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Rajasthan High Court · body

2014 DIGILAW 1279 (RAJ)

New India Assurance Co. Ltd. v. Smt. Chandra Devi

2014-06-30

SANDEEP MEHTA

body2014
JUDGMENT 1. - The instant appeal has been preferred by the appellant Insurance Company against the judgment cum award dated 4.8.2000 passed by the learned Motor Accident Claims Tribunal, Bikaner in M.A.C. No. 19/1996 whereby the learned Tribunal partly accepted the claim application filed by the respondents No. 1 and 2 claimants and awarded them compensation to the tune of Rs. 70,000 and held the non-claimants i.e. the appellant Insurance Company as well as the owner and driver of the vehicle involved in the accident jointly and severally responsible to satisfy the award. 2. Facts in brief are that the respondents No. 1 and 2 herein being the wife and son of late Bulakidas filed a claim application under Section 166 of the Motor Vehicles Act before the Motor Accident Claims Tribunal, Bikaner claiming compensation on account of death of Shri Bulakidas in a road accident, which occurred on 17.8.1995. Shri Bulakidas was travelling in a private bus bearing Registration No. RJ14.P.4585 going from Dungargarh to Bikaner on 17.8.1995. At about 7.15 A.M. in the morning, the bus turned turtle because of rash and negligent driving by its driver resulting into the instantaneous death of Bulakidas at the spot. The claim application was filed by the claimants praying for total compensation to the tune of Rs. 14,22,332. 3. The owner and driver of the vehicle involved in the accident did not choose to contest the claim despite service. The appellant insurance Company (non-claimant) filed a reply to the claim raising a specific defence that the bus driver Sahi Ram was not having a valid and effective licence to drive the vehicle at the time of the accident and thus, the vehicle was being driven in breach of the policy conditions. The Insurance Company claimed that it was not liable to satisfy the award on this ground. Reliance in support of this defence was placed on the charge-sheet filed by the police after investigation of the F.I.R. registered against the driver and owner of the bus wherein the police applied the offences under Sections 279, 337 and 304-A l.P.C. and Sections 3/181 and 134/187 of the Motor Vehicles Act against the driver Sahi Ram and offence under Section 5/180 of the Motor Vehicles Act against owner Sabir. 4. 4. The Tribunal framed the usual issues including the issue as to whether the Insurance Company was entitled to be exonerated from the liability to satisfy the award on the ground that the bus driver was not having an effective and valid driving licence to drive the bus at the time of the accident. 5. The claimants examined three witnesses in support of the claim application. The Insurance Company examined its Manager Banwari Lal in counter. The learned Tribunal whist deciding the Issue No. 3 regarding the defence raised by the Insurance Company that the driver of the offending vehicle was not having any licence to drive the vehicle observed that the burden of proving that the driver was not having a valid and effective licence to drive the vehicle at the time of the accident was on the Insurance Company. As per the findings of the Tribunal, the Insurance Company failed to lead positive evidence to discharge this burden and consequently, it could not discharge the burden to prove its defence regarding the driver not having a valid licence to drive the vehicle at the time of the accident. With the aforesaid conclusion, the learned Tribunal proceeded to hold the appellant Insurance Company and the owner and driver of the offending vehicle jointly and severally responsible to satisfy the award. Hence, this appeal. 6. Shri Dhanpat Choudhary learned Counsel appearing for the appellant insurance Company submitted that the Insurance Company took a specific defence in its written statement that the driver of the offending vehicle was not having a valid licence to drive the vehicle. He urged that the Insurance Company duly discharged the burden by examining its Manager Banwari Lal NAW-1 who proved this fact beyond all manner of doubt. He urged that in the charge-sheet filed by the police, offences under Sections 3/181 and 134/187 of the Motor Vehicles Act were applied against the driver Sahi Ram and the offence under Section 5/180 of the Motor Vehicles Act was applied against the bus owner Sabir. As per him, the application of these offences against the bus driver and owner clearly indicates that the bus was being driven by a person holding no licence whatsoever. As per him, the application of these offences against the bus driver and owner clearly indicates that the bus was being driven by a person holding no licence whatsoever. He further urged that the owner and the driver of the bus did not appear in the claim proceedings to rebut these facts and therefore, it has to be assumed that the Insurance Company duly proved the defence taken by it in its written statement. Apropos, the learned Counsel submitted that the finding recorded by the Tribunal holding the appellant Insurance Company jointly and severally responsible to satisfy the award is totally unjust and hence deserves to be reversed. 