1. Heard Shri R.C. Sharma, learned counsel for the appellant and Shri J.K. Shukla, learned counsel for the claimants-respondents no.1, 2 and 3.
2. The instant appeal has been preferred under Section 173 of the Motor Vehicles Act, 1988 (for short, the Act of 1988) against the judgment and award dated 28.07.2006 passed by A.D.J. (Court No.4)/Motor Accident Claims Tribunal, Pratapgarh in M.A.C.P. No.8/1999, wherein a sum of Rs.4,87,000/- along with 6% interest from the date of filing of the claim petition, till the date of its actual payment has been passed in favour of the claimants-respondents no.1, 2 and 3.
3. The submission of the learned counsel for the appellant is that the Tribunal has erred in failing to notice that the offending vehicle involved in the accident was a tanker bearing No. MWV/5123. It is urged that the driver of the aforesaid tanker namely Sadashiv Sakpal did not have the requisite endorsement to drive the aforesaid tanker. It is urged that though he had a licence to drive heavy motor vehicles, but insofar as the tankers are concerned, there are special provisions in the Act of 1989 which requires the driver to get the said endorsement made on his licence entitling him to drive a tanker carrying hazardous goods. The said endorsement is valid on year to year basis whereas the endorsement insofar as the heavy motor vehicle is concerned, the same is for three years.
4. It is submitted that a copy of the licence was placed on the record by the claimants-respondents which clearly established the aforesaid position, however, while recording a finding relating to issue no.3, the Tribunal has held that there is nothing on record to indicate that the vehicle in question was being driven contrary to the terms of policy.
5. It is this limited plea which is urged by the learned counsel for the appellant and on the strength thereof, it is urged that the amount if any awarded by the Tribunal is liable to be paid by the owner of the tanker and the insurance company cannot be fastened with the liability as the tanker was clearly being driven contrary to the terms of the policy.
6. In support of his submission, Shri R.C. Sharma has relied upon a decision of a Coordinate Bench of this Court in the case of Gautam Filling Station vs. Munnu Singh & Anr., 2016 (34) LCD 1669 and a decision of the Division Bench in the case of Sibbal Singh vs. The United India Insurance Co. Ltd., F.A.F.O. No.378/2010, decided on 13.08.2012.
7. Shri J.K. Shukla, learned counsel for the claimants-respondents, on the other hand, contended that even though the driver of the offending tanker did not have an endorsement to drive the tanker containing hazardous goods, but the fact remains that the manner in which the accident had occurred has nothing to do with the fact that the driver was not having the requisite endorsement to drive the aforesaid category of vehicle.
8. He has further submitted that a number of tankers were parked in the garage and the deceased was also present in the garage where he had taken his tanker for repairs. In between two tankers, in the open space, the deceased was talking to his friend, however, during the said conversation, the offending tanker was reversed by its driver which caused the accident which led the deceased to suffer grievous injuries and he was referred to a hospital and during his treatment, he expired.
9. In this view of the matter, it is submitted that in fact the tanker was not being plied on the road. Thus, the manner in which, the accident has occurred, it has no bearing with the fact whether the endorsement of driving a vehicle carrying hazardous goods had any relevance and, therefore, the Tribunal has rightly observed that the tanker was not being driven against the policy conditions and has passed the award which requires no interference from this Court.
10. In support of his submissions, he relies upon a decision of the Division Bench of this Court in the case of United India Insurance Co. Ltd. vs. Smt. Seema & 5 Ors., F.A.F.O. No.2153 of 2015, decided on 17.08.2015.
11. The Court has heard learned counsel for the parties and also perused the record.
12. In order to decide the controversy raised in the appeal, certain facts giving rise to the instant appeal are being noted first.
13. It is the case of the claimants-respondents no.1,2 and 3 that the deceased namely Nagendra Kumar Yadav was employed as a driver of Tanker by M/s.Lateef Enterprises. It was further stated that M/s. Lateef Enterprises paid him a sum of Rs.4,000/- per month. On the fateful day i.e. 05.07.1998, the deceased Nagendra Kumar Yadav had taken the tanker bearing No.MH04/C-4691 for repairs to the garage of one Shri Vijay Bahadur. It is also stated that in the said garage another tanker bearing No.MWV/5123 was standing/parked ahead of the tanker of the deceased for repair. While waiting for the repairs to be done, the deceased was standing between two tankers and conversing with his other driver friend. In the meantime, the driver of tanker bearing No.MWV/5123 reversed the said tanker, as a result, it hit the deceased, who sustained grievous injuries and thereafter was admitted in a hospital where he was declared dead.
