Md. Mukibar Rahman vs Md. Islam Ali and Others

A.K. Patnaik, J.—These two appeals are directed against the judgment and award dated 20.7.1992 of the learned Member, Motor Accidents Claims Tribunal, Kamrup, Guwahati, in M.A.C. Case No. 17 (K) of 1975.

The facts of the case are that one Md. Nazimuddin was a driver of bus No. ASK 9622. On 8.8.1975 when the said vehicle was stationary at Uttarkuchi bus stop and he was doing some mechanical work under the said vehicle, bus No. ASK 3905, while being backed, ran over him and he succumbed to injuries. As compensation for his death, a claim petition was filed by Hakimi Bibi, his wife, claiming an amount of Rs. 1,00,000/-. But during the pendency of the said claim case Hakimi Bibi died and was substituted by one Md. Faizur Rahman being the legal guardian of Monowara Begum, minor child of the deceased Nazimuddin. The claim petition was initially dismissed by a judgment delivered in the year 1983, but on an appeal being preferred against the said judgment before this Court, by judgment dated 22.1.1989 in M.A. (F) 81 of 1983 this Court remanded the matter for fresh disposal on the basis of the evidence on record and in the light of the observation made in the judgment.

Pursuant to the said judgment of this Court, the Tribunal heard the matter afresh and ultimately awarded a compensation of Rs. 72,000/- only with interest at the rate of 12 per cent per annum from the date of filing of the case till realisation of award and further directed that since the handyman of the offending vehicle, Anil Das and not the driver drove the vehicle causing the accident, 50 per cent of the aforesaid award was to be recovered from the owner of the vehicle, Md. Mukibar Rahman and the balance 50 per cent was to be recovered from the New India Assurance Co. Ltd., the insurer of the vehicle.

Aggrieved by the said award and judgment dated 20.7.1992 of the Tribunal, the owner, Md. Mukibar Rahman, has filed M.A. (F) 7 of 1990 contending that the evidence on record would show that it was the driver of the vehicle ASK 3905, Bishnu Mahanta, who drove the vehicle when the accident was caused and that the finding of the Tribunal that the handyman, Anil Das, drove the vehicle was not justified on the material on record. Mr. H. Munir, learned Counsel for the appellant, in particular took me through the evidence of Dharani Deka, PW 2, the handyman of the vehicle ASK 9622 who has stated that he saw Bishnu Mahanta driving the vehicle when the accident occurred. Mr. Munir also read out the evidence of Chandra Rajbangshi, PW 3 and Dibbar Ali, PW 4, two daily labourers, who have gone to the place of occurrence for drinking tea at a nearby shop and both these witnesses have stated that the offending vehicle was driven by Bishnu Mahanta, the driver. In view of the clear evidence of the aforesaid three witnesses cited not by the owner and not by the claimant, Mr. Munir submitted that the Tribunal should have come to a finding that it was Bishnu Mahanta, the driver, who drove the vehicle and not Anil Das, the handyman. Mr. Munir accordingly submitted that since there was no negligence at all on the part of the owner of the vehicle, the compensation awarded by the Tribunal has to be borne entirely by the insurer and the impugned judgment and award of the Tribunal insofar as it directs that 50 per cent of the compensation awarded shall be recovered from the owner, Mukibar Rahman, is liable to be set aside.

The New India Assurance Co. Ltd., on the other hand, has challenged the said award and judgment dated 20.7.1992 of the learned Tribunal contending that in view of the finding of the Tribunal in the impugned award that Anil Das, the handyman, drove the insured vehicle, the insurer was not liable at all for any amount in view of the provisions of Section 96 (2) (b) (ii) of the Motor Vehicles Act, 1939, whereunder the insurer was exempted from satisfying any judgment or award of compensation in respect of liability u/s 95 of the Act if there was a breach of condition of the policy by the insured, i.e., ''excluding driving by a person who is not duly licensed''. Mr. Barkataki, learned Counsel for the insurer, submitted that in view of the express language contained in the said Section 96 (2) (b) (ii) of the Motor Vehicles Act, 1939, excluding the liability of the insurer in such a case, the Tribunal could not have directed that 50 per cent of the compensation awarded shall be recovered from the insurer. Mr. Barkataki also submitted that the finding of the Tribunal that Anil Das, handyman, drove the offending vehicle was justified on the evidence and took me through the evidence of witness No. 2, Pitambar Baishya, who was the conductor of the vehicle ASK 9622 and submitted that Pitambar Baishya was the informant in the present case and had lodged an ejahar soon after the accident and that the learned Tribunal correctly relied upon his version to come to the conclusion that Anil Das drove the offending vehicle when the accident took place.

