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2005 DIGILAW 897 (MP)

SURYA PRATAP SINGH v. SITALIYA

2005-08-23

U.C.MAHESHWARI

body2005
U. C. MAHESHWARI, J. ( 1 ) BEING aggrieved by the award dated 9. 3. 2000 passed bv the fifth Motor Accidents Claims Tribunal, rewa, in Claim Case No. 3 of 1999 the bus owner, appellant, has preferred this appeal under section 173 of the Motor vehicles Act for saddling liability against the insurer, respondent No. 6, as it was exonerated by the Tribunal. ( 2 ) AS per pleading of the claim application on dated 28. 8. 1998 the deceased bhaiyalal was travelling from Mangawa to Rewa in the jeep bearing registration no. MP 17-A 3630. On reaching near to ramnai Stone Mines at National Highway no. 7, the bus bearing registration No. MP 17-A 3636 driven by Rama Shankar Sen, respondent No. 5, in a rash and negligent manner came from the opposite direction and dashed the jeep. Resultantly the jeep fell down in the mines in which water was stored. Not only the jeep was damaged but said Bhaiyalal also died in this accident. On information an offence was registered at Police Station, Rampur Karchuliyan after holding investigation a charge-sheet was also submitted against respondent No. 5. The aforesaid bus was owned by the appellant while it was insured with Oriental insurance Co. Ltd. , respondent No. 6. The respondent Nos. 1 to 4 are legal representatives and the dependants of the deceased Bhaiyalal. They have filed the claim for compensation of Rs. 6,00,000 for loss of dependency and other heads as mentioned in the claim petition. ( 3 ) IN reply of appellant and respondent no. 5, the various facts as mentioned in the claim application have been denied. The accident did not take place due to rash and negligent driving of respondent No. 5. The accident took place because of traffic hazard of other vehicles and also rash and negligent driving of the said jeep in which the deceased was travelling. Thus, the appellant and respondent No. 5 have denied their liability to indemnify the claim. In alternative it is also pleaded that on finding any liability against them, the same be saddled against the insurer, respondent no. 6, as the bus was insured with it and prayed for dismissal of the claim against them. ( 4 ) IN reply of insurer, respondent No. 6, the entire facts as pleaded by the claimants, respondent Nos. 1 to 4, have been denied. 6, as the bus was insured with it and prayed for dismissal of the claim against them. ( 4 ) IN reply of insurer, respondent No. 6, the entire facts as pleaded by the claimants, respondent Nos. 1 to 4, have been denied. The respondent No. 5 had no duly and effective driving licence for driving the bus. The bus was not also having fitness certificate and permit as such the bus was plied in violation of terms and conditions of the insurance policy. The accident was consequence of rash and negligent driving of the jeep. Thus, the insurer, respondent no. 6, is not liable to indemnify any claim of respondent Nos. 1 to 4. ( 5 ) AFTER framing issues the evidence was recorded by the Claims Tribunal. On appreciation of the same it was found that the accident took place because of composite negligence of both the vehicles, the bus and the jeep, half of the liability was saddled against the jeep and its insurer and owner while remaining half of the liability was saddled against the appellant and respondent no. 5, but the insurer of the bus, respondent No. 6, has been exonerated on the ground that the driver of the bus, respondent no. 5, was not having a duly and effective driving licence and the entire claim was assessed for Rs. 1,33,000 along with interest at the rate of 12 per cent per annum from the date of filing the application. The bus owner, the appellant and the driver, respondent No. 5, were directed to indemnify half of the amount to the claimants, respondent Nos. 1 to 4, hence this appeal has been filed by the owner of the bus for saddling the liability against insurer as it was saddled against him and his driver. ( 6 ) MR. J. L. Mishra, learned counsel for the appellant has submitted that the driver of the bus, respondent No. 5, was having a valid and effective driving licence and the same was proved on record by Rama shankar Sen, NAW 1. He further submitted that in the cross-examination of this witness the contention as deposed by him have not been destroyed. The insurer has also not examined any office bearer of the r. T. O. , Shahdol to prove his defence as pleaded in the written statement. He further submitted that in the cross-examination of this witness the contention