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2005 DIGILAW 27 (ORI)

Rasananda Mohanty v. Mahendra Rout

2005-01-11

M.M.DAS

body2005
JUDGMENT M. M. DAS, J. : The registered owner of the truck bearing number ORY-6331 is the appellant in this appeal under Section 173 of the Motor Vehicles Act, 1988 (hereinafter referred to as ‘the Act’). The appeal is directed against the judgment and award dated 24.2.2001 passed by the M.A.C.T.-III, Balasore in Claim Misc. Case No.190/27(C) of 1996-94. 2. The respondent Nos.1 to 5 as the claimants, filed the above claim application under the Act for award of compensation on account of the death of one Rabindra Rout, caused by a motor vehicle accident. The claimants pleaded that Rabindra alias Rabi Rout, aged about 18 years was the son of claimant-respondent Nos. 1 and 2 and the other claimants are the minor children of respon¬dent Nos.1 and 2. On 25.7.1993 when the said deceased-Rabindra Rout was going to his village Nuagaon, by a bi-cycle, the offend¬ing truck belonging to the appellant, coming from the opposite direction, dashed against him. As a result, he was thrown out from his bi-cycle and sustained severe injuries and died on the spot. According to the claimants, the accident occurred due to gross negligence and rashness of the driver of the offending truck. The appellant along with respondent No.6 were the opp. parties before the Tribunal below as the owner and the insurer of the offending vehicle. After receiving notice, the appellant as well as the insurer-respondent No.6 entered appearance in the said case and filed their respective written statements. The appellant admitted the fact of accident and the death of the deceased-Rabindra, inter alia, stating in his written statement that the truck in question was validly insured by the respondent No.6 and the policy of insurance was valid till 24.8.1993. He also disclosed the policy number of the policy of insurance issued by the insurer-respondents No.6. The respondent No.6-insurer also filed a written statement denying the allegations made by the claimants and also denying that it was the insurer of the truck on the date of accident. 3. It appears from the record that after filing of the written statement, the appellant did not participate in the proceeding and remained ex parte. 4. The respondent No.6-insurer also filed a written statement denying the allegations made by the claimants and also denying that it was the insurer of the truck on the date of accident. 3. It appears from the record that after filing of the written statement, the appellant did not participate in the proceeding and remained ex parte. 4. The Tribunal below framed as many as three issues and after hearing of the case came to the finding that the accident occurred due to rash and negligent driving of the driver of the offending truck and the claimant-respondent Nos.1 and 2 are entitled to a compensation of Rs.67,000/- with interest @ 10% per annum from the date of filing of the claim application i.e. 24.1.1994 till the date of payment. It is further held that though the Insurer Policy issued by the respondent No.6 covered the date of accident but as the driving licence of the driver of the offending vehicle was valid till 23.9.1988 and he has not renewed his licence thereafter, the insurance-respondent No.6 is not liable to pay compensation and the same is payable by the appellant-owner to the claimants-respondents Nos.1 and 2. 5. Mr. Kar, learned counsel for the appellant submitted that the Tribunal has committed illegality in coming to a conclu¬sion that the driver of the truck in question had no valid dri¬ving licence on the date of occurrence. He further submitted that the Tribunal below should have called upon the appellant to prove that the driver of the truck in question was holding a valid and effective driving licence on the date of accident and that, as a matter of fact, the driver of the offending vehicle renewed his licence before the Licensing Authority, Chandikhole and the said licence was bearing No.627/88-89. He contended that the finding with regard to the driving licence in question, has been arrived at without affording him with an opportunity to counter the allegations made by the insurer-respondent No.6, which has preju¬diced the appellant and the said finding and direction to the appellant to pay the awarded amount, is liable to be set aside. 6. Mr. He contended that the finding with regard to the driving licence in question, has been arrived at without affording him with an opportunity to counter the allegations made by the insurer-respondent No.6, which has preju¬diced the appellant and the said finding and direction to the appellant to pay the awarded amount, is liable to be set aside. 6. Mr. Mohapatra, learned counsel for the respondent No.6-insurer on the contrary submitted that the Tribunal below after analysing all materials on record rightly came to the conclusion that the driver had no valid driving licence and therefore has acted according to law in fastening the liability on the appel¬lant-owner to pay compensation to the claimants. 7. A reading of the impugned judgment clearly shows that after the appellant-owner filed his written statement, he did not participate in the proceeding any further. It further appears that the respondent No.6-insurer who was the opp.party No.2 before the Tribunal below, filed an additional written statement on 30.4.1999 wherein it pleaded that the driver, Narayan Chandra Sahu had no valid driving licence at the material time and on verification by the insurer, of the driving licence No.39/79 granted by the R.T.O., Keonjhar, it was ascertained by the insur¬er that the said licence was valid up to 23.9.1988. 