14. It is in this respect, that the claim petition was filed, which was registered as M.A.C.P. No.8/1999. The owner of the offending tanker namely Matabar J. Yadav was impleaded as defendant No.1 in the claim petition, the Insurance Company was impleaded as defendant No.2 and for some unknown reason the employer of the deceased was also impleaded as defendant No.3. Despite the service, none appeared on behalf of the defendants no.1 and 3 i.e. owner of the offending tanker and the employer of the deceased. It is only the Insurance Company which contested the proceedings by filing its written statement. Though in the written statement general defence was raised, however, there was no specific plea seeking absolving its liability on the ground that there was a violation of the policy condition.
15. Upon pleadings of the parties, the Tribunal framed six issues. While dealing with the evidence, the Tribunal concluded that the death of the deceased Nagendra Kumar Yadav was caused on account of rash and negligent act of the driver of offending tanker bearing No.MWV/5123. Considering the evidence on record, the Tribunal also found that the driver of the offending tanker did not possess a valid licence and the Tribunal further held that there was nothing on record to indicate that the said tanker was being driven contrary to the terms and conditions of the policy and thus the Tribunal concluded that the offending tanker was driven by the driver duly authorized along with other valid documents.
16. Considering the income and age of the deceased, the Tribunal awarded a sum of Rs.4,87,000/- to the claimants-respondents no.1, 2 and 3 along with 6% interest from the date of filing of the claim petition till the date of its actual payment and since the offending tanker was insured with the insurance company, thus, the liability was directed to be indemnified by the Insurance Company by means of the impugned award dated 28.07.2006. This award is under challenge.
17. At the time of admission of the appeal, a Division Bench of this Court by means of the order dated 17.11.2006 directed the appellant to deposit a sum of Rs.2,50,000/- with the Tribunal concerned, out of the same, a sum of Rs.1,00,000/- was released in favour of the claimant-respondent no.1 and the remaining amount was directed to be kept in an interest bearing account with the nationalized bank.
18. The sole issue involved in the instant appeal is whether the Insurance Company can be absolved of its liability where the driver of the tanker was not possessing a valid endorsement to drive the vehicle carrying hazardous goods.
19. In order to answer the aforesaid issue, certain provisions of the Motor Vehicles Act, 1988 as well as Central Motor Vehicles Rules, 1989 shall be important to be noticed.
"Section 3. Necessity for driving licence.--(1) No person shall drive a motor vehicle in any public place unless he holds an effective driving licence issued to him authorising 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 licence specifically entitles him so to do.
(2) The conditions subject to which sub-section (1) shall not apply to a person receiving instructions in driving a motor vehicle shall be such as may be prescribed by the Central Government.
Section 14. Currency of licences to drive motor vehicles.--(1) A learner's licence issued under this Act shall, subject to the other provisions of this Act, be effective for a period of six months from the date of issue of the licence.
(2) A driving licence issued or renewed under this Act shall,--
(a) in the case of a licence to drive a transport vehicle, be effective for a period of three years: 1[***] 2[Provided that in the case of licence to drive a transport vehicle carrying goods of dangerous or hazardous nature be effective for a period of one year and renewal thereof shall be subject to the condition that the driver undergoes one day refresher course of the prescribed syllabus;
(b) x x x
(i) x x x (A) x x x (B) x x x x x x x x x Section 56. Certificate of fitness of transport vehicles.--(1) Subject to the provisions of sections 59 and 60, a transport vehicle shall not be deemed to be validly registered for the purposes of section 39, unless it carries a certificate of fitness in such form containing such particulars and information as may be prescribed by the Central Government, issued by the prescribed authority, or by an authorized testing station mentioned in sub-section (2), to the effect that the vehicle complies for the time being with all the requirements of this Act and the rules made thereunder: Provided that where the prescribed authority or the "authorized testing station" refuses to issue such certificate, it shall supply the owner of the vehicle with its reasons in writing for such refusal.
