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Madhya Pradesh High Court · body

2018 DIGILAW 342 (MP)

Kastoori Bai (Smt. ) v. Jawahar Singh

2018-03-21

VIVEK AGARWAL

body2018
ORDER 1. This Misc. Appeal has been filed by the appellants/claimants under section 173 of the Motor Vehicles Act being aggrieved by award dated 1.3.2012 passed by the Court of 14th Additional Motor Accident Claims Tribunal, Gwalior, in Claim Case No. 26/2012. 2. Learned counsel for the appellants has pressed for two issues; One that in the light of the law laid down by Hon'ble Supreme Court in Case of National Insurance Company Ltd. v. Pranay Sethi and Others as reported in 2017 MACD 137, claimants are entitled to a further sum of Rs. 58,000/- under miscellaneous heads of loss of consortium, love and affection, pain and agony etc. inasmuch as the law laid down in case of Pranay Sethi (supra), has fixed the quantum of said claim at Rs. 70,000/- cumulatively against which the appellants have been awarded only a sum of Rs. 12,000/-. 3. As there is no quarrel about aforesaid proposition, this deserves to be accepted and is accepted and is directed that the claim amount shall stand enhanced by a sum of Rs. 58,000/- and will attract the same rate of interest as has been awarded by the Claims Tribunal i.e. 6% per annum from the date of filing of the claim petition i.e. 17.8.2010. 4. Appellants' second contention is that the Claims Tribunal has exonerated the insurance company and has held respondent No. 1 and 2 to be responsible for satisfaction of the claim. It is submitted that law has been crystallized in the case of Kempaiah and others v. S.S. Murthy and another as reported in 2017 AIR (SCW) 1822 wherein it has been held that in case there is breach of policy condition e.g. disqualification of driver or invalid driving licence of the driver, as contained in sub-section (2)(a)(ii) of section 149, has to be proved to have been committed by the insured, then they are not in themselves defences available to the insurer against either the insured or the third parties. To avoid its liability towards the 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 vehicle by a duly licenced driver or one who was not disqualified to drive at the relevant time. To avoid its liability towards the 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 vehicle by a duly licenced driver or one who was not disqualified to drive at the relevant time. It has therefore held that the ratio in case of National Insurance Company Ltd. v. Swaran Singh, as reported in AIR 2004 SC 1531 , will be applicable and insurance company was directed to satisfy the award as enhanced by the Hon'ble Supreme Court and thereafter was set at liberty to recover the said amount from the owner of the vehicle. 5. Learned counsel for the insurance company on the other hand submits that in the case of Kempaiah (supra), the driver of the offending vehicle was not having regular licence but in the present case evidence has come on record to show that the driver of the offending vehicle was not having any licence at all, and therefore, the ratio of Kampaiya (supra), will not applicable. 6. He has placed reliance on the judgment of this High Court in case of Droadibai v. Shri Ratiram as, reported in MACD 2009 (2)(MP) 523, wherein it has been held that once the driver of the offending vehicle did not have any driving licence indisputedly, when accident took place, therefore, the insurance company cannot be held liable for payment of compensation. Findings of the Tribunal on the point of liability of owner and on exoneration of the insurance company is liable to be up-held. 7. The issue which is to be delve into is whether in the light of the judgment rendered by Hon'ble Supreme Court in case of Kampaiya (supra), liability can be shifted from the owner of the vehicle to the insurance company to satisfy the award and thereafter recover the same from the owner of the offending vehicle. 8. Facts of the case of Kempaiah (supra), are that the driver of the lorry (heavy transport vehicle) was having licence to drive non-transport vehicle and was not having valid licence to drive transport vehicle on 10.9.2008, the date of the accident. 8. Facts of the case of Kempaiah (supra), are that the driver of the lorry (heavy transport vehicle) was having licence to drive non-transport vehicle and was not having valid licence to drive transport vehicle on 10.9.2008, the date of the accident. His licence to drive transport vehicle expired on 26.9.2007 and same was renewed on 23.9.2008, therefore, placing reliance on the judgment of Hon'ble Supreme Court in case of Swaran Singh (supra), the Hon'ble Supreme Court observed that disqualification of the driver or invalid driving licence of the driver will make the insurance company liable to satisfy the award and recover it from the owner of the vehicle but in the present case no licence was produced by the driver of the offending vehicle and even owner of the offending vehicle had not appeared in the witness box to show that the driver of the offending vehicle was having some licence, which he had seen and had reason to believe that the driver of the offending vehicle was having licence, therefore, he permitted him to drive the vehicle. In the present case, therefore, ratio of the judgment of case of Dropadibai (supra), is more appropriately applicable inasmuch as once the driver of the vehicle did not have any driving licence when the accident took place, it cannot be said that insurance company was liable for payment of compensation and recover it from the owner of the vehicle. Thus, the findings of the Tribunal on the issue of liability of the owner and exoneration of the insurance company does not call for any interference. 9. Learned counsel for the respondent has placed reliance on the judgment of Hon'ble Supreme Court in case of Pappu and others v. Vinod Kumar Lamba and another as, reported in 2018(1) T.A.C 360 (S.C.) wherein it has been held that question as to whether the owner has taken reasonable care to find out as to whether the driving licence produced by the driver, (a fake one or otherwise), does not fulfil the requirements of law or not will have to be determined in each case. 10. In present case, there is no written statement on behalf of respondents No. 1 and 2 i.e. driver and owner of the offending vehicle. 10. In present case, there is no written statement on behalf of respondents No. 1 and 2 i.e. driver and owner of the offending vehicle. On this ground alone, the law laid down in case of Pappu (supra), is distinguishable inasmuch as in that case owner of offending vehicle DIL-5955 had produced driving licence of one Joginder Singh, which was not believed by the Claims Tribunal and the High Court. Thus, the ratio of the judgment of the Hon'ble Supreme Court is that where the owner has been diligent in exercising caution about availability of driving licence and was not sure as to the genuineness or otherwise of the driving licence and had no means to verify its genuineness, then in such case order of pay and recover can be passed, but where no effort has been made by the owner to ascertain and exert about verification of the availability of driving licence, ratio of the case of Swaran Singh (supra), Kampaiya (supra) and Pappu (supra) will not be attracted. 11. Thus, this appeal is allowed only in part to the extent of enhancement in compensation but it fails to shift the liability on the insurance company to pay and recover the amount of award. Appeal is disposed of in above terms.