Zadingliana S/o Zamawia (L) v. Thakur Chand S/o Het Ram
2018-06-19
NELSON SAILO
body2018
DigiLaw.ai
JUDGMENT & ORDER : 1. Heard Mr. S. Pradhan, the learned counsel for the appellant and Mr. R. Lalnunpuia, the learned counsel for the respondent No. 2. None appears for the respondent No. 1 despite notice. 2. This is an appeal against the Judgment & Award dated 28.07.2017 passed in MACT Case No. 15/2015 whereby, the learned Motor Accident Claims Tribunal, Aizawl (the Tribunal) has awarded a sum of Rs. 9,70,000/- along with interest @9% per annum from the date of filing the claim petition i.e., 16.03.2015 to the claimant/appellant. 3. The appellant was also the claimant before the Tribunal and he filed an application under Section 166 of the Motor Vehicles Act, 1988 (MV Act) claiming compensation for the death of his son Sh. Lalfakzuala, who was aged 29 years due to a vehicular accident on 30.01.2015, while he was proceeding from West Phaileng to Dampa Rengpui in Mizoram. The appellant’s son was travelling in an Ashok Layland Truck bearing Registration No. HP35-2528 driven by one Gopal Singh. The accident happened when there was a sudden leakage of gas from the LPG gas cylinder kept inside the cabin of the Truck. The appellant’s son fearing explosion of the cylinder due to the leakage of gas jumped out of the Truck but he unfortunately tumbled on the road and was run over by the rear tyres of the Truck. He was taken to the Primary Health Centre in West Phaileng but he succumbed to his injuries on the same day. He was employed by one Sh. Lalbiakliana as a Driver and he was paid a monthly salary of 10,000/-. The Truck was ensured with the respondent No. 2 at the time of the accident and the Driver was holding a valid driving license. The learned Tribunal came to a finding that the accident occurred due to equal contributory negligence on the part of the deceased and the Driver of the Truck. The learned Tribunal also held that the Driver of the Truck was without a valid license and therefore, the respondent No. 1 who is the owner of the Truck was made liable to pay the awarded compensation, while the respondent No. 2 Insurance Company was completely exonerated from any liability. 4.
The learned Tribunal also held that the Driver of the Truck was without a valid license and therefore, the respondent No. 1 who is the owner of the Truck was made liable to pay the awarded compensation, while the respondent No. 2 Insurance Company was completely exonerated from any liability. 4. The respondent No. 1 as owner of the Truck involved did not contest the case whereas the respondent No. 2 Insurance Company contested the case by filing written statement contending inter alia that there was no cause of action against the Insurance Company and the deceased was guilty of contributory negligence in causing the accident. Furthermore, the deceased was an unauthorized gratuitous passenger travelling in the Truck without authority. Therefore, the Insurance Company did not have any liability to pay compensation to the appellant. 5. The learned Tribunal during the course of the claim proceeding framed 3 issues. They were:- (i) Whether the claim application is maintainable in the present form and style? (ii) Whether there was fault on the part of the driver or owner of the accident vehicle? (iii) Whether the claimant is entitled to get compensation and if so, who is liable to pay it and to what extent? 6. In support of his claim, the appellant examine 3 witnesses including himself, the case Investigating Officer and Sh. Lalbiakliana, the employer of the deceased and owner of the goods. The respondent No. 2 Insurance Company examined the Branch Manager as their only witness. The learned Tribunal thereafter, came to the conclusion and finding that the accident occurred due to the 50/50 negligence of the deceased and the driver of the Truck concerned and also held that the driver of the accident vehicle was without a valid driving license. The Insurance Company was completely exonerated from any liability while the respondent No. 1 was directed to deposit Rs. 9,70,000/- along with 9% interest per annum from the date of filing the claim before the Tribunal. 7. Appearing for the appellant, the learned counsel, Mr. S. Pradhan submits that the learned Tribunal fails to consider that the appellant had produced the driving license of the driver of the accident vehicle. It was not the case of the respondent No. 2 Insurance Company that the license was a fake license or that the license was not issued at all to the said driver.
