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2013 DIGILAW 350 (CHH)

United India Insurance Comp. Ltd. v. A. Verlaxmi

2013-12-03

SANJAY K.AGRAWAL

body2013
JUDGMENT : SANJAY K. AGRAWAL, J. 1. This is insurer's appeal filed under Section 173 of the Motor Vehicles Act, 1988 (hereinafter referred to as 'the MV Act') questioning the legality and validity of the award dated 30-11-2009 passed by 7th Additional Motor Accidents Claims Tribunal, Raipur (henceforth 'the Claims Tribunal') in Claim Case No. 44/2008, by which claimants'/respondents No. 1 & 5 claim petition has partly been allowed fastening the liability of payment of compensation upon the appellant/insurance Company to indemnify the award. 2. The facts, as projected and necessary for adjudication of this appeal, are as under : 2.1 In a road traffic accident occurred on 9-4-2013 at about 9 p.m., respondent No. 5/driver Kailash Kumar Markam by rashly and negligently driving the Tankar (offending vehicle) bearing registration No. CG-17-H-0732, owned by respondent No. 6-Manoj Kumar Madharia and insured by appellant/Insurance Company dashed Mr. A. Simachalam (deceased) by which he suffered grievous injuries and succumbed to the injuries. First Information Report was lodged against the respondent No. 5/driver for the offence punishable under Section 304-A of the IPC and, thereafter claim petition under Section 166 of the M.V. Act was filed by the legal representatives of deceased A. Simahachalan claiming compensation to the tune of Rs. 53,00,000/- jointly and severally from the owner, driver and insurer of the offending vehicle pleading inter alia that deceased A. Simhachalan was aged about 35 years at the time of accident; was working as Sub-Engineer in the Fero Allianz and was earning Rs. 20,000/- per month. 2.2 Respondents No. 5 & 6/Owner & driver choose not to appear before the Claims Tribunal, whereas the appellant/insurance Company filed its written statement before the Claims Tribunal stating inter alia that respondent No. 5/driver did not have the necessary endorsement as required under Rule 9(4) of the Central Motor Vehicles Rule, 1989 as such there is a breach of the terms of the policy conditions and, therefore, the appellant/insurance Company be exonerated from its liability to indemnify the amount under award. 2.3 The Tribunal by its impugned award partly granted the application finding inter alia, that : (i) Claimants are entitled for a total sum of Rs. 10,18,700/- along with interest @ 6 per cent, per annum, if award is satisfied within a period of two months, and in default along with interest @ 9 per cent. per annum in favour of respondent Nos. 10,18,700/- along with interest @ 6 per cent, per annum, if award is satisfied within a period of two months, and in default along with interest @ 9 per cent. per annum in favour of respondent Nos. 1 to 5/claimants for the death of A. Sinhachalam due to rash and negligent driving of offending vehicle by its driver. (ii) The appellant/insurance Company is liable for payment of compensation as it could not establish violation of policy conditions. 3. Shri Dashrath Gupta, learned counsel appearing for the appellant would submit that Claims Tribunal has committed a legal error in directing the Insurance Company to indemnify the amount under award as there is overwhelming evidence available on record to hold that driver did not have valid and effective driving licence to drive the offending goods carriage carrying dangerous/hazardous goods and, therefore, the part of award by which the liability has been saddled upon the appellant/insurance Company deserves to the set aside. 4. Per contra, Shri Amiakant Tiwari, learned counsel appearing for respondent Nos. 1 to 3/claimants supported the award impugned and submitted in the facts and circumstances of the case, the Tribunal has rightly saddled the liability of payment of compensation upon the Insurance Company, which does not call for any interference. 5. I have heard learned counsel for the parties and considered the rival submission made therein including award impugned. 6. The question that falls for consideration whether the driver did have valid and effective driving licence to drive offending vehicle at the time of accident is moot question to be answered by this Court. 7. The offending vehicle in question is Tanker, which is duly insured with the appellant/insurance Company vide Ex, D-l. Particular of the driving licence of the driver has been filed as Ex. D-3C, in which it has been mentioned that he has been authorised to drive Light Motor Vehicle and Heavy Goods Vehicle. 8. Mr. S.K. Lal (NAW-1) has been examined on behalf of Insurance Company and he has proved the Insurance Policy and has also proved driving licence of respondent No. 5/driver by stating that by driving licence Ex.D-2 respondent No. 5/driver was authorised to drive light Motor Vehicle and Heavy Goods Vehicle. 9. Shri Panchram Kurre (NAW-2), Assistant Grade-Ill from the Licensing Authority, Durg has been examined. 9. Shri Panchram Kurre (NAW-2), Assistant Grade-Ill from the Licensing Authority, Durg has been examined. He has deposed before the Tribunal that respondent No. 5/driver-Kailash Kumar Markam was authorised to drive Light Motor Vehicle and he has also been licenced to drive Heavy Goods Vehicle with effect from 25-7-1997 and the same has been renewed on 12-12-2007 for a period of three years. He has also deposed that no such training has been given from his Office to respondent/driver to drive goods carriage carrying goods of dangerous or hazardous nature. He has clearly stated that the person holding licence to drive heavy goods vehicle can also drive a goods carriage carrying goods of dangerous or hazardous vehicle if the said vehicle is not loaded with dangerous or hazardous goods at the relevant time. 10. Thus, the Claims Tribunal has further recorded a finding after considering the evidence available on record that appellant/insurance Company has failed to establish the fact that at the time of accident the vehicle was actually carrying dangerous or hazardous goods. The said finding is based on the material available on record and as such Insurance Company has failed to establish that at the time of accident Tanker is actually carrying dangerous goods/hazardous goods and, thus, the respondent No. 5/driver was entitled to drive the offending vehicle Tanker without endorsement. 