* THE HON’BLE SRI JUSTICE U. DURGA PRASAD RAO
+ M.A.C.M.A No.3596 of 2009
%25.08.2014
Between:
The New India Assurance Co. Ltd, Rep. by its Branch Manager, Guntur. ... Appellant AND Vaida Pushpa and others. …. Respondents ! Counsel for Appellant : Sri Naresh Byrapaneni ^ Counsel for Respondents 1 & 2 : Sri V. Achuta Ram < Gist:
> Head Note:
? Cases referred:
1) 2001 (1) ALT 485
2) AIR 2004 SC 1531 HONOURABLE SRI JUSTICE U.DURGA PRASAD RAO
M.A.C.M.A. No.3596 of 2009
JUDGMENT:
Aggrieved by the award dated 02.12.2005 in O.P.No.430 of 2002 passed by the Chairman, Motor Accidents Claim Tribunal-cum-District Judge, Karimnagar (for short ‘the Tribunal’), the New India Assurance Company Limited preferred the instant appeal.
2) The factual matrix of the case is thus:
a) Claimants 1 and 2, who are the wife and daughter of the deceased—Vaida Papaiah, filed O.P.No.430 of 2002 on the pleas that, on 14.10.2001 at about 11:00am, when the deceased was returning back to his village Rangampalli on his bullock cart after dumping the wood at Peddapalli and when he reached Rangampalli outskirts, one lorry bearing No.AP 5 T 2535 came in opposite direction being driven by its driver (R.1) at high speed and in a rash and negligent manner and dashed the bullock cart of the deceased and thereby, the bullocks died on the spot and the deceased succumbed to head injury on the same day while undergoing treatment. They further pleaded that the accident was occurred due to the fault of lorry driver and due to the sudden demise of the deceased, they lost their fender and became destitutes. On these pleas, they claimed Rs.2,00,000/- as compensation under different heads against respondent Nos.1 to 3, who are the driver, owner and insurer of the offending lorry and they added two daughters of the deceased through his first wife as respondents 4 and 5.
b) Respondents 1 and 2 remained ex parte.
c) Third respondent/Insurance Company filed counter and denied all the material averments made in the petition and urged to put the claimants in strict proof of the same. R.3 opposed the claim mainly contending that the driver of the lorry was not holding valid and effective driving licence at the time of the accident. R.3 pleaded that the accident was occurred due to the fault of the deceased himself but not due to the fault of lorry driver. Finally, it denied the age, avocation, income of the deceased and contended that the claim was excessive, exorbitant and prayed for dismissal of the O.P.
d) Respondents 4 and 5 filed common counter pleading that they are the children of the deceased through his first wife and they are also entitled to the compensation and supported the contents of the petition in respect of the earnings of the deceased and negligence of driver of lorry.
e) During trial, PWs.1 and 2 were examined and Exs.A.1 to A.5 were marked on behalf of the claimants. RWs.1 and 2 were examined and Ex.B.1 was marked on behalf of respondents.
f) A perusal of the award would show that issue No.1 is concerned, believing the eye-witness evidence of PW.2 and Ex.A.1—F.I.R; Ex.A.2—Inquest Report and Ex.A.5—Charge sheet, the Tribunal held that the lorry driver was responsible for the accident. Sofaras quantum of compensation is concerned, the Tribunal awarded Rs.1,85,100/- with proportionate costs and simple interest at 7.5% p.a. from the date of O.P. till the date of realization to the claimants and respondents 4 and 5 against respondents 1 to 3 under different heads as below:
Loss of dependency Rs.1,53,600/-
Loss of consortium Rs. 15,000/-
Loss of estate Rs. 15,000/-
Total Rs.1,85,100/-
Hence the appeal by the New India Assurance Company Limited.
3) Heard arguments of Sri Naresh Byrapaneni, learned counsel for the appellant/Insurance Company and Sri V. Atchuta Ram, learned counsel for respondent Nos.1 and 2/claimants. Though notices to respondents 3, 5 and 6 were served, no representation on their behalf. Case against R4 was dismissed for default on 05.08.2009. However, since he remained ex parte and suffered decree before the Tribunal, his absence in the appeal will not have any consequence in view of the decision reported in Meka Chakra Rao v. Yelubandi
[1]
Babu Rao @ Reddemma .
4) The parties in the appeal are referred as they stood before the Tribunal.
