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Himachal Pradesh High Court · body

2016 DIGILAW 1029 (HP)

Lalit Kumar v. Sanjiv Kumar

2016-06-03

MANSOOR AHMAD MIR

body2016
JUDGMENT : Mansoor Ahmad Mir, Chief Justice (Oral) Both these appeals are taken up together for final disposal as the same arise out of common award, dated 6th August, 2010, passed by the Motor Accident Claims Tribunal, Bilaspur, H.P., (for short, the Tribunal), in Claim Petition No.66 of 2007, titled Anju Koundal and others vs. Lalit Kumar and others, whereby compensation to the tune of Rs.9,16,000/-, with interest at the rate of 7.5% per annum, from the date of filing of the claim petition till the amount is deposit, came to be awarded in favour of the claimants, being widow and sons, and proforma respondent No.4, being mother of the deceased, and the insurer was saddled with the liability, with right of recovery from the owner and the driver, (for short, the impugned award). 2. Since both the appeals arise out of the common award, therefore, the same are taken up together and are being disposed of by this common judgment. Brief facts: 3. Claimants invoked the jurisdiction of the Tribunal under Section 166 of the Motor Vehicles Act, 1988 (for short, the Act) for grant of compensation to the tune of Rs.25.00 lacs, as per the break-ups given in the claim petition, on account of death of Nand Lal Koundal in vehicular accident, which was, allegedly, caused by the driver, namely, Sanjeev Kumar, while driving truck bearing No.HP-24-4853, on 29th May, 2007, at about 12.00 A.M. near village Lakhanpur on NH-21 in Bilaspur District. It was alleged that the deceased, who was traveling on the scooter, was hit by the offending truck, being driven by its driver, as a result of which he sustained injuries and lateron succumbed to the same. In regard to the accident, FIR bearing No.159 of 2007, dated 29th May, 2007, under Sections 279 and 304-A of the Indian Penal Code was registered at Police Station, Sadar, District Bilaspur, H.P. The claimants, being the widow and the sons of the deceased filed the claim petition and the mother of the deceased was impleaded as proforma respondent No.4 in the claim petition. 4. Respondents resisted the claim petition by filing replies. On the pleadings of the parties, the following issues were settled by the Tribunal: “1. 4. Respondents resisted the claim petition by filing replies. On the pleadings of the parties, the following issues were settled by the Tribunal: “1. Whether late Shri Nand Lal Koundal had died on account of injuries sustained by him on 29.5.2007 at about 12 A.M. near Lakhanpur, District Bilaspur due to rash and negligent driving of truck No.HP-24-4853 being driven by respondent No.2, as alleged? OPP 2. If issue No.1 is proved in affirmative, to what amount of compensation, the petitioners are entitled to and from whom? OPP 3. Whether the driver of the offending truck was not possessed of a valid and effective driving licence at the relevant time? OPR-3 4. Whether the offending ruck was being plied without valid documents in contravention of the provisions of Motor Vehicles Act? OPR-3 5. Whether the accident took place due to the contributory negligence of the deceased and also that of respondent No.2? OPR-3 6. Whether this petition is bad for non-joinder of necessary parties? OPR-3 7. Relief.” 5. Claimants to prove their case have examined PW-1 Dr.S.K. Patial, PW-2 HHC Nand Lal, PW-3 Rajesh Jamwal, PW-4 Anju Kaundal (claimant No.1) and PW-5 Shami Kumar. On the other hand, the driver of the offending truck stepped into the witness box as RW-1 and the owner examined one Vinod Kumar as RW-2. The insurer has not examined any witness. 6. The Tribunal, on scanning the evidence led by the parties, held that the driver of the offending vehicle, namely, Sanjeev Kumar, had driven the offending vehicle rashly and negligently on the fateful day and had caused the accident. Since the licence of the driver of the offending truck was not renewed within the prescribed time, therefore, it was held that the driver was not having a valid and effective driving licence and accordingly, the insured came to be saddled with the liability. 7. Feeling aggrieved, the owner has questioned the impugned award on the ground that the Tribunal has wrongly saddled him with the liability, while the claimants have questioned the same on the ground that the compensation awarded by the Tribunal is on the lower side. 8. Thus, in FAO No.475 of 2010, filed by the owner, the question needs to be determined is - Whether the Tribunal has rightly directed the insured to satisfy the award? 9. 8. Thus, in FAO No.475 of 2010, filed by the owner, the question needs to be determined is - Whether the Tribunal has rightly directed the insured to satisfy the award? 9. Before answering the above question, I may place on record that the findings returned by the Tribunal on issue No.1 qua rash and negligent driving of the driver are not in dispute. However, I have gone through the impugned award and the record of the case. The claimants have proved that the accident was the outcome of rash and negligent driving of the driver Sanjeev Kumar in which the deceased lost his life. Therefore, the findings returned by the Tribunal on issue No.1 are upheld. 