AO/304/2005 of KISHORI LAL Vs SMT. RAJO DEVI and ORS.

(1)A.O. No. 304/2005

Kishore Lal S/o Sri Badru, R/o Kansula Naugaun, Uttarkashi, At present R/o 36/2, Jakhan Rajpur Road, Dehradun District Dehradun .......... Appellant.

1.Smt. Rajo Devi, W/o Late Anil Kumar 2.Saihju S/o Munna 2.Saihju S/o Munna

3.Master Vinod S/o Late Anil Kumar minor Through his mother and legal Through his mother and legal

representative Respondent No. 1 Smt.

Rajo Devi, all R/o Gautharh Lakha

Mandal,Tehsil Chakrata District Dehradun. Dehradun.

4.New India Assurance Company Ltd. Through its Divisional Manager, Through its Divisional Manager,

Divisional Office, Astley Hall,

Rajpur Road, Dehradun,

District Dehradun ........ Respondents.

(2) A.O. No. 523/2004

Kishore Lal S/o Sri Badru, R/o Kansula Naugaun, Uttarkashi, At present R/o 36/2, Jakhan Rajpur Road, Dehradun District Dehradun ......... Appellant.

1. Smt. Meema Devi W/o late Shyam Lal,

R/o Gautharh Lakha Mandal, Tehsil

Chakrata, District Dehradun.

2- New India Assurance Company Ltd.

Through its Divisional Manager,

Divisional Office, Astley Hall,

Rajpur Road, Dehradun,

District Dehradun

............. Respondents.

(3) A.O. No. 301/2005 Kishori Lal S/o Sri Badru, R/o Kansula Naugaun, Uttarkashi, At present R/o 36/2, Jakhan Rajpur Road, Dehradun District Dehradun

............ Appellant.

1. Smt. Kamo Devi W/o Late Prakash

Chandra,

2. Km. Anita D/o Late Prakash Chandra, 3. Km. Rita D/o Late Prakash Chandra

4. Master Rajesh S/o Late Prakash Chandra,

5. Master Manish S/o Late Prakash Chandra,

6. Master Ravi S/o Late Prakash Chandra, Respondents 2 to 6 minors through their mother Respondent No. 1. 7. Smt. Chaila W/o Saihju, Respondents 1 to 7 R/o Gautharh Lakha Mandal, Tehsil Chakrata District Dehradun. 8. New India Assurance Company Ltd. Through its Divisional Manager, Divisional Office, Astley Hall, Rajpur Road, Dehradun, District Dehradun .......... Respondents.

(4) A.O. No. 303/2005

Kishori Lal S/o Sri Badru, R/o Kansula Naugaun, Uttarkashi, At present R/o 36/2, Jakhan Rajpur Road, Dehradun District Dehradun .............. Appellant.

1. Smt. Manji Devi W/o Late Sadu Ram,

2- Natholi S/o Nainu,

3- Smt. Bhumi Devi W/o Natholia,

4- Anil S/o Late Sadu Ram,

5- Neelam D/o late Sadu Ram,

6- Usha D/o late Sadu Ram,

7- Nisha D/o late Sadu Ram, 8- Nidhi D/o late Sadu Ram, Respondents 4 to 8 minors through their mother and legal representative respondent No.1/Smt. Manji Devi.

9. New India Assurance Company Ltd. Through its Divisional Manager, Divisional Office, Astley Hall, Rajpur Road, Dehradun, District Dehradun ..... Respondents.

Sri D.S. Patni, learned counsel for the appellant. Sri M.K. Aggarwal, learned counsel for the respondent/ insurance company. None for claimants/ respondents.

All the appeals arise out of the judgments and

passed in the claim petitions filed against the same accident and as the similar controversy is involved in these appeals, therefore, they are being decided by this common judgment.

2- A.O. No. 304/2005, has been against the judgment and award dated 10-11-2003, passed by Motor Accident Claim Tribunal/ III F.T.C. Dehradun in MACP No. 167 of 2002, whereby the claimants were awarded compensation for sum of Rs. 4,17,500/- along with interest @ 9% annum from the date of presentation of petition till the date of actual payment, in lieu of death of Anil Kumar.

preferred

against the judgment and award dated 10-11-2003,

preferred

3- A.O. No. 523/2004, has been preferred against the judgment and award dated 15-7-2004, and order dated 10-8-2004, passed by Workmen’s Compensation Commissioner /Asstt. Labour Commissioner, U.A. Dehradun, in W.C.A. Case No. 20/2002, whereby the claimants were awarded compensation for sum of Rs. 2,96,827 /- in lieu of death of workman Shyam Lal. The Workmen’s Compensation Commissioner has directed the New India Assurance Company to deposit the amount of compensation within one month, failing which interest @ 6 % per annum from the date of award till the final payment shall be payable. The learned Commissioner vide subsequent order dated 10.8.2004 also directed that the Insurance Company will be at liberty to recover the amount of compensation from the owner of the vehicle.

awarded

4. A.O. No. 301/2005, has been

preferred

against the judgment and award dated 10-11-2003,

passed by Motor Accident Claim Tribunal/ III F.T.C.

Dehradun in MACP No.169 of 2002, whereby the

claimants were awarded compensation for sum of

Rs. 4,99,100/- along with interest @ 9% per annum from

the date of presentation of petition till the date of actual

payment, in lieu of death of Prakash Chandra.

6- A.O. No. 303/2005, has been

preferred

against the judgment and award dated 10-11-2003,

passed by Motor Accident Claim Tribunal/ III F.T.C.

Dehradun in MACP No. 168 of 2002, whereby the

claimants were awarded compensation for sum of

Rs. 4,99,100/- along with interest @ 9 % per annum from the date of presentation of petition till the date of actual payment, in lieu of death of Sadu Ram.

