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2014 DIGILAW 1273 (RAJ)

New India Assurance Co. Ltd. v. Phusaram

2014-06-23

SANDEEP MEHTA

body2014
JUDGMENT : SANDEEP MEHTA, J. The instant appeal has been preferred by the appellant New India Assurance Co. Ltd. against the judgment and award dated 21.4.2000 passed by the learned Judge, M.A.C.T. (First), Jodhpur in M.A.C. Case No. 43/1995 (874/95) whereby he claim application filed by the respondent-Phusaram on account of his tractor No. RSN-3628 in a road accident which occurred in 8.5.1993 was partly allowed and he was granted total compensation of Rs. 42,000/-. 2. The appellant Insurance Company has approached this Court assailing the award. 3. The facts in brief as set out in the claim application are that the claimant Phusaram was proceeding on his tractor on the Jodhpur-Barmer road on 8.5.1993. It is alleged that when the tractor reached the Pal Balaji temple village Pal, a Bus No. RJ-19P-333 owned by Jaswant Singh, non-claimant No. 2 and insured with the appellant New India Assurance Co. Ltd. being driven in a rash and negligent fashion by its driver Budha Ram rammed into the tractor from the back side. It was alleged that the tractor was split into two as a result of collision. Phusa Ram received numerous injuries in the accident. 4. He filed a claim application u/S. 166 of the Motor Vehicles Act seeking compensation for the injuries suffered by him and for the loss of estate caused by damage to the tractor. The non-claimants No. 1 and 2 i.e. Driver and the bus owner chose not to contest the claim. The appellant Insurance Company filed a reply pleading that at the time of accident, the bus driver was not having a valid licence to drive the bus and thus the Insurance Company was not liable to pay the compensation. The Tribunal framed following issues for consideration: 1. As to whether the non-claimant No. 1 the driver of the bus No. RJ19-P-333 drove the bus rashly and negligent near the Pal Balaji Temple and thereby caused the accident causing injuries to the claimant and damage to his tractor. 2. As to whether the driver was driving the bus in the employment and for the benefit of the owner non-claimant No. 2. 3. As to whether the Insurance Company was entitled to be exonerated in the light of the objection taken by it that the bus driver was not having a valid licence to drive the same. 4. 2. As to whether the driver was driving the bus in the employment and for the benefit of the owner non-claimant No. 2. 3. As to whether the Insurance Company was entitled to be exonerated in the light of the objection taken by it that the bus driver was not having a valid licence to drive the same. 4. As to whether the claimant was entitled to receive the compensation as per the claim application or any other amount, and if yes, the quantum thereof and the person responsible to satisfy the claim? 5. The claimant examined two witnesses in support of his claim. Two witnesses were examined by the Insurance Company in support of the defence theory. The Insurance Company led its evidence on the issue No. 3 in order to prove that Budha Ram the driver of the offending vehicle was having a licence No. 97496 issued to him on 12.6.1989. On the date of the accident, the licence was valid for driving a heavy transport vehicle. Budha Ram applied for grant of a licence to drive a bus on 26.5.1997 and on that very day the licence was issued to him for this purpose. Accordingly, the Insurance Company's endeavour before the Tribunal was to prove that the bus driver was not having a valid licence authorizing him to drive the bus which is a heavy passenger vehicle and thus there was a breach of conditions of the insurance policy entitling the Insurance Company to be exonerated from the liability to satisfy the award. The Tribunal considered the defence raised by the Insurance Company and held that there was a breach of the policy conditions because the driver of the offending vehicle was not having an effective licence authorizing him to drive the offending bus. Accordingly, whilst accepting the claim application the Tribunal directed the Insurance Company to make payment of the compensation upfront and gave it liberty to recover the decreetal amount from the owner of the offending vehicle. The appellant Insurance Company has approached this Court by way of this appeal assailing the direction of the Tribunal whereby it was directed to make payment of the award upfront. 6. The appellant Insurance Company has approached this Court by way of this appeal assailing the direction of the Tribunal whereby it was directed to make payment of the award upfront. 