Bajaj Allianz General Insurance Co. Ltd. vs Pratima Gupta & Ors.

This appeal under Section 173 of the Motor Vehicles Act, 1988 (hereafter the Act), at the instance of an insurer, is directed against the judgment and

award dated 31st March, 2014 passed by the Motor Accident Claims Tribunal-cum-Additional District Judge, 13th Court, Alipore, South 24-Parganas

on an application under Section 166 thereof, registered as M.A.C. Case No. 79 of 2010. The tribunal found that the victim, a septuagenarian, had

suffered multiple injuries in a road accident, ultimately leading to his death. It was further found that the offending vehicle (a motor cycle), which

dashed the victim, was driven rashly and negligently by Rama Shankar Roy (the opposite party no.1 before the tribunal). Rama Shankar Roy also

happened to be the owner of the offending vehicle. Since it was also found to be covered by a policy of insurance issued by the appellant herein,

which was the opposite party no.2 before it, the tribunal directed the appellant to bear the compensation awarded by it i.e. Rs.7,77,860/-, together with

interest @ 8% per annum from the date of filing of the claim application till realization, which was to be shared by the two claimants equally. The

claimants were incidentally the widow and the son of the victim.

The only point raised by Mr. Singh, learned advocate for the appellant/insurer is that the tribunal committed grave error in fastening the

appellant/insurer with the liability to bear compensation payable to the claimants. According to him, Rama Shankar Roy did not have a valid driving

license to drive a motor cycle, although he did possess a driving license to drive light motor vehicles. Non-possession of a driving license by Rama

Shankar Roy to drive a motor cycle being not in dispute, he contended that the tribunal should have fastened Rama Shankar Roy with the liability to

compensate the claimants. It has also been argued that the principles laid down in the decision in National Insurance Co. Ltd. v. Swaran Singh

reported in 2004(3) SCC 297 would not apply here since it is not a case where Rama Shankar Roy was unaware that he did not possess a valid

driving license to drive a motor cycle.

Appearing for the claimants/respondents 1 and 2 in the appeal, Mr. Mondal, learned advocate contended that having regard to a decision of recent

origin of the Supreme Court in Singh Ram v. Nirmala and Ors., reported in 2018 SAR (Civil) 473, the direction of the tribunal on the appellant/insurer

to pay the compensation awarded to the claimants at the first instance does not merit any interference. He has placed the judgment in its entirety to

contend that if at all it is found that Rama Shankar Roy was primarily responsible for the accident and did not have a valid driving license to drive a

motor cycle, the Court may direct the appellant/insurer to pay the compensation amount to the claimants/respondents 1 and 2 and recover it from

Rama Shankar Roy.

Pertinently, Rama Shankar Roy chose not to contest the proceedings before the tribunal as well as before us. Despite directions, notice of appeal on

Rama Shankar Roy could not be served on him for some reason or the other. Ultimately, pursuant to a direction dated 11th January, 2018 of a

coordinate bench, notice could finally be served on Rama Shankar Roy through the local police. He is now represented by Mr. Keshri, learned

advocate. Our attention was invited by Mr. Keshri to paragraph 89 of the decision in Swaran Singh (supra) and in particular to the portion extracted

below:

“89. *** In each case, on evidence led before the Tribunal, a decision has to be taken whether the fact of the driver possessing licence for one

type of vehicle but found driving another type of vehicle, was the main or contributory cause of accident. If on facts, it is found that the accident was

caused solely because of some other unforeseen or intervening causes like mechanical failures and similar other causes having no nexus with the

driver not possessing requisite type of licence, the insurer will not be allowed to avoid its liability merely for technical breach of conditions concerning

driving licence.

It is contended on the basis of the above by him that it was obligatory for the tribunal to come to a conclusion on the basis of the evidence led before it

that the accident was caused solely because of the fault of the driver who did not possess the requisite driving license to drive the offending vehicle

and that such accident was not caused by some other unforeseen or intervening causes like mechanical failures and similar other causes having no

nexus with the driver not possessing requisite type of license.

Mr. Keshri has also invited our attention to the deposition of the witness that the appellant/insurer had produced before the tribunal to the effect that

“light motor vehicle†includes a motor cycle. On the basis thereof, he has contended that the appellant/insurer was duly authorized to drive a

motor cycle and the appellant/insurer ought not to evade its responsibility having accepted the premium for the insurance policy, which it issued

covering the offending vehicle.

Having heard learned advocates for the parties, we are of the clear opinion that the contention of Mr. Keshri recorded above cannot be accepted for

more reason than one. First, the claimants/respondents 1 and 2 clearly alleged in the claim application that rash and negligent driving of the offending

vehicle led to the accident and the victim, who was injured, lost his life. Rama Shankar Roy did not bother to file any written statement. In the absence

of any written statement filed by Rama Shankar Roy, the doctrine of non-traverse is attracted and the allegations in the claim application would be

deemed to have been admitted by him.

