Nirupama Dutta vs Tek Bahadur Chetri and Others

B.N. Singh Neelam, J.—This is an appeal so preferred by Smti. Nirupama Dutta, W/O Shri Satya Ranjan Dutta against the judgment and Award dated 31.5.93 passed by the learned Member, MACT, Kamrup at Guwahati in MACT Case No. 340(K)/90 directing the sole Appellant (owner of vehicle No. ASE-8666 Ambassador Car) who figured in the said MACT case to be opposite party No. 1 as to pay the award amount to the claimant to the tune of Rs. 1,12,000/- with the interest at the usual rate of 12 per cent per annum from the date of filing of the said claim petition to the date of realisation to be paid to the claimant Shri Tek Bahadur Chetri figuring in this appeal as Respondent No. 1.

In nut shell, the claimant''s case is that on 25.1.90 in the morning hours while he (Tek Bahadur Chetri) was having a morning walk alongwith Sri Sanjoy Das (PW2), near Hostel No. 4 of the Assam Engineering Institute, the Ambassador Car in question knocked him from the back for which he sustained injuries in the nature of permanent disablement. The owner of the said vehicle, according to the claimant was Smti. Nirupama Dutta, the present Appellant and the claim petition the name of the Driver was shown by the claimant to be Shri Kamal Deo Roy, who figures as Respondent No. 2 in this appeal. Respondent No. 3 is the Divisional Manager of M/s. Oriental Insurance Co. Ltd., Khanapara, Guwahati. Shri Tek Bahadur Chetri had claimed an award of Rs. 2,85,000/- under different heads as detailed in his claim application. The opposite parties in the said claim case filed their WS and contested the proceeding and the WS so filed by the owner of the vehicle, the present Appellant is dated 3rd May, 1991. The WS so filed by the Driver Sri Kamal Deo Roy, is dated 1.11.91 with that the WS filed by opposite party No. 3 the Oriental Insurance Co. Ltd. is dated 4th March, 1991. The issues were so framed in the said claim case and the learned Member, MACT was also pleased as to record the evidence of 4 of the PWs and 5 of the DWs. PW4 is the claimant himself, PW1 is the Medical Officer examining claimant''s injury, PW2 Sri Sanjoy Das is the person said to have been walking with the claimant on the said morning when accident took place and PW3 is Shri Uma Kanta Bora, A.S.I., who had investigated the matter when FIR was also lodged in connection with this accident u/s 304(A) of the IPC. Out of the DWs examined, DW1 is the Driver Kamal Deo Roy, DW1A is Shri Pabitra Kumar Tamuly retired Principal of Girls'' Polytechnic School, DW2 is Shri Ananda Chandra Mishra, a Lecturer of Assam Engineering Institute, DW3 is Shri Satya Ranjan Dutta, DW4 is Shri S.K. Deb Choudhury, Senior Divisional Manager, M/s. Oriental Insurance Co. Ltd. In the course of proceeding before the learned Member, MACT in the instant case, it has come in evidence that at the time of the accident taking place when the said vehicle was in use, the occupants were the husband of the owner of the vehicle Shri Satya Ranjan Dutta, Shri Kamal Deo Roy and daughter of the owner Smti. Nirupama Dutta. Evidence was adduced also on this point that after the accident, DW3 Shri Satya Ranjan Dutta paid Rs. 11,000/- to Shri Tek Bahadur Chetri for meeting expenses relating to his treatment which is said to have been given by way of loan and on this point also some of the witnesses are particularly examined and they are:

DW3 - Shri Satya Ranjan Dutta

DW2 - Shri Ananda Chandra Mishra and

DW1 - Shri Pabitra Kumar Tamuly.

It is, in this light, that the learned Member, MACT in the impugned judgment although held the claimant liable for payment of Rs. 1,23,000/- but deducted the amount of Rs. 11,000/- paid and directed the owner of the car as to pay Rs. 1,12,000/- only with interest as detailed above. This finding was arrived at by the learned Court below holding that at the time of occurrence the car in question was being driven by DW3 Shri Satya Ranjan Dutta, the husband of the owner of the vehicle having no driving licence and, therefore, though the said vehicle was insured at the relevant period, the insurer would not be liable for giving compensation.

