Miscellaneous Appeal No. 647 of 2008 · Patna High Court
Case Details
IN THE HIGH COURT OF JUDICATURE AT PATNA Miscellaneous Appeal No.647 of 2008 ====================================================== Divisional Manager National Insurance Company Ltd. Muzaffarpur through Sri Anjani Kumar, A.O. and duly constituted Attorney National Insurance Company Ltd. Regional Office-4th Floor Sone Bhawan, B.C. Patel Road, P.O. G.P.O., P.S. Sachiwalaya Patna, District-Patna .... .... Appellant/s Versus 1. Satya Narain Choudhary @ Motor Babu, S/o Late Hazari Lal Choudhary, resident of village-Sakra Faridpur, P.O. and P.S. Sakra, District-Muzaffarpur 2. Sri Raj Kishore Rai, S/o Bhola Rai, resident of village-Baikatpur, P.S. and P.O. Musahari, District-Muzaffarpur .... .... Respondent/s ====================================================== CORAM: HONOURABLE MR. JUSTICE JYOTI SARAN ORAL JUDGMENT 12. 23-08-2013 This appeal under Section 173 of the Motor Vehicles Act, 1988 (hereinafter referred to as „the Act‟) is directed against the judgment and award dated 7.8.2008/16.8.2008 passed by the Motor Vehicles Accident Claim Tribunal-cum-9th Additional District Judge-Muzaffarpur in Claim Case No. 261 of 2002, whereby the claim has been allowed with interest. Mr. Ashok Priyadarshi has appeared on behalf of the appellant while there are two counsels who have filed vakalatnama on behalf of the claimant-respondent no 1. Initially a vakalatnama was filed on behalf of the claimant by Mr. Sunil Kumar Pandey which was followed by a second vakalatnama filed by Mr. Arbind Kumar, both learned counsels of this Court. Considering the circumstance, a Bench of this Court directed the learned counsel to clarify the position. The record manifests that a supplementary
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Patna High Court MA No.647 of 2008 (12) dt.23-08-2013 2 affidavit has been filed by the claimant Satya Narayan Choudhary
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on 16.04.2013 in which it is stated that he had authorized Mr. Arbind Kumar to appear on his behalf. Both Mr. Sunil Kumar Pandey and Mr. Arbind Kumar, learned counsel(s) are in attendance today and in view of the affidavit filed by the claimant, Mr. Sunil Kumar Pandey, learned counsel recuses himself from the proceedings. Thus the controversy whatsoever, stands clarified and it is noted that Mr. Arbind Kumar has registered appearance for the claimant. Though served and having appeared through counsel Mr. Rajiv Ranjan, there is no representation on behalf of the owner of the vehicle who has been arraigned as respondent no. 2 to the present appeal. I have heard Mr. Ashok Priyadarshi, learned counsel appearing on behalf of the appellant-insurance company and Mr. Arbind Kumar, learned counsel appearing on behalf of the claimant and I have perused the records which have been summoned under the orders of this Court. There are two issues which has been raised by the appellant insurance company to question the award impugned namely; invalidity of driving license and the order to pay and recover. The contention of learned counsel on the first issue is that the driver of the offending vehicle was not possessing a valid license on the Patna High Court MA No.647 of 2008 (12) dt.23-08-2013 3 date of accident and to establish the same learned counsel has referred to Exhibit-A which is an information supplied by the District Transport Office, Muzaffarpur certifying the validity of license from 22.12.2000 to 21.12.2003 and from 21.12.2003 to 20.12.2006. With reference thereto Mr. Priyadarshi sought to contend that since the accident had taken place on 17.3.2000 i.e. prior to the date from which the license was renewed as per the information supplied by the District Transport Office, Muzaffarpur hence the liability did not fall upon the insurance company rather it is for the owner or the driver, as the case may be, to make payment of the compensation amount. It was next submitted that although this was the specific case of the insurance to contest the claim case but no issue was framed by the tribunal on this aspect. Mr. Priyadarshi relying upon the first proviso to Section 15 of the Act has submitted that the renewal had to take place within 30 days of the expiry of the license and in the present case as per the information present at Ext-A, it is manifest that the license was renewed only with effect from 22.12.2000. Learned counsel in support of his submission has relied upon the following judgments: (i) AIR 2009 SC 208 (National Insurance Company vs. Vidhyadhar) (ii) AIR 2009 SC 2987 (New India Assurance Company Patna High Court MA No.647 of 2008 (12) dt.23-08-2013 4 Ltd. vs. Suresh Chandra Agarwal) (iii) AIR 2009 SC (suppl.) 