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Judgment
R.M.Chhaya, J
Feeling aggrieved and dissatisfied with the judgment and award dated 30th November 2013 passed by the Motor Accident Claims Tribunal (Aux.), Ahmedabad (Rural) @ Mirzapur, Ahmedabad in
Motor Accident Claim Petition No. 1898 of 2008, the appellant-Insurance Company has preferred this Appeal under Section 173 of the Motor Vehicles Act, 1988 (hereinafter referred to as “the Actâ€
for the sake of brevity).
Following facts emerge from the record of the appeal :-2.1 That, the accident occurred on 8th July 2008 between a motorcycle, bearing registration No. GJ-2-AB-4887 and another motorcycle, bearing
registration No. GJ-1-DS-8040. It is the case of the original claimants that the deceased Kirtikumar, while he was returning back to his home on his motorcycle which was driven in a slow speed and with
an apt attention at about 8.30 p.m., while he was passing through Ranasan-Anandpura Road, another motorcycle, which was being driven in a rash and negligent manner, came from the wrong side and
dashed with motorcycle of Kirtikumar because of which, the deceased sustained serious injuries on his head and succumbed to the same. The record further indicates that an FIR was lodged with
jurisdictional Police Station at Ex. 35 and the original claimants preferred a claim petition under Section 166 of the Act before the Tribunal and claimed compensation of Rs. 25,00,000/=.
2.2 It was the case of the original claimants-respondents No.1 to 3 that the deceased was working in the Gujarat Electricity Board and his salary was Rs. 12,000/- per month. It was the case of the
respondents No.1 to 3/original claimants that the driver of the motorcycle was solely negligent for the accident. The respondents No.1 to 3-original claimants also relied upon oral deposition of the
respondent no.1 Kanchanben at Exh. 30 and also further relied upon the documentary evidence; such as, FIR at Exh. 35; panchnama of the place of accident at Exh. 36; charge-sheet at Exh. 38; post-
mortem note of the deceased at Exh. 39; pay slips of the deceased at Exhs. 40-42; school leaving certificate at Exh. 43 and driving licence at Exh. 44.
2.3 Considering the evidence on record, the Tribunal assessed income of the deceased at Rs. 9,000/- per month and after giving benefit of increase in income; as prospective income to the tune of 50%,
the monthly income was determined at Rs. 13,500/- and after deducting 1/3rd towards personal expenses and applying multiplier of 17, the Tribunal awarded Rs. 18,36,000/- as compensation under the
head of “dependencyâ€. The Tribunal also further awarded a sum of Rs. 1,65,000/- as compensation under the different conventional heads, and thus, granted total compensation of Rs. 20,01,000/- to
the original claimants with interest @ 7.5% per annum from the date of filing of the claim petition till its realization. Being aggrieved by the said award, the present Appeal is preferred by the Insurance
Company.
Heard learned advocate Mr. Krunal R. Saksena for the appellant and Mr. Hiren M. Modi for the respondents No.1 to 3-original claimants, and also perused the original record and proceedings.
Mr. Krunal R. Saksena, learned advocate for the appellant has contended that the Tribunal has wrongly considered the claim put forward by the respondents No.1 to 3-original claimants and has
wrongly held that the appellant-Insurance Company is vicariously liable. Mr. Saksena further contended that the accident occurred on 8th July 2008, however, the motorcycle involved in the accident was
stolen on 24th June 2008 and in fact, it was found in a damaged condition on 7th August 2008. Relying upon the reply filed before the Tribuna at Exhs. 14 and 15, it was further contended by Mr. Saksena
that as per the statement of the owner, driver of the scooter was not an authorized person of the motorcycle. It was further contended by Mr. Saksena that in such a given case, when the owner has not
handed over the vehicle, no question of vicarious liability of insurance company would arise. It was further contended that the driver of motorcycle was wrongly deleted before the Tribunal. Mr. Saksena
also further contended that, in fact, after the motorcycle was stolen, it was sold to another party Mr. Rakesh, and therefore, the Insurance company is wrongly made vicariously liable for the Award. It
was further contended by Mr. Saksena that the Tribunal has awarded an excessive amount under the different conventional heads which, as per the judgment of the Apex Court in case of National
Insurance Company Limited Vs. Pranay Sethi & Ors., reported in (2017) 16 SCC 68,0 deserves to be reduced to Rs. 70,000/-. On the aforesaid grounds, Mr. Saksena has contended that the appeal
deserves to be allowed and the impugned judgment and award deserves to be modified.