In my opinion it is not necessary for me to go into the rival contentions of the parties on the factual question as to who drove the offending vehicle causing the accident in view of the law laid down by the Apex Court in the case of Skandia Insurance Co. Ltd. v. Kokilaben Chandravadan 1987 ACJ 411 (SC). In the said decision, the Supreme Court interpreting Section 96 (2) (b) (ii) of the Motor Vehicles Act, 1939, held that the expression ''breach'' in the said provision of the Motor Vehicles Act, 1939, means violation of a promise and, therefore, the insurer claiming exemption under the said provision will have to establish that the insured is guilty of violation of the promise that a person who is not duly licensed was placed in charge of the vehicle. In the said decision it was further held by the Apex Court that it is only when the insured himself places the vehicle in charge of a person who does not hold a driving licence, that it can be said that he is guilty of the breach of the promise that the vehicle will be driven by a licensed driver, but when he has done everything within his power inasmuch as he has engaged a licensed driver and has placed the vehicle in charge of the licensed driver with the express or implied mandate to drive himself, it cannot be said that the insured is guilty of any breach.

Applying this law laid down by the Apex Court to the facts of the present case, the owner himself was examined and he has stated that his regular driver, Bishnu Mahanta, was placed in charge of the vehicle and he was strictly instructed not to allow any other person and particularly, Anil Das, handyman, to drive the vehicle. The said evidence has been taken note of by the Tribunal in the impugned judgment and award and has been accepted by the Tribunal in its conclusion that without the knowledge of the owner of the offending vehicle, the handyman, Anil Das, drove the vehicle. In view of the aforesaid evidence on record as well as the findings of the learned Tribunal, it is difficult to hold that the insured (the owner) himself had placed the vehicle in charge of the handyman and that he was at fault and was guilty of breach of his promise within the meaning of Section 96 (2) (b) (ii) of the Motor Vehicles Act, 1939 and that the insurer had established the case for exclusion of its liability under the aforesaid provision of the Act. Accordingly, the direction in the impugned judgment/order dated 20.7.1992 of the learned Tribunal insofar as it directs that 50 per cent of the amount of compensation of Rs. 72,000/- shall be recovered from the owner of the vehicle, Mukibar Rahman, is contrary to law and is set aside and it is directed that the entire amount of the said compensation less the amount already received by the claimants shall be paid by the New India Assurance Co. Ltd., to the claimants within two months from the date of this order.

Mr. Barkataki further submitted with reference to the order-sheet of the Tribunal that it is not the insurer who was at fault for the delay in disposal of the case by the Tribunal and in fact the insurer was impleaded in the claim case after the filing of the claim case and in the facts and circumstances of the case the insurer should not be saddled with a heavy liability of interest at the rate of 12 per cent per annum from the date of filing of the claim case in 1975 till realisation of the awarded amount in 1994. Mr. P.K. Goswami, learned Counsel for the claimant-respondent, on the other hand, cites before me the decision of the Apex Court reported in Hardeo Kaur and others Vs. Rajasthan State Transport Corporation and another, wherein the Apex Court relying upon its previous decisions has allowed interest at the rate of 12 per cent per annum from the date of filing of the application before the Tribunal in a case;

Having heard learned Counsel for the parties, I am of the view that in the present case there were conflicting judgments of different High Courts with regard to the liability of the insurer in a case of the present type and the controversy was resolved by the Apex Court only on 1.4.1987 in the judgment in Skandia Insurance Co. Ltd. v. Kokilaben Chandravadan 1987 ACJ 411 (SC). Till the question was decided by the Apex Court, the insurer was entitled to take a view that it was not liable for the compensation, but after the said judgment was delivered by the Apex Court on 1.4.1987, the insurer had no good ground to resist the claim and withhold the payment of compensation to the claimants. In the facts and circumstances of the present case, therefore, I direct that the liability for interest at the rate of 12 per cent per annum on the awarded amount of Rs. 72,000/- will accrue from 1.4.1987 till realisation. In case, however, the insurer does not pay the awarded amount together with interest at the rate of 12 percent per annum from 1.4.1987 within two months from today, the insurer will be liable for interest on the awarded amount from the date of filing of the claim case before the Tribunal as directed in the impugned judgment and award.

The two appeals are disposed of accordingly.