1264 (Ram Babu Tiwary vs. United India Insurance Company). Mr. Priyadarshi in contest of the order directing payment and recovery, has referred to a judgment of the Supreme Court reported in AIR 2008 SC 403 (Oriental Insurance Company vs. Smt. Raj Kumari) to submit that until such time that a claimant is able to demonstrate that he would be in a difficulty to make recovery from the owner, the insurer cannot be directed to pay the compensation and make recovery from the insured. The argument has been contested by the learned counsel appearing for the claimants who submits that the conclusion drawn by the tribunal is within the jurisdiction vested and does not call for interference. Having heard learned counsel for the parties, it is to be seen whether learned counsel for the appellant has made out a case for interference. As discussed the award has been challenged on two issues and I would deal with each of the two issues raised by Mr. Priyadarshi individually. Insofar as the issue of validity of the driving license of the driver of the offending vehicle on the date of accident i.e. 17.3.2000, is concerned, the entire foundation rests upon Ext-A which is an information supplied by the District Transport Patna High Court MA No.647 of 2008 (12) dt.23-08-2013 5 Authority, Muzaffarpur. The District Transport Authority, Muzaffarpur vide memo no. 1309 dated 20.04.2004 has mentioned the validity of the license from 22.12.2000 to 21.12.2003 and from 21.12.2003 to 20.12.2006. The memo nowhere mentions that the license was not renewed for the anterior period i.e. prior to 22.12.2000 nor any document has been placed on record to demonstrate that the insurance company had sought specific information to that effect from the District Transport Authority as to whether the license of the driver was valid on 17.3.2000. There is a presumption drawn by the Insurance on the basis of the certification that since the period anterior to 22.12.2000 has not been mentioned in the information supplied, it impliedly means that the license was not valid prior to 22.12.2000 and was only renewed w.e.f. the said date. It is not in dispute rather is a matter of record as manifest from Exhibit-A itself that the license was issued as back as on 26.4.1989 i.e. 11 years prior to the occurrence. It would be rather far fetched to think that having obtained a license on 26.4.1989 it was never renewed until 22.12.2000 i.e. more than 9 months after the accident. As I observed hereinbefore the insurance company have sought to draw a presumption based upon the information Patna High Court MA No.647 of 2008 (12) dt.23-08-2013 6 supplied by the District Transport Authority but then the presumption is rebuttable and until such time that the insurance company could have established by positive evidence that the license was not valid on the date of accident i.e. 17.03.2000 and that the owner conscious of this fact had yet allowed the driver to drive the vehicle, it would be difficult for this Court to go along the contention of Mr. Priyadarshi. The judgment relied upon by Mr. Priyadarshi are cases in which it was established beyond any shadow of doubt that the license of the driver was not valid on the date of accident but the said all important fact is missing in the present case. As I observed, the entire foundation of the appellant is based upon Exhibit-A which does not give any information, whether or not the license held any validity for the period prior to 22.12.2000. The judgment rendered by the Supreme Court in the case of Swaran Singh reported in (2004)3 SCC 297 was one of the earlier judgment on the issue of invalid driving license and which laid down principles for determining the liability of the insurance company vis-à-vis the owner in such circumstances. The principles laid down in the judgment of Swaran Singh was noticed in a subsequent judgment of the Supreme Court rendered in the case of Meena Variyal reported in (2007) 5 SCC 428 and it was observed in paragraph-16 of the judgment as follows: Patna High Court MA No.647 of 2008 (12) dt.23-08-2013 7 “16. …………The breach of a policy condition has to be proved to have been committed by the insured for avoiding liability by the insurer. Mere absence of or production of fake or invalid driving licence 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 party. The insurance company to avoid liability, must not only establish the available defense raised in the proceeding concerned but must also establish breach on the part of the owner of the vehicle for which the burden of proof would rest with the insurance company. Whether