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2004 DIGILAW 250 (HP)

National Ins. Co. Ltd. v. Rebti Devi

2004-09-30

ARUN KUMAR GOEL

body2004
JUDGMENT : Arun Kumar Goel, J. – 1. Appellant is aggrieved from the award dated 12-6-2001 in claim petition No. 60/99/96, passed by learned Motor Accident Claims Tribunal (II), at Mandi. 2. By means of impugned award, a sum of Rs. 3,60,000/- has been awarded s compensation to respondents No. 1 to 4 alongwith 9% interest from the date of filing of petition i.e. 22-6-1996 till realization. Awarded compensation is inclusive of amount if any, paid to respondents No.1 to No.4 under Section 140 of Motor Vehicles Act, 1988, hereinafter referred to as the Act. 3. Mr. Ashwani K. Sharma, learned counsel for the appellant at the time of earing of this appeal raised two contentions, namely, (a) that Sheru respondent where-cum-driver of the vehicle at the time of accident was not holding a valid and respective driving licence, therefore his client is not liable for payment of any compensation; and (b) that on the basis of the case as set out by the claimants Respondents No.1 to 4 liability, if any, is that of the owner-cum-driver. Thus his client has been wrongly held liable for payment of compensation awarded in this case. 4. Both these pleas have been controverted on behalf of the respondents, .earned counsel for respondents No.1 to 4 submitted that his client being third party lay be got paid from the appellant, how the matter is to be settled inter se appellant and owner-cum-driver may be gone into by the court by which his clients are not concerned. 5. Mr. Gupta, learned counsel for the owner-cum-driver Sheru, submitted that on the basis of the materials on record, appeal of the appellant must fail. As according to him issue No.4 was conceded before the learned Tribunal below and regarding his client not holding valid and effective driving licence he submitted that there is no evidence produced by the appellant to accept this plea, who was required to have proved this fact. 6. Before proceeding further, Issue No.4 framed by the learned Tribunal below is extracted herein below: "4. Whether Shri Hem Singh was a gratuitous passenger and not covered by the Insurance Policy? OPR-2." 7. Findings recorded on this issue are in the following terms: Issue No. 4 In view of the latest law laid down by the Hon'ble Supreme Court, whereby even gratuitous passengers are held to be entitled to claim compensation. Whether Shri Hem Singh was a gratuitous passenger and not covered by the Insurance Policy? OPR-2." 7. Findings recorded on this issue are in the following terms: Issue No. 4 In view of the latest law laid down by the Hon'ble Supreme Court, whereby even gratuitous passengers are held to be entitled to claim compensation. Learned counsel for the respondent No.2 stated that he does not want to press this issue. Accordingly this issue is decided as unpressed. 8. On the basis of law then declared by Hon'ble Supreme Court in New India Assurance Co. Ltd. v. Satpal Singh and others, AIR 2000 SC 235 , this issue was conceded. This view was however over ruled by the Hon'ble Supreme Court in a 3 Judge bench decision in New India Assurance Co. v. Asha Rani & Ors. JT 2002 (10) SC 162. 9. From the statement of RW-4 Sheru, it is clear that he had provided the vehicle for the collection and carriage and milk from Katuala to Chakkar. On the fateful day i.e. 5-12-1995, he had gone to collect the milk from Syagarihi society and was returning after its collection to Chakkar. When the accident took place three persons died at the spot. In his cross-examination, he stated that the deceased passengers were the milkwallas. But he has also stated that whatever the milk was to be collected, it was done by the society wallas. This clearly belies the stand of RW-4 that the deceased were the milk wallas. Because milk used to be collected by the society people. As such deceased cannot be termed to be either the owner of goods or representative of such owner traveling in the truck at the time of accident. Therefore Insurance Company in law is not required to have covered risk of such a passenger in law. 10. Further besides the decision in the case of New India Assurance Co. v. Asha Rani and others supra, in its recent decision, in the case of National Insurance Co. Ltd. v. Challa Bharathamma and Ors. JT 2004 (7) SC 519 held has under: "12. High Court was of the view that since there was no permit, the question of violation of any condition thereof does not arise. The view is clearly fallacious. v. Asha Rani and others supra, in its recent decision, in the case of National Insurance Co. Ltd. v. Challa Bharathamma and Ors. JT 2004 (7) SC 519 held has under: "12. High Court was of the view that since there was no permit, the question of violation of any condition thereof does not arise. The view is clearly fallacious. A person without permit to ply a vehicle cannot be placed at a better pedestal vis-a-vis one who has a permit, but has violated any condition thereof. Plying of a vehicle without a permit is an infraction. Therefore, in terms of section 149 (2) defence is available to the insurer on that aspect. The acceptability of the stand is a matter of adjudication. The question of policy being operative had no relevance for the issue regarding liability of insurer. High Court was, therefore, not justified in holding the insurer liable. 13. The residual question is what would be the appropriate direction. Considering the beneficial object of the Act, it would be proper for the insurer to satisfy the award, though in law it has no liability. In some cases the insurer has been given the option and liberty to recover the amount from the insured. For the purpose of recovering the amount paid from the owner, the insurer shall not be required to file a suit. It may initiate a proceeding before the concerned Executing Court as if the dispute between the insurer and the owner was the subject matter of determination before the Tribunal and the issue is decided against the owner and in favour of the insurer. Before release of the amount to the claimants, owner of the offending vehicle shall furnish security for the entire amount which the insurer will pay to the claimants. The offending vehicle shall be attached, as a part of the security. If necessity arises the Executing Court shall take assistance of the concerned Regional Transport Authority. The Executing Court shall pass appropriate orders in accordance with law as to the manner in which the owner of the vehicle shall make payment to the insurer. In case there is any default it shall be open to the Executing Court to direct realisation by disposal of the securities to be furnished or from any other property or properties of the owner of the vehicle i.e. the insured. In case there is any default it shall be open to the Executing Court to direct realisation by disposal of the securities to be furnished or from any other property or properties of the owner of the vehicle i.e. the insured. In the instant case considering the quantum involved we leave it to the discretion of the insurer to decide whether it would take steps for recovery of the amount from the insured." 