Heard Mr. A.K. Bhattacharyya, the learned senior counsel for the Appellant owner Smti. Nirupama Dutta, Mr. J. Sarma, the learned Counsel for Respondent No. 1 Tek Bahadur Chetri, Shri R.P. Singh, the learned Counsel for the Respondent No. 2 (Kamal Deo Roy) Driver and Shri S.K. Barkataki, the learned Counsel for the Respondent No. 3, the Divisional Manager, M/s. Oriental Insurance Co. Ltd. Mr. A.K. Bhattacharyya, the learned Counsel for the Appellant has submitted that the learned Member, MACT has erred in arriving at a conclusion directing the owner of the vehicle i.e. the Appellant as to pay the award amount to the claimant Shri Tek Bahadur Chetri. It is emphatically argued that at the relevant time the said vehicle was being driven by Shri Kamal Deb Roy was having a valid driving licence and in that light, when the said vehicle was insured and the Insurance Policy was very much valid on the date of occurrence, in no way the Respondent No. 3, the Oriental Insurance Company Ltd. being represented by its Divisional Manager could have been exonerated from his liability as to pay the amount awarded as compensation to the claimant for his permanent disability. By referring to the relevant portion of the evidence of the witnesses so examined before the MACT Court it is further pointed out that PW2 and PW4 are very specific in detaining with regarding their having an occasion to see Kamal Deb Roy driving the vehicle at that time and as far as PW4, the claimant is concerned, he can be said to be the most competent witness on this point, so, is the case with PW2 Sanjoy Das having morning walk on that morning with Tek Bahadur Chetri. It is further pointed out that Shri Satya Ranjan Dutta as DW3 has also given clear picture with regard to the said vehicle being driven by Kamal Deb Roy at that time and also by referring the evidence of DW2 Shri Ananda Chandra Mishra, it is pointed out that his quarter was adjacent to the quarter to the house of Smti. Nirupama Dutta and he had an occasion to see on the morning on 25.1.90 Sri Kamal Deb Roy taking out the vehicle from her quarter and driving it away. Mr. Bhattacharyya, the learned Counsel submits that this also goes to show that the owner of the vehicle Smti. Nirupama Dutta had thus on that morning given the vehicle in question in the hands of a person i.e. Kamal Deb Roy being the Driver of the department of her husband having valid licence and that being the position, on no account it can be said that by the owner, the vehicle was given to be driven by a person having no valid licence. It is further submitted that in the instant case it can safely be said that the owner of the vehicle i.e. the Appellant had given the car to Kamal Deb Roy who was driving for the purpose of the owner having valid licence and was hence her agent. In support of his this contention, he has referred to a reported case 1995 (2) GLT 458 : 1996(2) GLR 159 Kalicharan Book Sellers v. Manmath Choudhury and Ors. Attention is drawn to para 6 of the above-mentioned reported case.

Mr. Bhattacharyya, the learned Counsel has also submitted that when a particular vehicle is covered under insurance at the relevant time and before the Insurance Co., the defence was available to be given, it was incumbent on the part of the Insurance Company as to adduce evidence in defence that the Driver had no valid licence and if the same is not being adduced, the Insurance Co. cannot be exonerated from the liability of paying the award amount. In such circumstances, it is submitted that on no account it can be said that the Insurance Co. is not liable as to pay the award amount in the instant case. It is pointed out that the Insurance Co. failed to adduce any evidence on that and the claimants cannot be expected to prove in negative the plea raised by the Respondents, rather, it was for the Respondent, the Insurance Co. to produce proof. In support of the plea so taken in the WS, Mr. Bhattacharyya, the learned Counsel also claimed himself to be fortified on this point by referring to a reported case Champa Devi and Others Vs. Ram Sarup and Others, It is also pointed out that if the Insurance Co. disputes its liability that the person driving the vehicle which met an accident, had no valid licence but, failed to produce any evidence to this effect, in such case, the Insurance Co. cannot be exonerated from liability of making payment of the award amount as the insurer, will have to establish that the insured is guilty of an infringement of violation of a promise which, in the instant case has not been established by Respondent No. 3, the Insurance Co. In this connection, paragraphs 11 and 12 of a reported case New India Assurance Co. Ltd. and Others Vs. Ramanand and Others, Sohan Lal Passi Vs. P. Sesh Reddy and others, Sohanlal Passi v. P. Sesh Reddy and Ors. it is further pointed out by particularly referring to its paras 12 and 14 that where the insured i.e. owner of the vehicle had taken all the precautions by handing over the vehicle in question to a duly licensed driver to drive the vehicle in question and it has not been established mat it was the insured, who allowed the vehicle to be driven by a person not duly licensed due to which accident occurred, then the Insurance Co. cannot repudiate its statutory liability under the Act as to pay the award amount and in the instant case because the owner had given the vehicle which was taken out from the garage and driven by Kamal Deb Roy who had valid licence, on no account it can be said that the insured owner had in any way was guilty of an infringement or violation of a promise covered under the Policy. Lastly, by referring to another reported case New India Assurance Co. Ltd. Vs. Gurbachan Kaur and Others, It is further pointed out by the learned Counsel, Mr. Bhattacharyya representing the Appellant that if the Insurance Co. in the WS takes the pea that the vehicle was driven by unlicensed man (Shri Satya Ranjan Dutta) and no such evidence is led to prove as to who was the driver an whether or not he had a valid driving licence, in such circumstances, because of the Insurance Co. not proving the onus heavily upon him, he cannot escape from the liability of paying the compensation.

