Court No. - 27
Case :- FIRST APPEAL FROM ORDER No. - 1150 of 2015
Appellant :- M/S Narendra Roadlines Pvt. Ltd. And Anr.
Respondent :- I.C.I.C.I. Lombard General Insurance Co. Ltd. And Others Counsel for Appellant :- Arvind Srivastava,Anil Kumar Pandey,Rishabh Agarwal
Counsel for Respondent :- Ram Surat Patel,Rudra Pratap Singh
Hon'ble Saral Srivastava,J.
Order on Civil Misc. Leave Application No.288270 of 2012.
The present application has been preferred by the owner of the Truck No.H.R.- 38-J-0959.
It appears that in the claim petition, one Krishna Chandra Dixit, has been arrayed as respondent no.6 in the appeal, who was the employee 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 respondent no.6 treating him to be the owner of the offending vehicle truck whereas, appellant is the actual owner of the vehicle in question.
In this view of the fact, appellant being aggrieved by the award has preferred the present application seeking permission to preferred the present appeal against the award.
No counter affidavit has been filed to the leave application of the appellant.
In view of the averments made in the affidavit filed in support of the leave application, the leave application is allowed.
Order on Appeal.
Heard learned counsel for parties.
By means of the present appeal, appellant has challenged the judgement and award dated 02.04.2012 passed by the Motor Accident Claims Tribunal/Additional District Judge, Court No.4, Jalaun at Orai in M.A.C.P. No. 158 of 2010 whereby, the Tribunal has awarded Rs.3,67,000/- as compensation to the claimants/respondents for the death of one Gajendra in an accident on 30.08.2010 with Truck No. H.R.-38-J-0959.
The claim petition was instituted by claimant/respondent nos.2 to 5 for the death of one Gajendra in an accident on 30.08.2010 with Truck No. H.R.-38-J-0959.
In the claim petition written statement has been filed on behalf of the appellant the respondent no.6, contending therein that driver of Truck No. H.R.-38-J-0959 (hereinafter referred to as 'offending vehicle') was holding a valid driving licence. It 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 the driving well and further on being satisfied that driver Bachan Singh was holding a valid driving licence, had appointed him as driver. It was further pleaded that appellant/owner has always abide by the terms and conditions of the insurance policy and has not violated terms and conditions of the insurance policy.
Insurance company filed written statement contending there in that liability of insurance company to pay compensation is subject to the terms and conditions of the insurance policy.
The Tribunal framed as many as seven issues. Challenge in the present appeal is only on finding with respect to issue no.4 in respect of driving licence of driver of offending vehicle. The Tribunal ha returned a finding on issue no.4 against the appellant on the ground that on application of insurance company, a report was sought from the Additional Regional Transport Authority, Mathura wherein it was stated that licence no.8369/MTR/2007 was issued in the name of one Aditya Prakash Tiwari authorizing him to drive motorcycle and light motor vehicles. According to the said report, licence No.8369/MTR/2007 has not been issued in favour of Bachan Singh, the driver of the offending vehicle.
Challenging the finding of the Tribunal, learned counsel for the appellant has submitted that while appointing the driver on the truck, appellant/owner has satisfied by taking driving test of Bachan Singh that Bachan Singh knew the driving and further appellant/owner got satisfied from the driving licence produced by Bachan Singh that driving licence was genuine, and after taking due care and precaution, appellant/owner had appointed Bachan Singh as driver on the offending vehicle.
The submission is that Tribunal while deciding the issue No.4 has not recorded any finding as to whether the appellant/owner has deliberately committed breach of insurance policy. He submits that specific plea with respect to due care in appointing the driver has been taken by the appellant in the written statement and this fact has not been disputed by the insurance company, thus, appellant cannot be saddled with the liability to pay compensation as insurance company in order to avoid its liability has not only to prove the fact in respect of breach of policy but has further to prove that breach of insurance policy by the owner was deliberate. In this regard, he has placed reliance upon the judgement of Apex Court in the case of Ram Chandra Singh Vs. Rajaram and Others (2018) 8 SCC 799. It would be useful to notice the paragraph 11 of the judgement of Apex Court in the case of Ram Chandra Singh (supra) which is extracted herein below:-
11. Suffice it to observe that it is well established that if the owner was aware of the fact that the licence was fake and still permitted the driver to drive the vehicle, then the insurer would stand absolved. However, the mere fact that the driving licence is fake, per se, would not absolve the insurer. Indubitably, the High Court noted that the counsel for the appellant did not dispute that the driving licence was found to be fake, but that concession by itself was not sufficient to absolve the insurer.."
The service of notice upon respondent no.1 has been held to be sufficient by this Court vide order dated 25.07.2018. Therefore, this Court is proceeded ex-parte against respondent no.1.
Learned counsel for the claimant/respondents submits that claimant/respondent nos.2 to 5 being third party, should not suffer for the breach of policy. In the claim petition entire awarded amount has been paid to the claimants/respondents by the insurance company.
I have considered the rival submissions of the parties and perused the record.
In the written statement, owner/appellant has set up a specific plea that while appointing Bachan Singh as driver on the offending truck, he had taken due care by taking driving test of Bachan Singh and after verifying the authenticity of driving licence of the driver.
The Tribunal in deciding the issue no.4 has not returned any finding as to whether breach of insurance policy on the part of owner was deliberate. Thus, the submission of learned counsel for the appellant is supported by the judgement of Apex Court in the case of Ram Chandra Singh (supra) and consequently, this Court in absence of any finding of the Tribunal that breach of insurance policy by the owner was deliberate, holds that Tribunal has committed gross illegality in fixing the liability of compensation upon the appellant. It transpires from the record that owner had taken due care in appointing the driver on the offending vehicle and breach on the part of appellant/owner was not deliberate, thus, the direction of the Tribunal to the insurance company to satisfy the award and recover it from the appellant is set aside.
For the reasons given above, the appeal is allowed and the award of the Tribunal is modified to the extent indicated above. There shall be no order as to costs.
Order Date :- 25.2.2019 Sattyarth