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Allahabad High Court · body

2007 DIGILAW 2080 (ALL)

United India Insurance Co. Ltd. v. Indra Devi

2007-08-08

NARAYAN SHUKLA, U.K.DHAON

body2007
JUDGMENT : 1. The instant first appeal from order u/s 173 of the Motor Vehicles Act, 1988 arises from the judgment and award dated 2.3.2002, passed by the 1st Additional District Judge/Motor Accident Claims Tribunal, Lucknow in Claim Petition No. 204 of 1993 by which a compensation of Rs. 3,36,400 was awarded to the claimant-Respondents alongwith interest at the rate of 8% per annum from the date of filing of the claim petition till the date of payment. 2. The brief facts of the case are that on 10.5.1993 at about 6.30 p.m., Sri Kunwar Singh who was on his bicycle was hit from behind by the offending vehicle No. MP-19-6486 (oil tanker) and on account of serious injuries sustained in the accident, he expired at the Command Hospital, Lucknow. The deceased at the time of accident was 29 years of age who was working in 15 Garhwal Rifle, Lucknow on the post of Rifleman and was getting a salary of Rs. 2,754 per month. The claim petition was filed by the widow of the deceased and sons, claiming a sum of Rs. 13,99,003.60 as compensation which was contested by the Appellant by filing the written statement. The written statement was also filed by Respondent No. 4 denying the allegations of the claim petition and it was stated that vehicle No. MP-19-6486 is insured with the United India Insurance Co. Ltd. Branch Hazratganj, Lucknow and the driver of the vehicle was having a valid driving licence at the time of the accident. The parties to the claim petition filed oral and documentary evidence. The Motor Accident Claims Tribunal (hereinafter referred to as the Tribunal) after considering the material on record awarded a compensation of Rs. 3,36,400 to the claimant-Respondents and directed the Appellant to pay the compensation alongwith interest at the rate of 8% per annum. The Appellant being aggrieved by the impugned judgment and award dated 2.3.2002 has filed the instant first appeal from order. 3. Sri R.C. Sharma, learned Counsel for the Appellant submits that the driver of the offending vehicle Kashi Ram was not having a valid driving licence at the time of accident. The Appellant being aggrieved by the impugned judgment and award dated 2.3.2002 has filed the instant first appeal from order. 3. Sri R.C. Sharma, learned Counsel for the Appellant submits that the driver of the offending vehicle Kashi Ram was not having a valid driving licence at the time of accident. He further submits that Claim Petition No. 204 of 1993 was decided by the then 4th Additional District Judge/ Motor Accident Claims Tribunal, Lucknow vide judgment and award dated 4.8.1995 and it was held that the driver of the offending vehicle was not having a valid driving licence at the time of the accident and the Appellant was exonerated from the liability to pay the compensation and the owner of the vehicle was made liable to pay the compensation of Rs. 2,50,000 which judgment and award was set aside in 2001 on an application moved under Order IX, Rule 13, Code of CPC and on the basis of the same evidence, the learned Tribunal has reversed the finding about the driving licence and also enhanced the amount of compensation. He further submits that the driving licence of the driver Kashi Ram was not renewed for the period 3.10.1991 to 20.8.1993 by the licensing authority and on the date of accident, i.e. 10.5.1993 the driver Kashi Ram was not having a valid driving licence and as such the Tribunal has wrongly directed the Appellant to pay the compensation to the claimant-Respondents. Learned Counsel for the Appellant has relied upon the decisions of the Hon'ble Supreme Court in the cases of National Insurance Co. Ltd. vs. Kusum Rai and Others, 2006 (2) AWC 1918 (SC) and Ishwar Chandra and Others vs. Oriental Insurance Co. Ltd. and Others, 2007 (2) TAC 393 (SC). 4. Sri Vidyadhar Upadhyaya, learned Counsel for the Respondent No. 4 submits that there is no illegality in the impugned judgment and award passed by the Motor Accident Claims Tribunal, Lucknow and the appeal of the Appellant is devoid of merits, which deserves to be dismissed. He further submits that the Tribunal after considering the material on record has rightly given the finding on issue No. 8 that the insurance company has not adduced any evidence that the driver Kashi Ram was incompetent to drive the vehicle during the period 2.10.1991 to 21.8.1993. He further submits that the Tribunal after considering the material on record has rightly given the finding on issue No. 8 that the insurance company has not adduced any evidence that the driver Kashi Ram was incompetent to drive the vehicle during the period 2.10.1991 to 21.8.1993. He further submits that the Tribunal has rightly held that if the driving licence was not valid for some time the driver cannot be said to be incompetent to drive the vehicle. Learned Counsel for the Respondent No. 4 has relied upon the decisions of the Hon'ble Supreme Court in the cases of National Insurance Co. Ltd. vs. Swaran Singh and Others, (2004) 3 SCC 297 and Mahamooda and Others vs. United India Insurance Co. Ltd. and Others, 2006 ACJ 2825. 5. Sri D.K. Upadhyaya, learned Counsel for the Respondent Nos. 1 to 3 submits that there is no illegality in the impugned judgment and award passed by the Motor Accident Claims Tribunal, Lucknow. 6. None has put in appearance on behalf of the driver of the offending vehicle No. MP-19-6486. We have considered the submissions made by the learned Counsel for the parties and gone through the record. 