(2) x x x (3) x x x (4) x x x (5) x x x
66. Necessity for permits.--(1) No owner of a motor vehicle shall use or permit the use of the vehicle as a transport vehicle in any public place whether or not such vehicle is actually carrying any passengers or goods save in accordance with the conditions of a permit granted or countersigned by a Regional or State Transport Authority or any prescribed authority authorising him the use of the vehicle in that place in the manner in which the vehicle is being used: Provided that a stage carriage permit shall, subject to any conditions that may be specified in the permit, authorise the use of the vehicle as a contract carriage: Provided further that a stage carriage permit may, subject to any conditions that may be specified in the permit, authorise the use of the vehicle as a goods carriage either when carrying passengers or not: Provided also that a goods carriage permit shall, subject to any conditions that may be specified in the permit, authorise the holder to use the vehicle for the carriage of goods for or in connection with a trade or business carried on by him.
Section 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.
Explanation. --For the removal of doubts, it is hereby declared that the death of or bodily injury to any person or damage to any property of a third party shall be deemed to have been caused by or to have arisen out of, the use of a vehicle in a public place notwithstanding that the person who is dead or injured or the property which is damaged was not in a public place at the time of the accident, if the act or omission which led to the accident occurred in a public place.
(2) Subject to the proviso to sub-section (1), a policy of insurance referred to in sub-section (1), shall cover any liability incurred in respect of any accident, up to the following limits, namely:--
(a) save as provided in clause (b), the amount of liability incurred;
(b) in respect of damage to any property of a third party, a limit of rupees six thousand:
Provided that any policy of insurance issued with any limited liability and in force, immediately before the commencement of this Act, shall continue to be effective for a period of four months after such commencement or till the date of expiry of such policy whichever is earlier., (3) x x x (4) x x x (5) Notwithstanding anything contained in any law for the time being in force, an insurer issuing a policy of insurance under this section shall be liable to indemnify the person or classes of persons specified in the policy in respect of any liability which the policy purports to cover in the case of that person or those classes of persons.
Rule 132. Responsibility of the transporter or owner of goods carriage.--(1) x x x (2) x x x (3) x x x (4) x x x (5) It shall be the duty of the owner to ensure that the driver of the goods carriage carrying dangerous or hazardous goods holds a driving licence as per provisions of rule 9 of these rules."
20. From the conjoint reading of the aforesaid provisions, it is clear that insofar as the heavy goods motor vehicles is concerned, the licence issued to such a person is valid for a period of three years. However, where a driver is driving a transport vehicle carrying hazardous goods, for such vehicles, the driver must possess a separate endorsement and the said endorsement has to be renewed from time to time on an application made by the driver concerned as per the provisions and rules framed under the Act of 1988.
21. From the perusal of the material on record, a copy of the driving licence of the offending tanker namely Sadashiv Sakpal has been brought on record bearing Paper No.G-64/1 to G-64/2.
22. From the perusal of the said document, it would be clear insofar as the eligibility of the said driver to drive a heavy goods motor vehicle is concerned, there is no dispute. However, there is no endorsement permitting the said driver to drive heavy goods vehicle carrying hazardous goods. Tankers which carry petrol goods such articles are not only hazardous but also inflammable and to be used in public place such vehicles can be driven by a person authorized for the aforesaid purpose as per law.
23. The authority or licence to drive a vehicle in a public place is in compliance of the statutory requirement provided under the Motor Vehicles Act. The grant of compensation under Section 166 of the Act of 1988 is primarily dependend upon the negligence to be proved of the offending driver concerned.
24. The two issues are quite different. The person may be negligent in driving but at the same time, he ought to be authorized to drive a particular type of vehicle in a public place, as per law. In another situation, a person may not be negligent per se while driving but an accident may occur on account of use of a motor vehicle but the person may not be authorized to drive the particular type of vehicle in a public place.
25. The contract of insurance between the insured and the insurance company is based on uberrima fides. It is a contract which has to be complied with in its letter and spirit. Taking note of the aforesaid aspect of the matter and where the driver of the offending tanker did not possess the requisite endorsement to drive or use the heavy goods vehicle carrying hazardous goods indicates that law did not authorize him to drive the said vehicle at public place.