11. For better appreciation of sub-rules (3) and (4) of Rule 9 of the Central Motor Vehicles Rules, 1989, I deem it apposite to reproduce the same. "9. Educational qualifications for drivers of goods carriages carrying dangerous or hazardous goods. (1) to (2)................................ (3) The Licensing Authority, on receipt of the applications referred to in sub-rule (2), shall make an endorsement in the driving licence of the applicant to the effect that he is authorised to drive a goods carriage carrying goods of dangerous or hazardous nature to human life. (4) A licensing Authority other than the original Licensing Authority making any such endorsement shall communicate the fact to the original Licensing Authority." 12. A perusal of the aforesaid relevant Rules would show that endorsement in the driving license of the driver is necessary to the effect that he is authorised to drive a goods carriage carrying goods of dangerous or hazardous nature to human life. 13. A perusal of the aforesaid relevant Rules would show that endorsement in the driving license of the driver is necessary to the effect that he is authorised to drive a goods carriage carrying goods of dangerous or hazardous nature to human life. 13. It is true that respondent/driver was holding licence to drive heavy goods vehicle/Tanker from 25-7-1997 and it has been renewed from time to time and the accident had occurred on 9-4-2008, thus, he was driving the heavy goods vehicle for the last more than 10 years. It is not the case of the appellant/insurance Company that accident had taken place on account of the fact that there was no endorsement to drive such a vehicle. The endorsement neither increases the efficiency of the driver, nor in its absence, the efficiency of the driver is likely to be reduced in any manner whatsoever. It only certifies additionally that he is authoriazed to drive a goods carriage carrying goods of dangerous or hazardous nature. For driving such a vehicle, no further expertise or driving is required. This could be said to be a lapse on the part of the driver but this lapse was not responsible for the cause of the accident. 14. Even without the endorsement as contemplated under sub-rule (3), the driving skill of respondent No. 3 had not reduced. By taking the endorsement from the Licensing Authority, the nature of vehicle or the kind of the vehicle which the driver would be driving would not have changed, it would have remained the same. Thus, taking of the endorsement from the Licensing Authority was for some other purpose and not for giving him further certificate for driving the tanker, as he was already holding a valid license for driving it. Precisely this is what has been said in National Insurance Co. Ltd. v. Swaran Singh, (2004) 3 SCC 297 , para 105, in para 110. It has been held so "To avoid its liability towards the insured, the insurer has to prove that the insured was guilty of negligence and failed to exercise reasonable care in the matter of fulfilling the condition of the policy regarding use of vehicles by a duly licensed driver or one who was not disqualified to drive at the relevant time. It has further been held as under : "Even where the insurer is able to prove breach on the part of the insured concerning the policy condition regarding holding of a valid licence by the driver or his qualification to drive during the relevant period, the insurer would not be allowed to avoid its liability towards insured unless the said breach or breaches on the condition of driving licence is/are so fundamental as are found to have contributed to the cause of the accident. The Tribunals in interpreting the policy conditions would apply "the rule of main purpose" and the concept of "fundamental breach" to allow defences available to the insured under Section 149(2) of the Act." 15. Thus, the crux of the matter would be whether such a breach that is to say not having obtained necessary endorsement as required under sub-rule (3) of Rule 9 of the Rules, the accident occurred due to that non-endorsement has been discussed he rein above. Any driver who has held a driving license to drive a tanker would be entitled to have this endorsement subject to fulfilling of other conditions as contemplated in sub-rule (3) of Rule 9, but they do not deal with the professional skill of driving. With regard to professional skill of driving, he has already been certified by the Licensing Authority at the time of granting of license to him. It is not the case of the appellant that his driving license was not obtained properly. 16. For the reasons mentioned he rein above, I am of the considered opinion, the Tribunal has not committed any illegality in saddling the liability of payment of compensation upon the Insurance Company as there was no fundamental breach of the terms and conditions of the policy, as such appeal has no merit and is liable to be and is hereby dismissed. 17. However, it is directed that the claimants are entitled to get compensation of Rs. 10,18,700/- along with interest & 6% per annum from the date of filing of claim petition till its actual payment.