National Insurance Company Ltd. vs Binata Bhoi and Others

V. Gopala Gowda, C.J.—These two appeals has been filed by the appellant-insurance companies challenging the order dated 20th November, 2000 passed by the 2nd M.A.C.T., Northern Division, Sambalpur in Misc. (A) Case No. 245 of 1995 (S) awarding compensation in favour the claimant-respondents 1 to 3 to be payable by the National Insurance Company Ltd. and the New India Assurance Company Ltd. jointly and severally. Claimant-respondents 1 to 3 are respectively the wife, the son and the mother of deceased Banamali Dharua who died due to the motor vehicle accident in question which involve two vehicles, i.e., an ambassador car bearing registration number OR-02/A-5408 and a truck bearing registration number WB-23-3908. While the offending truck was insured with National Insurance Company Ltd., the offending car was insured with New India Company Ltd.

The grievance of the National Insurance Company Ltd. (the appellant in M.A. No. 684 of 2001) is that there being no finding regarding contributory negligence on the part of the Scooterist which involved in the accident though there was plea and legal evidence on record to that effect, non-quantification of percentage of the contributory negligence of the Scooterist has vitiated the award. Therefore, the appellant-National Insurance Company Ltd. has filed this appeal questioning the same, seeking for modification of the impunged award to that extent.

The grievance of the New India Assurance Company Ltd. (the appellant in the connected appeal) is that fastening of liability upon this Insurance Company, is not legal and valid as the driving licence of the driver of the offending truck was a fake one which is supported by Ext. C obtained from the R.T.O., Allahabad. However, the same is not considered for which there is violation of the terms and condition of the policy issued in respect of the truck. Therefore, liability upon the appellant-Insurance Company could not have been fastened by the Tribunal. Hence, the appellant N.I.A. Company has requested to allow its appeal and set aside the impunged judgment in holding that both the insurance companies are jointly and severally liable. On the other hand, it has requested to fasten the liability upon the insured as he has violated the terms and conditions of the policy in engaging a person who does not possess a valid driving licence.

With reference to the aforesaid rival legal contentions, I have to carefully examine the following points which arise for consideration.

(i) Whether the appeal of the first appellant-National Insurance Company Ltd. must succeed for the Tribunal not fixing the percentage of liability for the composite negligence as the Tribunal has recorded a finding of fact while answering the contentious issues ?

(ii) Whether fastening the liability upon the Insurance Company is correct or not for non-consideration of Ext. C.?

(iii) What award ?

The first two points are inter-related. The first point is required to be answered in favour of the first appellant-National Insurance Company Ltd. for the following reasons.

The contention urged that there is contributory negligence on the part of the scooterist, cannot be accepted since the Tribunal on proper appreciation of the legal evidence on record, rightly rejected the said plea. The said finding cannot be challenged by the Insurance Company unless the permission u/s 170 (b) of the Motor Vehicles Act, 1988 is obtained and additional written statement is filed which has not been done in the instant case. Therefore, apportionment of contributory negligence on the part of the Scooterist, cannot be a ground for setting aside the impunged award and the same is rejected.

So far as composite negligence is concerned, as could be seen from the operative portion of the impunged judgment, the Tribunal has held both the insurance companies jointly and severally liable. But, the Tribunal ought to have apportioned the liability. In my considered view, since the Tribunal has held the insurance companies jointly and severally liable on proper appreciation of facts and legal evidence on record particularly having regard to the fact that against both the drivers, case is registered under Sections 379 and 304-A IPC, both the insurance companies are required to share the liability equally at 50% with proportionate interest as awarded by the Tribunal.

The second point is required to be answered against the second appellant-New India Assurance company for the following reasons.

Violation of the terms and conditions of the policy by the owner of the insured of the vehicle for not engaging a driver who has got a valid and effective licence is pleaded but not proved since marking of the report of the R. T. O., Allahabad without production of driving licence does not amount to proof of the same. Therefore, the same cannot be treated as legal evidence. In the absence of legal evidence, the contention urged that the owner of the truck had not engaged a driver who had a valid and effective driving licence or fake driving licence, is not accepted as the same is not proved. Therefore, the liability fastened on it, is perfectly legal and valid and the same does not call for interference of this Court.

The contention urged in the connected appeal that the application of multiplier should have been 16 instead of 17, need not be accepted by this Court for the reason that the compensation awarded is on the lower side and also no award has been made in respect of the conventional heads. The accident had been taken place on 3rd May, 1995 after the M.V. Act, 1988 has come into force. In view of the decision of the Apex Court in the case of General Manager, Kerala State Road Transport Corporation, Trivandrum Vs. Mrs. Susamma Thomas and others, and for the reasons stated above, I am not inclined to reduce the compensation as both insurance companies have failed to obtain permission as required u/s 170(b) of the M.V. Act and have not filed additional written statement. Therefore, it is not a fit case to modify the quantum of compensation awarded by the Tribunal. However, the impunged judgment is modified to the extent that the liability on the composite negligence of both the Insurance Companies shall be apportioned at 50% each with proportionate interest payable to the claimants. The insurance companies shall either pay or deposit the entire compensation amount before the Tribunal within four weeks from the date of receipt of the judgment. The statutory deposit with accrued interest shall be returned to the appellants after producing the certificate of payment as directed above.

With the above modification of the impunged judgment of the Tribunal, both the appeals are disposed off.