Court No. - 1
Case :- FIRST APPEAL FROM ORDER DEFECTIVE No. - 1276 of 2015
Appellant :- M/S Narendra Road Lines Pvt. And Anr.
Respondent :- Nand Kishor And Anr.
Counsel for Appellant :- Anil Kumar Pandey,Rishabh Agarwal
Hon'ble Vivek Agarwal,J.
1. Heard Sri Rishabh Agarwal, learned counsel for the appellants and learned counsel for the respondents.
Order on C.M. Delay Condonation No.314861 of 2015 Application.
Registry has pointed out delay of 116 days in filing of this appeal.
No counter affidavit has been filed to the delay condonation application.
It is mentioned that case of the appellant-company was looked after by their 'Pairokar' namely Krishna Chand Dixit, who could not remain present before the Tribunal, when matter was decided on 31.01.2014, therefore, appellants were not acquainted with the impugned award. It is further mentioned that Advocate of the company had also not informed the company about the award, therefore, appeal could not be filed in time. It is further mentioned that when the 'Pairokar' of the appellants had visited Kanpur for his 'pairvi' on 25.08.2015 in the present case, then it came to his knowledge that case was decided on 31.01.2014, when he contacted his counsel, Sri Pushpendra Kumar Sharma, who in turn advised to file present appeal.
Stamp Reporter has mentioned that there is delay of 117 days in filing the appeal, but basis of calculation of delay is not explainable, inasmuch as, award was admittedly passed on 31.01.2014 and appeal was filed on 08.09.2015.
Period of limitation to file appeal as provided under Section 173 of the Motor Vehicles Act, 1988 to the High Court is 90 days from the date of award, therefore, limitation for filing appeal was upto 1st May, 2014, appeal has been filed on 08.09.2015 i.e. after 494 days, therefore, it is apparent that the reporting by the Stamp Reporter is incorrect.
However, for the reasons mentioned in the memo of appeal duly supported by an affidavit, sufficient cause is made out for condoning the delay in filing the appeal and accordingly delay is condoned.
Application is allowed.
Order on Civil Misc. Leave Application No.314863 of 2015.
The present application has been preferred by the owner of the Truck No.HR-38-D/9163.
It appears that in the claim petition respondent no.1-Gopal Mohan Garg has been arrayed as respondent no.1 who is one of the directors of M/s. Narendra Roadlines Pvt. Ltd. The aforesaid vehicle has been registered in the name of M/s. Narendra Roadlines Pvt. Ltd. and insurance policy has also been issued in the name of appellant-M/s. Narendra Roadlines Pvt. Ltd. Tribunal has passed an award against the appellant no.2 treating him to be the owner of the offending vehicle/truck, whereas, appellant no.1 is the actual owner of the vehicle in question, therefore leave application no.314863 of 2015 is allowed.
Order on Appeal.
2. This First Appeal From Order has been filed by the owner of the offending vehicle being aggrieved of the award dated 31.01.2014 passed by learned Motor Accident Claims Tribunal/Additional District Judge, Court No.7, Kanpur Nagar, in case of M.A.C.P. No.646 of 2010.
3. Learned counsel for the appellant submits that the impugned award is illegal and unjust and cannot be sustained in the eyes of law. It is submitted that M/s. Narendra Roadlines Pvt. Ltd. being a juristic person and necessary party was not impleaded in its individual capacity, therefore, impugned award passed in absence of a necessary party is vitiated in the eyes of law.
4. It is further submitted that impugned award has been passed without considering the material available on record as well as the legal aspect of the case, inasmuch as, claimant could not prove their case beyond doubt. Appellants have denied the factum of accident and submits that learned Claims Tribunal have awarded compensation only on the basis of presumption which cannot be sustained. It is also submitted that learned Tribunal has wrongly applied the multiplier while assessing the compensation in a case of injury. Learned counsel for the appellant submits that though the offending vehicle in question was duly insured with the respondent-Insurance Company and the insurance was valid on the date of the accident and further, vehicle of the appellant was having all the valid documents, but on the basis of a finding that driver was not having valid license, liability has been fixed on the vehicle owner, which is illegal and arbitrary and, therefore, prays for setting aside of the award.
5. Learned counsel for the appellant has also placed reliance on an order passed by a co-ordinate Bench on 25.02.2019 in F.A.F.O. No.1150 of 2015; M/s. Narendra Roadlines Pvt. Ltd and another Vs. I.C.I.C.I. Lombard General Insurance Co. Ltd. and others.