Per contra, Mr. Hiren M. Modi, learned advocate for the respondents No.1 to 3-original claimants has supported the impugned award. Mr. Hiren Modi has further contended that as per RC Book, the
name of the owner is the insured, and therefore, only because the motorcycle involved in the accident was stolen, the insurance company cannot escape from its liability. Mr. Modi relied upon a judgment
of the Apex Court in case of United India Insurance Company Limited v. Lehru and Ors., reported in (2003) 3 SCC 338 as well as judgment of the Madras High Court, Madurai Bench, in the case of
A.C.G. Venancious and Anr. v. Jagajothi and Ors., reported in 2008 ACJ 1434 ,and of the Madhya Pradesh High Court, Indore Bench, in the case ofP arvat v. Sheikh Ejaj and Ors., reported in 2006 ACJ
1507, and contended that as per the RC book, name of the owner, who was insured was there, and therefore, the Tribunal has rightly come to the conclusion that the insurance company is liable. Relying
upon provisions of Section 149 (1) of the Act, Mr. Hiren Modi has contended that in the facts of this case, the insurance company cannot escape from the liability arising out of the accident.
Mr. Hiren Modi further submitted that Tribunal, in the facts of this case, has rightly awarded amount of Rs. 1,65,000/- as compensation under different conventional heads, which does not warrant any
modification or alteration and contended that the appeal deserves to be dismissed.
No other or further contentions and/or submissions are made by the learned advocates appearing for the respective parties.
Upon considering the submissions made and perusal of the observations made by the Tribunal as well as upon re-appreciating the evidence on record, it is a matter of fact that the motorcycle involved in
the accident, bearing registration No. GJ-1-DS-8040, was stolen on 24th June 2008. However, the fact remains that the RC Book on record indicates name of the owner of the vehicle, which was insured
by the appellant insurance company. It is not the case of the Insurance Company that it was transferred to another person, on the basis of the agreement or hypothication made by the owner, where name
is in the RC Book. The word “owner†defined under Section 2 (13) of the Act clearly stipulates that “owner†means, “..a person in whose name a motor vehicle stands registered.â€
Mr. Saksena, learned advocate for the appellant has not been able to point out that in the RC book, name of the insured is not mentioned or that the name of someone else stands transferred in the RC
Book.
Hon’ble Apex Court in the case of United India Insurance Company Limited (Supra) has observed, thus in para 15:
“The question was again considered by a three Judge Bench of this Court in the case of Sohan Lal Passi v. P. Sesh Reddy and Ors., reported in [1996] 5 SCC 21. In this case the bus was being driven
by the cleaner, an employee of the owner, at the time of accident. The cleaner did not have a valid licence. The Insurance Company sought to avoid liability on the ground that there was breach of Section
96(2)(b)(ii) of the Motor Vehicles Act 1939 inasmuch as the vehicle was being driven by a person who was not duly licensed. The Insurance Company questioned the correctness of the view taken in
Skandia’s case. Hence this case was placed before a three Judge Bench. The Bench held as follows:-(SCC pp 31-33 Para 12-13).
..................on behalf of the insurance company a stand was taken that when Section 96(2)(b)(ii) has provided that the insurer shall be entitled to defend the action on the ground that there has been
breach of a specified condition to the policy i.e. the vehicle should not be driven by a person who is not duly licensed, then the insurance company cannot be held to be liable to indemnify the owner of the
vehicle. In other words, once there has been a contravention of the condition prescribed in sub- section (2)(b)(ii) of Section 96, the person insured shall not be entitled to the benefit of sub-section (1) of
Section 96. According to us, Section 96(2)(b)(ii) should not be interpreted in a technical manner. Sub-section (2) of Section 96 only enables the insurance company to defend itself in respect of the liability
to pay compensation on any of the grounds mentioned in sub section (2) including that there has been a contravention of the condition excluding the vehicle being driven by any person who is not duly
licensed. This bar on the face of it operates on the person ensured. If the person who has got the vehicle insured has allowed the vehicle to be driven by a person who is not duly licensed then only that
clause shall be attracted. In a case where the person who has got insured the vehicle with the insurance company, has appointed a duly licensed driver and if the accident takes place when the vehicle is
being driven by a person not duly licensed on the basis of the authority of the driver duly authorised to drive the vehicle whether the insurance company in that even shall be absolved from its liability? The
expression 'breach' occurring in Section 96(2)
(b) means infringement or violation of a promise or obligation. As such the insurance company will have to establish that insured was guilty of an infringement or violation of a promise. The insurer has
also to satisfy the Tribunal or the Court that such violation or infringement on the part of the insured was wilful. If the insured has taken all precautions by appointing a duly licensed driver to drive the
vehicle in question and it has not been established that it was the insured who allowed the vehicle to be driven by a person not duly licensed, then the insurance company cannot repudiate its statutory
liability under sub- section (1) of Section 96. In the present case far from establishing that it was the appellant who had allowed Rajinder Pal Singh to drive the vehicle when the accident took place, there
is not even any allegation that it was the appellant who was guilty of violating the condition that the vehicle shall not be driven by a person not duly licensed. From the facts of the case, it appears that the
appellant had done everything within his power inasmuch as he has engaged a licensed driver Gurbachan Singh and had placed the vehicle in his charge. While interpreting the contract of insurance, the
tribunals and courts have to be conscious of the fact that right to claim compensation by heirs and legal representatives of the victims of the accident is not defeated on technical grounds. Unless it is
established on the materials on record that it was the insured who had wilfully violated the condition of the policy by allowing a person not duly licensed to drive the vehicle when the accident took place,
the insurer shall be deemed to be a judgment debtor in respect of the liability in view of sub-section (1) of Section 96 of the Act. It need not be pointed out that the whole concept of getting the vehicle
insured by an insurance company is to provide an easy mode of getting compensation by the claimants, otherwise in normal course they had to pursue their claim against the owner from one forum to the
other and ultimately to execute the order of the Accident Claims Tribunal for realisation of such amount by sale of properties of the owner of the vehicle. The procedure and result of the execution of the
decree is well known.
