Court No. - 2
Case :- FIRST APPEAL FROM ORDER No.778 of 2001
Appellant :- Oriental Insurance Co. Ltd.,Agra Respondent :- Bhure Singh @ Ganga Singh And Others Counsel for Appellant :- Suyash Agarwal
Counsel for Respondent :- S.K.Pandey,Devendra Kumar Yadav
Hon'ble Dr. Kaushal Jayendra Thaker,J.
1. Heard counsel for the appellant.
2. By way of this appeal, the appellant challenges the award dated 28.2.2001 passed by Motor Accident Claims Tribunal/2nd Additional District Judge, Firozabad, in MACP No.72 of 2000 (Bhure Singh @ Ganga Singh and others Vs. Arvind Kumar Paliwal and others), on the following grounds:-
(i) Because, the impugned award is wholly against the material and evidence on record.
(ii) Because, the accident has never taken place in the manner as alleged in the claim petition.
(iii) Because, the owner of the vehicle did not contest the claim petition as such the appellant had moved an application under Section 170 f the Motor Vehicles Act, 1988, on 9.1.2001, under the circumstances the appellant is entitled to take all the grounds available to the owner on merits of the case.
(iv) Because, the driver of the Truck was not holding valid license on the day of accident, as such, in absence of any valid license, the appellant was not liable to pay any compensation.
(v) Because, the learned Tribunal committed a gross mistake of law in drawing adverse inference against the appellant and holding that the driver of the Truck was holding valid license on the day of accident, even though admittedly the owner did not contest and no license of the driver was filed before the Tribunal. In absence of details of the driving license it was not possible to verify the same.
(vi) Because, the Tribunal has also illegally recorded a finding that the deceased was earning Rs.2,450/- p.m. Admittedly, there was no proof of any income. More so, when in the claim petition itself it was mentioned that the deceased did not had any employer. At the best 1/3rd of Rs.15,000/- p.a. could have been presumed to be the income of the deceased.
(vii) Because, the Tribunal was under obligation to use the method as provided in Schedule II of the Act with necessary multiplier and statutory deduction. Thus, the Tribunal committed a gross mistake of law in granting Rs.3,59,800/- as compensation.
(viii) Because, the Tribunal has not passed any award against the owner/insured, the appellant being liable only to indemnify the owner is, therefore, not liable to pay any compensation.
(ix) Because, once it is proved that there was violation of the Policy conditions, the appellant is not liable to pay any compensation whatsoever. The Tribunal committed a mistake of law in holding otherwise. In any view of the matter, the impugned award is highly excessive and has been illegally passed against the appellant and as such is liable to be set aside.”
3. In view of the judgment of UPSRTC Vs. Mamta, reported in UPSRTC Vs. Km. Mamta and others, reported in AIR 2016 SCC 948, all the grounds raised in the memo of appeal will have to be considered.
4. The brief fact leading to the filing of the claim petition are that Smt. Ram Dulari was 27 years of age was carrying on her vocation of stitching cloths and thereby earning Rs.4,500/- after her death she has been survived by her husband and 4 children. A child of 2 years who was with her met with sudden death when the vehicle driven by the driver employed by Arvind Kumar Paliwal dashed the bicycle on which they were plying.
5. The claim petition came to be filed for claiming Rs. 25,10,000/- with 24% interest to be paid by the vehicle owner and the Insurance company of the said vehicle namely the appellant herein. The Insurance company after filing its reply which was one of denial contended that there was breach of policy conditions and were not bound to make any payment or indemnify the owner. The owner in turn never appeared nor filed any counter-affidavit though he was served. The Tribunal raised the following 4 issues:-
(1) Whether on 16.2.2000 at 1.00 p.m. on Etawah Firozabad road near Sauthra crossing, accident took place due to rash and negligent driving of truck no.URT 9680 in which Smt. Ram Dulari died?
(2) As is alleged in W.S. 12-A, whether petition is bad for non-joinder of driver of offending truck?
(3) As is alleged in same W.S., whether at the time of accident, truck driver was not holding valid driving licence?
(4) What amount of compensation from which O.P., are petitioners entitled?
6. All the issues were answered against the owner and the Insurance company and in favour of the claimant.
7. The grounds urged are taken up together as the following four issues are also decided by this common judgment. The first submission of the learned counsel for the Insurance company is that the Tribunal in coming to the conclusion that the Insurance company failed to prove that the driver did not have driving licence. It is submitted that the licence of the driver was not filed and, therefore, they should not have been made liable.
8. In this context it has to be decided whether it was the duty of Insurance company to prove that there was breach of policy conditions. The term breach of policy condition has to be culled out from the provisions of Section 147 and 149 of the Motor Vehicles Act, 1988. The said sections read as follows:-
“Mainly Section 145 of the Act defines certain terms once vehicles are registered and start plying even before plying the vehicle should be registered as per the provisions of the Motor Vehicles Act, 1988 as applicable. The motor accidents have been now sought to be regulated by the Tribunals and jurisdiction vests with the Tribunal. It would be necessary to have birds' eye view of Sections 147 and 149 of the Act.
