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Judgment
P.R. Raman, J.—The appellant in M.F.A. Nos. 1169/96 and 1390/96 and the petitioner in O.P. No. 18578/96 is the owner of a jeep KRP 8157 which was the vehicle involved in an accident leading to O.P. (MV) Nos. 1198/90, 1701/90 and 1723/90 respectively before the Motor Accidents Claims Tribunal, Palakkad.
The accident occurred on 1/3/1990. Passengers in the vehicle are the respondents/claimants in the above proceedings before the M.A.C.T. Even though another claim was preferred claiming compensation as O.P. (MV) 1199/90 by one Charles, who is found to have been driven the vehicle at the time of accident by the court below, the same was dismissed by the court below against which no appeal has been preferred.
All the above cases were disposed of by a common award by the Tribunal. Even though in these two appeals and in the original petition where contention is raised that the awarded is excessive, it was not established on evidence that the compensation awarded by the court below either excessive or arbitrary. Based on the consideration of the evidence on record the Tribunal awarded the following amounts: The petitioner in O.P. (MV) No. 1701/90 was awarded an amount of Rs. 11,800/-, the petitioner in O.P. (MV) No. 1198/90 was awarded an amount of Rs. 15,400/-, the petitioner in O.P.(MV) No. 18/91 was awarded an amount of Rs. 5,000/- and the petitioner in O.P.(MV) was awarded an amount of Rs. 3,700/- respectively. The amounts awarded to the respective claims are not seriously disputed. The claimants are made as respondents in the respective appeals and in the original petition as the case may be. Though they were served with notice, they did not enter appearance through counsel. The Insurance Company is the 3rd respondent in the above appeals and the 4th respondent in the above original petition.
According to the claimants, the accident occurred as a result of the negligent driving of the driver Saju, who is the 2nd respondent in the above appeals and 3rd respondent in the above original petition. Though originally the Insurance Company was authorised to defend the case on behalf of the owner and driver as well, subsequently the Insurance Company found that the 2nd respondent was not the real person, who drove the vehicle and it was one Charles who drove the vehicle and who had no valid licence to drive a transport vehicle as per law. Hence, they subsequently filed an additional written statement taking up this contention as well. Thereupon, the owner sought to engage a separate counsel. The Insurance Company put forth the plea that at the relevant point of time the vehicle was driven by Charles, a person who had no valid licence, and therefore disowned the liability on the ground that there is violation of the conditions of the policy. The owner did not chose to amend his written statement or file a separate written statement raising any new grounds of defence. On the other hand, in the original written statement he contended that Saju was the person who was his driver and who drove the vehicle at the relevant point of time. The Tribunal after considering the rival contention of the parties and after analysing the evidence in the case came to the conclusion that Charles was the person who drove the vehicle at the time of the accident. It was also found that Charles had no valid licence to drive a transport vehicle as on the date of the accident. Thus, the insurance company was excluded from the liability and the entire liability was fastened on the owner, the appellant herein.
The learned counsel for the appellant contended that the finding of the Tribunal that Charles was the person who drove the vehicle at the time of accident is contrary to the evidence in the case. According to him, the Tribunal did not consider the oral evidence adduced by PWs. 1 to 3 the claimants in the respective claims, who have deposed that it was Saju, who drove the vehicle. Therefore the first question to be decided is as to whether the finding of the Tribunal that Charles was the person who drove the vehicle is unsupported by the evidence in the case. Admittedly, the Vadakkancherry police initially registered a case against both the 2nd respondent Saju as well as Charles. Subsequently, Ext. B3 referral report was filed in the case. The name of the accused in the case was shown as Charles Joseph. As per the report, the incident occurred as a result of a mechanical defect in the vehicle: but for driving the vehicle without proper licence a case was charged against Charles Joseph. Therefore, Crime No. 50/90 was registered against Charles Joseph under Sections 279, 337 and 330 I.P.C. It was requested that the same should be referred as one arising out of a mistake of fact. It is not disputed that the case ended there. It is also seen that the Judicial IInd Class Magistrate has accordingly recorded the final report as per order in reference case No. 25/91. In Annexure-1 judgment produced along with the appeals (Ext. P3 in O.P.) it is seen that even the petty case charged against Charles Joseph was ended in acquittal holding that the prosecution has not established the offence against the accused. He was acquitted on the basis of the admission of PW.1 that A1 had licence at the relevant point of time. It was also admitted by PW.1 that one Saju is the accused as per the F.I.R. It was on those reasons that he was acquitted. But there is no indication in this judgment that the court itself referred to the licence issued to Charles and gave a finding as to whether Charles had any valid licence or not at the relevant time for driving a transport vehicle though he might have had a licence to drive a light motor vehicle. In other words, there was no independent adjudication by the court below on the question as to whether there was a valid licence to drive a transport vehicle by Charles Joseph. As against the F.I.R. registered against Saju it can be seen from Ext.B3 referral report that even though a case was registered against Saju also subsequent investigation found that he was not the driver of the vehicle at the relevant time and accordingly the case proceeded only against Charles Joseph which was subsequently referred based on the ground that it is a mistake of fact. So much so. In Ext.B3 referral report and Annexure-I judgment of the Judicial IInd Class Magistrate dated 31-7-1991 it can be seen that ultimately the criminal case proceeded only against Charles Joseph that too for a petty offence and found that he was acquitted. Though there was initially a case registered against Saju, on subsequent investigation it was found that he was not the person who drove the vehicle at the relevant point of time. On behalf of the Insurance Company, a private investigation was conducted and the Investigator submitted Ext. B1 report, which would show that it was Charles who drove the vehicle at the relevant point of time.