10. Before issue No.2 is taken up for adjudication, I deem it proper to determine issues No.3, 4, 5 and 6, at the first instance. It was for the insurer to plead and prove that the driver of the offending truck was not having a valid and effective driving licence and thus, was in breach. The insurer has not examined any witness to prove the said factum, therefore, has failed to discharge the onus. The Tribunal has decided issue No.3 in favour of the insurer and against the insured and the driver, which is not legally correct. 11. It is beaten law of the land that in order to prove breach on the part of the insured, the insurer has to plead and prove that the owner/insured committed willful breach. The Apex Court in the case of National Insurance Co. Ltd. versus Swaran Singh & others, reported in AIR 2004 Supreme Court 1531, has taken the similar view. It is apt to reproduce relevant portion of para 105 of the judgment hereinbelow: “105. ..................... (i) ......................... (ii) ........................ (iii) The breach of policy condition e.g. disqualification of driver or invalid driving licence of the driver, as contained in subsection (2) (a) (ii) of Section 149, have to be proved to have been committed by the insured for avoiding liability by the insurer. Mere absence, fake or invalid driving licence or disqualification of the driver for driving at the relevant time, are not in themselves defences available to the insurer against either the insured or the third parties. Mere absence, fake or invalid driving licence or disqualification of the driver for driving at the relevant time, are not in themselves defences available to the insurer against either the insured or the third parties. To avoid its liability towards 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 duly licensed driver or one who was not disqualified to drive at the relevant time. (iv) The insurance companies are, however, with a view to avoid their liability, must not only establish the available defences raised in the said proceedings: but must also establish 'breach' on the part of the owner of the vehicle; the burden of proof wherefore would be on them. (v)......................... (vi) 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.” 12. The Apex Court in Pepsu Road Transport Corporation versus National Insurance Company, reported in (2013) 10 Supreme Court Cases 217 has again reiterated the same position. It is apt to reproduce paragraph 10 of the said decision hereunder: “10. In a claim for compensation, it is certainly open to the insurer under Section 149(2)(a)(ii) to take a defence that the driver of the vehicle involved in the accident was not duly licensed. Once such a defence is taken, the onus is on the insurer. But even after it is proved that the licence possessed by the driver was a fake one, whether there is liability on the insurer is the moot question. As far as the owner of the vehicle is concerned, when he hires a driver, he has to check whether the driver has a valid driving licence. But even after it is proved that the licence possessed by the driver was a fake one, whether there is liability on the insurer is the moot question. As far as the owner of the vehicle is concerned, when he hires a driver, he has to check whether the driver has a valid driving licence. Thereafter he has to satisfy himself as to the competence of the driver. If satisfied in that regard also, it can be said that the owner had taken reasonable care in employing a person who is qualified and competent to drive the vehicle. The owner cannot be expected to go beyond that, to the extent of verifying the genuineness of the driving licence with the licensing authority before hiring the services of the driver. However, the situation would be different if at the time of insurance of the vehicle or thereafter the insurance company requires the owner of the vehicle to have the licence duly verified from the licensing authority or if the attention of the owner of the vehicle is otherwise invited to the allegation that the licence issued to the driver employed by him is a fake one and yet the owner does not take appropriate action for verification of the matter regarding the genuineness of the licence from the licensing authority. That is what is explained in Swaran Singh case. If despite such information with the owner that the licence possessed by his driver is fake, no action is taken by the insured for appropriate verification, then the insured will be at fault and, in such circumstances, the Insurance Company is not liable for the compensation.” 13. In the instant case, the insurer has not examined any witness in order to come to the conclusion that the insured had committed any willful breach. 14. The driver of the offending truck had applied for renewal of the driving licence on 7th May, 2007, which had expired on 16th April, 2007. 