S. Pradhan submits that the learned Tribunal fails to consider that the appellant had produced the driving license of the driver of the accident vehicle. It was not the case of the respondent No. 2 Insurance Company that the license was a fake license or that the license was not issued at all to the said driver. The respondent No. 2 Insurance Company did not lead any evidence for proving the fact that no license was issued to the said driver as per the record of the authority concerned. The survey made by the Surveyor of the respondent No. 2 and the notification annexed to the written statement of the respondent No. 2 only related to Smart Card License. Neither the Surveyor nor the authorities from the Transport Department concerned were examined as a witness by the respondent No. 2. The learned counsel submits that even assuming without admitting that the license was an invalid one, it was still the burden of the respondent No. 2 to establish through evidence that it was an invalid license or was a fake license and further, the owner of the Truck despite such knowledge knowingly allowed his vehicle to be driven by the driver concerned. Therefore, it was the liability of the respondent No. 2 to satisfy the award. 8. Mr. S. Pradhan further submits that assuming that the respondent No. 1 was rightly held to be liable to pay compensation by the learned Tribunal but even then, the respondent No. 2 would be required to satisfy the awarded amount first and then recover the same later from the respondent No. 1 in terms of the law laid down by the Apex Court. He further submits that the Notification dated 01.08.2014 issued by the Transport Commissioner, Government of Nagaland is without any authority of law and is not in tune with Section 19(1) of the MV Act. As per Section 19(1)(e) of the MV Act, a licensing authority is empowered to disqualify a person from holding a driving license or revoke the same. On being satisfied and after giving the holder of the driving license, an opportunity of being heard. However, as it was not even the case of the respondent No. 2 that the driving license was issued by fraud or misrepresentation, the respondent No. 2 would be liable to pay compensation amount that was awarded by the Tribunal.
On being satisfied and after giving the holder of the driving license, an opportunity of being heard. However, as it was not even the case of the respondent No. 2 that the driving license was issued by fraud or misrepresentation, the respondent No. 2 would be liable to pay compensation amount that was awarded by the Tribunal. The learned counsel also submits that in the given situation, the deceased was compelled to jump out of the Truck in order to avoid a greater harm. Therefore, even if the accident was held to be due to contributory negligence, the percentage of negligence by the deceased could not have been more than 30%. Therefore, under the circumstances, the Judgment & Award of the learned Tribunal should be interfered with by suitably modifying the same. 9. Appearing for the respondent No. 2 Insurance Company, Mr. R. Lalnunpuia, the learned counsel submits that the deceased was indeed guilty of contributory negligence in causing the accident and that he was travelling in the accident vehicle as an unauthorized and gratuitous passenger since the vehicle was a heavy goods vehicle which was not meant for carrying passengers. He further submits that there is no document to prove that the accident vehicle was hired by Sh. H. Lalbiakliana for carrying cement bags. There was neither a consignment note nor a delivery challan produced and exhibited before the Tribunal to prove that the Truck was indeed hired by him. From the documents annexed to the application of the respondent No. 2 before the Tribunal which was also exhibited, it is clear that the driving license of Mr. Gopal Singh submitted along with the claim petition was a fake license, inasmuch as, the Regional Transport Officer, Mokokchung, Nagaland after checking the Office records did not find the driving license to be in a Smart Card format. The public information issued on 01.08.2014 clearly stated that all the driving license in the booklet or manual format should be replaced on or before 01.12.2014 and after the given date, all the driving license except those in the Smart Card format would be treated as cancelled. Therefore, the license of the driver of the Truck concerned as produced by the appellant not being in the Smart Card format was only to be treated as an invalid license.
