Hon'ble Subhash Chand,J.
(per: Hon'ble Subhash Chand,J)
1. These appeals arise out of same accident and hence decided by this common judgment .
2. F.A.F.O. No. 3288 of 2007 is preferred at the instance of Oriental Insurance Company. The F.A.F.O. No. 3442 of 2007 is preferred at the instance of claimants, who are dissatisfied with the compensation awarded by the Tribunal in impugned award dated 20.08.2007 of Motor Accident Claims Tribunal/Additional District Judge, Court Room No.2, Allahabad in M.A.C.P. No. 564 of 2000 (Smt. Gitanjali Sharma and others Vs. Sant Kumar and others).
3. The brief facts as narrated in the Claim Petition No. 564 of 2000 are that Swami Nath Sharma (deceased) S/o Late Sri Salig Ram Sharma resident of 98/1-H, Himmatganj, Allahabad was traveling along with Vijay Shyam (Ardali) by the Jeep No. UGP/7448, driven by Sri Ramesh Kumar from Pratapgarh to Bhopiamau for government work on 13.02.2000 when at 7.30 PM. a truck bearing no. UP 42B 0251, driven by its driver rashly and negligently was plied ahead of the Jeep and all of sudden the driver stopped the Truck in the middle of the road whereby the jeep 'collided' with truck resulting in the death of Swami Nath on the spot. Swami Nath Sharma was 46 years 8 months and 12 days old. He was government servant posted as district non-formal education officer at Pratapgarh and he was getting monthly salary of Rs. 18879/-. after his death he left his widow, his mother, two brothers and two sons of brother.The fir of accident was lodged with the police station Kotwali Nagar, which was registered on Case Crime No. 85 of 2000, under Sections 279, 338, 304A IPC against the unknown truck driver of Truck No. UP 42B 0251. The owner of the truck was Sant Kumar and Ram Babu i.e. opposite party nos. 1 and 2; while the jeep was driven by Ram Phakirey opposite party no.3. The offending truck and jeep were insured by the Oriental Insurance Company Limited, that is opposite party nos.4 & 5. Hence, compensation of Rs. 88,06,139/- was claimed by the claimants.
4. On behalf of opposite parties nos.4 and 5, joint written statement was filed with the averments that driver of the offending truck was not holding a valid and effective driving license and the alleged accident was not caused due to negligence of truck driver. Hence, the Insurance Company denied its liability to pay compensation.
5. On behalf of opposite party no.3, the driver of the jeep, averments made in the claim petition were supported in the written statement to certain extent. No written statement was filed on behalf of opposite party nos. 1 and 2.
6. The Tribunal passed the award on 20.08.2007 granting compensation of Rs. 15,38,452/- and Oriental Insurance Company insurance company of Truck was directed to pay the amount of the award to claimants widow and mother.
7. Heard learned counsels for the parties and perused the evidence on record.Parties are refereed as appellant insurance company or Insurance company and respondent claimants as claimants .
8. The F.A.F.O. No. 3288 of 2007 is preferred at the instance of Oriental Insurance Company, who are aggrieved by fastening of the liability to pay the amount of award though there is a finding that there is breach of policy.
9. Learned counsel for the appellant/Insurance Company has contended that the driver of the offending truck was having the driving license for heavy passenger vehicle and he was driving heavy goods vehicle for which he was not authorized to drive. As such the driver of the vehicle was not having a valid and effective driving license at the time of accident, therefore, the liability to pay the compensation cannot be fastened on the appellant/Oriental Insurance Company.It is submitted by learned counsel for Insurance Company that the Tribunal itself has held that drivers of both the vehicles were not possessing valid driving license, therefore, the liability can not be set up on the Insurance Company and the award is bad in the eye of law. It is further submitted by counsel for Insurance company that the accident occurred in the year 2000. The quantum awarded is on higher side. Learned counsel for the appellants Insurance company of truck has submitted that the finding of fact as far as the driver of the truck being sole negligent is bad in the eye of law as the facts reveal that the driver of the Jeep was solely negligent as he rammed in the truck and had contributed to the accident taking place. It is submitted by learned counsel Sri Arvind Kumar for insurance company that as far as negligence is concerned from the factual data the Jeep has collided with the Truck from behind. The Truck though is said to be stationary. The driver of the Jeep has ramped into the truck. It is submitted that even if we accept the submissions of learned counsel for the claimants that the Jeep was at moderate speed and the Truck was not stationary, but was being plied and abruptly stopped at the place. It is the duty of the vehicle driver who drives the vehicle on rear side to drive should take care. It is submitted that in our case, the impact of the accident was such that some of the persons sitting in Jeep collapsed and breathed to last. This shows that finding of the Tribunal about absolute negligence of truck driver is bad and the fact the site plan will demonstrate that both the vehicle drivers were negligent.
