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2015 DIGILAW 546 (CAL)

Naren Roy v. National Insurance Company Ltd.

2015-07-03

MIR DARA SHEKO, SOUMITRA PAL

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JUDGMENT : Mir Dara Sheko, J. The appeal has been preferred by the appellants, that is, the claimants challenging the award passed by the learned Additional Judge, Motor Accident Claims Tribunal, 3rd Court Jalpaiguri in M.A.C. 379 of 2004 on 27.06.2008 on the grounds that the compensation of Rs. 1,55,000/- granted on account of the death of Bisadu Roy, the minor son of the claimants is inadequate, and injustice has been caused as liability has been cast on respondent No. 2 i.e. the owner of the offending vehicle, instead of the insurer respondent No. 1 i.e. the National Insurance Company Ltd. as the appellants/ claimants could not prove that the driver of the offending vehicle had a valid driving licence. 2. Mr. Banik, learned Advocate for the appellants submitted since the insurance company, except submitting an extract of the driving licence of the driver, did neither examine the driver nor the owner, nor anybody on behalf of the authority issuing the licence, the Tribunal committed miscarriage of justice in making the owner of the offending vehicle liable to make payment of the award money instead of the insurance company. It was submitted that the Tribunal should have directed the insurance company to satisfy the award with liberty to realise the amount from the insured, that is, the owner of the vehicle. Mr. Banik had relied upon the following judgments:- (i) Sri Sambhunath Das v. The Oriental Insurance Company Limited, Sri Gopal Ghosh and Smt. Purnima Ghosh decided by this High Court on 18.01.2013, (ii) Rukmani & Ors. v. New India Assurance Company Limited & Ors., reported in 1999 A.C.J. 171, (iii) Suresh Mohan Choprav. Lakhi Probhu Dayal & Ors., reported in 1991 (Vol.-I) ACJ 99 (iv) National Insurance Company v. Swaran Singh & Ors., reported in 2004 (1) T.A.C. 321 (Supreme Court), (v) National Insurance Company Limited v. Challa Bharathamma & Ors., reported in 2004 ACJ 2094 (vi) New India Assurance Company Shimla v. Kamla & Ors. with New India Assurance Company Shimla v. Kanku & Ors., with New India Assurance Company Shimla v. Sheela Devi & Ors., reported in (2001) 4 SCC 342 . 3. Mr. with New India Assurance Company Shimla v. Kanku & Ors., with New India Assurance Company Shimla v. Sheela Devi & Ors., reported in (2001) 4 SCC 342 . 3. Mr. M. P. Chakraborty, learned Advocate appearing on behalf of the respondent No. 1, National Insurance Company Ltd. relying on Section 149(2) of the Motor Vehicles Act 1988 and on the judgment in Shanti Hazra v. New India Insurance Company Limited & Another, 2015 (2) TAC 198 (Calcutta) submitted that as the driver of the vehicle was not having valid licence there was no obligation on the part of the insurer to pay the awarded sum. 4. It is pertinent to mention that the respondent No. 1 National Insurance Company Limited contested the claim case and the appeal as well, whereas, the owner of the offending vehicle did not contest the claim petition. It appears from the record that notice on the respondent No. 2 has been returned un-served with the report of Najir of the District Judge's Court, Jalpaiguri dated 02.09.2010. We also find from record that on the prayer of the appellants/claimants, service of notice upon said respondent No. 2, the owner of the vehicle, was dispensed with. 5. Section 149 of the Motor Vehicles Act, 1988 has clearly defined the duty of the insurer to satisfy the judgment and award against a person insured in respect of 3rd party risk. However, sub-section 2(a) (ii) of the Act provides that where there has been a breach of conditions of the policy, no sum shall be payable by the insurer under sub-section (1) in respect of any award. 6. In the case on hand we find that the driving licence of the driver, who was allowed by respondent No. 2, the owner of the offending vehicle to ply the vehicle on the impugned date, was valid from 4lh March, 2004 to 4th April, 2004. The road accident took place on 8th April, 2004 i.e. after four days of expiry of the said driving licence. There is nothing on record that the said driving licence was renewed beyond 4lh April, 2004. The road accident took place on 8th April, 2004 i.e. after four days of expiry of the said driving licence. There is nothing on record that the said driving licence was renewed beyond 4lh April, 2004. Therefore, fact remains that on the date of accident, the driver of the offending vehicle was not possessing valid licence and thereby the insurance company is protected under the statute from making payment of award due to violation of terms of the policy by the insured, meaning thereby, it is the owner, that is the respondent No. 2, who is responsible to satisfy liability, if any, under the award. 7. It is obvious that the Motor Vehicles Act, 1988 has been legislated for the benefit and welfare of the victims in a road traffic accident by awarding compensation through insurance company in respect of a vehicle insured where it is covered under an insurance policy with certain conditions as contained in the policy. However, under Section 149 it should be noted that there should be no breach of such conditions. 