15. Section 15 of the Act deals with the renewal of driving licences, which mandates that a driver is supposed to apply for the renewal of the licence within one month of its expiry. It is apt to reproduce Sub Section (1) of Section 15 of the Act hereunder: “15. Renewal of driving licences. 15. Section 15 of the Act deals with the renewal of driving licences, which mandates that a driver is supposed to apply for the renewal of the licence within one month of its expiry. It is apt to reproduce Sub Section (1) of Section 15 of the Act hereunder: “15. Renewal of driving licences. – (1) Any licensing authority may, on application made to it, renew a driving licence issued under the provisions of this Act with effect from the date of its expiry; Provided that in any case where the application for the renewal of a licence is made more than thirty days after the date of its expiry, the driving licence shall be renewed with effect from the date of its renewal: Provided further that where the application is for the renewal of a licence to drive a transport vehicle or where in any other case the applicant has attained the age of forty years, the same shall be accompanied by a medical certificate in the same form and in the same manner as is referred to in subsection (3) of section 8, and the provisions of subsection (4) of section 8 shall, so far as may be, apply in relation to every such case as they apply in relation to a learner's licence.” 16. It is not the mandate of Section 15 of the Act that in case the application is incomplete, that cannot be termed as application within time. 17. RW-2 Vinod Kumar, Clerk from the office of Registering and Licencing Authority, Bilaspur, stated that the driver had applied for renewal of his licence on 7th May, 2007, which was sent for verification to the Registering and Licencing Authority, Sunder Nagar and after the receipt of the verification, the licence was renewed on 30th May, 2007. 18. The Tribunal has recorded in paragraph 28 that RW-2 Vinod Kumar had stated that on receiving the application of the driver Sanjiv Kumar for renewal of his licence, the same was sent for verification to Sunder Nagar, for which reason the licence was not renewed. However, in paragraph 29 of the impugned award, the Tribunal has concluded that due to the non-deposit of fees by the driver Sanjiv Kumar, the licence was not renewed. It is apt to reproduce paragraphs 28 and 29 of the impugned award hereunder: “28. However, in paragraph 29 of the impugned award, the Tribunal has concluded that due to the non-deposit of fees by the driver Sanjiv Kumar, the licence was not renewed. It is apt to reproduce paragraphs 28 and 29 of the impugned award hereunder: “28. The respondents No.1 and 2 have also examined Vinod Kumar (RW-2) Clerk, Registering and Licencing Authority, Bilaspur, who has stated that Sanjiv Kumar, driver has applied for renewal of his licence on 7.5.2007 alongwith his driving licence which licence was sent for verification to R&LA, Sunder Nagar as it was earlier renewed from there and after receipt of renewal certificate, the driving licence was renewed w.e.f. 30.5.2007 and he has proved the copy of renewal application Ext.RW-2/A and the renewal certificate Ext.RW-2/B issued by the R&LA, Sunder Nagar. The learned counsel for respondents No.1 and 2 has submitted that since the respondent No.2 has applied for renewal of his licence within 30 days i.e. on 7.5.2007 from the date of expiry of his licence which expired on 16.4.2007, the licence shall be deemed to have been renewed from the date of expiry in view of the provision of Section 15 of the Motor Vehicles Act and as such, the respondent No.2 was holding a valid and effective driving licence on the date of accident. 29. No doubt, on the basis of statement of respondent No.2 (RW-1) and Vinod Kumar (RW-2 as well as on perusal of Ext.RW-2/A which is the copy of application for renewal of the licence moved by respondent No.2 to R&LA Bilsapur, it is clear that such application has been received by R&LA, Bilaspur on 7.5.2007, but it is also clear on perusal of the said application that though the respondent No.2 has enclosed medical certificate and copies of his photos with such application, but no fees has been deposited by respondent No.2 at the time of moving of such application. It is in the cross-examination of RW-2 that the respondent No.2 has deposited the fees on 30.5.2007 and as such licence was renewed w.e.f. 30.5.2007 by the R&LA. It is in the cross-examination of RW-2 that the respondent No.2 has deposited the fees on 30.5.2007 and as such licence was renewed w.e.f. 30.5.2007 by the R&LA. The respondent No.3 has also placed on record Ext.R-4 copy of counter cash book of R&LA, Bilaspur, on perusal of which it is established that respondent No.2 has deposited the fees for renewal of licence on 30.5.2007 after the expiry of 30 days from the expiry of his earlier licence and as such penalty of Rs.50/- was also imposed upon the respondent No.2 by R&LA, Bilaspur. Such evidence on record therefore, shows that the respondent No.2 has not applied properly for renewal of his licence within a period of 30 days after the expiry of his licence and as such the licence was renewed by the R&LA not from the date of expiry of the licence, but from the date of renewal i.e. 30.5.2007. It is to be noted that as per Section 15 of the Motor Vehicles Act, the licence remains effective for a period of 30 days after its expiry and in case where renewal of a licence is applied more than 30 days after the date of its expiry, the driving licence shall be renewed from the date of its renewal.” 