Research › Search › Judgment

Rajasthan High Court · body

2012 DIGILAW 340 (RAJ)

National Insurance Co. Ltd. v. Dhakha Bai

2012-02-07

NISHA GUPTA

body2012
GUPTA, J.—This misc. appeal has been filed under Section 173 of the Motor Vehicles Act, 1988 against the judgment and award dated 29.7.2002 passed by the Motor Accident Claims Tribunal, Aklera, District Jhalawar in Claim Petition No. 26/97 whereby a total compensation of Rs. 79,500/- has been awarded in favour of the claimants/respondents and liability has been fixed on the appellant insurance company. 2. The facts in short are that the respondents No. 1 to 3 - claimants instituted a claim petition before the learned Motor Accident Claims Tribunal, Aklera for the death of deceased Parmanand in a motor accident dated 7.3.1997. It was narrated in the claim petition that on 7.3.1997 at around 5.00 PM deceased Parmanand was gong to Chapi Dam in Tractor No. RJ 17-R-0781 which was driven rashly and negligently by driver Raju @ Raja Ram, respondent No. 4. The Tractor collided with an electric pole as a result of which, deceased Parmanand fell down and died at the spot. After considering the rival contentions, the learned Tribunal passed award of Rs. 79,500/- in favour of the claimants and liability has been fixed for payment of compensation on the appellant insurance company. 3. Much has been stated in the Memo of appeal but, the only contention of the learned counsel for the appellant before this court is that the learned Tribunal has failed to consider that driver of the offending Tractor-cum-Trolly was not having valid license at the time of accident and hence, no liability could be fastened upon the insurance company. It is not in dispute that accident had taken place on 7.3.1997 by the offending Tractor Trolly whereas the driving license which was place on record as Ex.D2 goes to show that the license has been issued on 30.7.1997. Hence, the question arises as to whether the insurance company can be held liable to pay any compensation in an accident case when the alleged motor vehicle is being driven by a person who had no licence to driver the vehicle. Learned counsel for the appellant has relied upon the decision in the case of United India Insurance Co. Ltd. vs. Gian Chand, 1997 ACJ 1065, wherein it was held:- "(12). Learned counsel for the appellant has relied upon the decision in the case of United India Insurance Co. Ltd. vs. Gian Chand, 1997 ACJ 1065, wherein it was held:- "(12). Under the circumstances, when the insured had handed over the vehicle for being driven by an unlicensed driver, the Insurance Company would get exonerated from its liability to meet the claims of the third party who might have suffered on account of vehicular accident caused by such unlicensed driver... A three Judge's Bench of Apex Court, in National Insurance Co. Ltd. (2004) ACJ 1 (SC)), upon going through the provisions of the Act as also the precedents operating in the field, laid down the following dicta; "(77) We have analysed the relevant provisions of the said Act is terms whereof a motor vehicle must be driven by a person having a driving licence. The owner of a motor vehicle in terms of Section 5 of the Act has a responsibility to see that no vehicle is driven by a person who does not satisfy the provisions of Section 3 or 4 of the Act. In a case, therefore, where the driver of the vehicle, admittedly, did not hold any licence and the same was allowed consciously to be driven by the owner of the vehicle by such person, the insurer is entitled to succeed in its defence and avoid liability. The matter, however, may be different where a disputed question of fact arises as to whether the driver had a valid licence or where the owner of the vehicle committed a breach of the terms of the contract of insurance as also the provisions of the Act by consciously allowing any person to drive a vehicle who did not have a valid driving licence. In a given case, the driver of the vehicle may not have any hand in it at all e.g. A case where an accident takes place owing to a mechanical fault or vis major. (See Jitendra Kumar 2003 ACJ 1441 (SC))". 4. In view of above, the Apex Court has held that the owner of the offending vehicle would be liable for payment of compensation in a case where the driver is not having a valid driving license at the time of accident. It is an obligation on the part of the owner to take adequate care to see whether the driver was having valid license. It is an obligation on the part of the owner to take adequate care to see whether the driver was having valid license. In the instant case also it is revealed that driving licence has been issued to Raju @ Raja Ram, the driver of the offending Tractor Trolly, on 30.7.1997 whereas the accident had taken place on 7.3.1997. Thus, in view of above pronouncement of the Apex Court, it can safely be inferred that the insurance company is not liable to pay any amount of compensation to the victim if the driver of the offending vehicle was not having driving license at the time of accident. 5. In view of the above, the insurance company deserves to be absolve from its liability to pay the amount of compensation. But, in the present case, learned counsel for the appellant has fairly conceded that the amount of compensation has already been paid and the question of exoneration of the insurance company from its liability to pay the amount of compensation no longer remains in issue. The only liberty which can be granted to the insurance company is to recover the said amount which has been paid to the victim by the insurance company from the owner of the vehicle. Hence, with these directions that the Insurance Company is authorized to recover the amount of compensation which has been paid by it to the victims, from the owner of the offending vehicle, this appeal is disposed of.