6. My Choudhary, learned counsel for the appellant vehemently contended that as the driver of the offending vehicle was not having an effective licence to drive the offending vehicle, the Insurance Company could not have been saddled the liability to satisfy the award even by an order of Pay and Recover. He placed reliance on the following decisions in support of his contentions: 1. United India Insurance Co. Ltd. v. Gian Chand reported in 1997 ACJ 1065 2. Kumar v. National Insurance Co. Ltd. reported in 2004 ACJ 1066 3. Panna Lal v. State of Bombay reported in 1963 SC 1516 4. Tummalla Atchaiah v. Venka Narasingarao reported in 1978 SC 725. 7. Per contra Mr. B.L. Tiwari, learned counsel appearing on behalf of the respondents non-claimants No. 2 and 3, the owner and driver of the bus contended that the non-claimants are entitled to challenge the adverse findings of the Tribunal without filing even any appeal or raising cross-objections. He relied on the decision of the Hon'ble Supreme Court in the following cases in support of this contention:— 1. Ravindra Kumar Sharma v. State of Assam reported in (1999) 7 SCC 435 : AIR 1999 SC 3571 2. Anil Kumar Gupta v. Municipal Corporation of Delhi reported in (2000) 1 SCC 128 : AIR 2000 SC 659 . 8. He contended that the finding recorded by the learned Tribunal exonerating the Insurance Company from the liability to satisfy the award is absolutely illegal unjust and contrary to the material available on record. He placed reliance on the decision rendered by this Court in the case of New India Assurance Co. v. Jamna Devi reported in 2004 (III) ACC 616 : RLW 2004 (4) Raj. 2483 and submitted that it was held in the said case that a person holding a driving licence authorizing him to drive a heavy goods vehicle can also drive a heavy passenger vehicle as the skill and expertise required for driving both kind of vehicles is same. He submitted that the converse would also be true and a person holding a licence authorizing him to drive a heavy passenger vehicle would also be entitled to drive a heavy transport vehicle. He submitted that the converse would also be true and a person holding a licence authorizing him to drive a heavy passenger vehicle would also be entitled to drive a heavy transport vehicle. Thus, he prayed that the finding recorded by the Tribunal on the issue No. 3 exonerating the Insurance Company from the liability to satisfy the award and holding the owner and driver of the offending vehicle responsible for the same is totally illegal and should be reversed. 9. I have heard learned counsel for the parties and have gone through the impugned judgment and the record. 10. As per the admitted case of the parties, as on the case of the accident, Budha Ram, the driver of the offending vehicle was having a licence valid for driving a heavy goods vehicle. The incident is of the year 1993. In the year 1994, by an amendment in the Motor Vehicles Act, the Government did away with the different categories of transport vehicles and brought them under a single head. Accordingly, the requirement of having different kinds of licenses to drive transport vehicles of different categories was eliminated and it was brought under a consolidated head covered under Section 10(2) of the Motor Vehicles Act as amended in the year 1994 w.e.f. 14.11.1994. 11. A Single Bench of this Court in the case of New India Assurance v. Jamna Devi (supra) examined the same controversy and held that there is virtually no distinction so far as the expertise and skill required to drive both kinds of vehicles in concerned. This Court also noted that there was separate category of vehicles in the unamended Section 10(2) of the Act but by the amendment brought about in the year 1994 the distinction was omitted. It was observed by this Court in para 7 of Jamna Devi's judgment as follows:— “The crux of the matter is that it is to be seen whether the fact of driver possessing the licence for one type of the vehicle, but found driving another type of vehicle, was the main or contributory cause of accident. In this case, the driver was holding the driving licence of heavy passenger vehicle and was driving the heavy goods vehicle. In this case, the driver was holding the driving licence of heavy passenger vehicle and was driving the heavy goods vehicle. There is no plea of the Insurance Company to suggest driving licence meant for heavy passenger vehicle is do distinct that a person holding driving licence cannot be treated competent to drive heavy goods vehicle and driving of the two vehicles is so different that it may be reason for the accident. Not only this, but despite production of the driving licence by none else that the driver of the vehicle himself to show that he was holding the driving licence for the heavy passenger vehicle, no suggestion was given to him that driving of these two vehicle is different. Even there is no suggestion that the driver holding the heavy passenger vehicle driving licence requires to do something more to possess the qualification to drive the heavy goods vehicle. Therefore, I do not find that the Tribunal has committed any illegality in holding the Insurance Company liable for the claim amount.” 