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2011 DIGILAW 530 (KAR)

New India Assurance v. M. Sureshappa

2011-05-27

H.S.KEMPANNA

body2011
Judgment :- Though this matter is listed for admission, with consent of learned counsels for respective parties as records have also been received, it is taken up for final disposal. 2. This appeal is by the appellant/insurer challenging the liability fastened on them to satisfy the award and further directing them to recover from the first respondent/owner. 3. For the sake of convenience the parties in this appeal would be referred to by their rankings as they are arrayed in the claim petition. 4. The claimant Smt. Sanna Durgamma filed claim petition u/s.166 of the M.V. Act claiming compensation in respect of the personal injuries which she sustained in a motor accident that took place on 9.7.2004 at about 5.30 p.m. at Mylar village involving the autorickshaw bearing Regn.no.KA-27/2776 owned by the first respondent and insured with the second respondent at the relevant point of time. 5. It is the case of the claimant that she is aged about 65 years a coolie by profession earning more than Rs.5,000/- p.m. She was hale and healthy prior to the accident. On 9.7.2004 at about 5.30 p.m. while she was marketing vegetables at Mylar village, the autorickshaw bearing No.KA 27/2776 driven by its driver at a high speed in a rash and negligent manner came and dashed against her. On account of the same she sustained grievous injuries on her right leg for which she took treatment by spending huge money. Despite the same, her right leg was amputated, as such she is unable to carry on her avocation which has resulted in loss of income to her. Hence, she prayed for grant of compensation from the respondents. 6. After service of notice, the respondents who are the owner and insurer of the autorickshaw involved in the accident appeared and contested the claim of the claimant. It was contended by the first respondent/owner along with one Raghavendra that the accident has not taken place on account of the fault of the driver of the autorickshaw, on the other hand, it was due to the negligence of the claimant herself. It is further contended that Raghavendra is the son of the first respondent and he did have valid and effective driving licence to drive the auto involved in the accident issued from RTA, Hospet. It is further contended that Raghavendra is the son of the first respondent and he did have valid and effective driving licence to drive the auto involved in the accident issued from RTA, Hospet. On the date of accident one Puttappa who possessed valid driving licence was accompanying the said Raghavendra who was driving the auto and was helping him. As Raghavendra who was the driver of the auto at the time of accident did possess valid licence, the first respondent has not committed any breach of the terms and conditions of the policy. It is further contended as his vehicle had been insured with the second respondent, if for any reason he is held liable to pay any compensation the same be saddled on them and as such sought for dismissal of the petition as against them. 7. The second respondent-insurer also contended that the accident in question has not taken place on account of rash and negligent driving of the auto by its driver. They further contended that Raghavendra who was driving the auto at the time of accident is the son of the first respondent and he had no valid and effective driving licence to drive the auto in question and in spite of the same as the first respondent has allowed him to drive the vehicle, he has committed breach of the terms and conditions of the policy issued by them. They also further contended as the auto has been plied beyond the jurisdiction for which it had been permitted to ply under the permit, the owner has committed breach of the terms and conditions of the permit. They also denied all other averments made by the claimant in her petition and contended that they are not liable to pay any compensation and accordingly, sought for dismissal of the petition. 8. The Tribunal on the basis of the above pleadings framed the following issues:- “1. Whether the petitioner proves that on 09-07-2004 at about 5.30 p.m. at Mylara Village when she was marketing vegetables, at that time the driver of the Autorickshaw bearing Reg.No.KA-27/2776 drove it rashly and negligently and dashed the petitioner? 2. Whether the petitioner proves her age, monthly income, medical expenses & nature of injuries? 3. Whether the respondent No.1 proves that the accident occurred due to negligent act of the petitioner herself as suddenly she crossed the road? 4. 2. Whether the petitioner proves her age, monthly income, medical expenses & nature of injuries? 3. Whether the respondent No.1 proves that the accident occurred due to negligent act of the petitioner herself as suddenly she crossed the road? 4. Whether the respondent No.2 proves that since the petitioner has not disclosed the name of the drier, the petition is not tenable? 5. Whether the petitioner is entitled for compensation? If so, from whom and what is the quantum? 6. What order or Decree? Additional Issues “1. Whether the 2nd respondent proves that deliberately the insured allowed his son to drive the vehicle who had not possessed with valid & effective driving licence and thus it is not liable to pay compensation? 2. Whether the 2nd respondent is not liable to pay compensation since there is violation of conditions of permit? 3. Whether S.M. Raghavendra is a necessary party to the petition?” 