26. The owner of the tanker permitted a person to use the said heavy goods vehicle carrying hazardous goods in the public space in violation of the law and it per se violative of the policy condition. The manner in which the accident occurred may not be necessary to absolve the owner of his liability, but this aspect of the matter has been taken note of by the Coordinate Bench of this Court in the case of Gautam Filling Station (supra). In Paragraphs 26 and 27, it has been held as under:-
"26. Thus, if the statutory requirements as noted above are ignored or diluted on the basis of fact of the case or the factum of accident, say that the driver of the vehicle was admittedly negligent and the insurance company is not permitted to raise the defence that such statutory requirements were not fulfilled, it would amount to nullifying the limited protection granted to the insurance company under section 149 of the Act of 1988.
27. In such view of the matter, in my opinion, section 149 provides for statutory protection available to the company, which clearly shows that no sum shall be payable by the insurer under sub-section (1) in respect of any judgment or award and the insurer can defend the action on the ground as provided under section 149 which also includes that it can avoid its liability if the person driving the vehicle was not duly licensed. For this purpose, needless to say that the requirement of section 3 and section 14 of the Act of 1988 and Rule 9 and Rule 132(5) of the Central Motor Vehicles Rules, 1989, which have already been noted above and need no repetition, are to be fulfilled or complied with for holding a valid licence."
27. Though the Division Bench decision cited by the learned counsel for the appellant in the case of Sibbal Singh (supra) does not necessarily deal with all the provisions of law yet it also arrives at the same conclusion.
28. On the other hand, the decision of the Division Bench cited by the learned counsel for the claimants-respondents has taken a view that in case if the vehicle is driven by a person not authorized with the requisite endorsement on the licence but that in itself does not have any nexus with the manner in which the accident has occurred, in such a case, the Insurance Company cannot absolve its liability. However, with due respect to the decision of the Division Bench in the case of United India Insurance Co. Ltd. vs. Smt. Seema & 5 Ors. (supra), it does not take note of the provisions of the Motor Vehicles Act as well as the Scheme of the Insurance nor the issue has been considered and merely a reference is contained in the said decision. A decision is binding for which it decides and not what can be inferred from it. For the said reason, this Court is inclined to accept the view expressed by the said Division Bench of Sibbal Singh (supra) and Gautam Filling Station (supra).
29. Be that as it may, from the perusal of the record, a fact that is also evident that the deceased was standing between the two tankers. So far as the negligence of the driver of the offending tanker is concerned, that finding is not under challenge. The quantum of compensation is also not under challenge. Thus, these findings are final. The only issue whether the Insurance Company can be absolved of its liability is to be seen in context with the compensation which has been granted.
30. Apparently, in light of the decisions as noted above, the findings of the Tribunal regarding issue no.3 is not in consonance with the settled legal principles. The material brought on record clearly established that the driver of the offending tanker did not possess necessary endorsement. Thus, the finding to the aforesaid effect that the tanker was not being driven contrary to the policy is not correct and such a finding cannot be sustained.
31. On the other hand, it also has to be seen that insofar as the claimants are concerned, they are not concerned with the fact whether the tanker was being driven in violation of the policy condition or not. That matter is between the insured and the insurance company.
32. Considering the dictum of the Constitution Bench decision of the Apex Court in the case of National Insurance Company Ltd. vs. Swaran Singh, (2004) 3 SCC 297, this Court finds that ends of justice can be served by modifying the award dated 28.07.2006 to the extent that the amount in question be paid by the insurance company first and the appellant-Insurance Company shall be entitled to recover the same from the owner. To the aforesaid extent, the judgment and award dated 28.07.2006 passed by A.D.J. (Court No.4)/Motor Accident Claims Tribunal, Pratapgarh in M.A.C.P. No.8/1999 shall stands modified.
33. Any amount deposited before this Court shall be remitted to the Tribunal concerned to be released in favour of the claimant-respondents. The remaining sum shall also be deposited by the Insurance Company before the Tribunal concerned to be released in favour of the claimant-respondents within a period of six weeks from today and thereafter the appellant shall be entitled to recover the same from the owner of the offending tanker.
34. The appeal is partially allowed. However, in the facts and circumstances, there shall be no order as to costs.
35. The record of the lower court shall also be remitted to the Tribunal concerned expeditiously.
Order Date :- 27.07.2021 Rakesh/-