10. Learned counsel for the respondent-claimants vehemently opposed and contended that the driver of the offending truck was having a valid and effective driving license and the Tribunal has rightly fastened liability to pay the compensation on the appellant/Insurance Company. It is submitted by learned counsel for claimants that the liability of insurers cannot be absolved just because the driver of the vehicle had license to drive heavy vehicle, but was driving what is known as truck. It is submitted that the judgment in case of National Insurance Company Limited Vs. Swarn Singh and others 2004 (3) SCC 297 and Oriental Insurance Company Limited Vs. Shiv Narain Sahani and others 2007 ACJ 1640 and the recent judgment in the case of Mukund Dewangan Vs. Oriental Insurance Company Limited and another (2016) 4 SC 298 would apply as far as the submission of insurance company assailing the finding of fact by the Tribunal that the driver of the truck was authorized to drive heavy vehicle, but he was driving truck and, therefore, he was not having license, is not asserted and the later reasoning has to be accepted. It is submitted that despite the fact that the drivers did not have proper driving license, the Tribunal relied on the judgment of Swarn Singh (supra) and has come to the conclusion that main basis of accident was not lack of endorsement, as the driver had license to drive heavy vehicle and, therefore, the tribunal held that on the facts that this was not fundamental breach of policy condition and this finding is not perverse. It is further submitted that that the issue of negligence qua the claimants is of composite negligence and that we should decide proportionate negligence of each driver and that the charge-sheet was laid against the truck driver may be considered.
BREACH OF POLICY AND OUR FINDINGS ON THE SAME :
11. Having heard the ld advocates as far as breach of policy is concerned the judgment of Apex Court in case of Mukund Dewangan (supra) will apply we are even fortified in our view that the breach cannot be said to be such, which would give right of recovery to the Insurance Company. The decision of Madhya Pradesh High Court in case of Kusumlata Vs. Lalaram and others 2003 ACJ 1966 will also not permit us to take a different view then that which has been taken by the Tribunal. Thus, it cannot be said that the driver of the truck was not having valid driving license. As far as the driving license of the Jeep driver is concerned, it is finding of fact that he had license to drive and the owner has admitted the ownership of the Jeep. The Jeep was sent for repairs in Mamta Auto Garrage at Pratapgarh near supply office and when it got repaired and the driver was standing near the road at about 7.00 P.M., Sri Sharma (deceased) who had been Non Formal Education Officer at Pratapgarh, met the driver along with his peon and requested to give free-lift towards Bhopiamau area for performance of his duty and requested by saying that as it was evening there is would be no other means to reach destination. As Sharma (deceased) was well acquainted and was knew the driver hence paying respect to a officer, he gave free lift and Sri Sharma (deceased) occupied the seat in the Jeep and his peon also accompanied him.. The license issued by M.V. Dutt issuing authority, Pratapgarh U.P. is unreadable whether it is for car, Jeep or other vehicle . However, it can be said that the driver of the Jeep had got license to drive motorcycle and LMV and jeep was a light motor vehicle as its laden weight was such which would be seen that jeep was a light motor vehicle. In F.A.F.O. No. 617 of 1996 (The New India Insurance Company Limited Vs. Ganga Singh and others), learned single Judge view's is based on the judgment in case of Mukund Dewangan Vs. Oriental Insurance Company Limited and another (2016) 4 SC 298 has elaborately discussed the issue of types of vehicles. We concur with the Tribunal on two aspects as far as liability of the Insurance Company is concerned that license to drive goods vehicle would part take within it license to drive heavy public vehicle as per the decision in case of Oriental Insurance Company Limited Vs. Shiv Narain Sahani and others 2007 ACJ 1640 and therefore, it cannot be held that offending Truck driver did not possess valid license to drive heavy vehicle. The decisions cited herein-above will not permit us to take different view then that taken by the Tribunal as far as the liability of Insurance Company is concerned.