7. He conceded that the Insurance Company has already satisfied the award but the consequence of acceptance of appeal would be that the Insurance Company would gain liberty to recover the amount from the owner by filing execution before the Tribunal itself. Thus, he prayed that the appeal be accepted and the appellant Insurance Company be given liberty to recover the amount from the owner of the insured vehicle. 8. Nobody has appeared to contest this appeal on behalf of the non-claimants Sahi Ram and Sabir the driver and owner of the vehicle in question. 9. Shri Manish Dadhich learned Counsel for the claimants supported the findings and conclusions drawn by the learned Tribunal and submitted that no interference is called for in the impugned judgment cum award. He further submitted that the impugned award has already been satisfied because Rs. 50,000 was deposited by the Insurance Company under the head of No Fault Liability and the remaining amount was deposited under Section 173 of the Motor Vehicles Act while filing this appeal. Thus, he urged that the appeal has virtually become infructuous. 10. I have heard the arguments advanced at the bar and have gone through the impugned judgment cum award and the record. 11. The specific and pertinent defence of the Insurance Company before the Tribunal by way of their written statement was that the driver of the offending vehicle was not having a valid and effective licence to drive the vehicle in question. The owner and the driver of the offending vehicle did not appear and contest the claim despite service. 11. The specific and pertinent defence of the Insurance Company before the Tribunal by way of their written statement was that the driver of the offending vehicle was not having a valid and effective licence to drive the vehicle in question. The owner and the driver of the offending vehicle did not appear and contest the claim despite service. Witness Banwari Lal NAW-1 was examined on behalf of the Insurance Company and he specifically stated that the driver Sahi Ram was not having a valid licence for driving the bus in question. No cross-examination was conducted from the witness on behalf of the owner and driver as they did not appear before the Tribunal to contest the claim and his testimony remained unchallenged. The charge-sheet which was filed by the police after investigation of the case mentions that the offences under Sections 3/181 and 154/187 of the Motor Vehicles Act were applied against the driver Sahi Ram and the offence under Section 5/180 of the Motor Vehicles Act was applied against the bus owner Sabir. These offences are specifically in relation to the vehicle being driven without a licence. 12. Therefore, in the opinion of this Court, the Insurance Company duly discharged the burden and proved beyond all manner of doubt that the driver of the offending vehicle was driving the vehicle without an effective licence at the time of the accident. The consequence of this infringement of the provisions of the Motor Vehicles Act by the driver and owner would be that the Insurance Company could not be held liable to satisfy the award as it is a clear case of breach of policy conditions. The Tribunal thus committed a grave error in holding the Insurance Company jointly and severally responsible with the owner and driver to satisfy the award. 13. It is however, the admitted position that the award has already been satisfied by the Insurance Company. Thus, the only direction which can be issued now is that the Insurance Company deserves to be given a liberty to recover the amount from the owner of the offending vehicle by filing execution proceedings before the Tribunal. 14. Consequently, the appeal is allowed. Thus, the only direction which can be issued now is that the Insurance Company deserves to be given a liberty to recover the amount from the owner of the offending vehicle by filing execution proceedings before the Tribunal. 14. Consequently, the appeal is allowed. The judgment cum award dated 4.8.2000 passed by the learned Motor Accident Claims Tribunal, Bikaner in M.A.C. No. 19/1996 is modified and the finding recorded by the Tribunal on the Issue No. 1 holding the appellant Insurance Company jointly and severally responsible to satisfy the award alongwith the owner and driver of the offending vehicle is set aside. Consequently, the Insurance Company is given liberty to file execution proceedings before the Tribunal and to recover the decreetal amount from the owner of the offending vehicle. Record be sent back. No cost.Appeal allowed. *******