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2008 DIGILAW 1082 (CAL)

National Insurance Co. Ltd. v. Banashree Pathak

2008-12-19

BHASKAR BHATTACHARYA, RUDRENDRA NATH BANERJEE

body2008
JUDGMENT:- (1). Re: CAN No. 10070 of 2008 After hearing the learned Advocate appearing on behalf of the appellant and after going through the explanation given herein, we are convinced that the appellant was prevented by sufficient cause from preferring this appeal within the period of limitation. (2). We, thus, condone the delay in preferring the appeal. The appeal be registered, if it is, otherwise, in form. (3). Since Mr. Ganguly, learned Advocate, has already entered appearance on behalf of the claimants/respondents, the appeal be treated as ready as regards service. (4). With the aforesaid observation, the application, being CAN No. 10070 of 2008, is disposed of accordingly. Re: CAN No. 10071 of 2008 (5). At the time of hearing of the application for stay in connection with the present appeal, we have decided to hear out the appeal itself as a pure question of law has arisen for determination in this appeal. (6). This appeal is at the instance of the Insurance Company and is directed against an Award dated 21st May, 2008 passed by the learned Additional District Judge, Fast Track Court, First Court, Baruipur in MAC Case No. 8 of 2006 thereby disposing of an application under Section 166 of the Motor Vehicles Act by directing the Insurance Company to pay a sum of Rs. 10,27,456/-within one month from the date of the Award with further stipulation that failing such payment, the amount will carry interest at the rate of 6% per annum from the date of the order till recovery. (7). Being dissatisfied, the Insurance Company has come up with the present appeal. (8). There is no dispute about the involvement of the victim in the accident resulting in his death and with the fact that there was rash and negligent driving on the part of the driver of the offending vehicle. It is further established that the offending vehicle was insured by the National Insurance Company Limited. (9). The learned Tribunal below after taking into consideration the earning of the victim as well as his age arrived at the figure of Rs. 10,27,456/- as indicated earlier. (10). Before the learned Tribunal below, the owner of the vehicle did not contest, but the Insurance Company contested the proceeding by filing written statement. (9). The learned Tribunal below after taking into consideration the earning of the victim as well as his age arrived at the figure of Rs. 10,27,456/- as indicated earlier. (10). Before the learned Tribunal below, the owner of the vehicle did not contest, but the Insurance Company contested the proceeding by filing written statement. In the written statement, it was stated that the Insurance Company was not liable to pay any amount because the driver had no valid driving licence at the relevant point of time. (11). However, in support of such defence taken by the Insurance Company, no evidence was led either by summoning the Licensing Authority or the owner of the vehicle, nor did the Insurance Company give any suggestion to the claimant, who figured as witness. (12). At the time of hearing, it was, however, specifically argued that the accident occurred due to rash and negligent driving of the driver, who had no valid driving licence. (13). The learned Tribunal below without arriving at any find as to whether the driver had any valid driving licence at the relevant point of time, answered the aforesaid question by simply saying that even if the driver had no valid driving licence, according to the law of the land, the amount should be paid by the Insurance Company and the same should be recovered from the owner of the vehicle. (14). In view of the aforesaid conclusion arrived at by the learned Tribunal below, the Insurance Company has come up with the present appeal. (15). Mr. Singh, learned Advocate appearing on behalf of the Insurance Company/appellant, strenuously contended before us that having regard to the various decisions given by the Honble Supreme Court on the question as to the liability of the Insurance Company to make payment and then, to recover the same from the owner of the vehicle, there must be specific finding as to whether the owner of the vehicle deliberately permitted the driver to use the vehicle by a person having no driving licence. The other relevant factors are also required to be considered in passing this type of direction. (16). Mr. Singh submits that in the absence of such direction, it will be even difficult by his client to recover the amount from the owner of the vehicle. (17). Mr. The other relevant factors are also required to be considered in passing this type of direction. (16). Mr. Singh submits that in the absence of such direction, it will be even difficult by his client to recover the amount from the owner of the vehicle. (17). Mr. Ganguly, learned Advocate appearing on behalf of the claimants/respondents, however, has opposed the aforesaid contention advanced by Mr. Singh and has contended that the onus is upon the Insurance Company to prove that the vehicle was really driven by a person having no valid driving licence. According to Mr. Ganguly, in this case, after taking such a defence in the written statement, the Insurance Company has not even endeavoured to lead