Secondly, we have found from the written statement filed before the tribunal by the appellant/insurer that in its attempt to avoid liability, it had

specifically pleaded non-possession of a valid driving license by Rama Shankar Roy. Such pleading also went unrebutted. Thirdly, Rama Shankar Roy

did not choose to contest the eye witness version of P.W.3 to the effect that it was mainly due to the rash and negligent driving of the offending

vehicle that the accident occurred, which ultimately took away the life of the victim. Significantly, it is not the case of any party that due to mechanical

failure or vis major the accident occurred. Based on the version of P.W.3, it is clear as crystal that rash and negligent driving of the offending vehicle

by Rama Shankar Roy, not having the license to drive it, resulted in the accident and consequently the death of the victim. This is a case where the

facts speak for themselves and the doctrine res ipsa loquitur gets clearly attracted.

We are also of the view having regard to the provisions of the Act and the rules framed thereunder that licence to drive a light motor vehicle issued in

favour of an individual would not clothe with the right to drive a motor cycle without having a specific licence in that behalf. Whatever the witness on

behalf of the appellant/insurer might have deposed, cannot be relied upon if it is found to be contrary to law. Proceeding to deal with Mr. Singh’s

contention, we find no reason to deviate from the principle of ‘pay and recover’.

Howsoever forcefully Mr. Singh might argue that Rama Shankar Roy not possessing a driving license to drive the offending vehicle being undisputed

and, therefore, the appellant-insurer had successfully avoided its liability, sight cannot be lost of certain passages from the decision in Swaran Singh

(supra), which are extracted below :

“Conclusion

It is, therefore, evident from the discussions made hereinbefore that the liability of the insurance company to satisfy the decree at the first

instance and to recover the awarded amount from the owner or driver thereof has been holding the field for a long time.

We may, however, hasten to add that the Tribunal and the court must, however, exercise their jurisdiction to issue such a direction upon

consideration of the facts and circumstances of each case and in the event such a direction has been issued, despite arriving at a finding of fact to the

effect that the insurer has been able to establish that the insured has committed a breach of contract of insurance as envisaged under sub-clause (ii) of

clause (a) of sub-section (2) of Section 149 of the Act, the insurance company shall be entitled to realise the awarded amount from the owner or

driver of the vehicle, as the case may be, in execution of the same award having regard to the provisions of Sections 165 and 168 of the Act.

However, in the event, having regard to the limited scope of inquiry in the proceedings before the Tribunal it had not been able to do so, the insurance

company may initiate a separate action therefor against the owner or the driver of the vehicle or both, as the case may be. Those exceptional cases

may arise when the evidence becomes available to or comes to the notice of the insurer at a subsequent stage or for one reason or the other, the

insurer was not given an opportunity to defend at all. Such a course of action may also be resorted to when a fraud or collusion between the victim

and the owner of the vehicle is detected or comes to the knowledge of the insurer at a later stage.

The summary of our findings to the various issues as raised in these petitions is as follows:

(x) Where on adjudication of the claim under the Act the Tribunal arrives at a conclusion that the insurer has satisfactorily proved its defence in

accordance with the provisions of Section 149(2) read with sub-section (7), as interpreted by this Court above, the Tribunal can direct that the insurer

is liable to be reimbursed by the insured for the compensation and other amounts which it has been compelled to pay to the third party under the award

of the Tribunal. Such determination of claim by the Tribunal will be enforceable and the money found due to the insurer from the insured will be

recoverable on a certificate issued by the Tribunal to the Collector in the same manner under Section 174 of the Act as arrears of land revenue. The

certificate will be issued for the recovery as arrears of land revenue only if, as required by sub-section (3) of Section 168 of the Act the insured fails

to deposit the amount awarded in favour of the insurer within thirty days from the date of announcement of the award by the Tribunal.â€​

The offending vehicle having been insured by the appellant/insurer, the initial burden to compensate the claimants/respondents 1 and 2 rests on the

appellant/insurer. However, in view of the decision in Swaran Singh (supra), since followed in Singh Ram (supra), the appellant/insurer ought to be

granted liberty to apply before the tribunal itself for recovery of compensation paid to the claimants/respondents 1 and 2 from Rama Shankar Roy in

accordance with law, which we hereby order. We, accordingly, dispose of the appeal with directions that follow.

Since the compensation amount together with interest has been deposited by the appellant/insurer in terms of an interim order in the appeal, we direct

the Registrar General to release the same in favour of the claimants 1 and 2 together with accrued interest if an approach is made in this behalf by

them.

We also make it clear that the appellant/insurer shall be at liberty to proceed in accordance with law and it is expected that the tribunal shall follow the

guidelines given in paragraph 110(x) of the decision in Swaran Singh (supra) and in paragraph 13 of the decision in National Insurance Company Vs.

Challa Bharathamma, reported in 2005 (1) T.A.C. 4 (S.C.), without, however, Rama Shankar Roy being under any obligation to furnish security for

the entire amount before the payment is effected in terms of this judgment and order in favour of the claimants/respondents 1 and 2.

Needless to observe, if at all Rama Shankar Roy is not in a position to satisfy the legitimate dues of the appellant/insurer, the tribunal shall be at liberty

to dispose of his property/properties according to law and thereafter reimburse the appellant/insurer. There shall, however, be no order as to costs.

Urgent photostat certified copy of this judgment and order, if applied for, be given to the parties as expeditiously as possible.