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2010 DIGILAW 419 (JK)

National Insurance Co. Ltd. v. Bashir Ahmad Malla

2010-07-29

Hasnain Massodi

body2010
1. The respondents on 02.11.2005 laid a claim petition under section 160 of Motor Vehicles Act, before Motor Accident Claims Tribunal, Srinagar for recovery of compensation from the respondents on account of death of their father in a vehicular accident at Jalbaria at Jammu-Delhi National Highway. The respondents’ case was that the passenger bus bearing No. RJ-11-P-0316 in which the deceased along with son-respondent No. 1 were traveling collided with Truck No. JK02G - 6486 at the aforementioned Village at 4.30 A.M. The accident was claimed to have led to registration of case FIR No. 241 dated 31.10.2004 under Section 279, 337, 338 and 304-A RPC. The respondents alleged that the accident was direct result of rash and negligent driving of the driver of passenger bus in which the respondent No. 1 and his father were traveling. 2. The respondents, except the insurance company-present appellant stayed away from the proceedings. The appellant resisted the claim petition on the ground that the owner of the vehicle had committed breach of the insurance policy by employing a driver not having a valid driving license for driving the vehicle and that due to said breach the appellant was not under obligation to indemnify the owner. The appellant further pleaded that the offending vehicle was not having a valid route permit at the time of accident and for the said reasons as well, the appellant was absolved of all liability under the insurance policy. The appellant denied the averments in the claim petition as regards dependency and quantum of compensation claimed. The tribunal on perusal of the pleadings settled following issues:- "1. Whether on 30.10.2004, the deceased Ab. Fateh Mall while traveling in a bus bearing No. RJ-11-P-0316 from Jammu to Delhi along with petitioner No. 1, the bus was being driven by respondent No. 1 and while reaching at Bus Stand Sadugarh near Village Jalbaria, the driver lost control of the vehicle and drove it to the foot path in high speed, stuck with the truck bearing No. JK02G/6486 coming from the Rajpora side with the result that he was seriously injured and thereafter succumbed to the same at Fatehgarh Hospital ? (OPP) 2. In case the issue No. I is provide in affirmative whether the petitioners as the legal heirs of the deceased are entitled to compensation and if so to what extent and from, whom ? (OPP) 3. (OPP) 2. In case the issue No. I is provide in affirmative whether the petitioners as the legal heirs of the deceased are entitled to compensation and if so to what extent and from, whom ? (OPP) 3. Whether the driver of the offending vehicle was not holding a valid driving license and as such the respondent No. 3 is not liable to pay the compensation ? 3. The respondents examined Shri Ghulam Rasool Wani, as the witness to substantiate the claim petition, the respondents 1 & 2 also appeared in the witness box. The appellant on the other hand examined its Legal Assistant Shri Mushtaq Ahmad Sadoor and placed on the record verification of driving license of the driver of the offending vehicle. The Ld. Tribunal on 24.01.2009, while appreciating the evidence placed on the file, decided all the issues in favour of the respondents and against the appellant and assessed Rs.4,38,200/- as compensation on account of loss of dependency, loss of consortium, pain, agony and funeral expenses. The Ld. Tribunal rejected the appellant’s plea that the appellant was free from any obligation under the insurance policy on account of absence of valid driving license. The Ld. Tribunal held that the driving license of the driver of the offending vehicle was genuine & effective as on date of accident. 4. The appellant assails the award dated 24.01.2009 in the present appeal on the following grounds:- (a) That the Ld. Tribunal did not appreciate the evidence on the file as regards absence of valid and effective driving license of the driver of the offending vehicle as on date of accident, in right perspective. (b) That the compensation awarded is arbitrary, excessive and unjust; that the Ld. Tribunal has taken the income of the deceased on higher side and wrongly multiplied, of 8 against the multiplier of 5 applicable to the case. (c) That the Ld. Tribunal has wrongly awarded panel @ 9% on the award amount. 5. I have gone through the memorandum of appeal, the impugned award as also the records received from the Ld. Tribunal. 6. The appellant does not throw challenge to the finding returned by the Ld. Tribunal on issue No. 1. (c) That the Ld. Tribunal has wrongly awarded panel @ 9% on the award amount. 5. I have gone through the memorandum of appeal, the impugned award as also the records received from the Ld. Tribunal. 