9. The claimant in support of her case got herself examined as PW1 and produced 27 documents which came to be marked as exhibits P1 to P27. On behalf of the respondents, the first respondent-owner got himself examined as RW1, his son Raghavendra the driver of the Autorickshaw involved in the accident, as RW2 and one Puttappa as RW3. They got produced three documents which came to be marked as R1 to R3. The second respondent-Insurance Company in support of their case examined one Mr. N.B. Balavalli, RTO Haveri as RW4 and one Mr. R.Y. Nayak, Administrative Officer of their Company as RW5. They produced in all 7 documents which came to be marked as exhibits R4 to R10. 10. The Tribunal on considering the oral and documentary evidence on record held that the accident in question has taken place on account of the rash and negligent driving of the autorickshaw by its driver viz. Raghavendra and as such the claimant has established actionable negligence. Further, the Tribunal looking to the evidence of the claimant and the documents placed on record awarded a sum of Rs.2.01.200/- with interest at 6% p.a. from the date of the petition till realisation under various heads. Raghavendra and as such the claimant has established actionable negligence. Further, the Tribunal looking to the evidence of the claimant and the documents placed on record awarded a sum of Rs.2.01.200/- with interest at 6% p.a. from the date of the petition till realisation under various heads. It further held that the driver of the Autorickshaw involved in the accident did not possess valid and effective driving licence, the owner has also violated the permit conditions as the vehicle in question has been plied beyond the permitted limits and there was no valid fitness certificate to ply the vehicle on road. However, drawing its attention to the terms and conditions of the policy Ex.R4 came to the conclusion that as the driver did possess learners licence that satisfies the requirement of the policy and accordingly, saddled the liability of payment of compensation on the appellant-insurer and further directed to recover the same from the first respondent-owner. 11. The appellant-insurance Co. being aggrieved of the liability fastened on them to satisfy the award initially and directing them to recover from the first respondent-owner are in appeal before this Court. 12. The learned counsel for the appellant-Ins. Co. submitted that the Tribunal has erred in not appreciating the evidence on record in the right perspective which clearly goes to show that the driver did not possess valid and effective licence and by wrongly interpreting the conditions incorporated in the policy Ex.R4 despite holding respondent No.1 is liable, erred in directing the appellant to satisfy the award and recover from the first respondent. Elaborating his submission he submitted that the driver of the offending-autorickshaw did not possess valid and effective driving licence. In this connection he submitted that the vehicle involved in the accident is a goods vehicle which is a transport vehicle. The driver at the time of the accident did not possess valid and effective driving licence to drive the said transport vehicle. By virtue of what is contemplated u/s.7 of the MV Act, 1988 a person who possess LLR to drive a transport vehicle should have possessed a licence to drive a non-transport vehicle i.e. LMV for a period of atleast one year. By virtue of what is contemplated u/s.7 of the MV Act, 1988 a person who possess LLR to drive a transport vehicle should have possessed a licence to drive a non-transport vehicle i.e. LMV for a period of atleast one year. In the present case, the driver of the offending vehicle had obtained his licence to drive the LMV for the period from 25.01.2005 to 24.1.2005 i.e. subsequent to the date of accident which has taken place on 9.7.2004. That would go to show that the driver of the offending vehicle did not possess valid and effective driving licence to drive the autorickshaw in question. If that is so, the impugned judgment and award of the Tribunal fastening the liability on them by virtue of the conditions that has been incorporated in Ex.R4 by the Tribunal cannot be sustained as the learners licence possessed by the driver of the vehicle involved in the accident is not in compliance with Section 7 of the Motor Vehicles Act. In other words, he submitted at any rate as the driver of the autorickshaw did not possess valid and effective licence, no liability could have been fastened on the appellant-Ins. Co. to satisfy the award and therefore, the impugned judgment and award cannot be sustained. Hence, it calls for interference. 13. Per contra, the learned counsel for respondent No.1-owner supported the impugned judgment and award passed by the tribunal. 14. The second respondent-claimant though served has remained unrepresented. 15. Taking the rival submissions, the evidence and the documents placed on record the point that arises for my consideration is:- “Whether the impugned judgment and award of the Tribunal fastening the liability on the appellant-insurance co. to satisfy the award and thereafter to recover from the owner-respondent No.1 is sustainable?” 16. Facts are not in dispute. The claimant having met with accident, injuries sustained, treatment taken, amount spent for the same is not disputed. The quantum of compensation that has been awarded by the tribunal is also not disputed by either of the parties in this appeal. The bone contention of the appellant-insurer is that as the driver of the offending-Autorickshaw did not possess valid and effective driving licence to drive the same at the time of accident, no liability can be fastened on them. It is undisputed that the vehicle involved in the accident is a goods vehicle which is a transport vehicle. 17. The bone contention of the appellant-insurer is that as the driver of the offending-Autorickshaw did not possess valid and effective driving licence to drive the same at the time of accident, no liability can be fastened on them. It is undisputed that the vehicle involved in the accident is a goods vehicle which is a transport vehicle. 