any evidence on such question and therefore, we should presume that the accident occurred due to rash and negligent driving of a driver having a valid licence and we should not interfere with the Award passed by the learned Tribunal below. (18). After hearing the learned Counsel appearing for the parties and alter going through the materials on record, we find that in the written statement a specific plea was taken that the driver had no valid licence and it is now settled law that such plea comes within the purview of Section 149 of the Motor Vehicles Act and thus, the Insurance Company even without taking leave under Section 170 of the Act can raise such dispute. (19). It, further, appears that even at the time of argument, the Insurance Company took such plea, but the learned Tribunal below without arriving at any finding on such issue of fact merely stated that even if the vehicle was driven by a person having no valid driving licence, the Insurance Company could not evade its liability to make payment and after making payment, it should recover the amount from the owner of the vehicle. (20). In our opinion, before passing such direction, it was the duty of the learned Tribunal below to arrive at a specific finding on the issue as to whether the driver had really valid driving licence and it was also the responsibility of the learned Tribunal to arrive at a finding as to the negligence on the part of the owner of the vehicle in permitting the vehicle to be driven by such person. If it appears that without the knowledge of the owner the vehicle was driven by a person having no driving licence and the accident occurred resulting in death of the victim, in such a case, the position would be different. In the absence of any evidence on record, it is also not possible for us to arrive at any such finding before this Court on the basis of the existing materials on record. (21). However, as the fact as to whether at the relevant point of time, the vehicle was really driven by a person having no valid driving licence can be easily established by summoning the Licensing Authority, we are of the view that the matter should be remanded back to the learned Tribunal below for the limited purpose of giving an opportunity to the Insurance Company to prove whether the vehicle was really driven by a person having valid driving licence. (22). For the purpose of doing complete justice between the parties, we propose to exercise our power under Order XLI Rule 25 of the Code of Civil Procedure by directing the learned Tribunal below to give an opportunity to the Insurance Company to lead appropriate evidence for the purpose of proving the breach of condition of the insurance, as provided in Section 149 of the Motor Vehicles Act so that the learned Tribunal and this Court can effectively follow the decision of the Honble Supreme Court in case of National Insurance Company Limitedv. Swaran Singh and Ors., reported in (2004)1 TAC. 321 (SC): (2004)1 WBLR (SC) 315. (23). The appellant within a week after the reopening of the Court after Christmas Vacation will take step for adducing evidence on the aforesaid question. The learned Tribunal below after recording such evidence will arrive at his own finding on the aforesaid issue and will return the evidence together with its finding thereon and the reasons there for within 30th April, 2009 to this Court. (24). We, therefore, remand the matter in exercise of our power under Order XLI Rule 25 of the Code on the aforesaid question. However, as a condition of such remand, we direct the appellant to deposit the entire awarded sum less statutory deposit already made before the learned Registrar General of this Court within one week after reopening of this Court after Christmas Vacation and to further pay costs of Rs. However, as a condition of such remand, we direct the appellant to deposit the entire awarded sum less statutory deposit already made before the learned Registrar General of this Court within one week after reopening of this Court after Christmas Vacation and to further pay costs of Rs. 10,000/-to the respondent No. 1. (25). If the amount is so deposited, the learned Registrar General of this Court will invest the amount in a short term fixed deposit in any Nationalized Bank and will go on renewing the same until further order of this Court ; in default of deposit of the aforesaid amount within the stipulated period, this appeal will stand dismissed. (26). If within the time fixed by us the appellant does not take step for adducing evidence on the additional questions, referred to above, the learned Tribunal below will immediately send the matter back to us with its finding that no evidence has been adduced by the Insurance Company. (27). With the aforesaid observation, the appeal is, thus, disposed of under Order XLI Rule 25 of the Code keeping the main file pending. (28). In view of disposal of the appeal itself, the connected application has become infructuous and the same is, thus, disposed of. (29). Till the disposal of this appeal after remand, let there be an order of stay of all further proceeding of the concerned execution case. (30). Let xerox plain copy of this order, duly countersigned by the Assistant Registrar (Court), be handed over to the appellant for due compliance on undertaking to apply for urgent xerox certified copy of this order of this Court.