19. While reaching at the above conclusion, the Tribunal has lost sight of the fact that it is the duty of the Authority concerned to renew the licence within time. In the instant case, the driver applied for renewal on 7th May, 2007, i.e. well within time prescribed under the Act, but the licence was not renewed for the reason that it was sent for verification, as stated by RW-2 Vinod Kumar. In case the application for renewal was not complete and was not accompanied with the requisite fee, it was the duty of the Authority concerned to reject the application and inform the applicant accordingly, which has not been done in the instant case. Thus, the delay in renewing the licence is not on the part of the driver, but is attributable to the Authority concerned. 21. Section 146 of the Act mandates that the owner of a vehicle is under statutory obligation to get the vehicle insured, the aim and object of which is to protect third party interest. 22. Thus, the delay in renewing the licence is not on the part of the driver, but is attributable to the Authority concerned. 21. Section 146 of the Act mandates that the owner of a vehicle is under statutory obligation to get the vehicle insured, the aim and object of which is to protect third party interest. 22. Having glance of the above discussion, it is held that the Tribunal has wrongly saddled the owner with the liability. Accordingly, the appeal filed by the owner is allowed and the insurer is saddled with the liability. 23. Now coming to FAO No.31 of 2011, which has been filed by the claimants for enhancement, wherein the question to be determined is - Whether the amount awarded by the Tribunal is inadequate? 24. The claimants pleaded in the claim petition that the deceased was a business man and was running Agency of Bajaj Allianz Insurance Company. In addition, the deceased was also having agricultural income. The Tribunal, after referring to the oral as well as documentary evidence led by the claimants in this regard, has rightly held that the deceased was earning Rs.96,000/- per annum. The number of dependants, including the mother of the deceased, was four. The Tribunal fell into error in deducting 1/3rd from the income of the deceased towards his personal expenses, rather, keeping in view the dictum of the Apex Court in Sarla Verma (Smt.) and others vs. Delhi Transport Corporation and another, (2009) 6 SCC 121 , which decision was also upheld by the larger Bench of the Apex Court in Reshma Kumari and others vs. Madan Mohan and another, 2013 AIR (SCW) 3120, 1/4th was to be deducted towards his personal expenses. Accordingly, after deducing 1/4th amount from the annual income of the deceased, the claimants can be said to have lost source of dependency to the tune of Rs.72,000/-. 25. Admittedly, the deceased was 43 years of age at the time. In view of the mandate of 2nd Schedule attached to the Act and the dictum of the Apex Court in Sarla Verma’s case Supra, the Tribunal has rightly applied the multiplier of 14. 26. In view of the above discussion, the claimants are held entitled to Rs.72,000/- x 14 = Rs.10,08,000/- under the head loss of source of dependency. 27. In view of the mandate of 2nd Schedule attached to the Act and the dictum of the Apex Court in Sarla Verma’s case Supra, the Tribunal has rightly applied the multiplier of 14. 26. In view of the above discussion, the claimants are held entitled to Rs.72,000/- x 14 = Rs.10,08,000/- under the head loss of source of dependency. 27. In addition to above, the claimants are also held entitled to Rs.10,000/- each (Rs.40,000/- in total), under the heads ‘loss of estate’, ‘loss of consortium’, ‘loss of love and affection’ and ‘funeral expenses’. 28. Accordingly, the appeal filed by the claimants is allowed and they are held entitled to compensation to the tune of Rs.10,08,000/- + Rs.40,000/- = Rs.10,48,000/-. 29. The impugned award is modified, as indicated above. The insurer is directed to deposit the entire amount, alongwith interest as awarded by the Tribunal, in the Registry of this Court within a period of eight weeks from today and on deposit, the Registry is directed to release the same in favour of the claimants through their respective bank accounts forthwith, strictly in terms of the conditions contained in the impugned award. The statutory amount deposited by the insured is awarded as cost in favour of the claimants. Both the appeals stand disposed of accordingly.