12. Giving serious consideration to the submissions advanced by learned counsels of parties, the relevant provisions of the Motor Vehicle Act, 1988 are as under:-
Section 2(16) "'heavy goods vehicle' means any goods carriage the gross vehicle weight of which, or a tractor or a road-roller the unladen weight of either of which, exceeds 12,000 kilograms;"
Section 2(17) "'heavy passenger motor vehicle' means any public service vehicle or private service vehicle or educational institution bus or omnibus the gross vehicle weight of any of which, or a motor car the unladen weight of which, exceeds 12,000 kilograms;"
Section 2(47) "'transport vehicle' means a public service vehicle, a goods carriage, an educational institution bus or a private service vehicle;"
Section 3. Necessity for driving license. (1) No person shall drive a motor vehicle in any public place unless he holds an effective driving license issued to him authorizing him to drive the vehicle; and no person shall so drive a transport vehicle other than a motor cab or motor cycle hired for his own use or rented under any scheme made under sub-section (2) of section 75 unless his driving license specifically entitles him so to do.
Section 10. Form and contents of licences to drive. (1) Every learner's licence and driving licence, except a driving licence issued under section 18, shall be in such form and shall contain such information as may be prescribed by the Central Government.
Section 149. Settlement by insurance company and procedure therefor. (1) The insurance company shall, upon receiving information of the accident, either from claimant or through accident information report or otherwise, designate an officer to settle the claims relating to such accident.
(2) An officer designated by the insurance company for processing the settlement of claim of compensation may make an offer to the claimant for settlement before the Claims Tribunal giving such details, within thirty days and after following such procedure as may be prescribed by the Central Government.
(3) If, the claimant to whom the offer is made under sub-section (2),-
(a) accepts such offer,-
(i) the Claims Tribunal shall make a record of such settlement, and such claim shall be deemed to be settled by consent; and
(ii) the payment shall be made by the insurance company within a maximum period of thirty days from the date of receipt of such record of settlement;
(b) rejects such offer, a date of hearing shall be fixed by the Claims Tribunal to adjudicate such claim on merits.
13. The conjoint reading of these provisions enumerated in Section 2(16) & 2(17) shows that heavy good vehicle as well as heavy passenger motor vehicle of which gross vehicle weight exceeds 12000 Kg., both come within the definition of transport vehicle under section 2(47) of Motor Vehicle Act, 1988.
14. Chapter II of Motor Vehicle Act, 1988 inter-alia provides for compulsory insurance for vehicle in relation to matters specified therefor. The provisions for compulsory insurance indisputably has been made with a view to protect the right of third party.
15. The Hon'ble Apex Court in case of National Insurance Company Limited Vs. Swaran Singh and others (2004) 3 Supreme Court Cases 297 has held:-
"42. We may also take note of the fact that whereas in Section 3 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 licence 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.
43. 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 provisions contained in different expression are ordinarily construed differently.
44. The words "effective licence" used in Section 3, therefore, in our opinion, cannot be imported for sub-section (2) of Section 149 of the Motor Vehicles Act. We must also notice that the words "duly licensed" used in sub-section (2) of Section 149 are used in the past tense.
47. If a person has been given a licence for a particular type of vehicle as specified therein, he cannot be said to have no licence for driving another type of vehicle which is of the same category but of different type. As for example, when a person is granted a licence for driving a light motor vehicle, he can drive either a car or a jeep and it is not necessary that he must have driving licence both for car and jeep separately.
