Surendra Singh vs Mamta and Others

G.D. Saxena, J.—This appeal u/s 173 of the Motor Vehicles Act 1988 has been preferred by the owner of the vehicle involved in accident against an Award dated 28th March 2003 in Claim Case No. 30/2003 passed by the Third Additional Member of the Motor Accident Claims Tribunal, Dabra (Gwalior). The facts in short are that on 2nd August 2001, deceased Harnam Singh and his cousin Narayan Singh were travelling as passengers on fare from Goraghat (Datia) to Dabra (Gwalior) in a bus bearing registration No. MP08/4157, owned by Surendra Singh (appellant herein) and driven by Rajesh Yogi. It is stated that when the driver stopped the bus at Hotel Beju Bawara at Dabra and Harnam Singh was likely to get down from front door of the bus, the driver moved the vehicle very fast without caring for him. Due to his alleged act, Harnam Singh fell down, sustained severe injuries and died during treatment in J.A. Hospital Gwalior. On the report, an F.I.R. was lodged at Police Station Dabra on which Crime No. 274/01 for commission of offence punishable u/s 304-A of I.P.C. was registered against the driver. After investigation, the charge-sheet was filed in the criminal court. It is in this manner that the claimants of the deceased moved with a claim petition u/s 166 of the Act for grant of compensation. After considering the evidence as adduced by the parties, the learned tribunal awarded a sum of Rs. 2,45,000/- to be paid jointly or severally against the owner, driver and Insurance company with further direction to the Insurance Company to recover the award amount which is deposited by it before the tribunal from the owner of the offending vehicle.

It is the submission of the learned counsel appearing on behalf of the appellant/owner of the vehicle that the learned tribunal passed the award against the evidence led by the parties and the established principles of law, therefore, same is liable to be set aside. It is also submitted that the award is on higher side, hence, requires modification/reduction. It is further urged by the learned counsel that the driver and owner after service of notice handed over all papers relating to the accident, such as insurance policy, driving licence and also requested the Insurance Company for proper arrangements for their appearance but the Insurance company did not pay any head to their request. On the basis of above, it is prayed that by allowing this appeal, the award passed in favour of claimants may be set aside or the Insurance company may be directed to indemnify the liability of the insured and to satisfy award passed by the learned tribunal in view of the statutory obligation envisaged under the Act.

It may be seen that the claimants did not prefer any appeal or cross-objection for enhancement of award amount. No one was present on their behalf at the time of hearing before the bench.

Similarly, the Insurance Company, though did not prefer any counter claim under Order 41 Rule 22 C.P.C., but simply opposed the prayer of the appellant. It is further submitted that in compliance of the directions, the amount under the Award has been deposited before the tribunal which is already disbursed among the claimants and in execution proceedings, the recovery from owner is under progress. It is submitted that the driver after arrest deposited the driving licence issued by the Regional Transport authority Jhansi (U.P.) which the Insurance company by adducing the statements on behalf of the Regional Transport Authority Jhansi proved that no such licence was granted by the competent authority in favour of the driver and ultimately the licence seized from driver involved in the accident was found fake. It was proved by the Insurance Company that in violation of the terms of policy, the vehicle was driven under fake licence. Therefore, as per the learned counsel, the ultimate responsibility lies on the shoulder of the owner of the vehicle, on account of negligent act of his employed driver. Under these circumstances, it is prayed for dismissal of the appeal filed on behalf of the appellant/owner.

Heard the learned counsel for the parties. Also perused the record of the case and the law.

In National Insurance Co. Ltd. Vs. Baljit Kaur and Others, , the Hon. Apex Court observed as follows:-

The upshot of the aforementioned discussions is that instead and in place of the insurer the owner of the vehicle shall be liable to satisfy the decree. The question, however, would be as to whether keeping in view the fact that the law was not clear so long such a direction would be fair and equitable. We do not think so. We, therefore, clarify the legal position which shall have prospective effect. The Tribunal as also the High Court had proceeded in terms of the decisions of this Court in Satpal Singh (supra). The said decision has been overruled only in Asha Rani (supra). We, therefore, are of the opinion that the interest of justice will be subserved if the appellant herein is directed to satisfy the awarded amount in favour of the claimant if not already satisfied and recover the same from the owner of the vehicle. For the purpose of such recovery, it would not be necessary for the insurer to file a separate suit but it may initiate a proceeding before the executing Court as if the dispute between the insurer and the owner was the subject-matter of determination before the Tribunal and the issue is decided against the owner and in favour of the insurer. We have issued the aforementioned directions having regard to the scope and purport of S. 168 of the Motor Vehicles Act, 1988 in terms whereof it is not only entitled to determine the amount of claim as put forth by the claimant for recovery thereof from the insurer, owner or driver of the vehicle jointly or severally but also the dispute between the insurer on the one hand and the owner or driver of the vehicle involved in the accident inasmuch as can be resolved by the Tribunal in such a proceeding.

Now, coming to the facts of the present case, it is found that during investigation in Crime No. 274/2001 the driver Rajesh Kumar Yogi after arrest made available his driving licence bearing No. R 2653/Jhansi/JHS/87 which shows its validity up to 30th June 1992. The said driving licence was ultimately found fake on the basis of the evidence adduced by the Insurance Company. Ordinary in breach of condition of specified policy, the burden lies upon the Insurance Company to prove by leading evidence but where the fact of driver not being duly licensed driver is admitted fact, insurer carries no burden to prove it owing to section 58 of the Evidence Act. This being the position, at this stage if the owner pleads that his driver Rajesh Kumar Yogi was possessing the valid and effective driving licence issued from the Regional Transport Authority Gwalior, he can be permitted to raise such an objection to that respect in the execution proceedings pending against him before the court which can be proved by leading cogent evidence. The Insurance Company shall have full opportunity to rebut the same in the same recovery proceedings before the tribunal. Since the presumption u/s 14(2) arose, apparently, therefore, there was breach of conditions of insurance on the part of the driver and the owner as the vehicle was being driver by a person not having a valid licence. In such a situation, the Insurance Company was directed by the learned MACT to recover the amount paid to the claimants from the driver and owner of the vehicle. Subject to above directions and observations, the appeal accordingly stands disposed of with costs. The costs of the Insurance company shall be paid by the appellant. Counsel fee Rs. 2,000/-, if certified.