5) Learned counsel for the insurance company would argue that tribunal erred in fastening liability on the insurance company in spite of the fact that driver of the offending lorry had no valid and effective licence by the date of accident. He submitted that in the charge sheet the police apart from charging driver for the offence under Section 304A IPC also charged him under Sections 116 and 184 of MV Act which implies that he did not possess valid and effective driving licence at the relevant time of accident. However, tribunal without considering the same erroneously held as if the insurance company failed to prove that the driver did not possess valid driving licence. Learned counsel further argued that in this appeal the claimants filed MACMAMP No.2202 of 2014 praying to receive the driving licence of the driver as additional evidence and a perusal of the copy of the driving licence would show that the driver had driving licence to drive transport vehicles of the nature HGV, HPV and LMV w.e.f. 05.03.2009 to 10.05.2012 and his driving licence would show that he had driving licence to drive only Light Motor Vehicles whereas the crime lorry was Heavy Motor Vehicle and therefore, he committed an offence under Section 3 of MV Act, as he did not possess effective driving licence to drive the nature of vehicle involved in the accident. He argued that owner wilfully allowed the driver to drive the vehicle in contravention of terms of policy and therefore, liability of the insurance company ceased for breach of terms of the policy. Therefore, no liability can be fastened on the insurance company. He thus prayed to allow the appeal.
6) Per contra, while opposing the appeal learned counsel for respondents/claimants argued that the insurance company utterly failed before the tribunal to prove the breach of terms of policy i.e. violation of driving licence conditions except making an oral assertion and therefore tribunal rightly rejected its contention and fastened liability on it in view of policy being in force. Learned counsel admitted that claimants filed MACMA MP No.2202 of 2014 to receive the copy of driving licence of the driver as additional evidence to show that he was holding valid and effective driving licence by the date of accident.
7) In the light of above rival arguments, the point for determination in this appeal is:
“Whether the award passed by the tribunal is factually and legally sustainable”
8a) POINT: The accident, involvement of lorry bearing No.AP 5 T 2535 and death of the deceased are not in dispute. The main contention on which appeal is filed by the appellant/insurance company is that driver of the offending vehicle has no valid and effective driving licence as on the date of accident. A perusal of the award would show that tribunal held except harping that driver had no valid driving licence, insurance company has not taken any steps to summon RTA authorities to prove the fact that driver did not possess valid driving licence at the time of accident. Since the insurance company pleads the breach of terms of policy, needless to say burden is on it to prove the same. Now, in the appeal the appellant/insurance company takes resort under the copy of driving licence produced by the claimants and argues that even as per the said driving licence driver had licence to drive only LMV but not HMV like lorry in issue and therefore on that ground the insurance company should be exonerated. The argument of insurance company cannot be accepted for two reasons.
b) It may be noted that petition filed by the claimants in MACMAMP No.2202 of 2014 was dismissed today for the reason that except filing photostat copy they have not produced original driving licence so as to appreciate their request. As such none of the parties can take resort under the said photostat copy of licence to buttress their respect contentions.
c) Secondly, even assuming the said licence shows that the driver had driving licence to drive LMV during the relevant period but not HMV, still, insurance company cannot be exonerated from its liability as per the principles laid down in National Insurance Co. Ltd. v. Swaran Singh
[2]
. In order to absolve from the liability, it is not only sufficient for the insurance company to establish that there is a defect in driving licence of the concerned driver such as that he had no driving licence at all or that the driving licence produced by him was a fake one or that he had driving licence to drive one class or type of vehicle whereas vehicle involved in the accident was a different class or type of vehicle or that his driving licence was not renewed by the date of accident, but duty is cast on the insurance company also to establish by cogent evidence that owner of the vehicle knowingly and wilfully allowed such driver to drive the vehicle in breach of terms of policy and further, such breach was the fundamental cause for causing the accident. It is only when the insurance company is able to establish all these facts by cogent evidence then Court may exonerate its liability or in its discretion may order the insurance to pay compensation at first and then recover the same from insured/owner. Needless to emphasise that the insurance company has not established any of the conditions laid down in Swaran Singh’s case (2 supra). As such it can not now argue that it has no liability.
Accordingly, I find no merits in the appeal and it is liable to be dismissed.
9) In the result, MACMA is dismissed by confirming the award passed by the tribunal in OP No.430 of 2002. No order as to costs in the appeal.
As a sequel, miscellaneous applications pending, if any, shall stand closed.
U. DURGA PRASAD RAO, J Date: 25.08.2014
Note: L.R Copy to be marked: Yes/ No
Scs/Murthy
[1] 2001 (1) ALT 485
[2]
AIR 2004 SC 1531