8. Admittedly, filing of the additional written statement raising the new plea with regard to invalid/ineffectiveness of the driving licence of the driver was not to the knowledge of the appellant. As a matter of fact, as the appellant remained ex parte, it appears that copy of the additional written statement filed by the insurer-respondent No.6 was also not served on the appellant-owner. Further, the Tribunal committed an error in accepting the additional written statement filed by the insurer in absence of any provision under the Act to file such additional written statement. 9. The ratio of various decisions of the Apex Court cou¬pled with the provision of Section 149 of the Act is to the effect that even if the insurer is entitled to avoid the policy, it shall, subject to the provisions of Section 149 of the Act, pay to the person entitled to the benefit of the award, such sum not exceeding the sum assured under the policy, as if the insurer was the judgment debtor in respect of the liability. It is now well settled that infraction of any of the policy conditions by the insured, alleged by the insurer, is a dispute between the insured/owner and the insurer and the third party found to be entitled to receive compensation from the owner/insured of the vehicle will not suffer on account of any such dispute between the insured and the insurer. 10. In National Insurance Co. Ltd. -v- Swaran Singh and others, 2004(1) Supreme 243 , the Apex Court in paragraph-107 of the said judgment while giving summary of findings has held thus : “107. The summary of our findings to the various issues as raised in these petitions are as follows : (i) xxx xxx xxx (ii) xxx xxx xxx (iii) The breach of policy condition, e.g., disqualification of driver or invalid driving licence of the drier, 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 dis¬qualification 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 dis¬qualified to drive at the relevant time. xxx xxx xxx 11. As in the present case I find that plea of respondent No.6-insurer with regard to invalidity of the driving licence and its ineffectiveness on the date of accident was raised at a later stage of proceeding by filing an additional written statements, notice of which was not given to the appellant/insured, I set aside the finding of the Tribunal that the respondent No.6- insurer is not liable to pay the compensation and the same is payable by the appellant-owner. Considering the peculiar facts of the case and the circumstances under which the appellant was directed to pay the compensation to the claimants, I modify he judgment impugned in this appeal and direct that the respondent No.-6 insurer will deposit the amount of compensation as awarded i.e. Rs.67,000/- (Rupees sixty seven thousand) along with inter¬est @ 6% per annum from the dae of filing of this appeal i.e. from 18.6.2001 till the date of payment and on such deposit being made, the said amount shall be disbursed in favour of the clai¬mants-respondent Nos.1 and 2 in terms of the impugned judgment and award of the Tribunal. 12. The dispute with regard to violation of condition of policy of the insurance as alleged by the respondent No.6-insurer, on the ground that the driving licence of the driver of the offending vehicle was not in force on the date of accident, as it was not renewed after 23.9.1988, which is countered by the appellant owner- on the ground that the said licence was renewed by the Licensing Authority at Chandikhole and was valid on the date of accident, is remanded back to the Tribunal below. The appellant and the insurer-respondent No.6 shall appear before the Tribunal below on 01.02.2005 on which date the Tribunal will proceed with the matter. After hearing the parties who are at liberty to lead evidence in support of their respective cases, the Tribunal will arrive at the finding as to whether there is any violation of condition of policy of the insurance by the appellant-owner, by applying the law as laid down in the case of National Insurance Co. Ltd. -v- Swaran Singh & others (supra). In the event the Tribunal finds that there is violation of policy condition by the appellant, it will direct recovery of the amount paid to the claimants by the insurer, from the appellant-owner. The statutory deposit of Rs. 25,000/- made by the appellant-owner before this Court shall be kept in fixed deposit renewable from year to year till conclusion of adjudication of the dispute between the appellant and the insurer. In the event the appellant is not held liable to reimburse the amount to the insurer, the appellant is at liberty to make an appropriate application before this Court for return of the said statutory deposit of Rs. 25,000/- along with accrued interest thereon. In the event the appellant is not held liable to reimburse the amount to the insurer, the appellant is at liberty to make an appropriate application before this Court for return of the said statutory deposit of Rs. 25,000/- along with accrued interest thereon. But if it is found that the appellant is to reimburse the amount paid by the insurer to the claimants, the said amount of Rs.25,000/- along with accrued interest thereon shall be paid to the insurer towards protanto satisfaction of the amount recoverable from the owner. The appeal is, therefore, allowed to the extent indicated above, but in the circumstances, without cost. Appeal allowed to the extent indicated.