It is also pointed out on behalf of the Appellant that the learned Member, MACT has relied upon the evidence of PW3, A.S.I. Investigating Officer of a criminal case so separately registered u/s 304A of the IPC. At the time of occurrence, admittedly no Police Officer was present. In his deposition, PW3 has stated by submitting charge-sheet against the DW1 and PW3 about the vehicle being driven by Kamal Deb Roy, but, his source of information as claimed by him is the statement u/s 161 Code of Criminal Procedure of some of the persons which would not have been relied upon by the Court without examining those persons, in this background thus the submission is that the impugned judgment/Award directing the owner as to pay the amount awarded to the claimant, the Respondent No. 1 be set aside and rather, a direction be given to the Insurance Co., the Respondent No. 3 as to pay the award amount to the claimant.

Shri J. Sarma, the learned Counsel appearing on behalf of the claimant, Respondent No. 1, Shri Tek Bahadur Chetri has submitted that as PW4 he was specific in stating with regard to his having the opportunity to see Shri Kamal Deb Roy driving the vehicle at that time and not Shri Satya Ranjan Dutta as held by the learned Court below. Shri R.P. Singh, the learned Counsel for Respondent No. 2 though, has submitted that the said vehicle at that time was driven by the husband of the owner of the vehicle DW3 and Shri Barkataki, the learned Counsel for the Respondent No. 3 has advanced his argument squarely on the basis of the WS filed by the Divisional Manager, M/s. Oriental Insurance Co. Ltd.

After hearing the learned Counsel for the Appellant and the learned Counsel representing the Respondents detailed above, I find that in the instant case certain things are admitted, such as:

a) the present Appellant being the owner of the vehicle in question bearing registration No. ASE-8666;

b) the accident taking place on 25.1.90 at about 6.00 A.M. in front of Assam Engineering Institute, Hostel No. 4, Chandmari, Guwahati;

c) the injured being Tek Bahadur Chetri who had an injury being dashed by the said vehicle causing permanent disablement to 40 per cent as deposed by PW1, the Medical Officer examining him;

d) the occupants of the car at that time being DW1 Sri Kamal Deb Roy, DW3 Shri Satya Ranjan Dutta and daughter of Shri Satya Ranjan Dutta not examined; and

e) the vehicle in question being insured by the Oriental Insurance Co. Ltd. which was valid on the date of accident taking place.

