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Judgment
The Motor Accident Claims Tribunal, Barmer (for short, 'learned Tribunal') decided 19 claim cases, arising out of solitary accident, by three separate judgments & awards of even date, 4th of September, 2010, which are under challenge in these appeals and cross-objections. In 10 appeals, claimants have assailed impugned judgments & awards to the extent of findings recorded by learned Tribunal on Issue Nos.2 & 3 with the prayer for seeking enhancement of quantum of compensation and setting aside the decision absolving the insurer from its liability to pay compensation. The appeals preferred by the owner of the offending vehicle are confined to challenging findings and conclusions of the learned Tribunal regarding Issue No.2 whereby the insurer is exonerated from its liability to pay compensation. Likewise, in 10 cross-objections filed on behalf of owner of the vehicle, finding of the learned Tribunal is questioned pertaining to Issue No.3 with a prayer to fasten liability on the insurer to pay compensation.
Succinctly stated, the facts are that on fateful day of 16th of June, 2006, Pick-up vehicle No.RJ-04-G-3327, coming from Barmer to village Band collided with Turbo Truck No.RJ-19-G-6466. The occurrence of accident was attributed by claimants to the driver of Turbo Truck with a specific allegation that the same was driven rashly and negligently by its driver. The accident, eventually, resulted in ghastly tragedy and engulfed life of many individuals besides sufferance of grave and serious injuries to others. In all, 12 persons, namely, Omaram, Girdhariram, Chainaram, Lumbaram, Gomaram, Thakararam, Kewalram, Achalaram, Raichand, Dedaram, Bhanwraram and one other person succumbed to the accidental injuries and remaining 10 individuals were seriously injured, who are Kesraram, Rooparam, Gangaram, Kishnaram, Rawtaram, Ranaram, Ghamaram, Dharmaram, Paras and owner as well as driver of Pick-up Bhagwana Ram. The accident was reported to Police Station Sadar, Barmer, whereupon FIR No.159/06 was registered. After investigation, charge-sheet was filed against drivers of both the vehicles for offence punishable under Sections 279, 337, 338, 304A IPC. In the claim petitions, respective claimants arrayed drivers of both the vehicles besides owner of Turbo Truck and insurer of both the vehicles as non-claimants. Respective claimants quantified amount of compensation under different heads by highlighting the age, income and occupations of the deceased and injured.
The claim petitions were not contested by driver and owner of Turbo Truck bearing registration No.RJ-19-G-6466 and due to their absence, learned Tribunal proceeded ex-parte against them. Rest of the non-claimants including both the insurer contested the claim petitions. The insurance company of Turbo Truck contested the claim by filing its reply. In the reply, it is averred that driver of Pick-up was responsible for the accident inasmuch as he had driven the vehicle rashly and negligently. Apart from that, a specific objection was raised that at the time of accident, driver of Turbo Truck was not holding any valid licence. With these submissions, Insurer claimed for exoneration from its liability to pay compensation by invoking Sections 147 & 149 of the Motor Vehicle Act, 1988 (for short, 'Act'). Owner and driver of the Pick-up also submitted reply to the claim petitions attributing total negligence on the part of Turbo Truck. Likewise, insurer of Pick-up also submitted reply with specific plea that the vehicle was registered as goods vehicle, and therefore, insurance company is not liable to pay compensation for the passengers, who were traveling in it. Objection about valid licence to ply vehicle against the driver of Pick-up was also raised in the reply for seeking absolvement of the insurer from its liability.