11. As such this appeal has now to be decided on the basis of evidence of the parties, as well as in the light of these decisions of the Supreme Court. 12. Faced with this situation, Mr. Gupta urged that there is no evidence to show that the owner had allowed the vehicle to be driven by the driver not holding a valid driving licence. He further urged that there is also no evidence of such unlawful and intentional act having been committed by the owner. And also that the conditions of the policy having been willfully violated by the owner. 13. With a view to advance his this submission, grant emphasis was laid by Mr. Gupta on the observations made in the decision of Supreme Court in case National Insurance Co. Ltd v. Swaran Singh and others, (2004) 3 SCC 297 . However, for the reasons to be recorded hereinafter these pleas have been raised simply to be rejected. 14. Reason being that in the present case driver is also the owner himself. Therefore the pleas that the driver having been allowed to drive the vehicle with the knowledge of his driving licence being fake, as well as in violation of policy conditions are not open to the owner. As such, no benefit can be derived by him from the decision in the case of National Insurance co. Ltd. v. Swaran Singh (supra). 15. Further, so far respondents No.1 to 4 are concerned, it is held that they will be entitled to be paid the amount of compensation by the appellant. However, the latter would be entitled to recover it from the owner of the vehicle i.e. Sheru son of Shri Chaudhary, on basis of this judgment by levying its execution, without being dragging into another round of litigation, plea of Mr. Sharma in this behalf if upheld. 16. Now coming to other plea raised by Mr. However, the latter would be entitled to recover it from the owner of the vehicle i.e. Sheru son of Shri Chaudhary, on basis of this judgment by levying its execution, without being dragging into another round of litigation, plea of Mr. Sharma in this behalf if upheld. 16. Now coming to other plea raised by Mr. Sharma that the driver was not holding a valid and effective driving licence. Therefore, on this count also this appeal deserves to be allowed. Reliance was placed by Mr. Sharma on the statement of RW-4 Sheru owner-cum-driver and of RW-5 Mangal Singh. 17. According to RW-4, he was driving the vehicle as its owner at the time of accident. He admitted the factum of accident. Fact that the deceased Hem Raj being a passenger at the time of accident was not disputed by him. Accident was due to steering getting free. Besides Dhani Ram conductor, Amar Singh and Hem Raj were also there in the vehicle. 18. He has not produced the original driving licence. In his cross-examination on behalf of the appellant he admitted that the truck was a goods career. Persons who died in the accident daily used to travel in it with his consent. Per him, driving licence was issued by Licencing Authority, Sunder nagar in the year 1986 and was renewed by the Licencing Authority, Mandi in the years 1992, 1995 and 1998. he has placed on record the Photostat copy of original as Ex.D1 whereas, RW-5 Mangal Singh has stated that no driving licence No. 157/86 was issued from the office of Registering and Licencing Authority, Sundernagar, H.P. Photostat copy of this certificate is Ex.RW5/A. Primary evidence in this case was the register, wherein entries are made at the time of issuance of the licences. It has not been produced. So far Ex.RW-5/A is concerned, it is Photostat copy of the certificate purported to have been issued by the authority concerned at Sundernagar. Where is the original there is no explanation from the appellant. Further, Ex. RW5/A is not one of those documents which can be read in evidence without its proof under the Evidence Act. Once this conclusion is arrived at, then there is no legally acceptable evidence so as to uphold this plea. 19. Where is the original there is no explanation from the appellant. Further, Ex. RW5/A is not one of those documents which can be read in evidence without its proof under the Evidence Act. Once this conclusion is arrived at, then there is no legally acceptable evidence so as to uphold this plea. 19. Learned Tribunal below while passing the impugned award has awarded 30 out of the total compensation to the widow of the deceased, namely, Rebti Devi and 20 each to the two sons of the deceased as well as to his father, who is 90 years old. In these circumstances, looking to over all facts and circumstances of this case, it is felt that the apportionment needs to be changed in this case. Accordingly, it is ordered that out of the total sum of Rs.3,60,000/- awarded by the learned Tribunal below to respondents No.1 to 4, Harji Ram respondent No.4 being father of the deceased will get a sum of Rs. 35,000/ with proportionate interest at the rate of 9% p.a in terms of the impugned award dated 12-6-2001 and the remaining amount will be shared equally by respondents No.1 to 3 along with proportionate interest. 20. No other point is urged. 21. In view of the aforesaid discussion, this appeal is partly allowed with the following terms: (a) That in the first instance the awarded compensation will be payable by the appellant with interest to respondents No.1 to 4, and then it will be apportioned amongst themselves i.e. respondents No.1 to 4 in terms of this judgment. (b) After having paid/deposited the awarded compensation in terms of this judgment, the appellant shall be entitled to recover the same from Sheru, owner-cum-driver by suing out execution on the basis of this judgment, without its being dragged to another round of litigation; (c) Parties are left to bear their own costs; and (d) Impugned award of the learned Tribunal below is modified to the above extent only. 22. Interin orders snail stand vacated, and pending application, if any also stand disposed of.