as deposed by him have not been destroyed. The insurer has also not examined any office bearer of the r. T. O. , Shahdol to prove his defence as pleaded in the written statement. Merely filing a letter of R. T. O. , Shahdol, could not be a ground to exonerate the insurer, the respondent No. 6. He also submitted that the concerning investigator, K. K. Shukla has also not been examined on behalf of the insurer. Thus, in view of the statement of the respondent No. 5 there was a sufficient circumstance to draw inference that the licence of respondent No. 5 was duly and effective but all these circumstances have not been considered with a proper prospect and he prayed to dislodge the findings of the Tribunal on this point by saddling the liability against the insurer, the respondent No. 6. ( 7 ) WHILE on other hand, Mr. Sanjay agrawal, learned counsel for respondent no. 6 has submitted that on appreciation of the evidence the award was properly passed by the Tribunal. It does not require any interference at the stage of appeal either for saddling the liability against the insurer or for any other purpose and prayed for dismissal of the appeal. ( 8 ) AFTER hearing the parties and after considering their submissions, I have gone through the award and the record of the tribunal. Rama Shankar Sen, NAW 1 driver of the bus, respondent No. 5, has categorically stated in his deposition that he had a valid and effective driving licence (No. R 1112/89) (new number F-1473/92 ). The same was renewed for the period of 10. 10. 1996 to 9. 10. 1999 and accident took place in between these dates. To controvert these facts no one has been examined on behalf of the insurer, although the letter which is addressed to Mr. K. K. Shukla, advocate, Rewa, by Regional Transport authority, Shahdol has been placed on record, but the said letter was not proved by calling the concerning witness. So the matter as mentioned in the letter could not be considered for any purpose. Thus, it is held that the respondent No. 5 was having duly and effective driving licence. K. K. Shukla, advocate, Rewa, by Regional Transport authority, Shahdol has been placed on record, but the said letter was not proved by calling the concerning witness. So the matter as mentioned in the letter could not be considered for any purpose. Thus, it is held that the respondent No. 5 was having duly and effective driving licence. Even otherwise for the sake of arguments if submission of counsel for the insurer is relied as the respondent No. 5 was not having valid and effective driving licence, then, it was the duty of the insurer to prove that such thing was in the knowledge of the appellant and knowingly the employment was given to respondent No. 5 as driver on aforesaid bus but this burden was also not discharged by the insurer. In such a circumstance, the insurer cannot escape from the liability to indemnify the claim as per dictum of the Apex Court in the matter of national Insurance Co. Ltd. v. Swaran singh, 2004 ACJ 1 (SC), in which it is held as under:"the summary of our findings to the various issues as raised in these petitions are as follows: (i) The breach of policy condition, e. g. , disqualification of driver or invalid driving licence of the driver, 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 disqualification 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 disqualified to drive at the relevant time. (ii) The insurance companies are, however, with a view to avoid their liability must not only establish the available defence (s) raised in the said proceedings but must also establish 'breach' on the part of the owner of the vehicle, the burden of proof wherefor would be on them. (ii) The insurance companies are, however, with a view to avoid their liability must not only establish the available defence (s) raised in the said proceedings but must also establish 'breach' on the part of the owner of the vehicle, the burden of proof wherefor would be on them. ( 9 ) IN view of the aforesaid discussion and the dictum of the Supreme Court this appeal stands succeeded and the liability to indemnify the claim of the respondent nos. 1 to 4 as saddled against the appellant and respondent No. 5 is further extended against Oriental Insurance Co. Ltd. , respondent no. 6 also. Thus the liability to indemnify the claim as awarded by Claims tribunal is saddled against appellant and the driver, respondent No. 5 and insurer, respondent No. 6 also jointly and severally. The appeal is allowed as intended above and till this extent the impugned award is modified. No costs. Appeal allowed. .