On the basis of pleadings of rival parties, learned Tribunal settled three issues for determination and the rival parties tendered their oral and documentary evidence. Upon conclusion of the trial, learned Tribunal partly allowed all the claim petitions by three separate judgments and awards. While deciding the claim petitions, learned Tribunal recorded its finding that driver of Turbo Truck was not having a valid licence to ply the same and consequently absolved its insurer i.e., Oriental Insurance Co. Ltd. from liability to pay comepnsation. The details about all the claim petitions, appeals and cross objections with amount of compensation claimed and awarded by the Tribunal is as under:-
Sr. No. Claim Amount Amount CMA Cross
Case claimed awarded Number Objection
Number Number
95/2006 36,23,000 2,49,600 2556/2011 9/2016
170/2006 27,80,000 4,01,400 982/2011 7/2016
74/2007 6,60,200 92,000 983/2011 6/2016
172/2006 27,00,000 1,81,000 984/2011 5/2016
169/2006 30,60,000 4,11,400 985/2011 8/2016
4/2007 10,37,000 3,24,000 1039/2011 10/2016
176/2006 25,23,000 - 1472/2011 19/2016
136/2006 38,51,000 5,94,960 2931/2011 18/2016
148/2006 39,94,000 5,40,400 3796/2011 11/2016
159/2006 11,41,000 3,00,000 3798/2011 20/2016
163/2006 27,49,000 2,30,200 492/2015 -
22/2007 20,35,000 1,70,700 493/2015 -
138/2006 14,22,000 53,000 494/2015 -
37/2007 7,78,000 15,000 495/2015 -
7/2007 1,45,000 8,000 496/2015 -
139/2006 23,22,000 1,73,200 497/2015 -
142/2006 17,22,000 1,38,000 609/2015 -
164/2006 17,12,000 1,38,000 610/2015 -
173/2006 2,45,000 8,000 611/2015 -
It is argued by learned counsel for the appellant-claimants, Mr. Anil Bhandari and Mr. M.R. Patel, that learned Tribunal has seriously erred in exonerating insurance company of Turbo Truck from its liability. Learned counsel have also argued that the deceased and injured persons were traveling in Pick-up with their goods (milk), and therefore, absolving the insurance company from its liability to pay compensation is dehors Section 147(1)(b) (i) of the Act. It is also submitted by learned counsel that statements of witnesses AW1-Chhagna Ram, AW2-Kisna Ram and NAW3-Hanumana Ram are clear and unequivocal to substantiate plea of the claimants. Learned counsel appearing for the appellant-claimants have further contended that amount of compensation determined by learned Tribunal in respective claim petitions is grossly inadequate and not commensurating with the calamity suffered by bereaved families and the gravity of injuries suffered by injured claimants. Romping in Section 168 of the Act, learned counsels for the appellant-claimants have urged that compensation awarded by the learned Tribunal in all the cases is not satisfying the criteria of just and fair assessment. Learned counsels have also argued that learned Tribunal has not awarded any compensation for future prospects of deceased/injured.
Learned counsels would urge that even if driver of an insured vehicle is possessing a fake driving licence, the burden lies on the insurer to prove that insured had knowledge about the fact that driver is having no valid licence or the licence possessed by him is fake. Elaborating their submissions in this behalf, learned counsels contended that in absence of furnishing requisite evidence to this effect, the insurer cannot claim absolvement from its liability to pay compensation. Learned counsel for the appellants Mr. K.C. Choudhary in CMA No.1472/11 has urged that learned Tribunal has grossly erred in dismissing the claim petition in absence of evidence inasmuch as appellants were not allowed reasonable opportunity to tender their evidence. In support of their arguments, learned counsels for the appellants have placed reliance on following judgments:
Magma General Insurance Co. Ltd. Vs. Nanu Ram Alias Chuhru Ram & Ors.[2018 (2) RAR SC 241]
Sureshchandra Bagmal Doshi & Anr. Vs. New India Assurance Company Limited & Ors. [2018 (2) RAR 286 (SC)]
Anita & Ors. Vs. Arun Yadav & Ors. [2018 (4) MACT 313 (SC)]
Bhogireddy Varalakshmi & Ors. Vs. Mani Muthupandi & Ors.[2018 (1) RAR 8 (SC)]
Ramrao Lala Borse & Anr. Vs. New India Assurance Company Ltd. & Anr. [2018 (1) RAR 52 (SC)]
Shri Nagar Mal & Ors. Vs. Orienal Insurance Company Ltd. & Ors. [2018 (1) RAR 84 (SC)]
Ram Chandra Singh Vs. Rajaram & Ors. [2018 (2) RAR 235 (SC)]
National Insurance Co. Ltd. Vs. Tulna Devi & Ors. [2009 RAR 25 SC]
Manuara Khatun & Ors. Vs. Rajesh Kumar Singh & Ors.[2017 ACJ 1031]
Shivawwa & Anr. Vs. Branch Manager, National India Insurance Co. Ltd. & Anr.[2018 (1) RAR 97]
Shamanna & Anr. Vs. Divisional Manager, Oriental Insurance Co. Ltd. & Ors.[2018 (2) RAR 255]
Chollamandalam M.S. General Insurance Company Limited Vs. Smt. Chuki Devi & Ors.