51. It is trite that where the insurers, relying upon the provisions of violation of law by the assured, take an exception to pay the assured or a third party, they must prove a wilful violation of the law by the assured. In some cases violation of criminal law, particularly, violation of the provisions of the Motor Vehicles Act may result in absolving the insurers but, the same may not necessarily hold good in the case of a third party. In any event, the exception applies only to acts done intentionally or "so recklessly as to denote that the assured did not care what the consequences of his act might be."
90. We have construed and determined the scope of sub-clause (ii) of sub-section (2) of Section 149 of the Act. Minor breaches of licence conditions, such as want of medical fitness certificate, requirement about age of the driver and the like not found to have been the direct cause of the accident, would be treated as minor breaches of inconsequential deviations with regard to licensing conditions would not constitute sufficient ground to deny the benefit of coverage of insurance to the third parties."
16. It shall be noted that the said term did not specify the type of license i.e., the license to drive "heavy goods vehicle" or "transport vehicle". The "transport vehicle" is defined in clause 33 of Section 2 of the Act to mean, "a public service vehicle or a goods vehicle". "Public Service Vehicle" is defined in clause 25 of Section 2 of the Act to mean, "any motor vehicle used or adapted to be used for the carriage of passengers for hire or reward, and includes a motor cab, contract carriage, and stage carriage." "Goods vehicle" is defined in clause 8 of the said Section 2 to mean, "any motor vehicle constructed or adapted for use for the carriage of goods, or any motor vehicle not so constructed or adapted when used for the carriage of goods solely or in addition to passengers". "Heavy goods vehicle" has been defined in clause 9 of Section 2 of the Act to mean, "any goods vehicle the registered laden weight of which or a tractor the unladen weight of which, exceeds 11,000 kilo grams."
17. Considering the aforesaid definitions, we are of the opinion that any "goods vehicle", "heavy goods vehicle" or "public service vehicle" can be commonly called as "transport vehicle". In other words, the heavy goods vehicle is not different from a transport vehicle. Any person possessing a driving license for a transport vehicle can be said to hold a valid license to drive either a goods vehicle or a public service vehicle. The offending truck was necessarily a heavy goods vehicle within the meaning of clause 9 of section 2 of the Act. The driver of the offending truck thus possessed a valid license to drive the offending truck. In my opinion, the Tribunal has erred in distinguishing the "transport vehicle" from a "heavy goods vehicle" without considering the above referred statutory definitions appearing in the Act. The Tribunal has thus erred in absolving the Insurance Company from its liability in respect of the compensation awarded to the claimants who are heirs of non tort fessor .
18. On behalf of the owner of the offending truck, neither the written statement was filed and nor the driver of the offending truck was produced in the witness box. The driving license of the offending truck driver Mool Chand is produced at paper no.44A on record, from which it transpires that the driving license of Mool Chand, was originally of light motor vehicle and same was endorsed as a heavy passenger vehicle on 20.07.1999 by the licensing Authority which was valid from 20.07.1999 to 19.07.2002. As the accident was caused on 13.02.2000, therefore, this license of offending truck driver Mool Chand was valid and effective on the date of accident. Reference to decision of the division bench in FIRST APPEAL FROM ORDER No. - 2103 of 2017 between National Insurance Co. Ltd. Vs. Smt. Anuradha Kejriwal And 4 others wherein this court has held as follows:
"The submission of Insurance companies is rejected and we uphold the finding of the tribunal. While considering the case of the Insurance Company, can it be said that the driver did not have valid driving licence? This question has to be answered in favour of the claimants. We are fortified in our view by the latest decision of the Apex Court in Nirmala Kothari Vs. United India Insurance Co. Ltd., (2020) 4 SCC 49.