8. In the case of Suresh Mohan Chopra v. Lakhi Prabhu Dayal & Ors. (supra) the offending driver was produced as a witness by, the Insurance Company but though he claimed of having driving licence on the date of accident but did not produce the same as the driver stated that it was destroyed after its expiry. The Hon'ble Apex Court was pleased to hold that the burden of proof in the matter of having no driving licence was with the driver. The said fact is not identical to the fact of the case in-hand. In the case of Rukmani & Ors. v. New India Assurance Company Limited & Ors. (supra) it was evident that despite of demand by the Investigating Police Officer the driving licence was not produced and the Police Officer was examined. Said Investigating Police Officer in cross-examination admitted that it was the inspector of Motor Vehicles who was supposed to check whether there was licence of the offending driver was valid or not. However he did not collect any report from the Motor Vehicles Inspector. Upon such evidence on record the Hon'ble Supreme Court was pleased to hold that the evidence was not sufficient to discharge the burden cast upon the Insurance Company that the offending driver had no valid licence on the date of accident. However he did not collect any report from the Motor Vehicles Inspector. Upon such evidence on record the Hon'ble Supreme Court was pleased to hold that the evidence was not sufficient to discharge the burden cast upon the Insurance Company that the offending driver had no valid licence on the date of accident. But in the case in hand it is evident that on the date of accident that is 08.04.2004, the driving licence was invalid. The Judgment in National Insurance Company Limited v. Challa Bharathamma & Ors. (supra) deals with a case where the vehicle was plying without permit and thus not applicable. 9. The judgment in Sheela Devi (supra) is inapplicable as therein the insured had made due enquiry and he was made to believe that the driver employed by him had a valid driving licence and in that fact the Apex Court was pleased to observe that there was no breach of the policy condition, and in such circumstances direction was issued to the Insurer to satisfy award money with liberty to recover the amount from the insured. In ine case in hand there is no evidence that such enquiry was conducted. 10. Therefore, in view of the submission advanced by Mr. M.P. Chakraborty, learned Advocate for respondent No. 1, as we find that the decision in Santi Hazra (supra) was delivered taking note of the judgments in National Insurance Company Limited v. Swaran Singh & Ors., (supra) and in United National Insurance Company Limited v. Lehru & Ors. (supra) and as it has been held that in the absence of valid driving licence on the date of accident the Insurance Company cannot be made liable to pay compensation by giving direction to the Insurance Company to recover the amount by initiating another proceeding against the owner of the offending vehicle, so, we hold that the respondent No. 2, owner of the offending vehicle and not the insurance company respondent No. 1, is liable to pay the award money determined by the Tribunal, against which Mr. Banik had no grievance during argument. 11. Therefore, the appeal is dismissed and award passed by learned Motor Accident Claims Tribunal, 3rd Court Jalpaiguri in M.A.C 379 of 2004 on 27.06.2008 is upheld with modification in respect of the interest on the awarded sum. The appellants/claimants do get award of Rs. Banik had no grievance during argument. 11. Therefore, the appeal is dismissed and award passed by learned Motor Accident Claims Tribunal, 3rd Court Jalpaiguri in M.A.C 379 of 2004 on 27.06.2008 is upheld with modification in respect of the interest on the awarded sum. The appellants/claimants do get award of Rs. 1,55,000/- only against the respondent No. 2, the owner of the vehicle, who shall pay the same with interest @ of 6% p.a. with effect from the date of filing of the claim case in equal shares in favour of appellant Nos. 1 & 2 on proper receipt and identification within eight weeks from the date of order, failing which the appellants are at liberty to realise the said award money in accordance with law. 12. Before we part with the judgment it is made clear that the appeal vis-a-vis claim for compensation award against the respondent No.I, the National Insurance Company Limited, is not maintainable and hence is dismissed. 13. The CAN application is thus disposed of. The respondent No. 1 the National Insurance Company is at liberty to withdraw the amount, if deposited in High Court, along with the accrued interest thereupon and if an application to that effect is filed, the Registrar General is directed to refund the sum on proper receipt and identification. 14. No order as to costs. 15. Let the lower Court records, if brought, be sent down immediately. Let a copy of this judgment be sent to the Tribunal for information. Pal, J. :- I agree.