Therefore, the license of the driver of the Truck concerned as produced by the appellant not being in the Smart Card format was only to be treated as an invalid license. If such is the case, driving of the Truck concerned without a valid driving license would only made the owner of the Truck to be liable and not the Insurance Company. The learned counsel in support of his submission relies upon the following decisions:- (i) New India Assurance Co. Ltd Vs Phelishsa Bakai & Ors 2006 (1) GLT 282 (ii) Oriental Insurance Co. Ltd Vs. Meena Variyal & Ors (2007) 5 SCC 428 10. Mr. S. Pradhan, the learned counsel in support of his submission relies upon the following decisions:- (i) National Insurance Company Ltd Vs Swaran Singh & Ors (2004) 3 SCC 297 (ii) New India Assurance Company Ltd Vs Sitra Kyrsian & Ors 2011 (5) GLT 724 (iii) Pappuu & Ors Vs Vinod Kumar Lamba & Anr (2018) 3 SCC 208 (iv) Civil Appeal No. 3047/2017 Manuara Khatun & Ors Vs Rajesh Kumar Singh & Ors decided on 21.02.2017 (v) MAC Appeal No. 562/2009 Oriental Insurance Company Ltd Vs Arvind Kumar & Ors decided by the Delhi High Court on 06.08.2012. 11. I have heard the learned counsels for the rival parties and I have perused the materials available on record including the Lower Court Records requisitioned from the learned Tribunal. As can be seen the facts not in dispute is that the deceased was travelling in the Truck concerned on 30.01.2015, wherein upon finding that there was leakage of LPG gas kept in the cabin of the Truck fearing an explosion, he jumped out of the Truck and in such process, he was run over by the rear wheels of the Truck. The further undisputed fact is that the Truck was validly insured under the respondent No. 2 Insurance Company at the time of the accident. It was contended by the respondent No. 2 Insurance Company that they have no liability to compensate the appellant, inasmuch as, the driver of the Truck was not made a party respondent to the claim application and that the driving license in his name was an invalid driving license.
It was contended by the respondent No. 2 Insurance Company that they have no liability to compensate the appellant, inasmuch as, the driver of the Truck was not made a party respondent to the claim application and that the driving license in his name was an invalid driving license. The cause of the accident was due to contributory negligence from the part of the deceased and therefore, under such circumstances, the respondent No. 2 Insurance Company cannot be held liable to compensate the appellant. 12. In the light of the rival contentions, let us now examine the authorities relied upon by the parties. 13. In the case of Swaran Singh & Ors (Supra), the Apex Court has held that under the MV Act holding of a valid license is one of the conditions of the contract of Insurance. Driving of a vehicle without a valid license is an offence. Whereas in Section 3 of the MV Act, the words used are ‘effective license’, it has been differently worded in Section 149(2) i.e., ‘duly licensed’. If a person does not hold an effective license as on the date of the accident, he may be liable for prosecution in terms of Section 141 of the Act but Section 149 pertains to Insurance as regards third-party risks. A provision of a statute which is penal in nature vis-a-vis a provision which is beneficent to a third party must be interpreted differently. It is also well known that the expressions contained in different provisions are ordinarily construed differently. The words ‘effective license’ used in Section 3, therefore cannot be imported into Section 149(2) of the Act. Moreover, the words ‘duly licensed’ used in section 149(2) are used in the past tense. The Apex Court went on to observe that an accident may take place for a variety of reasons. The driver of a vehicle may not have a hand in it. He may not be found to be negligent in a given case. Other factors such as unforeseen situation, negligence of the victim, bad road or the action or inaction of any other person may lead to an accident. There may be a case where an accident takes place without there being fault on the part of the driver. In such an event, the question as to whether a driver was holding a valid license or not would become redundant. 14.
There may be a case where an accident takes place without there being fault on the part of the driver. In such an event, the question as to whether a driver was holding a valid license or not would become redundant. 14. In the case of Sitra Kyrsian & Ors (Supra), a co-ordinate Bench of this Court in respect of whom the burden of proof addressed on the question of the validity of the driving license at paragraph Nos. 6 and 7 of the said Judgment held as follows:- “6. On the question of whether the driver was holding a valid driving license at the time of accident, the Tribunal duly noted that neither the claimant nor the owner of the vehicle could produce the driving license and that the Investigating Officer of the case, who was examined as CW 2 had confirmed that he could not find the driving license of the driver at the place of accident. It, however, noted that the same claimant (Adding Kurbah), who was the helper/handyman of the truck, in his evidence deposed that he had seen the driving license of the deceased driver, but the license could not be traced out after the vehicular accident. This was reiterated by him in his cross-examination by stating that the deceased driver was holding a valid driving license and he had seen it with his own eyes. The Tribunal also noticed that the appellant-insurer did not care to cross-examine this witness on this point. The Tribunal also referred to the deposition of the owner of the truck, who examined himself as OPW 1, in which he had testified that the driver was employed by him two-three years before the accident and that before deploying him, he had taken his driving license and checked the same and found the same to be in order and that the license had always been kept with the driver; that he could not remember the number of the driving license nor the place of issue, which could be either from Nongpoh or Nonstoin. The Tribunal also took note of the case of the insurer that the burden of proving that the deceased had a driving license at the time of accident is upon the claimant and/or the owner of the truck and neither of them is able to discharge this burden.
