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2014 DIGILAW 292 (JHR)

Kapildev Chaudhary v. Ajmerun Bibi

2014-02-24

D.N.UPADHYAY

body2014
JUDGMENT D.N. Upadhyay, J. - This appeal has been preferred by Kapildev Chaudhary (owner of the vehicle) against the judgment and award dated 17th March, 2010 passed by the 5th Additional District Judge cum Motor Accident Claim Tribunal, Dumka in Title Claim Suit No. 53/2008 whereby the appellant has been fastened with the liability to pay compensation to the extent of Rs.3,29,600/-besides the interim compensation of Rs.50,000/- already paid under Section 140 of the M.V. Act and awarded amount shall be distributed and deposited as per the direction given in the impugned judgment. It was further directed that the amount of compensation so awarded shall be paid within one month from the date of order failing which the appellant will have to pay 7% simple interest from the date of institution of the case till realization of the amount. 2. The facts in brief is that the deceased Faruk Ansari, Home Guard No.7850 was a member in the police patrolling party and in course of patrolling, the police Jeep stopped near Karma More. The deceased was going to ease himself and in course of crossing the road, he was caught under the wheels of a Truck which was being driven rashly and negligently and died at the spot. Registration number of offending vehicle was BR-12H-0023. After chase the Truck was apprehended and the driver disclosed his name as Bramhdeo Yadav, son of Sidho Yadav. In this connection Dumka (Muffasil) P.S. Case No. 23/2007, G.R.No. 253/2007 under Sections 279, 304 A of the Indian Penal Code was registered. The dependent of the deceased filed application for grant of compensation which was registered as Title Claim Suit No. 53/2008. 3. The owner, driver and insurer in receipt of the notice appeared before the court-below and filed their respective show-cause. After adjudication in that matter, award, as indicated above was passed. 4. The appellant has assailed the impugned judgment and award mainly on the ground that the offending vehicle at the relevant point of time was insured with respondent no.6-United India Insurance Company Limited and therefore, the awarded amount should have been directed to be indemnified and the Insurance Company should have been directed to pay the compensation amount. 4. The appellant has assailed the impugned judgment and award mainly on the ground that the offending vehicle at the relevant point of time was insured with respondent no.6-United India Insurance Company Limited and therefore, the awarded amount should have been directed to be indemnified and the Insurance Company should have been directed to pay the compensation amount. The learned Tribunal has considered that driver of the offending vehicle was not having valid licence to drive heavy motor vehicle and held that insured had violated the terms and conditions of policy and therefore his liability cannot be indemnified by the insurer. The appellant has challenged this part of the observation of learned Tribunal, Firstly on the ground that the driver was having valid licence and the report of the investigator appointed by the Insurance Company is not conclusive to decide the issue. Secondly the vehicle in question as per definition enumerated in Section 2 (21) of the Motor Vehicle Act, 1988 was a light motor vehicle because unladen weight of the vehicle was below 7500 k.g. Thirdly the appellant has not violated any terms and conditions of the policy and he had taken all precaution before handing over the vehicle to the driver and therefore the respondent-Insurance Company is liable to pay the awarded amount. 5. On the other hand, learned Counsel appearing for the respondent-Insurance Company has submitted that by order dated 2.3.2012 this appeal was finally disposed of and the matter was remanded to the Claims Tribunal to decide a question whether the vehicle involved in the accident i.e. Tata 407 is a ‘heavy vehicle’ or a ‘light motor vehicle’. The question was directed to be decided within a period of three months from the date of presentation of certified copy of the said order. Since the matter was finally disposed of, the appellant cannot raise the same issue in the present appeal again. If he is dissatisfied with the finding of the Tribunal, he should have filed separate Misc. Appeal. The matter has finally been disposed of, therefore, principle of res judicata will also apply. He has further submitted that as per Article 215 of the Constitution of India, this is a Court of records and this Court cannot review its own order or judgment. If the appellant is aggrieved with the order dated 2.3.2012 he should have filed L.P.A. before the larger Bench. 6. He has further submitted that as per Article 215 of the Constitution of India, this is a Court of records and this Court cannot review its own order or judgment. If the appellant is aggrieved with the order dated 2.3.2012 he should have filed L.P.A. before the larger Bench. 6. Counsel appearing for the claimants has submitted that they are running from post to pillar for getting compensation amount awarded by the Tribunal and they cannot be harassed if the litigation remain continue between the insurer and the insured. It is not disputed in the court-below that death of deceased Faruk Ansari had not taken place in the alleged incident on 22.2.2007. The other findings given by the Tribunal in favour of the claimants are to be complied with and that is not under challenge. 