The defences available to the Insurance Company are enumerated under Section 147 of Motor Vehicle Act, 1988, which reads as under :-
147 Requirements of policies and limits of liability. —
(1) In order to comply with the requirements of this Chapter, a policy of insurance must be a policy which—
(a) is issued by a person who is an authorised insurer; and
(b) insures the person or classes of persons specified in the policy to the extent specified in sub-section (2)—
(i) against any liability which may be incurred by him in respect of the death of or bodily 27 [injury to any person, including owner of the goods or his authorised representative carried in the vehicle] or damage to any property of a third party caused by or arising out of the use of the vehicle in a public place;
(ii) against the death of or bodily injury to any passenger of a public service vehicle caused by or arising out of the use of the vehicle in a public place: Provided that a policy shall not be required—
(i) to cover liability in respect of the death, arising out of and in the course of his employment, of the employee of a person insured by the policy or in respect of bodily injury sustained by such an employee arising out of and in the course of his employment other than a liability arising under the Workmen's Compensation Act, 1923 (8 of 1923) in respect of the death of, or bodily injury to, any such employee—
(a) engaged in driving the vehicle, or
(b) if it is a public service vehicle engaged as conductor of the vehicle or in examining tickets on the vehicle, or
(c) if it is a goods carriage, being carried in the vehicle, or
(ii) to cover any contractual liability.
• Provision of Section 149 of Motor Vehicle Act, 1988, is a provision, which would permit to Insurance Company to avoid its liability and raise defence as follows :-
(a) that there has been a breach of a specified condition of the policy, being one of the following conditions, namely:—
(i) a condition excluding the use of the vehicle—
(a) for hire or reward, where the vehicle is on the date of the contract of insurance a vehicle not covered by a permit to ply for hire or reward, or
(b) for organised racing and speed testing, or
(c) for a purpose not allowed by the permit under which the vehicle is used, where the vehicle is a transport vehicle, or
(d) without side-car being attached where the vehicle is a motor cycle; or
(ii) a condition excluding driving by a named person or persons or by any person who is not duly licensed, or by any person who has been disqualified for holding or obtaining a driving licence during the period of disqualification; or
(iii) a condition excluding liability for injury caused or contributed to by conditions of war, civil war, riot or civil commotion; or
(b) that the policy is void on the ground that it was obtained by the non- disclosure of a material fact or by a representation of fact which was false in some material particular.”
9. In view of these provisions and the law of evidence strict proof of civil procedure and the scope of section 147 will have to be viewed if the Insurance company had taken any kind of extra caution in proving that there was no licence by way of summoning of RTO trying to prove that there was no licence issued by them to the driver of the vehicle, they could have proved by proving that the owner placed the vehicle in hands of a driver who was incompetent to drive but nothing of this sort has been brought on record. The Insurance company would be asked to discharge its duty only after the owner in whose possession the vehicle and the driving licence was produces the same. Once the said is not produced, the duty will not be shifted to the Insurance company, therefore, it cannot be said that there is no breach of policy conditions. A person or a company who alleges a fact must prove the said fact failing which they cannot get the benefit of their pleading of breach of policy conditions. However, the burden shifts on them only after the owner has proved that the driver had a driving licence. In this case, the owner did not file the driving licence at all and, therefore, there was no question of verifying whether the driver had any kindly of driving licence leave apart a licence to drive the said vehicle. Hence, the said submission is accepted.
10. It is further submitted that the Tribunal committed an error in deciding the quantum and granting the compensation as against this, the learned counsel for the claimant has submitted that in view of the recent judgment of the Apex Court and the judgment of Apex Court in Smt. Sarla Verma and others Vs. Delhi Transport Corporation and another, reported in 2009 ACJ 1298 and Lata Wadhwa and others Vs. State of Bihar and others, 2002 (1) TAC 138 (SC), the Tribunal has assessed the income only Rs.2,450/- and not only 3000 of a house wife. There was nothing brought in the cross examination of husband that deceased was a non earning person thought there is no evidence in view of the decision S.H. Makhani Vs. G.K.R. Gadia, 1997 ACJ 95, and that is how the Tribunal has assessed that she was earning Rs.2,450/- per month and deducted 1/3rd amount and granted Rs.19,600/- for the family. I do not find any infirmity in the said finding. The submission of the counsel that the income is considered on higher side is devoid of merits. The deceased was 27 years of age it is correct that the multiplier of 18 could not have been granted but at the same time the Tribunal has not granted any amount under the head of future loss of income and, therefore, the said amount does not call for any interference.
11. The submission that the Tribunal having not passed any award against the owner Insurance company cannot be made liable. The Insurance company having accepted that the vehicle was insured with it, they are bound to satisfy the award. It cannot be said that the Tribunal has not considered the statutory provisions. The Tribunal has taken into consideration all the parameters fixed by the Apex Court in those days.
12. Pappu and others Vs. Vinod Kumar Lamba and another, AIR 2018 SC 592, supports finding and as there was no driving licence filed and No evidence was filed to show that the vehicle was driven by an authorized person having valid driving licence to drive the said vehicle.
13. The appeal is partly allowed. The Insurance company is granted recovery rights to recover the amount deposited and decreed from the owner. As far as quantum is concerned, the appeal fails. The interim relief shall stand vacated. The amounts kept in Fixed Deposit be forthwith released as the children now would have become major.
14. Record and proceedings be sent to the trial court forthwith.
Order Date :- 31.5.2018 Irshad