The Tribunal also took note of the case of the insurer that the burden of proving that the deceased had a driving license at the time of accident is upon the claimant and/or the owner of the truck and neither of them is able to discharge this burden. However, the Tribunal was of the view that once the claimant-handyman as well as the owner of the truck categorically stated that they saw the driving license of the deceased driver before the accident, the ratio in Indrasani Devi Case (supra) cannot apply: that was a case where no such statement had been made by the witnesses. The Tribunal, therefore, held that the deceased driver was in possession of a valid driving license at the time of the accident. 7. What are the yardsticks to be applied for assessing evidence in a case of this nature are pointed out by the Apex Court in Kokilaben Chandravan Case (supra) when it observed that the exclusion clause in the contract of insurance has to be 'read down' in order that it is not in conflict with the 'main purpose' of the provisions enacted for the protection of victims of accidents so that the insured owner of the vehicle is exculpated when he does everything in his power to keep the promise that the vehicle will be driven by a licensed driver. It also observed at paragraph 14 of the judgment, which reads thus: 14. Section 96(2)(b)(ii) extends immunity to the Insurance Company if a breach is committed of the condition excluding driving by a named person or persons or by any person who is not fully licensed, or by any person who has been disqualified for holding or obtaining a driving license during the period of disqualification. The expression 'breach' is of great significance. The dictionary meaning of 'breach' is 'infringement or violation of a promise or obligation". It is therefore abundantly clear that the insurer will have to establish that the insured is guilty of an infringement or violation of a promise that a person who is duly licensed will have to be in charge of the vehicle. The very concept of infringement or violation of the promise that the expression 'breach' carries within itself induces an inference that the violation or infringement on the part of the promisor must be a wilful infringement or violation.
The very concept of infringement or violation of the promise that the expression 'breach' carries within itself induces an inference that the violation or infringement on the part of the promisor must be a wilful infringement or violation. If the insured is not at all at fault and has not done anything he should not have done or is not amiss in any respect how it can be conscientiously posited that he has committed a breach? It is only when the insured himself places the vehicle in charge of a person who does not hold a driving license, that it can be said that he is 'guilty' of the breach of the promise that the vehicle will be driven by a licensed driver. It must be established by the Insurance Company that the breach was on the part of the insured and that it was the insured who was guilty of violating the promise or infringement of the contract. Unless the insured is at fault and is guilty of a breach the insurer cannot escape from the obligations to indemnify the insured and successfully contend that he is exonerated having regard to the fact that the promisor (the insured) committed a breach of his promise. Not when some mishap occurs by some mischance. When the insured has done everything within his power inasmuch as he has engaged a licensed driver and has placed the vehicle in charge of a licensed driver, with the express or implied mandate to drive himself it cannot be said that the insured is guilty of any breach. And it is only in case of a breach or violation of the promise on the part of the insured that the insurer can hide under the umbrella of the exclusion clause. In a way the question is as to whether the promise made by the insured is an absolute promise or whether he is exculpated on the basis of some legal doctrine.......................It needs to be emphasised that it is not the contract of insurance, which is being interpreted. It is the statutory provision defining the conditions of exemption which is being interpreted. These must be interpreted in the spirit in which the same have been enacted accompanied by an anxiety to ensure that the protection is not nullified by the backward looking interpretation which serves to defeat the provision rather than to fulfil its life-aim.
