National Insurance Company Ltd v. Sanjay Kumar & Ors.

Smt.Rani and others .....Respondents CORAM: HON'BLE MR. JUSTICE A.N.JINDAL. Present: Mr.R.M.Suri, Advocate for the appellant. Mr.Kulvir Narwal, Advocate for respondent No.1. Mr.S.P.Chahar, Advocate for respondent Nos. 2 and 3. ***** A.N.JINDAL, J. (ORAL) These three appeals preferred by National Insurance Company Limited, against the Award dated 29.01.2004, passed by the Motor Accident Claims Tribunal, Rohtak, are being disposed of by a common judgment. The Motor Accident Claims Tribunal, Rohtak, awarded compensation as FAO No.2616 of 2004 -2- under: - Sr.No 1 2 3 Case No. MACT Case No.54 of 2001/2002 Sanjay Kumar V/s Sanjay and others MACT Case No.55 of 2001/2002 Satyender Parkash V/s Sanjay and others MACT Case No.56 of 2001/2002 Smt.Rani V/s Sanjay and others Amount Awarded Rs.27,000/- on account of injuries suffered by the claimant. Awarded Rs.1,55,000/- on account of injuries suffered by claimant. Awarded Rs.10,000/- on account of injuries suffered by claimant. The interest @ 9% per annum from the date of filing of the claim petition till the payment was also awarded. The facts necessary for disposal of the appeals are that on

09.04.2000, Sanjay Kumar, Satyender and Smt.Rani (all claimants) were coming in a jeep bearing registration No.HR-13/5868 being driven by respondent No.1 rashly and negligently. Despite the requests made by the occupants of the jeep, respondent No.1 did not pay any heed, and when the jeep was near Gandhra turning, rear side tyre of jeep burst and resultantly, respondent No.1 lost control and the jeep turned turtle. The claimants having suffered injuries were shifted to PGIMS, Rohtak. A criminal case was also registered against respondent No.1. As an aftermath of the accident, claimants sought compensation by filing three claim petitions which were contested by the respondent. All the claim petitions were tried together. From the pleadings of the parties, the Tribunal vide order dated

28.01.2002, framed the following issues: -

1.Whether the accident resulting in injuries to petitioners was the FAO No.2616 of 2004 -3- result of rash and negligent driving of Jeep No.HR-13/5868 by the respondent No.1? OPP

2.To what amount, the petitioners are entitled to and from whom? OPP

3.Whether the petitioners have no cause of action to file the present petition? OPR

4.Whether the driver of the offending vehicle was not having the valid driving licence at the time of the accident? OPR.

5.Whether the petition is bad for mis-joinder of necessary parties? OPR

6.Relief. Ultimately, the claim petitions were accepted and compensation in the terms as referred to above was awarded to all the three claimants. The argument with regard to rash and negligent act, all the witnesses namely Sanjay Kumar PW-6, Rani PW-9, Ganga Ram PW-11 have consistently narrated the accident and corroborated the version as set up by them. They have testified in one tone that respondent No.1 while driving the jeep rashly and negligently omitted to bother to the requests made by them and other persons and committed the accident. The respondent-driver did not step into the witness box to challenge their credibility and trustworthiness. It may also be noticed that a criminal case is pending against respondent No.1 for rash and negligent driving. It was observed in Girdhari Lal V/s Radhey Shyam and others, reported in 1993(2), PLR, page 109, that when the driver of the offending vehicle is facing criminal trial, prima facie, it can be presumed that he was responsible for the accident. Though the pendency of a criminal case may not be a concluding factor to prove the negligence yet is proves one fact that investigating agency was also of the view that the respondent No.1 was the tort feasure. FAO No.2616 of 2004 -4- As regards the validity of the driving licence Ex. R-1, it has been argued that respondent No.1 was not holding a valid licence for driving the offending vehicle as he had a licence to drive Scooter, Motorcycle and Car only and there is no endorsement on it with regard to driving of Jeep also. In this regard, it may be observed that the Car and the Jeep principally are having same mechanism, both are Light Motor Vehicles. There is nothing to suggest that if accident was directly traceable to the holding of proper licence but it was due to rash driving which led to the bursting of the tyre. The accident also did not take place due to mechanical failure or that the driver was not holding the requisite type of licence. On a similar proposition, a Full Bench of this Hon'ble High Court in National Insurance Co.Ltd. V/s Parveen Kumar and others, 2005(1) PLR 230 observed as under:- The issue being no more res-integra, needs no further elaboration. We may, however, hasten to add that the Insurance Company cannot be absolved of its liability to pay the compensation by simply pleading that the licence granted to the driver being for one class or description of vehicle but the vehicle involved in the accident was of the different class of description, unless it is proved that the cause of accident was the licence granted to the driver being for one class or description of vehicle but the vehicle involved in the accident was of different class or description. The observations made by the Supreme Court presuppose that if the driver was driving a vehicle of which he might not be holding licence as such, but was holding a driving licence of a different description of vehicle, and the driving method of both the vehicles, for which licence was obtained and the one which was being driven, was the same and when even the mechanism of the vehicle is also same, the defence projected by the Insurance Company with regard to the driver not possessing requisite type FAO No.2616 of 2004 -5- of licence could be of no avail to it. We thus overrule the view taken by the Division Bench in National Insurance Company Ltd. (supra) and hold that if on facts, it is found that accident was caused solely because of some other unforeseen or intervening causes like mechanical failures and similar other causes having no nexus with driver not possessing requisite type of licence, the insurer will not be allowed to avoid its liability merely for technical breach of conditions concerning driving licence, the defence projected by the Insurance Company in the context of Section 149(2)(a)(ii) and proviso appended to sub-sections (4) and (5) of the Motor Vehicles Act, 1988 can succeed only if it is proved that the accident had taken place only because the driver was not possessing requisite type of licence. In the present case also, the petitioner was holding a valid driving licence for driving Car and Scooter and the mechanism of the Car is quite similar to the mechanism of Jeep and no separate technique was required to be learnt to drive the Jeep. The appellant has neither pleaded nor proved that the jeep driven by the respondent No.1 was a transport vehicle. None on behalf of the company came forward to state about the nature of the vehicle. Thus, finding no fault with the licence, argument stands repelled. As regards the quantum of compensation, the Tribunal after taking into consideration the expenses spent over the medicines, treatment, transportation and also pecuniary loss, awarded compensation which could not be said to be excessive. Resultantly, finding no merit in the appeals, same are dismissed.

07.10.2009 shamsher (A.N.JINDAL) JUDGE