such a burden had been discharged, would depend upon the facts and circumstances of each case. Even when the insurer is able to prove breach on the part of the insured concerning a policy condition, the insurer would not be allowed to avoid its liability towards the insured unless the said breach of condition is so fundamental as to be found to have contributed to the cause of the accident. The question whether the owner has taken reasonable care to find out whether the driving licence produced by the driver was fake or not, will have to be determined in each case. If the vehicle at time of the accident was driven by a person having a learner‟s licence, the insurance company would be liable to satisfy the award. The amount that may be awarded to the insurance company against the insurer in an appropriate case could be recovered even by Patna High Court MA No.647 of 2008 (12) dt.23-08-2013 8 way of the enforcement of the very award………” The verdict of the Supreme Court in the case of Meena Variyal casts certain obligations on the insurance company to be fulfilled for avoiding the liability and which is two fold, namely; (i) That the driving license was invalid on the date of accident is proved without any shadow of doubt and is not left for presumption and; (ii) That the owner had full knowledge about the invalidity of the license and yet allowed his driver to drive the offending vehicle. Insofar as the case in hand is concerned, the records manifest that none of the two factors as noticed stands satisfied. May be, the contention advanced by Mr. Priyadarshi relying upon the information present at Exhibit-A is correct but then the same had to be established by positive evidence which is clearly amiss in the present case. It is perhaps taking note of these circumstances that the learned tribunal even while directing the insurance company to make payment of the disability compensation amount has afforded liberty to them to make recovery of the same by resorting to appropriate remedy and it stands well established in Nanjappan case reported in (2004) 13 SCC 224 that the insurance company need not file a separate suit for this purpose rather it can make a recovery by enforcing the very award itself before the tribunal by shifting the liability on the Patna High Court MA No.647 of 2008 (12) dt.23-08-2013 9 owner by positive evidence. This would bring this Court to the second issue raised by Mr. Priyadarshi regarding the conditions precedent for orders directing the Insurance to pay and recover. Mr. Priyadarshi relied upon the judgment rendered in the case of Raj Kumari (supra) to submit that in absence of the claimant demonstrating that they would have difficulty in making recovery from the insured, the insurance company may not be saddled with the liability of recovery. The very judgment relied upon by Mr. Priyadarshi to canvass this position also makes the following observations in paragraph-15: “15. The following words of Lord Denning in the matter of applying precedents have become locus classicus: “Each case depends on its own facts and a close similarity between one case and another is not enough because even a single significant detail may alter the entire aspect, in deciding such cases, one should avoid the temptation to decide cases (as said by Cordozo) by matching the colour of one case against the colour of another. To decide therefore, on which side of the line a case falls, the broad resemblance to another case is not at all decisive.” “Precedent should be followed only so far as it marks the path of justice, but you must cut the dead wood and trim off the side branches else you will find yourself lost in thickets and branches. My plea is to keep the path Patna High Court MA No.647 of 2008 (12) dt.23-08-2013 10 to justice clear of obstructions which could impede it.” Applying the principles laid down in paragraph-15 of the judgment (supra), to the case in hand in which the claimant has been rendered disabled to the extent of 65 per cent, there could not be a better case of a difficulty being faced by the claimant. Even other wise the directions requiring the insurance company to make payment and then make recovery thereof from the owner stands approved by a judgment of the Supreme Court reported in (2013) 2 SCC 41 (National Insurance Company Ltd. vs. Saju P. Paul and another) For the reasons aforementioned, I am not persuaded to interfere with the judgment and award impugned. This appeal is dismissed. Let the statutory amount be remitted to the tribunal for its disbursement in accordance with law. Let the lower court records be returned to the tribunal concerned forthwith. S.Sb/- (Jyoti Saran, J)