12. This Court was of the opinion that the Insurance Company has to prove that the accident occurred because the driver was lacking the expertise to drive the transport vehicle other than the one of which he was having a licence. 13. The judgments which were cited by the learned counsel for the appellant Insurance Company also require to be dealt with. In the case of United India Insurance Co. Ltd. v. Gyan Chand (supra), it was a case of no licence and thus the said case is entirely distinguishable on facts. Furthermore the subsequent view taken by the Supreme Court in the case of National Insurance Co. Ltd. v. Swaran Singh reported in 2004 ACJ 1 runs contrary to the ratio propounded in Gyan Singh's case. The decision rendered by the Madras High Court in the case of Kumar v. National Insurance Co. (supra) is contrary to the view taken by the learned Single Bench of this Court in New India Assurance Co. Ltd. v. Jamna Devi (supra). The principle of law laid down by this Court would hold sway over the view expounded by any other High Court as per the law of interpretation and binding precedents. (supra) is contrary to the view taken by the learned Single Bench of this Court in New India Assurance Co. Ltd. v. Jamna Devi (supra). The principle of law laid down by this Court would hold sway over the view expounded by any other High Court as per the law of interpretation and binding precedents. In the case at hand, the appellant Insurance Company did not raise any such plea either before the Tribunal or in the appeal that the driver lacked the skill or expertise to drive the offending vehicle. Following the view expressed by the coordinate bench in the case of New India Assurance Co. v. Jamna Devi (supra) this Court has no hesitation in holding that the licence held by the driver was also valid for driving the bus in question. 14. The next issue which requires consideration is as to whether the non-claimants respondents nos. 2 and 3 viz. Budha Ram and Jaswant Singh respectively being the driver and the owner of the offending vehicle are entitled; and can be permitted to assail the Tribunal's judgment and finding without filing any appeal or cross-objection. 15. In the case of Panna Lal v. State of Bombay (supra) cited by Mr. B.L. Tiwari, the Hon'ble Supreme Court held that in view of the provisions of O. 41 Rule 33, the Appellate Court can give relief to the respondents as against appellants or the other respondents and filing of cross-objection is not always necessary. 16. Since the issue raised by the learned counsel for the respondent is a purely legal issue, this Court feels that even in absence of any appeal or cross-objection, the owner and the driver are entitled to raise a plea that they were wrongly held responsible to satisfy the award. The challenge thus raised can be examined and considered by this Court by resorting to the powers available under O. 41 Rule 33 C.P.C. In view of the finding recorded by this Court on the issue No. 3 following the earlier view expressed by the Single Bench in the case of New India Assurance Co. Ltd. v. Jamna Devi (supra) there is no option but to hold that the Tribunal wrongly exonerated the appellant Insurance Company from the liability to satisfy the award. 17. Accordingly, the appeal filed by the appellant New India Assurance Company Ltd. is devoid of any merit. Ltd. v. Jamna Devi (supra) there is no option but to hold that the Tribunal wrongly exonerated the appellant Insurance Company from the liability to satisfy the award. 17. Accordingly, the appeal filed by the appellant New India Assurance Company Ltd. is devoid of any merit. The oral objection raised by the learned counsel for the non-claimants respondents No. 2 and 3 is sustained resorting to the powers of this Court under O. 41 R. 33 C.P.C. and now it is directed that the appellant Insurance Company shall be jointly and severally liable with the respondents No. 2 and 3 (driver and owner) to satisfy the impugned award dated 21.4.2000 passed by the learned Judge, Motor Accident Tribunal (I), Jodhpur. The impugned judgment is modified to this extent and the appeal is disposed of in the above terms. Record be sent back. Appeal disposed of accordingly.