In these circumstances, the oral testimony of PWs. 1 and 2, who are the interested witness cannot be believed to be true. It has also to be noticed in this context that Insurance Company wanted to disown their liability specifically taking up a plea that it was Charles who drove the vehicle who did not have valid licence at the relevant point of time. Therefore, when the parties were put in the Box they knew that the Insurance Company wanted to disown their liability and therefore to protect their interest they cannot admit the fact that it was Charles who drove the vehicle. Therefore, their evidence will have to be evaluated against this background. The Tribunal has therefore appreciated the evidence and came to the conclusion that the oral testimony of PWs. 1 and 2 cannot be accepted to be true on this aspect. In the light of discussion as above, I find that it has been proved on evidence that Charles was the person who drove the vehicle at the relevant point of time.
The next question to be considered is as to whether Charles had a valid driving licence at the relevant point of time and if so, whether the Insurance Company will be liable for the amount awarded? But the driving licence is not produced before the Tribunal. Therefore, when the Insurance Company disowned the liability, it has to be proved by the complaints that Charles was driving the vehicle, who did have a valid licence at the relevant point of time. But there is absolutely no evidence on record before the Tribunal. The licence itself was not seen to be produced by anybody. Therefore, this finding that Charles Joseph was not holding a valid driving licence in the absence of licence cannot be said to be based on the evidence on record and since the Insurance Company is exonerated on the pretext that Charles joseph did not have a valid driving licence, the normal course open is to remand the case to the Tribunal. But, I am not adopting the course because in the connected appeal A.S. No. 914/1996 the driving licence of Charles was produced and marked as Ext.B2. On a perusal of Ext.B2 licence it is seen that he was authorised to drive a transport vehicle and allotted a badge only with effect from 19/9/1990 though he was having a driving licence to drive the vehicles other than the transport vehicle. The appeal A.S. No. 194/96 is disposed of by me by a separate judgment confirming the judgment of the court below. There is no dispute in this case that the jeep involved in the accident is a transport vehicle and not a private jeep. As such the fact remains that Charles did not have a valid licence to drive the transport vehicle which is involved in this accident. Hence, the conclusion reached by the Tribunal that Charles did not have a valid driving licence and therefore the Insurance Company is exonerated from the liability does not call for any interference.
The third question is as to when it is found that Charles was the person, who drove the vehicle can it be said that the owner is automatically made liable for the claim amount? True that this question has not been raised before the court below, since the owner was contending that it was the 2nd respondent who was the driver of the vehicle. Charles also was not a party to the proceedings. When the Insurance Company had come up with a case that Charles was a person who drove the vehicle, the appellant could have amended his written statement to raise an additional plea regarding the relationship with Charles. However, that was also not raised. But, in the memorandum of appeals a specific question is raised contending that there is no finding by the Tribunal that Charles was in any responsible or jointly liable for the award amount and further contended that the appellant has engaged only the 2nd respondent to drive the vehicle and that if Charles was allowed to drive the vehicle without the appellant''s permission, then the appellant cannot be responsible for the act if any of the Charles. Even after the amendment of the written statement by the Insurance Company, the claimants did not chose to implead Charles. When the question as to whether the owner of the vehicle become liable vicariously for any of the act or of his driver arise for consideration, the fact whether the appellant had instructed the 2nd respondent not to entrust the vehicle to anybody else, is relevant. Going by the decision of the Supreme Court in State of Maharashtra and Others Vs. Kanchanmala Vijaysing Shirke and Others, it is for the owner to prove that any instruction had been issued to the driver not to hand over the vehicle to any other employee. According to the learned counsel for the appellant he did not get sufficient opportunity to raise his contention, since Charles was not made a party and since he proceeded on the basis that 2nd respondent was not the real person, who drove the vehicle and really there was a clear doubt as regards the person, who drove the vehicle at the relevant point of time, especially since both of them were proceeded against initially by the Vadakkancherry Police. At any rate, even if such an opportunity be given to the appellant at this belated stage, the claimant shall to be put to suffer. Whether the appellant has given any instruction to the 2nd respondent not to entrust the vehicle to Charles is a question of fact. In the absence of any finding that Charles was authorised to drive the vehicle as against the specific plea raised by the appellant that he has entrusted the vehicle to his driver only, it is necessary that an opportunity should be given to the appellant. But, as I have already held that shall not deprive the claimants from getting the amount.
Hence, the award amount, if deposited byu the appellant before the Tribunal within a period of one month from today and if the appellant files an application for impleadment of Charles as an additional party, then the Tribunal shall allow such impleadment and give an opportunity to the appellant as well as all the other parties concerned and decide the question as to whether the appellant is liable vicariously for any of the act or omission committed by Charles and if the appellant is able to establish that there was specific instruction given to the 2nd respondent not to entrust the vehicle to anybody else and the entrustment by the 2nd respondent to Charles was contrary to the prohibitory orders or instructions given by the appellant, the appellant will be entitled to reimburse the amount from the person who drove the vehicle at the relevant point of time namely, Charles. The award of the Tribunal is confirmed in all other respects.
The appeals and original petition are disposed of as above.