In the background of the above admitted "facts, the only point which remains for determination with regard to the payment of the amount so awarded as compensation by the learned Member, MACT, is as to who was driving the vehicle in question at the relevant time and also as to whether that person had a valid driving licence or not ? For deciding this issue which is the crux of the matter, I have carefully gone through the evidence available on the record, oral and documentary. In the claim petition at the very initial stage, it transpires that the claimant had impleaded Shri Kamal Deb Roy as the driver of the vehicle at the relevant time the car being driven by him. While giving his evidence as DW1 Kamal Deb Roy, is a specific in saying that he happened to be the driver of Technical Engineering Institute and on that morning he was being called as to drive the said vehicle though at the time of accident, according to him, DW3 was on the steering seat. In his cross-examination he is specific in saying that the police had not seized his driving licence, furthermore, the claimant is very specific in stating with regard to Kamal Deb Roy being on the steering seat coming out of that after accident and he also claimed himself to be in conscious condition at that time. The companion of PW4 was PW2 Shri Sanjoy Das who was also having stroll with the claimant and has specifically mentioned with regard to his seeing Kamal Deb Roy driving the vehicle. So, is the case with DW2 Shri Ananda Chandra Mishra who had also occasion to see Kamal Deb Roy taking out the vehicle from the quarter of Shri Dutta on that morning and taking it away though this witness was not present at the time of accident. In the background of overwhelming evidence coming from the mouth of the different witnesses said to be competent, in my considered opinion, the learned Court below has thus erred in arriving at a conclusion with regard to the car being driven by DW3 at the relevant time. The reasons so assigned by the learned Court below as to arrive at this conclusion of car being driven by DW3 at the relevant time are not convincing, rather, are based on mere presumption and flimsy grounds. In the instant case, the owner of the car, the Appellant was not examined as witness and so her daughter, was also not examined who was also one of the occupants of the car at the relevant time before the learned Court below. In my considered opinion, there was no legal evidence as to arrive at the conclusion that the owner of the vehicle had allowed her husband Shri S.R. Dutta to drive her vehicle at the relevant time, unnecessarily the learned Court below has given much importance to the evidence of PW3, the A.S.I., which is not at all corroborated. The Oriental Insurance Co. Ltd. has also failed as to adduce the evidence, in support of the defence so taken by it, though the onus was heavily upon the Insurance Co. as to establish its case showing that the insured had given the car in the hands of a person having no licence which met an accident.

I find that there is much of substance thus in the argument so advanced by the learned Counsel appearing on behalf of the Appellant.

As regards the reported cases so cited referred to above on behalf of the Appellant, I find that there is much of strength in the same as to hold that in the instant case Smti. Nirupama Dutta while the car being taken out on the said morning had given the same in the hands of a person Sri Kamal Deb Roy having driving licence and he can well be said to be the agent of the owner who was given authority as to drive the car for the purpose of the owner at the relevant time and also on no account it can be said because of the Insurance Co. also not adducing evidence that the insured in any way had violated the promise and can be said to be guilty of an infringement of the terms and conditions of the Policy by handing over the vehicle in question to a person not having driving licence.

Two of the reported cases so cited on behalf of the Insurance Co. are also quite distinguishable in the instant case, those two cases cited are - Kashiram Yadav and Another Vs. Oriental Fire and General Insurance Co. and Others, Mr. Borkataki assisted by Shri R. Choudhury the learned Counsel for the Respondent No. 3 by referring to this reported case submitting that where the insured let his/her vehicle, be driven by a person having no licence causes an accident, the burden of the insurer is discharged and is not liable to pay in view of the breach of the Policy conditions as to pay any compensation amount. But in the instant case it has not been established that the insured entrusted the vehicle to a person having no licence rather the evidence on the record speaks otherwise. The second reported case so cited is United India Insurance Co. Ltd. Vs. Gian Chand and others, By referring to this reported case it is pointed out on behalf of the Insurance Co. that if there is a breach of a specified condition of Insurance Policy, in such circumstance, the Insurance Co. is exonerated from the liability as to pay the award amount but, in the instant case, as discussed above, the Insurance Co. though having heavy onus as to adduce evidence in defence of its stand, has utterly failed as to adduce any evidence which could have exonerated the Company with the liability as to pay the award amount.

It is not necessary as to discuss the matter as to whether Shri Satya Ranjan Dutta, DW3 at the relevant time had valid licence or not though the additional evidence showing that the driving licence was issued to him is belied by his own statement when he is specific in saying as DW3 that he had no driving licence at that time.

Taking into consideration the totality of the case, also in the background of the facts and circumstances and the material (oral and documentary) so available on the record I hold that the impugned judgment/Award so passed by the learned Member, MACT requires interference. This appeal so preferred by the Appellant owner is thus allowed and the impugned judgment/Award under challenge is modified to the extent that the award amount in the instant case be paid not by the owner of the vehicle (Appellant) but, by the Respondent No. 3, M/s. Oriental Insurance Co. Ltd. being represented by the Divisional Manager to the claimant as per the direction of the learned Court below i.e. Rs. 1,12,000/- (Rupees one lakh twelve thousand) only with interest as directed by the learned Court below within a period of two months from today.

Parties to bear their own costs.