The learned Tribunal in above mentioned

claim petitions, has directed the New India Assurance

Company to pay the compensation and at the same time

also directed that the Insurance Company will be at

liberty to recover the amount of compensation from the

owner of the vehicle involved in the accident.

The relevant facts of the case are that on 23-

7-2002 the deceased persons were travelling Mahindra Bolero Jeep No. U.A. –07-B, 6290 from Vikas Nagar to Lakha Mandal and when the jeep reached at Rikhau Khad near Damta at Vikas Nagar- Yamnotri Motor Marg, it fell in Yamuna river, due to rash and negligent driving of its driver.

9- The owner of the offending jeep has contested the claims before the Tribunal as well as the Workmen’s

Compensation Case on the ground that the vehicle was insured with New India Assurance Company and it has valid registration, permit etc. Its driver had also valid driving licence.

10- The Insurance Company contested petitions on the ground that the driver of the vehicle was not authorized to drive the vehicle on hill route as there was no endorsement by the authority to this effect, on his driving license.

the

petitions on the ground that the driver of the vehicle

was not authorized to drive the vehicle on hill route as

registration

The learned Tribunal framed relevant issues

11- The learned Tribunal framed relevant issues in the claim petitions. Parties adduced evidence in support of their cases. Thereafter, the learned Tribunal awarded the compensation to the claimants to be payable by the New India Assurance Company along with interest @9 % per annum. However, the Tribunal has given recoverable rights to the Insurance Company against the owner of the offending jeep. The Workmen’s Compensation Commissioner also awarded recoverable right to the Insurance Company in W.C.A. Case No. 20/2002.

12- Feeling aggrieved the owner of the offending jeep has preferred these appeals before this Court.

13- Heard learned counsel for the parties and perused the record.

The only controversy involved in these cases is as to whether on account of the reason of absence of the endorsement to drive the vehicle on hill route in driving license the recoverable rights given to insurance company against the owner of vehicle, the impugned awards passed by the Tribunal and the Workmen’s

15- Learned counsel for the appellant has invited my attention towards the judgment of the Division Bench of this Court rendered in the case of The New India Assurance Co. Ltd. vs. Smt. Kala Devi alias Kalawati Devi & others, decided on 31.10.2006, in which it has been held that the driving license of the driver will not be held invalid merely on the ground of absence of endorsement to drive the vehicle on hill routes under the provisions of Rule 193 of Vehicles Rules.

Motor

16- The Division Bench of this Court has also relied upon the decision of the Hon’ble Apex Court rendered in the case of National Insurance Co. Ltd. vs. Swaran Singh, 2004 AIR SCW 663, in which it has been observed as under:

“(iii) The breach of policy condition e.g. disqualification of the driver or invalid driving license of the driver, as contained in sub-section (2)(a)(ii) of Section 149, has to be proved to have been committed by the insured for avoiding liability by the insurer. Mere absence, fake or invalid driving license or disqualification of the driver for driving at the relevant time, are not in themselves defences available to the insurer against either the insured or the third parties. To avoid its liability towards the insured, the insurer has to prove that the insured was guilty of negligence and failed to exercise reasonable care in the matter of fulfilling the condition of the policy regarding use of vehicles by

duly licensed driver or one who was not disqualified to drive at the relevant time.

(iv) Even where the insurer is able to prove breach on the part of the insured concerning the policy condition regarding holding of valid license by the driver or his disqualification to drive during the relevant period, the insurer would not be allowed to avoid its liability towards the insured unless the said breach or breaches on the condition of driving license is/are so fundamental as are found to have contributed to the cause of the accident. The Tribunals in interpreting the policy conditions would apply “the rule of main purpose” and the concept of “fundamental breach” to allow defences available to the insurer under Section 149(2) of the Act.

17. The Division Bench of this Court has further relied upon the decision of the Hon’ble Apex Court rendered in the case of Lal Chand vs. Oriental Insurance Co. Ltd., 2006 AIR SCW 4832, in which it

has been observed as under:

“In the instant case, the owner has not only seen and examined the driving licence produced by the driver but also took the test of the driving of the driver and found tht the driver was competent to drive the vehicle and thereafter appointed him as driver of the vehicle in question. Thus, the owner has satisfied himself that the driver has licence and is driving competently, there would be no breach of section 149(2)(a)(ii) and the Insurance Company would not then be absolved of its liability.”

18- In view of the aforesaid decisions of the Hon’ble Apex Court as well as the Division Bench of this Court, I find myself in total agreement with the submission raised by learned counsel for the appellant.

19- In view of above discussion, all the appeals filed against the impugned judgments and awards, are liable to be allowed.

20- Accordingly, the A.O. No. 304 of 2005, A.O. No. 523 of 2004, A.O. No. 301 of 2005, and A.O. No. 303 of 2005 filed by appellant/owner of vehicle, are allowed. The impugned awards passed by the courts below are modified to the extent that the liability to pay the amount of compensation rests upon the insurance company and not upon the owner of offending vehicle. The direction issued by the Tribunal as well as Workmen’s Compensation Commissioner, by which the recoverable right has been given to the insurance company against the owner of offending vehicle, is set aside and the insurance company is directed to pay the amount of compensation awarded by the Tribunal and the Workmen’s Compensation Commissioner in the impugned awards. It is also directed that any amount deposited by the owner of offending vehicle i.e. appellant at the time of filing the appeals before this court, would be remitted to the Tribunal concerned, so that the appellant may be able to withdraw the same.

the

21- Let copy of this judgment be placed in the files of A.O. No. 523/2004, A.O. No. 301/2005 and A.O. No. 303/2005.

(B.C. Kandpal, J.)