17. Section 3 of the M.V. Act, 1988 contemplates necessity for driving licence. It reads as follows:- 3. Necessity for driving licence (1) No person shall drive a motor vehicle in any public place unless he holds an effective driving licence issued to him authorizing him to drive the vehicle; and no person shall so drive a transport vehicle other than (other than (a motor cab or motor cycle) hired for his own use or rented under any scheme made under any scheme made under sub-section (2) of section 75) unless his driving licence specifically entitles him so to do. (2) The conditions subject to which sub-section (1) shall not apply to a person receiving instruction in driving a motor vehicle shall be such as may be prescribed by the Central Government. A reading of Section 3 of the Act would go to show that a person in order to drive a motor vehicle in a public place must hold a valid and effective driving licence issued to him authorizing to drive the vehicle and that person is not entitled to drive a transport vehicle other than a motor cab or motor cycle hired for his own use or rented under any scheme made under sub-section (2) of section 75 unless his driving licence specifically entitles him so to do. Since the vehicle admittedly involved in the accident is a goods vehicle which is a transport vehicle, one has to obtain a valid and effective licence issued from the competent authority. In this case, the material on record reveals that the vehicle in question involved in the accident was being driven by one Raghavendra who is examined as RW2. According to him he possessed a learners licence issued by the R.T.O. Hospet. Section 7 of the Act contemplates that any person driving a transport vehicle cannot be granted learners licence unless he holds the driving licence to drive a non-transport vehicle i.e. light motor vehicle for atleast one year. Section 7 of the Act reads as follows:- 7. According to him he possessed a learners licence issued by the R.T.O. Hospet. Section 7 of the Act contemplates that any person driving a transport vehicle cannot be granted learners licence unless he holds the driving licence to drive a non-transport vehicle i.e. light motor vehicle for atleast one year. Section 7 of the Act reads as follows:- 7. Restrictions on the granting of learner’s for certain vehicles (1) No person shall be granted a learner’s licence to drive a transport vehicle unless he has held a driving licence to drive a light motor vehicle for at least one year. (2) No person under the age of eighteen years shall be granted learner’s licence to drive a motor cycle without gear except with the consent in writing of the person having the care of the person desiring the learner’s licence. A perusal of Section 7 of the Act clearly reveals that no person can be granted learners licence to drive a transport vehicle unless he has held a driving licence to drive non-transport vehicle i.e. a light motor vehicle for atleast one year. 18. The Apex Court in the case of Ram Babu Tiwari vs United India Insurance Co. Ltd. and others reported in 2008 ACJ 2654 has held as follows:- Further, the Apex Court in the case of National Insurance Co. Ltd. vs. Vidhyadhar Mahariwala and others reported in 2008 ACJ 2860 has held as follows:- A perusal of what has been held in the aforementioned decisions goes to show that if the driver of the offending vehicle does not possess valid and effective licence to drive the vehicle, no liability can be fastened on the Insurance Company. 19. Coming to the case on hand, the vehicle involved in the accident admittedly is a goods vehicle, which is a transport vehicle. The same was being driven by RW-2 Raghavendra at the time of accident. This is amply established from the evidence on record. According to first respondent-owner and RW2 who is his son, RW2 possessed the learners licence (LLR) to drive the same which has been issued by the RTO, Hospete. A xerox copy of the same is found in the records, but it has not been marked in the case. The Tribunal has noticed that the said LLR issued in RW2 was for the period 24.3.2004 to 23.9.2004. A xerox copy of the same is found in the records, but it has not been marked in the case. The Tribunal has noticed that the said LLR issued in RW2 was for the period 24.3.2004 to 23.9.2004. It has not been marked in the case in accordance with law. Further, RW1 or RW2 have also not taken steps to produce the original LLR. Hence, the same cannot be taken into consideration. 20. Ex.R7 placed on record reveals that the said Raghavendra, who has been examined as RW2 in this case, had obtained licence to drive the non-transport vehicle issued from the competent authority which was valid from 25.1.2005 to 24.1.2005. It is subsequent to the date of accident which has taken place on 9.7.2004. 21. As pointed to above, RW2 did not possess driving licence to drive non-transport vehicle atleast for a period of one year as contemplated u/s.7 of the M.V. Act to possess a learner’s licence as contended by him. He has also not placed any material to show that he had obtained licence to drive the non-transport vehicle prior to the date of accident. That goes to show that RW2 did not possess valid and effective driving licence to drive a transport vehicle much less the vehicle involved in this case as on the date of accident. The Tribunal on appreciation of the material before it has also come to the right conclusion that the driver-RW2 did not possess valid and effective driving licence to drive the vehicle involved in the accident. However, the Tribunal on going through Ex.R4, the policy, produced by the insurer, interpreting one of the conditions has come to the conclusion that as the driver of the offending autorickshaw possessed learners licence to drive the transport vehicle, he has complied with the conditions of the policy and accordingly it has fastened the liability