7. In an accident, which took place on 10.5.1993 due to rash and negligent driving by the driver of the offending vehicle No. MP-19-6486 (Oil Tanker), Sri Kunwar Singh died at Command Hospital, Lucknow on account of serious injuries sustained in the accident. The deceased at the time of accident was 29 years of age and was working as Rifleman in 15 Garhwal Rifle, Lucknow. The claim petition was filed by the widow of the deceased alongwith her children. The learned Tribunal after considering the evidence on record awarded a compensation of Rs. 3,36,400 alongwith interest at the rate of 8% per annum. The offending vehicle No. MP-19-6486 at the time of accident was insured with the United India Insurance Co. Ltd. 8. The claim petition was decided by the judgment and award dated 4.8.1995 by the then 4th Additional District Judge/Motor Accident Claims Tribunal, Lucknow and a compensation of Rs. 2,50,000 was awarded to the claimant-Respondents and it was held that the driver of the vehicle was not having a valid driving licence at the time of accident. On an application under Order IX, Rule 13, Code of CPC moved by the Respondents 4 and 5 which was registered as Misc. 2,50,000 was awarded to the claimant-Respondents and it was held that the driver of the vehicle was not having a valid driving licence at the time of accident. On an application under Order IX, Rule 13, Code of CPC moved by the Respondents 4 and 5 which was registered as Misc. Case No. 90/95, the judgment and award dated 4.8.1995 was set aside by the Tribunal. 9. It is admitted case of the Appellant and Respondent No. 4 that the driving licence of driver Kashi Ram was valid from 3.10.1988 to 2.10.1991 and thereafter it was renewed from 21.8.1993 to 20.8.1996. On the date of accident, i.e. 10.5.1993 Kashi Ram, the driver of the offending vehicle was not having any valid driving licence. The Tribunal has admitted that from 2.10.1991 to 21.8.1993 the driving licence of the driver of the offending vehicle was not valid but even then the Tribunal has held that Kashi Ram was not incompetent to drive the vehicle during the said period. Section 9 of the Motor Vehicles Act, 1988 deals with the grant of driving licence. Section 15 of the Motor Vehicles Act, 1988 deals with the renewal of driving licences and it provides that 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. 10. The proviso to Section 15 provides 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. 11. The driving licence of the driver Kashi Ram was renewed from 21.8.1993 to 20.8.1996 and on the date of the accident, i.e. 10.5.1993 the driver of the offending vehicle No. MP-19-6486 (Oil Tanker) was not having any valid driving licence to drive the vehicle. The driving licence, which was renewed from 21.8.1993 to 20.8.1996 is a fresh grant of licence from the date of renewal and for about two years there was no valid driving licence with the driver Kashi Ram. Section 3 of the Motor Vehicles Act, 1988 casts an obligation on a driver to hold an effective driving licence for the type of vehicle, which he intends to drive. 12. Para 12 of the case of National Insurance Co. Section 3 of the Motor Vehicles Act, 1988 casts an obligation on a driver to hold an effective driving licence for the type of vehicle, which he intends to drive. 12. Para 12 of the case of National Insurance Co. Ltd. vs. Kusum Rai and Others, 2006 (2) AWC 1918 (SC), is as under: In National Insurance Co. Ltd. vs. Swaran Singh and Others, (2004) 3 SCC 297 to which one of us was a party, this Court noticed an earlier decision of this Court, namely, Malla Prakasarao vs. Malla Janaki and Others, (2004) 3 SCC 343 wherein one of the members of the Bench, V.N. Khare, J. (as the learned Chief Justice then was) was a member. In that case, it was held: 1. It is not disputed that the driving licence of the driver of the vehicle had expired on 20.11.1982, and the driver did not apply for renewal within 30 days of the expiry of the said licence, as required u/s 11 of the Motor Vehicles Act, 1939. It is also not disputed that the driver of the vehicle did not have driving licence when the accident took place. According to the terms of the contract, the insurance company has no liability to pay any compensation where an accident takes place by a vehicle, driven by a driver without a driving licence. In that view of the matter, we do not find any merit in the appeal. 13. Section 5 of the Motor Vehicles Act provides that no owner or person in-charge of a motor vehicle shall cause or permit any person who does not satisfy the provisions of Section 3 or 4 to drive the vehicle. 14. We are of the view that on the date of accident, i.e. 10.5.1993 the driver of the offending vehicle was not having a valid driving licence and as such the United India Insurance Company cannot be held liable to pay the compensation to the claimant-Respondents. In the result, the first appeal from order succeeds and is hereby partly allowed. The amount of compensation awarded by the Tribunal alongwith the interest shall be paid by the Respondent Nos. 4 and 5 to the claimant-Respondent Nos. 1 to 3. 15. We, therefore, relying upon the decision of the Hon'ble Supreme Court in the case of Oriental Insurance Co. The amount of compensation awarded by the Tribunal alongwith the interest shall be paid by the Respondent Nos. 4 and 5 to the claimant-Respondent Nos. 1 to 3. 15. We, therefore, relying upon the decision of the Hon'ble Supreme Court in the case of Oriental Insurance Co. Ltd. vs. Shri Nanjappan and Others, (2004) 13 SCC 224 provide that the amount which is in deposit before this Court as well as before the Tribunal shall be allowed to be withdrawn by the claimant-Respondents. The balance amount shall be deposited by the insurance company within six weeks from today before the Motor Accident Claims Tribunal. On deposit so being made, the claimant-Respondents shall be allowed to withdraw the same without furnishing any security. 16. However, it will be open for the Appellant (insurance company) to recover the awarded amount from the insured and for the purpose of recovering the same from the insured owner of the vehicle, the insurer shall not be required to file a suit. It may initiate proceedings before the 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. The Tribunal before releasing the amount, shall issue the notice to the insured owner of the vehicle who shall be required to furnish security for the entire amount which the Appellant-insurer will pay to the claimant-Respondents. 17. The parties shall bear their own cost.