Guman Das vs Sunita and Others

Prafulla C. Pant, J.—All these five appeals have arisen out of same accident and same question of law is involved in these appeals. Heard learned counsel for the appellant (owner of the vehicle) and learned counsel for the respondent insurance company (United India Insurance Co. Ltd.) and perused the record of the Tribunal.

Brief facts of the case are that on 23.9.2005, at about 8.30 p.m., on Chakrata-Lakha Mandal Road near Kadawa (Indroli), respondent Dhani Ram was driving utility vehicle bearing registration No. UA 07-E 4724 rashly and negligently and consequently vehicle fell in a gorge. In the accident five persons, namely, Dinesh, Gyaru Das, Daulat Ram, Raniya and Fulma lost their lives. The first information report of the accident was lodged by one Pooran Chand. Dead bodies of five deceased were taken by the police in their custody and after preparing inquest report their postmortem examinations were conducted. Dependants of Dinesh filed Claim Petition No. 289 of 2005, dependants of Gyaru Das filed Claim Petition No. 286 of 2005, the dependants of Daulat Ram filed Claim Petition No. 285 of 2005, dependants of Raniya filed Claim Petition No. 293 of 2005 and dependants of Fulma filed Claim Petition No. 294 of 2005. In all those claim petitions Dhani Ram, driver of the vehicle, Guman Das, owner of the vehicle (present appellant), and United India Insurance Co. Ltd. with whom the vehicle was insured were impleaded as respondents.

Motor Accidents Claims Tribunal, Dehradun, before whom claim petitions were filed, issued notices to the respondents. Driver and owner of the vehicle filed their joint written statements, separately in each claim petition and took a plea that the accident had occurred on account of technical defect in the vehicle. It is further pleaded that vehicle was being driven with a valid licence. They also pleaded that the vehicle was insured with United India Insurance Co. Ltd., Dehradun.

Respondent No. 3 before the Tribunal, i.e., United India Insurance Co. Ltd., filed its separate written statement in each claim petition, and denied that the driver was holding a valid licence. It is further pleaded that vehicle was being driven in violation of the conditions mentioned in the permit, registration certificate and fitness certificate.

On the basis of the pleadings of the parties following issues were framed separately in each claim petition:

(i) Whether vehicle utility No. UA 07-E 4724 was being driven rashly and negligently by opposite party No. 1 (Dhani Ram) on 23.9.2005 at about 8.30 p.m. on Chakrata-Lakha Mandal Road and due to said act, vehicle fell in the gorge causing death (of five persons including the deceased) mentioned in the claim petition?

(ii) Whether the driver of the vehicle utility No. UA 07-E 4724 did not possess a valid driving licence?

(iii) To what amount of compensation the claimants are entitled, and from whom?

(iv) Whether the vehicle was being plied in violation of conditions of policy and permit as alleged in the written statements?

In all the five cases evidence was recorded separately by the Tribunal and in each case it was held that the driver of the vehicle was driving it with a valid licence. However, the Tribunal held that one of the conditions mentioned in permit issued for the vehicle was violated as the driving licence was more than five years old. Considering the income of the deceased in each case and further considering the dependency, etc. of the claimants, the Tribunal awarded Rs. 3,67,000 to claimants in M.A.C. No. 289 of 2005; Rs. 2,47,000 in M.A.C. No. 286 of 2005; Rs. 3,19,000 in M.A.C. No. 285 of 2005; Rs. 2,90,000 in M.A.C. No. 293 of 2005 and Rs. 2,90,000 in M.A.C. No. 294 of 2005. In all the cases the Motor Accidents Claims Tribunal/Additional District Judge/I Fast Track Court, Dehradun, directed that the respondent United India Insurance Co. Ltd. shall pay the amount of compensation but the same can be recovered from owner of the vehicle Guman Das (appellant). Aggrieved by said award dated 19.11.2008 passed by Motor Accidents Claims Tribunal/I Fast Track Court, Dehradun, owner of the vehicle filed Appeal From Order No. 85 of 2009 in connection with award in M.A.C. No. 289 of 2005; Appeal From Order No. 86 of 2009 against award dated 19.11.2008 passed by said Tribunal in M.A.C. No. 286 of 2005; Appeal From Order No. 220 of 2009 against the award dated 1.4.2009 passed in M.A.C. No. 285 of 2005; Appeal From Order No. 222 of 2009 against the award dated 1.4.2009 passed in M.A.C. No. 294 of 2005; Appeal From Order No. 221 of 2009 against award dated 21.3.2009 passed in M.A.C. No. 293 of 2005, before this court.

The only point on which the appeal is argued on behalf of the appellant (owner of the vehicle) and the insurance company with whom vehicle was insured on the day of the accident is that as to whether the Tribunal has erred in law in holding that the owner of the vehicle was liable to pay compensation for violation of one of the conditions of permit under which the vehicle was plying.

Mr. Anil Kumar Joshi, the learned counsel for the appellant, drew attention of this court to the law laid down by the Apex Court in National Insurance Co. Ltd. Vs. Swaran Singh and Others, and it is contended that the Tribunal has erred in law in discharging the insurance company from its liability due to the petty violation mentioned in the permit of the vehicle. It is further argued that it is not each and every violation of condition for which the insurance company can get freed from its liability to pay compensation on behalf of the insured. Sub-para (vi) of para 102 of aforesaid case delivered by three Hon''ble Judges of the Apex Court reads as under:

(vi) Even where the insurer is able to prove breach on the part of the insured concerning the policy condition regarding holding of a valid licence by the driver or his qualification to drive during the relevant period, the insurer would not be allowed to avoid its liability towards insured unless the said breach or breaches of the condition of driving licence is/are so fundamental as are found to have contributed to the cause of the accident. The Tribunals in interpreting the policy conditions would apply ''the rule of main purpose'' and the concept of ''fundamental breach'' to allow defences available to the insurer u/s 149(2) of the Act.

In the present appeals before this court which have arisen out of the same accident, the Tribunal has found that the driver was driving a vehicle with a valid licence. In all the five cases it is also held that the vehicle was being rashly and negligently driven by the driver. It is also not disputed that the utility vehicle bearing registration No. UA 07-E 4724 (which was involved in the accident) was insured with United India Insurance Co. Ltd., Dehradun, on the date of the accident. The only ground on which the Tribunal has exempted the insurance company with whom the vehicle was insured is that the vehicle was being plied by the owner under the permit in which there was a term mentioning that the driving licence should not be more than five years old. Said condition did not find place anywhere in the terms of the policy. It is also relevant to mention here that Annexure 2 filed with the A.O. No. 86 of 2009 shows that the owner''s claim for damage to the vehicle was cleared by the insurance company without raising objection as to its liability.

In the above facts and circumstances of the case, this court is of the view that the breach of condition mentioned by the Tribunal cannot be said to be fundamental in nature which entitles the insurance company exemption from the liability to pay the compensation. Therefore, this court is of the opinion that in the facts and circumstances of these appeals, the Tribunal has erred in law in holding that the insurance company can recover the amount awarded by the Tribunal from the owner of the vehicle. For the reasons as discussed above, all these five appeals are allowed, and the observation made by the Tribunal that the insurance company can recover the amount of compensation from the owner of the vehicle in the impugned awards, is hereby set aside. It is clarified that the impugned five awards are not interfered with in respect of the other findings, and directions, given by the Tribunal. The records of the five cases be sent back to the Tribunal concerned.