7. Before commencing findings on the issue, certain things are required to be made clear. By order dated 2.3.2010, impugned judgment and award has neither been set aside nor upheld nor modified rather it was held “in the meantime, the operation of the award dated 17.3.2010 shall remain in abeyance”. The matter was remanded to the Claim Tribunal to decide specific question whether the vehicle involved in the accident i.e. Tata 407 is a “heavy vehicle” or a “light motor vehicle”. The Tribunal was directed to decide this issue within three months from the date of presentation of certified copy of the order. When the parties appeared before the Tribunal in view of the order dated 2.3.2010, the Claim Tribunal has made it clear that the offending vehicle was not Tata 407 rather it was LPT 1612 bearing registration no. BR-12H-0023. This confusion regarding nature of vehicle was made clear by this Court by order dated 21.11.2013. On the basis of admission of the appellant that vehicle bearing registration No. BR12H0023 involved in the accident is not Tata 407 rather it is Tata Truck LPT 1612 and the Tribunal was again directed to decide the issue whether offending vehicle involved in the accident is L.M.V. or H.M.V. within a period of three months from the date of presentation of this modified order. 8. The learned Tribunal has decided the issue by order dated 28.1.2014 and passed an order declaring therein that offending vehicle bearing registration no. 8. The learned Tribunal has decided the issue by order dated 28.1.2014 and passed an order declaring therein that offending vehicle bearing registration no. BR12H0023 Tata Truck LPT 1612 is heavy motor vehicle and this fact has been admitted by the owner of the vehicle (appellant) himself. The certified copy of finding of the Tribunal has been furnished before this Court for deciding the appeal finally on merit. 9. At this juncture, it is reiterated that by order dated 2.3.2012 the appeal was not decided on merit rather the award was kept in abeyance and the issue-whether vehicle involved in the accident is LMV or HMV was directed to be decided. The matter was remanded only to the extent to decide aforesaid issue and the appeal was not decided finally on merit. The impugned judgment and award was neither set aside nor upheld nor modified rather operation of the award has been kept in abeyance. In the circumstances appearing on the record the argument advanced by the learned counsel appearing for the respondent-Insurance Company is not tenable. It could not be said that maintainability of this appeal had come to an end after passing of order dated 2.3.2012 and further findings, if given by this Court, will suffer with principle of res judicata. Thus the argument advanced by the learned Counsel appearing for the Insurance Company is out rightly rejected. Learned Counsel appearing for the respondent-Insurance Company has not given any reply to the argument advanced by the learned Counsel appearing for the appellant on other points. The appellant has referred paragraph 8 & 9 of the judgment and submitted that Bramhdeo Yadav has been examined as D.W. 1 ( driver of the offending vehicle) and he has deposed that on 22.2.2007 he was driving Tata Truck LPT 1612 bearing registration no. BR12H0023 belonging to Kapildeo Chaudhary (appellant). He was holding valid licence and the vehicle was also running under valid permit, insurance and tax token. He was authorized to drive heavy motor vehicle but the original licence was torn so he got the licence renewed from Dumka. The original licence produced by this witness has been marked Ext. 1. Kapildeo Chaudhary (owner of the vehicle) has examined himself as D.W. 2 and he has stated that Bramhdeo Yadav D.W.1 (driver of the offending vehicle) was having valid and effective driving licence. He had tested him and then appointed. The original licence produced by this witness has been marked Ext. 1. Kapildeo Chaudhary (owner of the vehicle) has examined himself as D.W. 2 and he has stated that Bramhdeo Yadav D.W.1 (driver of the offending vehicle) was having valid and effective driving licence. He had tested him and then appointed. The vehicle was insured with the United India Insurance Company Limited. The licence produced by D.W.1 was examined by the Tribunal and it is observed that it was having endorsement LMV+HMV but the Tribunal has erred in relying the report submitted by the investigator, who was appointed by the respondent-Insurance Company. The report submitted by the investigator has been marked Ext. B which indicates that D.T.O., Bhagalpur had given certificate according to which Bramhdeo Yadav was having driving licence No.1199/98. He was authorized to drive light motor vehicle only. By referring these paragraphs of the judgment in which this issue was discussed, it was submitted that even assuming it to be correct that the driver was having licence only to drive light motor vehicle, though it is incorrect, the respondents-Insurance Company cannot escape from its liability from indemnifying the insured. The learned Counsel has referred the judgment reported in 2013 (4) J.C.R. 221 (SC) ‘Pepsu Road Transport Corporation Vrs. National Insurance Company and submitted that it is not expected from the owner of the vehicle that he would make correspondence with the D.T.O. of the concerned district from where the licence has been issued in favour of a driver to whom he is going to handover the vehicle to drive. The precaution expected to be taken by owner of the vehicle can be confined to the extent that he would examine the driving licence produced by the driver at the time of his employment or he can take a test whether the driver to whom he is going to hand over the vehicle to drive, is competent to drive the vehicle or not. In the instant case the owner had taken efforts to satisfy him before handing over the vehicle to the driver and a test was taken. Furthermore, the driver himself has appeared before the Court and produced the licence challenging it to be valid. Under such circumstances the owner of the vehicle cannot be fastened with the liability to pay compensation, if the vehicle at the time of accident was plying under a valid insurance policy. 10. Furthermore, the driver himself has appeared before the Court and produced the licence challenging it to be valid. Under such circumstances the owner of the vehicle cannot be fastened with the liability to pay compensation, if the vehicle at the time of accident was plying under a valid insurance policy. 