I) The dismissal of the claim petition against respondents 1 and 2 is set aside. (ii) Respondents 1, 2 and 3 are jointly and severally held liable to pay the amount awarded by the Tribunal to the appellant. (iii) Respondent 2-National Insurance Company Limited shall deposit the award amount with the Tribunal within 12 weeks from today. (iv) In all other respects, the judgment and award of the Tribunal shall stand affirmed. The appeal is allowed in part in the above terms in modification of the judgment and award of the Tribunal. No costs. --- *** --- .