It is the statutory provision defining the conditions of exemption which is being interpreted. These must be interpreted in the spirit in which the same have been enacted accompanied by an anxiety to ensure that the protection is not nullified by the backward looking interpretation which serves to defeat the provision rather than to fulfil its life-aim. To do otherwise would amount to nullifying the benevolent provision by reading it with non-benevolent eye and with a mind not tuned to the purpose and philosophy of the legislation without being informed of the true goals sought to be achieved. What the legislature has given, the Court cannot deprive of by way of an exercise in interpretation when the view which renders the provision potent is equally plausible as the one which renders the provision impotent. In fact it appears that the former view is more plausible apart from the fact that it is more desirable. When the option is between opting for a view which will relieve the distress and misery of the victims of accidents or their dependents on the one hand and the equally plausible view which will reduce the profitability of the insurer in regard to the occupational hazard undertaken by him by way of business activity, there is hardly any choice. The Court cannot but opt for the former view......... The findings recorded by the Tribunal are in consonance with the principles laid down in the paragraph extracted above, and the same need not be interfered with. The admitted position of the parties is that the deceased driver had been under the employment of the owner of the truck for over two years before the date of the accident. The owner of the truck, as a prudent owner, would not or could not have entrusted his vehicle at the hand of a driver who did not possess a valid driving license. In this context, the following summary of the findings of the Apex Court in National Insurance Co. Ltd. v. Swaran Singh MANU/SC/0021/2004MANU/SC/0021/2004 : (2004) 3 SCC 297 : 2004 (1) T.A.C. 321 at paragraph 110(iii) and (vi) of the judgment are relevant: (iii) The terms of policy condition e.g. disqualification of the driver or invalid driving license 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 for avoiding liability by the insurer.
Mere absence, fake or invalid license 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 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 vehicles by a duly licensed driver or one who was not disqualified to drive at the relevant time. (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 license 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 license is/are so fundamental as are found to have contributed to the cause of the accident. The Tribunal in 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.” 15. In the case of Pappuu & Ors (Supra), the Apex Court after dwelling upon the various decisions rendered by the Apex Court itself held that even in those cases, where the Insurance Company could effectively define itself from the liability of compensation, Court upon considering the facts and circumstances can direct the Insurance Company to satisfy the award and thereafter, recover the same from the owner. Accordingly, the said view was adopted by the Apex Court as well. The same ratio was adopted in the case of Manuara Khatun & Ors (Supra) by the Apex Court. 16. In the case of Arvind Kumar & Ors (Supra), the High Court of Delhi with regard to the question of proving of a public document took into account the decision rendered by the Bombay High Court in C.H. Shah Vs S.S Mal Pathak & Ors reported in AIR 1973 Bombay 14 to hold that the certificate purported issued by the Transport Authority could not be admitted into facts unless the signature thereon were proved by examining the witness.
The relevant portion of the case of C.H. Shah Vs S.S Mal Pathak & Ors (Supra) may be reproduced as below for ready reference:- “4...... In all cases of secondary evidence under Section 65 read with Section 63 of the Evidence Act when a copy or an oral account of a document is admitted as secondary evidence, the execution of the original is not required to be proved but if the original itself is sought to be tendered it must be duly proved and there is no reason for applying a different rule to public documents. Secondly, in the case of a certified copy, before a presumption of its genuineness can be raised under Section 79, as laid down by the Supreme Court in Bhinka’s case already referred to above it must be shown that the certified copy was executed substantially in the form and in the manner provided by law. There would, therefore, be a check or safeguard in so far as the officer certifying it in the manner required by law would have to satisfy himself in regard to the authenticity of the original and in regard to the accuracy of the copy which the certifies to be a true copy thereof. On the other hand if the original of a public document is to be admitted in evidence without proof of its genuineness, there would be no check whatever either by way of scrutiny or examination of that document by an officer or by the Court. The third and perhaps the most important reason, for not accepting Mr. Shah’s argument on the point which I am now considering is that neither Section 67 nor Section 68 of the Evidence Act which lay down that the signature and the handwriting on a document must be duly proved do not make any exception in the case of public documents. In view of the provisions of the said section all documents whatever be their nature must be therefore be proved in the manner provided by Section 45, 47 or 73 of the Evidence Act...... The only question which remains for consideration is whether a presumption of the genuineness of the original of a public document should be drawn by reason of Illustration (e) to Section 114 of the Evidence Act to the effect that official acts have been regularly performed.