6. The appellant does not throw challenge to the finding returned by the Ld. Tribunal on issue No. 1. The appellant thus concedes that the deceased fell victim to vehicular accident when bus No. RJ-11-P-0316 driven by respondent No. 8, owned by respondent No. 9 and insured by it collided with truck bearing registration No. JK02G-6486 at Jalbaria at Jammu-Delhi National Highway route and that the accident was attributable to the rash and negligent driving of the respondent No. 8. The appellant disowns any liability to compensate the respondents because of breach of insurance policy committed by the respondent No. 9. The appellant insists that the driving license of the respondent no. 8 issued by Licensing Authority under Motor Vehicles Act of West Zone, Janakpuri New Delhi expired on 10.11.2002 and that the respondent no. 8 thus was not holding a valid and effective driving license on 31.10.2004 i.e. the date fatal accident took place, that claimed life of Sh. Abdul Fatta Malla father of respondents 1, 3 to 6 and husband of respondent no. 2. Shri Mushtaq Ahmad Sadoor, Legal Assistant examined by the appellant deposed before the Ld. Tribunal that as per the investigation conducted and the information received from the Licensing Authority, the driving license in question was not renewed beyond 10.11.2002 i.e. the date of its expiry. The Id. Tribunal decided issue no. 3 in favour of the respondents and against the appellant on two counts:- Firstly, the Ld. Tribunal notices that there was renewal endorsement on the driving license and that it was for the appellant to find out the Authority that had renewed the license, secondly the Id. Tribunal held that failure of the respondent no. 8 to get the driving license renewed must not lead to the conclusion that the respondent no. 8 was not competed to drive. In the opinion of the Ld. Tribunal the appellant was not only to prove that the driving license was not renewed but also that the respondent no. 8 was not able to drive the vehicle on the date of accident. The Ld. 8 was not competed to drive. In the opinion of the Ld. Tribunal the appellant was not only to prove that the driving license was not renewed but also that the respondent no. 8 was not able to drive the vehicle on the date of accident. The Ld. Tribunal referring to law laid down in New India Assurance Company Ltd. v. Sughra Bibi and ors., AIR 2006 (NOC) 362 (J&K) summed up its opinion as under:- "It is manifestly clear that the insurance company is not only to prove that the renewal of driving license of the respondent drive but also the driver’s disability to drive the vehicle on the date of accident. Though such omission is dealt with appropriately under" the Act" but it cannot be randomly presumed that the non effectiveness of the driving license would be treated as "non duly licensed". Thus the plea of defence raised by the respondent insurance company has no legal legs to stand upon." 7. The view taken by the Ld. Tribunal is erroneous and not sustainable for the reason that once the Insurance Company is able to prove before the Id. Tribunal that owner or a person Incharge of motor vehicle permitted a person not having effective and valid driving license to drive the vehicle and that the accident took place when the vehicle was driven by such person, the Insurance Company is no more liable to indemnify the owner. In such a case the owner or a person Incharge of motor vehicle is to be taken to have committed breach of insurance contract or acted so recklessly so as to denote that he employed the driver caring least for the consequences of his act. In the present case, once it was proved by the appellant that the respondent no. 8 was not having an effective driving license as on the date of accident, it was no more open to the Id. Tribunal to insist on further proof that the respondent no. 8 on the date of accident was not capable of driving license. The view that renewal of driving license is a formality and inconsequential as regards capability to drive, is equally untenable. There is no rule like "once a driver always a driver". Tribunal to insist on further proof that the respondent no. 8 on the date of accident was not capable of driving license. The view that renewal of driving license is a formality and inconsequential as regards capability to drive, is equally untenable. There is no rule like "once a driver always a driver". The driving license is granted in a fixed time frame, so as to assess capability of the driver to drive the vehicle, once the driving license expires due to efflux of time. A person to whom a driving license is granted say for a period of 10 years may not be capable of driving after 10 years because of impaired vision or any other infirmity or disability. The renewal of driving license at least give rise to belief that the person holding the driving license has been found fit to drive a motor vehicle even after the initial period of his driving license came to an end. Even if, it is assumed that a person not holding an effective driving license on the date of accident may prove that he notwithstanding non renewal of the driving license was competent to drive the vehicle, the onus of proof in such case, lies on the driver or the insured. The Insurance Company cannot be asked to prove that the driver having no effective driving license, was also not competent to drive. It is for the owner of a vehicle to employ a driver after satisfying himself that the driver holds a valid and effective driving license and in case the owner of the vehicle acts in a callous or negligent manner, he does so at the cost of shifting liability to pay compensation in the event of the accident from the insurer to himself. In the present case the appellant successfully discharged its burden by establishing that the driving license in question was not renewed by the Licensing Authority that issued the driving license. If the respondent no. 8 got diving license issued from any other Authority it was for him or his employer to disclose the source of renewal or the authority that had renewal it. "In Ishwar Chandra and ors. v. Oriental Insurance Co. Ltd. & Ors. If the respondent no. 8 got diving license issued from any other Authority it was for him or his employer to disclose the source of renewal or the authority that had renewal it. "In Ishwar Chandra and ors. v. Oriental Insurance Co. Ltd. & Ors. 2007 AIR SCW 1889 where license held by the driver expired on 27.08.1994 the accident took place on 28.04.1995, and