19. Further, this issue also is answered against the Insurance Company as the Insurance Company has not examined any person so as to prove that the report of the R.T.O. is vitiated. We are even supported in our view by the decision of this Court in Oriental Insurance Company Limited Vs. Poonam Kesarwani and others, 2008 LawSuit (All) 1557, where in a similar situation converse view then that contended by Sri K.S. Amist is taken. Reliance can also be placed on the finding of the Tribunal which unless proved to the contrary should not be easily interfered with. Further, the owner of the vehicle was satisfied and it was proved that he has taken all care and caution that vehicle was being driven by a person who was authorised to drive the same which is even apparent from the fact that the owner has gone to the extent of producing evidence so as to bring home the fact that there was no breach of policy condition.
20. In that view of the matter, on the facts and the law, it cannot be said that the owner has committed breach of policy conditions. Thus the submission of counsel for insurance company regarding breach of policy has to be rejected and is rejected
21. This takes us to the issue of negligence and compensation awarded which has aggrieved the claimants and the Insurance Company.
ISSUE OF NEGLIGENCE RAISED AND OUR FINDINGS FOR THE SAME;
22. As far as the question of Negligence is concerned we reiterate the submissions of learned counsel for insurance company of truck Sri Arvind Kumar that as far as negligence is concerned from the factual data the Jeep has collided with the Truck from behind. The Truck though is said to be stationary. The deceased was not a tort fessor the driver of the Jeep has ramped into the truck. It is submitted that even if we accept the submissions of learned counsel for the claimants that the Jeep was at moderate speed and the Truck was not stationary, but was being plied and abruptly stopped at the place. It is the duty of the vehicle driver who drives the vehicle on rear side to drive the vehicle after taking care. In our case, the impact of the accident was such that people sitting in Jeep collapsed and breathed to last.
23. We are of the view that the distinction is of nature of use of the vehicle which makes no difference as the driver of the offending vehicle having a driving license of heavy passenger vehicle was driving a heavy goods vehicle and same falls within the definition of transport vehicle; consequently he was having a valid and effective driving license at the time of accident and Insurance Company-appellant cannot avoid from its liability to pay compensation. Therefore, the Tribunal has rightly fastened the liability to pay the compensation to the appellant and same needs no interference. We would have decided proportionate negligence of each driver and that the charge-sheet was laid against the truck driver as raised by the insurance company of truck will have to discussed and will have to be decided on the touch stone of principles for deciding the issue relating to negligence. The Jeep dashed the truck from behind. The Jeep must be driven with such speed that after dashing the truck on its right side it dashed with a cyclist just because charge-sheet was laid against driver of the truck it could not be absolved, the driver of the Jeep had also to maintain safe distance, which he had not maintained.
24. The Apex Court in Khenyei Vs. New India Assurance Company Limited & Others, 2015 LawSuit (SC) 469 has held as under:
"4. It is a case of composite negligence where injuries have been caused to the claimants by combined wrongful act of joint tort feasors. In a case of accident caused by negligence of joint tort feasors, all the persons who aid or counsel or direct or join in committal of a wrongful act, are liable. In such case, the liability is always joint and several. The extent of negligence of joint tort feasors in such a case is immaterial for satisfaction of the claim of the plaintiff/claimant and need not be determined by the by the court. However, in case all the joint tort feasors are before the court, it may determine the extent of their liability for the purpose of adjusting inter-se equities between them at appropriate stage. The liability of each and every joint tort feasor vis a vis to plaintiff/claimant cannot be bifurcated as it is joint and several liability. In the case of composite negligence, apportionment of compensation between tort feasors for making payment to the plaintiff is not permissible as the plaintiff/claimant has the right to recover the entire amount from the easiest targets/solvent defendant.
