Research › Search › Judgment

Allahabad High Court · body

2008 DIGILAW 2055 (ALL)

ORIENTAL INSURANCE CO. LTD. v. INDIRA DEVI

2008-09-26

AMITAVA LALA, SHISHIR KUMAR

body2008
JUDGMENT Honble Amitava Lala, J.—By agreement of the parties the appeal is heard on contest on informal papers. 2. This appeal is made by the insurance company against an award of Motor Accidents Claims Tribunal, Mathura dated 7th August,2006 challenging involvement of the tempo in the accident and validity of driving licence of the driver. 3. The fact remains that the deceased on 19th January, 2005 had gone from Police Line to Holigate, Mathura to purchase goods. While he was coming back at about 9.30 P.M. of the fateful day, a tempo bearing No. U.P. 85M-9048 rashly and negligently driven hit him in front of Roti Godam, which caused death. 4. Learned Counsel appearing for the appellant insurance company has submitted that in the F.I.R., there was no mention of tempo No. U.P.-85 M- 9048. Therefore it can not be said that the accident was caused by tempo No. U.P.-85 M-9048. On the other hand, the driver and the owner have admitted that the accident was caused by the tempo bearing No. U.P. 85M-9048. 5. Learned Counsel appearing for the appellant has further submitted that the driver had forged licence for the period of 22.8.03 to 21.8.06. In further, the claimants themselves produced the driving licence. But we find from the impugned judgment that the insurance company had produced Mr. Makhan Singh, Senior Clerk, Assistant Regional Transport Office, Mathura as witness, who on the basis of original register certified that the driving licence of the driver Mahesh Chandra Sharma was valid for the period between 31.12.03 and 30.12.06. He further deposed that he is not aware whether paper No. 24G/4 is valid or not because the concerned register is not with him. 6. Therefore, the tribunal held that the driver had valid licence, at the relevant point of time. 7. Apparently we do not find any mistake in drawing inference by the tribunal in respect of both the issues. According to us, admission is the best evidence. When driver and owner both of them admitted that the accident was held by tempo and the witness of the insurance company himself stated that the driver of the tempo had valid licence on the fateful day and time, there is no apparent scope of argument on the part of the insurance company on that score. When driver and owner both of them admitted that the accident was held by tempo and the witness of the insurance company himself stated that the driver of the tempo had valid licence on the fateful day and time, there is no apparent scope of argument on the part of the insurance company on that score. However, it is appropriate that we deal with the arguments which have been advanced by the contesting parties on the question of law. 8. By citing (2004) 8 SCC 517 , National Insurance Co. Ltd. v. Challa Bharathamma and others learned Counsel appearing for the insurance company contended that if statutory defences are available to the insurer and inspite of the same the payment is directed to be made to the claimants with a permission of recovery then the security will have to be furnished by the owner of the offending vehicle for the entire amount which the insurer will pay to the claimants as well as the offending vehicle will be attached as a part of the security. This observation of the Supreme Court was again reiterated in a judgment reported in (2004) 8 SCC 667 , Pramod Kumar Agrawal and another v. Mushtari Begum (Smt.) and others. 9. According to us, particularly in a case of beneficial piece of legislation while the Court is discharging equitable justice, straight jacket formula cannot be applied in each and every case. There might be a case where no order can be passed for recovery. There might also be a case where order will be passed with a right of recovery. In further, there might be a case where there would be a security on account of the driver. We repeatedly hold and say that a driver is actually liable for an accident when owner is vicariously liable for the same. The insurance company is indemnifier of the owner. Owner of the vehicle is authorising his driver to drive the vehicle upon considering his capacity of driving. However, in the way what happens with the vehicle and the driver, the owner may not have any control yet he is responsible for the cause of accident. In our country where unemployment is major factor many people without proper literacy and appropriate strata are trying to get such type of job. Licence is being granted by the licensing authority of the motor vehicles department of the State. In our country where unemployment is major factor many people without proper literacy and appropriate strata are trying to get such type of job. Licence is being granted by the licensing authority of the motor vehicles department of the State. Traffic of the road is also being