on the date of accident the renewal had not been filed by the driver and the driver had no valid driving license on the date the vehicle met with the accident, it was held that the insurer is not liable to indemnify owner of the vehicle." In State Rep. by Inspector of Police, Tiruchy v. Rettaimandaiyan Alias Murugan, AIR 2009 SC 206 , it has been held that where driving license of the driver of the offending vehicle is not in force on the date of accident, the Insurance Company is exonerated from its liability. In the aforementioned case, the driver of the offending vehicle had drivers license valid from 15.12.1997 to 14.12.2000. The driver’s license was extended from 29.12.2000 to 14.12.2003 and thereafter from 16.05.2005 to 15.05.2008. The license was thus not renewed from 15.12.2003 to 15.05.2005. It was during this interregnum period that the accident took place. The driver of the offending vehicle thus had no license on the date of accident i.e. 11.06.2004 as the driver had failed to renew the driving license after its expiry on 14.12.2003 up to 16.05.2005. The tribunal accepted the claim petition and made the award in favour of the claimants. The Insurance Company preferred an appeal insisting that its claim for exoneration on the ground of violation of policy condition viz; that the driving license of the driver of the offending vehicle was not in force on the date of the accident, was erroneously rejected by the Tribunal. Learned Single judge of the High Court dismissed the appeal preferred against the said award. The Supreme Court after making a detailed survey of law laid down in National Insurance Company Limited v. Swaran Singh and ors. 2004 (3) SCC 297 , National Insurance Co. Ltd. v. Kusum Rai & Ors. 2006 (4) SCC 25 and Oriental Insurance Co. Ltd., v. Nanjappan and ors, 2004 (13) SCC 224 and Ishwar Chandra & Ors. v. Oriental Insurance Co. 2004 (3) SCC 297 , National Insurance Co. Ltd. v. Kusum Rai & Ors. 2006 (4) SCC 25 and Oriental Insurance Co. Ltd., v. Nanjappan and ors, 2004 (13) SCC 224 and Ishwar Chandra & Ors. v. Oriental Insurance Co. Ltd., & Ors., 2007 (10) SCC 650 , allowed the appeal, set-aside the order of the High Court and held that the Insurance Company was exonerated from its liability in the event driving license of the driver of the offending vehicle was not in force on the date of accident. 8. Viewed thus, the finding returned on the issue no. 3 does not stand the legal scrutiny and is accordingly over turned. 9. The appellant is also aggrieved of the quantum of compensation. It is insisted that the compensation award is excessive and exorbitant. The Id. Tribunal on the basis of evidence produced by the respondents held the deceased to have been contractor supplying labourers to other contractors and assessed average monthly income of the appellant at Rs. 6,300/-. The Id. Tribunal held the deceased to have been 60 years of age at the time of accident and on the basis of said conclusions, after allowing a deduction of 1/3rd of the income and applying multiplier 8 worked out, the compensation on account of loss of dependency as Rs. 4,38,200/-. The Tribunal allowed an amount of Rs. 20,000/- on account of loss of consortium, Rs. 10,000/- on account of loss of suffering of pain and agony and Rs. 5,000/- on account of funeral expenses. The compensation of Rs. 4,38,200/- on going through the elaborate discussion made by the Id. Tribunal is just compensation in the facts of circumstances of the case. 10. On going through the impugned award it is more than evident that Tribunal has been alive to all relevant factors, while assessing just compensation. The Tribunal as against inflated and exaggerated monthly income of Rs. 20 to Rs. 25 thousand per month set up in the claim petition, on objective analysis of evidence worked out, the monthly income at Rs. 6,300/-. The Tribunal has rightly employed multiplier of 8 to calculate the compensation payable on account of loss of dependency. The compensation awarded thus cannot be said to be exorbitant or excessive. Same is true about the compensation awarded on account of loss of consortium, pain and agony and funeral expenses. 6,300/-. The Tribunal has rightly employed multiplier of 8 to calculate the compensation payable on account of loss of dependency. The compensation awarded thus cannot be said to be exorbitant or excessive. Same is true about the compensation awarded on account of loss of consortium, pain and agony and funeral expenses. The compensation awarded is, thus conformity with law and does not call for any interference. 11. For the reasons discussed, the appeal succeeds as regards liability of the insured/owner of the vehicle to pay the awarded compensation to the respondents and to the extent of stand of the appellant that the appellant is absolved of its obligation under the insurance policy to indemnify the respondent no. 9. The award has been passed one and a half year back. The appellant has deposited the award amount. In view of post award developments, it would be appropriate to allow the respondents to get the deposited amount and give a right to the appellant to recover the deposit amount from the respondent no. 9. The appellant as laid down in Ishwar Chandra and ors. v. Oriental Insurance Co. Ltd. & ors. (supra) shall be free to initiate proceedings for recovery of the award amount from the respondent no. 9 in the Executing Court, without filing any separate suit. 12. The appeal is disposed of accordingly and the award subject to modifications as regards, right of recovery of the appellant to recover the award amount from the respondent no. 9 i.e. owner of the offending vehicle upheld. Disposed of.