National Insurance Co. Ltd. Vs. Yogesh & Ors. [2010(2) WLN 181]
Mangla Ram Vs. Oriental Insurance co. Ltd. & Ors. [2018 (1) RAR 135 (SC)]
Jetha Ram & Anr. Vs. Thanwar Lal & Ors. [2017 (1) RAR 119 (Raj)]
Khenyei Vs. New India Assurance Co. Ltd. & Ors. [2015 (2) RAR 193 (SC)]
Learned counsel, Mr. Suresh Shrimali, appearing for the appellant-owner of Turbo Truck, has vehemently argued that the finding of learned Tribunal on Issue No.3 is erroneous inasmuch as the driver of Turbo Truck was having a valid licence at the time of accident. The same argument is advanced by the learned counsel for the owner of Turbo Truck in some cross-objections submitted on his behalf for fastening liability on the insurer to pay compensation. Learned counsel Mr. Shrimali further submits that notices issued by the learned Tribunal were not personally served on the owner of Turbo Truck and he was also never asked to furnish driving licence of the vehicle driver. He, therefore, argued that learned Tribunal even in absence of the owner of Turbo Truck ought to have called upon insurer to furnish requisite proof about non-availability of the driving licence with the driver of the vehicle.
At this stage, before proceeding to examine the rival contentions, it would be just and appropriate to take up the applications submitted by owner of Turbo Truck under Order 41 Rule 27 CPC in various appeals and cross-objections. By the aforesaid applications, owner of the Turbo Truck appellant/cross-objector has prayed for producing additional evidence, i.e., driving licence of the driver on record. For seeking indulgence of the Court, it is inter-alia averred in the applications that notices issued by learned Tribunal of various claim petitions were not personally served on him, and therefore, he could not appear before the learned Tribunal to defend the cause. It is further averred that at no point of time driver of Turbo Truck or owner, i.e., appellant/cross-objector, was asked to produce driving licence. Lastly, it is also averred in the applications that as the learned Tribunal has passed ex-parte awards against owner and driver of the Turbo Truck, it would be just and appropriate in the interest of justice to permit the owner of Turbo Truck to produce driving licence possessed by the driver. The applications are duly supported by affidavits of the owner of Turbo Truck. No formal reply to the applications is filed by other contesting parties.
I have heard learned counsel for the rival parties.
In support of his arguments, learned counsel for the owner of Turbo Truck has placed reliance on following legal precedents:
Dariya Singh Vs. Darshan Singh & Ors. [2008(1) DNJ (Raj.) 194]
National Insurance Co. Ltd. Vs. Yogesh & Ors. [2010(2) WLN 181 (Raj.)]
It is trite that appeal is an extension of the suit, and therefore, appellate Court has same powers as that of a Court of original jurisdiction. Section 107(1)(d) of the CPC empowers the appellate Court to admit additional evidence. The grounds for taking additional evidence at the appellate stage are provided under Order 41 Rule 27 CPC. Essentially, the applications submitted on behalf of owner of the Turbo Truck (appellant/cross-objector) is founded on clauses (aa) & (b) of sub-rule (1) of Rule 27 of Order 41 CPC. There remains no quarrel that owner of the Turbo Truck has not contested the claims and the judgments & awards are passed ex-parte against him. The non-participation of him in the proceedings before the Tribunal, for whatsoever reason, has obviously prevented him from submitting the driving licence, which eventually entailed exoneration of insurer from its liability to pay compensation. The factum of Turbo Truck being insured is undisputed, and therefore, the insurer which has indemnified on behalf of the insured to pay compensation as per contract of insurance, then, it cannot be allowed to claim immunity from its liability to pay compensation sans violation of any terms of the insurance policy. For his absence before the learned Tribunal in all the claim cases, owner of the Turbo Truck has also pleaded that notices were not personally served on him. That apart, Court also feels that the additional evidence, which is sought to be placed on record, is very much required so as to enable the Court to pronounce judgment in the appeal.
The solemn object of provisions under Order 41 Rule 27 CPC is to do real, effective and substantial justice or to prevent miscarriage of justice by permitting a party to produce additional evidence. Discretionary power of the appellate Court under aforesaid provision is also liable to be exercised for deciding the dispute in more satisfactory manner.
Supreme Court in the matter of Jayaramdas & Sons Vs. Mirza Rafatullah Baig & Ors. [(2004) 10 SCC 507], while construing various clauses of sub-rule (1) of Rule 27 held:
"It is true that additional evidence, whether oral or documentary, is not to be admitted in Appellate Court unless a case for admission thereof is made out by reference to Clause (a) or (aa) of Sub-rule (1) of Rule 27 or unless the Appellate Court requires such evidence to enable it to pronounce judgment or for any other substantial cause within the meaning of Clause (b). A perusal of the documents, brought to our notice by the learned counsel for the appellants and their comparison with the documents already available on record, clearly goes to show that the two are at variance and the effect of such variance determined either way would have a material bearing on the crucial issue arising for decision between the parties.