14. There is a difference between contributory and composite negligence. In the case of contributory negligence, a person who has himself contributed to the extent cannot claim compensation for the injuries sustained by him in the accident to the extent of his own negligence;whereas in the case of composite negligence, a person who has suffered has not contributed to the accident but the outcome of combination of negligence of two or more other persons. This Court in T.O. Anthony v. Karvarnan & Ors. [2008 (3) SCC 748] has held that in case of contributory negligence, injured need not establish the extent of responsibility of each wrong doer separately, nor is it necessary for the court to determine the extent of liability of each wrong doer separately. It is only in the case of contributory negligence that the injured himself has contributed by his negligence in the accident. Extent of his negligence is required to be determined as damages recoverable by him in respect of the injuries have to be reduced in proportion to his contributory negligence. The relevant portion is extracted hereunder :
"6. 'Composite negligence' refers to the negligence on the part of two or more persons. Where a person is injured as a result of negligence on the part of two or more wrong doers, it is said that the person was injured on account of the composite negligence of those wrong-doers. In such a case, each wrong doer, is jointly and severally liable to the injured for payment of the entire damages and the injured person has the choice of proceeding against all or any of them. In such a case, the injured need not establish the extent of responsibility of each wrong-doer separately, nor is it necessary for the court to determine the extent of liability of each wrong-doer separately. On the other hand where a person suffers injury, partly due to the negligence on the part of another person or persons, and partly as a result of his own negligence, then the negligence of the part of the injured which contributed to the accident is referred to as his contributory negligence. Where the injured is guilty of some negligence, his claim for damages is not defeated merely by reason of the negligence on his part but the damages recoverable by him in respect of the injuries stands reduced in proportion to his contributory negligence.
7. Therefore, when two vehicles are involved in an accident, and one of the drivers claims compensation from the other driver alleging negligence, and the other driver denies negligence or claims that the injured claimant himself was negligent, then it becomes necessary to consider whether the injured claimant was negligent and if so, whether he was solely or partly responsible for the accident and the extent of his responsibility, that is his contributory negligence. Therefore where the injured is himself partly liable, the principle of 'composite negligence' will not apply nor can there be an automatic inference that the negligence was 50:50 as has been assumed in this case. The Tribunal ought to have examined the extent of contributory negligence of the appellant and thereby avoided confusion between composite negligence and contributory negligence. The High Court has failed to correct the said error."
18. This Court in Challa Bharathamma &Nanjappan (supra) has dealt with the breach of policy conditions by the owner when the insurer was asked to pay the compensation fixed by the tribunal and the right to recover the same was given to the insurer in the executing court concerned if the dispute between the insurer and the owner was the subject-matter of determination for the tribunal and the issue has been decided in favour of the insured. The same analogy can be applied to the instant cases as the liability of the joint tort feasor is joint and several. In the instant case, there is determination of inter se liability of composite negligence to the extent of negligence of 2/3rd and 1/3rd of respective drivers. Thus, the vehicle - trailor-truck which was not insured with the insurer, was negligent to the extent of 2/3rd. It would be open to the insurer being insurer of the bus after making payment to claimant to recover from the owner of the trailor-truck the amount to the aforesaid extent in the execution proceedings. Had there been no determination of the inter se liability for want of evidence or other joint tort feasor had not been impleaded, it was not open to settle such a dispute and to recover the amount in execution proceedings but the remedy would be to file another suit or appropriate proceedings in accordance with law.
What emerges from the aforesaid discussion is as follows :
(i) In the case of composite negligence, plaintiff/claimant is entitled to sue both or any one of the joint tort feasors and to recover the entire compensation as liability of joint tort feasors is joint and several.
(ii) In the case of composite negligence, apportionment of compensation between two tort feasors vis a vis the plaintiff/claimant is not permissible. He can recover at his option whole damages from any of them.
(iii) In case all the joint tort feasors have been impleaded and evidence is sufficient, it is open to the court/tribunal to determine inter se extent of composite negligence of the drivers. However, determination of the extent of negligence between the joint tort feasors is only for the purpose of their inter se liability so that one may recover the sum from the other after making whole of payment to the plaintiff/claimant to the extent it has satisfied the liability of the other. In case both of them have been impleaded and the apportionment/ extent of their negligence has been determined by the court/tribunal, in main case one joint tort feasor can recover the amount from the other in the execution proceedings.
(iv) It would not be appropriate for the court/tribunal to determine the extent of composite negligence of the drivers of two vehicles in the absence of impleadment of other joint tort feasors. In such a case, impleaded joint tort feasor should be left, in case he so desires, to sue the other joint tort feasor in independent proceedings after passing of the decree or award."