6. In case of M/s. Narendra Roadlines Pvt. Ltd and another Vs.
I.C.I.C.I. Lombard General Insurance Co. Ltd. and others (F.A.F.O. No.1150 of 2015), claim petition was instituted by the claimant respondent nos.2 to 5 for death of one Gajendra in an accident, which took place on 30.08.2020 with Truck No.HR- 38-J-0959. In that case, a fact has come on record that when written statement was filed on behalf of 'Pairokar' of the appellant, a specific plea was taken that driver of the offending vehicle was holding a driving licence. It was further pleaded that while appointing the driver of the offending vehicle, appellant after having been satisfied by taking driving test of the driver of the offending vehicle that he knows driving well and further on being satisfied that driver was holding a valid driving license, had appointed him as driver. It was further pleaded that appellant/owner always abided by the terms and conditions of the insurance policy and has not violated terms and conditions of the insurance policy.
7. Hon'ble co-ordinate Bench has dealt with the issue of driving license on the touchstone of the pleadings made by the owner of the offending vehicle that "while appointing the driver, he had seen the documents and after having been satisfied by taking driving test of the driver, he has given appointment to the driver, and, therefore, placing reliance on the judgment of Supreme Court in case of Ram Chandra Singh Vs. Rajaram and others; (2018) 8 SCC 799, co-ordinate Bench relying on para- 11 that insurer can be absolved only when it is established that owner was aware of the fact that license was fake and still permitted driver to drive the vehicle."
8. Under the facts and circumstances and the discussion, gist of which has been reproduced above, appeal was allowed and the award of the Tribunal as directing the Insurance Company to satisfy the award and recover it from the appellant was set aside.
9. In the present case, issue of validity of the driving license at the time of accident has been discussed as issue no.3 in the written statement filed by the appellant. There is no mention of this fact that license in question was verified by the owner of the offending vehicle and after taking a driving test, he was permitted to drive the vehicle.
10. On the contrary, in para-8 of the written statement, it is mentioned that driving license was valid and was in force and, therefore, even if accident is proved by the claimant, then liability to pay the compensation will be on the Insurance Company.
11. As far as issue no.3 is concerned, learned Tribunal has discussed evidence in detail and has relied on verification submitted by the Insurance Company on form no.54 from the Regional Transport Office, Agra in regard to verification of driving license no.21997/AG/04 filed vide document no.41- Ga/2, according to which, said license was not issued in the year 2004 to record a finding that the license produced by the owner of the offending vehicle is fake and, therefore, recored a finding that on the date of the accident, driver was not having a valid and effective driving license. This finding when tested on the touchstone of the evidence, which has been produced on record and the written statement which has been filed by the owner of the offending vehicle makes it abundantly clear that facts of the present case are different and distinguishable from that of the cited order dated 25.02.2019, inasmuch as, there is no averment and consequential evidence to the effect that when driver, Sanjay Singh was appointed, then he was holding a valid driving license and his driving test was taken and then on such premise, he was appointed as driver. Neither, there is any date of appointment of driver mentioned in the written statement nor any of the ingredients mentioned above, therefore, facts of the present case being different from that of order passed in F.A.F.O. No.1150 of 2015. Ratio of the order in F.A.F.O. No.1150 of 2015 will not be applicable to the facts of the present case.
12. As far as other grounds are concerned, appellant had not taken any such plea before the Claims Tribunal that Narendra Roadlines Pvt. Ltd. being a juristic person should have been impleaded as a party, in fact, appellant has not been able to demonstrate any prejudice to its interest by non-impleadment of proper parties, inasmuchas, appellant was evidently represented through a 'Pairokar' who had participated in the proceedings as has been accepted by the appellant himself.
13. As far as issue of false implication is concerned, that too could not be substantiated, however, though not argued by learned counsel for the appellant, but in the light of the law laid down by by Supreme Court in case of Pappuu and others Vs. Vinod Lamba and another; (2018) 3 SCC 208, since, this Court has not disturbed the findings of the Tribunal that offending vehicle was driven by an unauthorized person i.e. driver, who was not having a driving license, then as per the ratio of the judgment in case of Pappuu and others (supra), it is directed that Insurance Company will be liable to pay the compensation and will be entitled to recover it from the owner of the offending vehicle i.e. the present appellant.
14. In above terms, appeal is disposed off.
Order Date :- 7.1.2021 Ashutosh