controlled by the police department of the State. Therefore, when all sorts of things are available whether the owner is primarily liable or not is a matter of dispute between himself and the insurance company, it is always open for the insurance company to question the liability or apportionment or shifting of it and/or recovery by making an application in the self same proceeding before the tribunal and tribunal is entitled to dispose of the same. But unless a positive case is available for the appellate Court against the owner, there cannot be any routine order granting liberty to the insurance company to recover the same as a matter of course. In this particular case admittedly the accident was caused at about 9.30 P.M. on the fateful day in a congested area. We are not aware who was at fault. Some time it happens that the deceased and/or injured is at fault. Inspite of the same can it be said that there would not be any payment of compensation at all ? Motor Vehicles Act,1988 (hereinafter referred to as the Act) itself has given a scheme not only no fault liability under Section 140 of the Act or claim of compensation without any proof of negligence under Section 163-A of the Act. Indisciplined movement of the pedestrians and vehicles both are common knowledge. Therefore, sympathy cannot be one way traffic without adjudging the same. The insurance company’s own case was that the vehicle was not involved in the incident at all but when the owner and driver have admitted the cause of accident by the vehicle and the tribunal has held against the insurance company for paying compensation it woke up from the slumber and tried to convert the case towards the liability of the owner which is not fitted situation herein, according to us. Moreover, the case could have been established in case the driver did not have any driving licence. Moreover, the case could have been established in case the driver did not have any driving licence. But when it is proved beyond any doubt by the witness of the insurance company itself on the basis of the original register that the driver had valid licence no case is found to be existable in favour of the insurance company even on fact. In view of the aforesaid facts, the further submission of the learned Counsel appearing for the insurance company on the basis of the judgment reported in AIR 1997 SC 3824 , United India Insurance Co. Ltd. v. Gian Chand and others is that the vehicle was allowed to be driven by the owner to an unlicensed driver or having licence driven for other purpose as per the judgment reported in (2008) 1 SCC 696 , New India Assurance Company Limited v. Prabhu Lal appears to be academic in nature. 10. Sri Rajesh Pachauri, learned Counsel, has contended before the Court that the licence of the driver was produced by the owner. The investigating officer was also produced before the tribunal. Even one Sri Jaspal Singh was produced as independent witness and was examined. He cited (1999) 6 SCC 620 , Ashok Gangadhar Maratha v. Oriental Insurance Co. Ltd. to establish that the transport vehicle includes within the definition of ‘light motor vehicle’ as per the Act and Rule, therefore, the licence of the vehicle before the tribunal cannot be said to be no licence. It is also submitted on the basis of the ratio of such judgment that when there is no evidence on record and no claim has been made by the insurer that the vehicle in question was having permit for a goods carriage, the contention of the insurer cannot be accepted. The Supreme Court held that if it accepts the contention of the insurer that the insurance of light vehicle cannot cover it, it will be an additional consideration of question of Section 2 (21) of the Act. However, relying upon 2008 AIOL 3306, National Insurance Co. Ltd. v. Geeta Bhat and others he said that initial burden is upon the insurance company to prove that the licence was fake at the time of accident. Once it is established the natural consequences will be different. Factually, we cannot construe that the licence was fake at the relevant time. 11. Ltd. v. Geeta Bhat and others he said that initial burden is upon the insurance company to prove that the licence was fake at the time of accident. Once it is established the natural consequences will be different. Factually, we cannot construe that the licence was fake at the relevant time. 11. Therefore, we do not find any cogent reason to interfere with the judgment and order passed by the tribunal. Hence, the appeal is dismissed without imposing any cost. 12. Incidentally, the appellant-insurance company prayed that the statutory deposit of Rs. 25,000/- made before this Court for preferring this appeal be remitted back to the concerned Motor Accidents Claims Tribunal as expeditiously as possible in order to adjust with the amount of compensation to be paid to the claimants, however, such prayer is allowed. Honble Shishir Kumar, J.—I agree. ————