This Court in the case of Kashiram Yadav v. Oriental Fire and General Insurance Co., [1989] 4 SCC 128 reiterated the views expressed in Sikandia Insurance Co. Ltd. v. Kokilaben Chandravandan,
[1987] 2 SCC 654. While referring to that case it was said: SCC pp. 130-131, paras 5-6.
......There the facts found were quite different. The vehicle concerned on that case was undisputedly entrusted to the driver who had a valid licence. In transit the driver stopped the vehicle and went to
fetch some snacks from the opposite shop leaving the engine on. The ignition key was at the ignition lock and not in the cabin of the truck. The driver had asked the cleaner to take care of the truck. In
fact the driver had left the truck in care of the cleaner. The cleaner meddled with the vehicle and caused the accident. The question arose whether the insured (owner) had committed a breach of the
condition incorporated in the certificate of insurance since the cleaner operated the vehicle on the fatal occasion without driving licence. This Court expressed the view that it is only when the insured
himself entrusted the vehicle to a person who does not hold a driving licence, he could be said to have committed breach of the condition of the policy. It must be established by the Insurance Company
that the breach is on the part of the insured. Unless the insured is at fault and is guilty of a breach of the condition, the insurer cannot escape from the obligation to indemnify the insured. It was also
observed that when the insured has done everything within his power inasmuch as he has engaged the licensed driver and has placed the vehicle in his charge with the express or implied mandate to
drive.himself, it cannot be said that the insured is guilty of any breach.
We affirm and reiterate the statement of law laid down in the above case. We may also state that without the knowledge of the insured, if by drivers acts of omission others meddle with the vehicle and
cause an accident, the insurer would be liable to indemnify the insured. The insurer in such a case cannot take the defence of a breach of the condition in the certificate of insurance.
We are in respectful agreement with the view expressed in the case of Skandia Insurance Co. Ltd. v. Kokilaben Chandravandan.
Considering the ratio laid down by the Apex court in the case of United India Insurance Co. (Supra), the appellant being an insurer, cannot escape from its obligation to indemnify the insured, in the
case on hand for any breach of condition of the policy. The Tribunal has committed no error in holding the appellant-Insurance Company liable to indemnify the owner and has rightly allowed the claim
petition in favour of the respondents No.1 to 3-original claimants.
However, the Tribunal has awarded excessive amount towards compensation under the conventional heads and thus, following the judgment of Apex Court in case of Pranay Shetty (Supra), the said
amount needs to be slashed down to Rs. 70,000/-.
Having come to the aforesaid conclusion, the respondents No.1 to 3-original claimants would be entitled to compensation, as under:
Loss of dependency                                                               Rs. 18,36,000/-
Different conventional heads including funeral expenses      Rs. 70,000/-
 =========
                                                                               Â
19,06,000/-
Thus, the respondents No.1 to 3-original claimants would be entitled to a total compensation of Rs. 19,06,000/- .
The appeal, thus stands partly allowed. The impugned judgment and award stands modified to the aforestated extent. The Tribunal has awarded Rs. 20,01,000/- hence, the appellant would be entitled
to refund Rs. 95,000/-. The Tribunal shall refund an amount of Rs. 95,000/- to the appellant herein with proportionate costs and interest forthwith Rest of the judgment and award shall remain unaltered.
However, there shall be no order as to costs in this appeal.
Registry is directed to send back record and proceedings to the Tribunal forthwith.