10. It was held in the case of ‘Pepsu Road Transport Corporation Vrs. National Insurance Company (supra) that:- “When an owner is hiring a driver he will therefore have to check whether the driver has a driving licence. If the driver produces a driving licence which on the face of it looks genuine, the owner is not expected to find out whether the licence has in fact been issued by a competent authority or not. The owner would then take the test of the driver. If he finds that the driver is competent to drive the vehicle, he will hire the driver. We find it rather strange that insurance companies expect owners to make enquiries with RTOs, which are spread all over the country, whether the driving licence shown to them is valid or not. Thus where the owner has satisfied himself that the driver has a licence and is driving competently there would be no breach of Section 149(2) (a) (ii). The Insurance Company would not then be absolved of liability. If it ultimately turns out that the licence was fake, the insurance company would continue to remain liable unless they prove that the owner/insured was aware or had noticed that the licence was fake and still permitted that person to drive.” 11. In the judgment reported in (2004) 3 S.C.C. 297 “National Insurance Co. Ltd. Vrs. Swaran Singh and others it was held that:- “Section 149(2)- Making out the defence under (i) Onus of proof The proposition of law is no longer res integra that the person who alleges breach must prove the same. The insurance company is, thus, required to establish the said breach by cogent evidence. Moreover, a bare perusal of the provisions of Section 149 of the Act leads to only one conclusion, that the usual rule is that once the assured proves that the accident is covered by the compulsory insurance clause, it is for the insurer to prove that it comes within an exception. Moreover, a bare perusal of the provisions of Section 149 of the Act leads to only one conclusion, that the usual rule is that once the assured proves that the accident is covered by the compulsory insurance clause, it is for the insurer to prove that it comes within an exception. In the event the insurance company fails to prove that there has been breach of conditions of policy on the part of the insured, the insurance company cannot be absolved of its liability.” (ii) Breach of condition to be shown: Section 149(2) (a) opens with the words “that there has been a breach of a specified condition of the policy”, implying that the insurer’s defence of the action would depend upon the terms of the policy. The insurance company with a view to avoid its liabilities is not only required to show that the conditions laid down under Section 149(2) (a) or (b) are satisfied but is further required to establish that there has been a breach on the part of the insured, that is they must prove a wilful violation of the law by the assured. In some cases violation of criminal law, particularly, violation of the provisions of the Act may result in absolving the insurers but, the same may not necessarily hold good in the case of a third party. In any event, the exception applies only to acts done intentionally or “so recklessly as to denote that the assured did not care what the consequences of his act might be” (iii) Causality: that damage suffered by victim flowed from breach, to be shown Such a breach (as discussed above) on the part of the insured must be established by the insurer to show that not only that the insured used or caused or permitted to be used the vehicle in breach of the Act but also that the damage the victim suffered flowed from the breach. That is, 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 the 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 is interpreting the policy conditions would apply “the rule of main purpose” and the concept of “fundamental breach” to allow defences available to the insurer under Section 149(2) of the Act. (iv) Degree of proof: The degree of proof which would satisfy the aforementioned requirement, in addition to the facts and circumstances of each case, will depend upon the terms of contract of insurance. A contract of insurance also falls within the realm of contract. Thus, like any other contract, the intention of the parties must be gathered from the expressions used therein. In the event the terms and conditions of policy are obscure, it is permissible for the purpose of construction of the deed to look to the surrounding circumstances as also the conduct of the parties. The courts also readily apply the doctrine of waiver in favour of the insured and against the insurer. Whether a change of risk was so great as to avoid an insurance must always be a question of degree and a question of the opinion of the court in the circumstances of the case.” 12. It is apparent from the discussion made in the impugned judgment that the appellant has taken a specific defence that licence produced by the driver Bramhdeo Yadav was examined by him and driving test was also taken before handing over the vehicle to said driver and therefore, the precaution which is expected from owner of the vehicle was duly taken. Not only that Bramhdeo Yadav (driver of the offending vehicle) did not escape from his part of obligation and he boldly appeared before the Tribunal and adduced evidence as D.W. 1 and also produced licence challenging it to be valid. This part of aforesaid plea and conduct of the appellants finds full support from the judgment cited above. 13. In view of the discussions made above and also relying on the judgment cited, the finding of the Tribunal that the appellant is liable to pay compensation amount stands set aside and it is held that the compensation amount awarded by the Tribunal shall be paid by the respondent-Insurance Company within sixty (60) days from the date of this order, failing which the interest as indicated in the impugned judgment shall also liable to be paid by the respondent-Insurance Company. 14. This appeal stands allowed.