In Shyam Gopal Bindal & Ors. Vs. Land Acquisition Officer & Anr. [(2010) 2 SCC 316], Supreme Court, while considering the true purport of Order 41 Rule 27, held:
"It appears that the documents which were sought to be produced by the appellants formed the very basis of the claim made by the appellants in the civil suit. Their consideration by the Court was necessary for a just decision of the case."
In Dariya Singh (supra), learned Single Judge of this Court allowed application under Order 41 Rule 27 CPC against the judgment and award passed by Tribunal dismissing the claim solely on the ground of non-production of registration certificate of the vehicle and remanded the matter back.
While it is true that the insured has not produced driving licence of the driver of vehicle but then the learned Tribunal in absolving the insurer from its liability to pay compensation has utterly failed to notice that onus lies on the insurer to prove the same by tendering relevant evidence. Moreover, when both owner and driver did not appear before the learned Tribunal and ex-parte proceedings were taken against them, the insurer ought to have tendered cogent evidence for proving violation of terms of insurance policy by the insured.
My aforesaid view finds support of a Supreme Court judgment in case of Tulna Devi (supra), wherein Supreme Court, while relying on its earlier judgment in National Insurance Co. Ltd. Vs. Swaran Singh [(2004) 3 SCC 297], held:
"(iii) The breach of policy condition e.g. disqualification of the driver or invalid driving licence of the driver, as contained sub-sec.(2)(a)(ii) of Sec.149, has to be proved to have been committed by the insured for avoiding liability by the insurer. Mere absence, fake or invalid driving licence or disqualification of the driver for driving at the relevant time, are not in themselves defences available to the insurer against either the insured or the third parties. To avoid its liability towards the insured, the insurer has to prove that the insured was guilty of negligence and failed to exercise reasonable care in the matter of fulfilling the condition of the policy regarding use of vehicles by a duly licensed driver or one who was not disqualified to driver at the relevant time."
The additional documents, which the owner of Turbo Truck wanted to produce is the driving licence of respondent-driver Kalyan Singh, issued by Government of Nagaland on 29.04.2004 for ten years, whose copy was obtained under Right to Information Act. If the date of accident is examined in that background, then, it would ipso facto reveal that the same falls in the interregnum period during which validity of the licence was in vogue.
Therefore, considering all these aspects and for facilitating just decision in all these appeals and cross objections, in the interest of justice, it would be just and appropriate to allow applications under Order 41 Rule 27 CPC and accordingly same are allowed. The additional evidence, in the form of driving licence of driver of Turbo Truck, is taken on record.
Learned counsels appearing for appellants-claimants have advanced many arguments for seeking enhancement of compensation besides harping on fastening liability on the insurer to first pay compensation and then recover the same from insured but in the considered opinion of the Court it would not be appropriate to make this exercise at this stage. The Court is also dissuaded to consider these arguments at this stage precisely for the reason that applications submitted by the owner of the Turbo Truck under Order 41 Rule 27 CPC in various appeals and cross-objections are allowed and additional evidence is taken on record.
It is also note-worthy that learned Tribunal has proceeded ex-parte against owner and driver of Turbo Truck and the insurer had no opportunity to rebut the factum of valid licence being possessed by the driver of Turbo Truck, further requires this Court to exercise power under Order 41 Rule 23 & 23A CPC for remanding all these matters back to decide afresh. Remanding all the matters for decision afresh is also essential because the additional evidence taken on record would have effect of materially altering the final decision of the learned Tribunal in all the claim cases.
In view of foregoing discussion, the appeals filed by the appellant-claimants, appellant-owner of Turbo Truck and cross-objections filed on his behalf are allowed in part and the impugned judgment & awards are set aside to the extent of finding and conclusion recorded pertaining to Issues No.2 & 3 and the learned Tribunal is directed to permit the rival parties to adduce additional evidence, if they so desire, and decide both these issues de novo, strictly in accordance with law. The Tribunal may also examine the issue relating to quantum of compensation afresh in light of the judgments relied upon by the learned counsel for appellant-claimants.
As the accident relates to the year 2006, learned Tribunal is expected to decide all the claim petitions afresh, in light of the directions issued supra, without any delay, preferably within a period of four months from the date of receipt of records of all the cases.
The Registry is directed to send back records forthwith to learned Tribunal.
Let copy of this order be placed in each file.