to satisfy the award initially and has directed to recover from the first respondent-owner. But the condition incorporated in Ex.R4 is subject to Rule 3 which contemplates that a person possessing the learners licence to drive a transport vehicle has to drive the same accompanied by a person who is in possession of valid and effective licence to drive the same and that vehicle at that time should be empty. In this connection the materials on record reveal that the vehicle was not empty at the time of accident. In this connection the materials on record reveal that the vehicle was not empty at the time of accident. Nextly, though he was accompanied by RW3 who had held valid and effective driving licence to drive the same, as RW2 Raghavendra did not possess valid licence to drive a no-transport vehicle atleast for a period of one year as contemplated u/s.7 of the act, the contention of owner-RW1 and RW2, that RW2 possessed LLR’s licence will have no bearing at all, more so when they have not taken steps to produce the original of LLR or have got examined the officers of the RTO to show that he did possess LLR to drive the transport vehicle preceded by a licence obtained to drive a non-transport vehicle atleast for a period of one year. Under these circumstances, the zerox copy of the LLR placed on record is of no consequence. The tribunal has ignored the pre-requisites of Section 7 to drive the transport vehicle before embarking upon the condition incorporated in Ex.R4 i.e. the policy to pass the impugned order. Therefore, as the material on record clearly reveals the vehicle involved in the accident is a transport vehicle and as the driver RW2 did not possess valid and effective driving licence to drive the same, the insurer cannot be made liable to satisfy the award. 22. The next contention of the insurer is that the first respondent owner has committed breach of permit conditions inasmuch as the vehicle i.e. the Autorickshaw involved in the accident has been plied beyond the limits permitted under the permit. In this connection the appellant-insurer have examined RW4-RTO of Haveri. His evidence clearly reveals that the vehicle involved in the accident had been permitted to ply in Guttal village and within 10 kms. The said Guttal village and the radius of 10 kms comes within the Ranebennur Taluk of Haveri District. His evidence further discloses that the Mylar village where the accident has taken place is in Hoovinahadagali Taluk of Bellary District and the permit conditions did not allow the respondent-owner to ply outside the district. His evidence further discloses the first respondent-owner has also not obtained fitness certificate to ply the vehicle which is also in violation of the permit conditions. His evidence further discloses the first respondent-owner has also not obtained fitness certificate to ply the vehicle which is also in violation of the permit conditions. Exhibit R5 and R8 are the certificate of fitness and permit which clearly goes to show that respondent No.1 has committed violation of the permit conditions as deposited to by RW4. On appreciating the evidence on record the Tribunal has come to the right conclusion that the first respondent-owner has committed breach of conditions of the permit and the vehicle did not have proper fitness certificate. However, the Tribunal relying upon the decision rendered by the Apex Court adverted to in its judgment has come to the conclusion that despite there being breach of terms and conditions of the policy and violation of the permit condition, the insurer has to be made liable to satisfy the award and recover from the insured i.e. the owner. As already pointed out the evidence and the documents placed on record clearly reveals that RW2, the driver of the auto involved in the accident did not possess valid and effective driving licence to drive the same at the time of accident. This itself is sufficient to hold that no liability can be fastened on the insurer. Further, as already pointed out the first respondent-owner has also committed violation of the conditions of the permit issued to his vehicle. Under these circumstances, in my view, the Tribunal has committed an error in fastening the liability on the appellant-insurer to satisfy the award and further directing to recover from the owner despite holding that the driver did not possess valid and effective licence to drive the vehicle in question and the first respondent-owner has committed violations of the permit conditions. Therefore, the impugned judgment and award passed by the Tribunal fastening the liability on the appellant-insurer to satisfy the award and to recover from the first respondent/owner cannot be sustained. Accordingly, the appeal preferred by the appellant-Insurance company has to succeed. 23. In the result, for the foregoing reasons, I proceed to pass the following:- ORDER i) The impugned judgment and award passed by the tribunal fastening the liability of payment of compensation on the appellant-insurance company and directing them to recover from the first respondent/owner in this appeal is set-aside. 23. In the result, for the foregoing reasons, I proceed to pass the following:- ORDER i) The impugned judgment and award passed by the tribunal fastening the liability of payment of compensation on the appellant-insurance company and directing them to recover from the first respondent/owner in this appeal is set-aside. ii) In view of appellant/insurer having been absolved of their liability, the first respondent-owner of the vehicle shall satisfy the entire compensation awarded to the claimant in this case; iii) The claimant is at liberty to proceed to recover the compensation amount awarded from the first respondent. Office to draw the award accordingly. The amount in deposit, if any, made by the appellant insurer is ordered to be refunded to them.