The only question which remains for consideration is whether a presumption of the genuineness of the original of a public document should be drawn by reason of Illustration (e) to Section 114 of the Evidence Act to the effect that official acts have been regularly performed. It is no doubt true that it has been held by a Division Bench of this Court in the case of East India Trading Co. v. Badat & Co., AIR 1959 Bom. 414 that Section 114 of the Evidence Act is wide enough to permit the Court to raise a presumption not only with regard to oral evidence, but also with regard to documentary evidence. It may be mentioned that the decision of the Division Bench in the said case was reversed on appeal by the Supreme Court by a majority AIR 1964 SC 538 , but in the judgment of the majority the Supreme Court has not referred to the point mentioned above. Apart from the undesirability of taking a view which would let in any and every document tendered by Government in suits to which it is a party without proof of genuineness, in my opinion, no presumption under Section 114 can be drawn in view of the mandatory and unqualified term of Section 67 and 68 of the Evidence Act. Section 114 which to put it in popular language, merely empowers the Court to use its commonsense, cannot be used to contravene an express provision of the Act itself. I, therefore, hold that if the original of a public document is sought to be tendered in evidence, it must be proved in the manner required by law.....” 17. Now coming to the case of Meena Variyal & Ors (Supra), the Apex Court held that a claim for compensation under the MV Act would be in furtherance of the intent of the MV Act which is considered to be a beneficial legislation but however, in adjudicating the claim, the Tribunal cannot forget the basic principles of law to establish liability and the quantum of compensation payable. Therefore, the driver of the vehicle involved especially in a claim under Section 166 would be required. It may however be noticed that the facts circumstances in the present case is clearly distinguishable to the fact situation in Meena Variyal & Ors (Supra).
Therefore, the driver of the vehicle involved especially in a claim under Section 166 would be required. It may however be noticed that the facts circumstances in the present case is clearly distinguishable to the fact situation in Meena Variyal & Ors (Supra). The controversy raised in the present case is with regard to the validity of the driving license of the driver concerned since it was not in the Smart Card format. However, in Meena Variyal & Ors (Supra), the controversy was as to whether it was the deceased or the alleged driver who actually protect the accident vehicle. The facts situation not being similar, the ratio laid down in Meena Variyal & Ors (Supra) appears to be not relevant in the present case. 18. In the case of Phelishsa Bakai & Ors (Supra), a co-ordinate Bench of this Court upon appreciating the various decisions of the Apex Court held that keeping in view the provisions of the MV Act ‘any person’ as used in Section 147 of the MV Act would not include passengers in the goods vehicle but would rather confine to the legislative intent to provide for third party. The expression ‘third party’ does not include the passengers inside the vehicle. 19. Upon considering the facts and circumstances and the evidences led by the parties in its entirety, what can be noticed is that the invalidity of the driving license of the driver of the Truck cannot be said to have been established so as to hold that the Truck was driven by a person without valid license. However, it can also be noticed that the appellant has failed to establish the fact that the Truck was hired by Sh. H. Lalbiakliana for carrying cement bags. If such is the case, the deceased would only be a gratuitous passengers and not covered by the terms of policy of the Insurance Company. In such a situation, the Insurance Company cannot be held to be liable to pay the compensation but however, in terms of the judicial pronouncement made by the Apex Court as aforementioned, the Insurance Company (respondent No. 2) should satisfy the award first and thereafter, recovered the amount from the owner of the Truck. It is accordingly ordered. 20.
In such a situation, the Insurance Company cannot be held to be liable to pay the compensation but however, in terms of the judicial pronouncement made by the Apex Court as aforementioned, the Insurance Company (respondent No. 2) should satisfy the award first and thereafter, recovered the amount from the owner of the Truck. It is accordingly ordered. 20. In the result, the respondent No. 2 Insurance Company is directed to deposit the award before the learned Tribunal within a period of 8 (eight) weeks from the date of receipt of a certified copy of this order along with the rate of interest as awarded by the Tribunal failing which, the rate of interest shall stand enhanced to 12%. 21. With the above observations and directions, the Appeal stands disposed of. Let the LCR be send back to the Tribunal forthwith.