Allowed

Branch Manager National Insurance Co. Ltd. New Delhi v. Mahraj Singh and Others

Allahabad HC18 Jan 2019FAFO/1009/2001

Case brief

AI extract

What is this about?

This appeal allowed the insurance company to recover the awarded compensation and interest from the vehicle owner, holding the insurer liable despite the driver's alleged lack of a valid license as the owner failed to prove otherwise or appear in court.

What did the court decide?

The appellant-Insurance Company shall pay the compensation and interest to claimants and recover the same along with interest from the registered owner of the offending vehicle.

Branch Manager National Insurance Co. Ltd. New Delhi… — Motor Accident Claims | Allahabad HC (2019)

A.F.R.

Court No. - 25

Case :- FIRST APPEAL FROM ORDER No. - 1009 of 2001 Appellant :- Branch Manager National Insurance Co. Ltd. New Delhi Respondent :- Mahraj Singh And Others Counsel for Appellant :- S.K.Mehrotra Counsel for Respondent :- B.P.Verma

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Hon'ble Ram Krishna Gautam,J.

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This Appeal u/s 173 of the Motor Vehicle Act, 1988 has been filed by Branch Manager, National Insurance Co. Ltd. against Mahraj Singh and Smt. Kstoori Devi, claimantsrespondents, M/s Kumar Enterprises (owner of offending vehicle HR 38A 7232) and Baldev Singh (driver of the offending vehicle) against the judgment and award dated 1.5.2001 passed by the M.A.C.T./ Additional District Judge, Mathura, in M.A.C.P. No. 15 of 1999, Mahraj Singh and another Vs. M/s Kumar Enterprises and others, on the ground that the Tribunal failed to appreciate the facts and law placed before it. The finding of the Tribunal that the driver of the vehicle involved in the accident had valid driving license at the time of the accident was not substantiated by the evidence on record, hence the liability of the Insurance Company was erroneously fixed because the driver was not with valid driving license and it was proved by the witnesses- DW1, an employee of R.T.O. office, Bulandshahar, by his oral testimony that the above driving license was not in the name of the driver given by the claimants. The Insurance Company discharged its burden by establishing this fact that the driver of the offending vehicle did not possess valid and effective driving license at the time of the accident and even then the Tribunal has imposed liability upon the Insurance Company. The amount of earning and the dependency have been based on conjectures and surmises, hence this appeal for setting aside the impugned

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Award.

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Heard learned counsel for the appellant and learned counsel for the claimants. None appeared for ownerrespondent even before the Tribunal or before this Appellate court.

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From the very perusal of the record it is apparent that a claim petition was filed before the M.A.C.T., Mathura, as M.A.C.P. No. 15 of 1999, Mahraj Singh and another Vs. M/s Kumar Enterprises, through its proprietor Pankaj Varshney, its driver Baldev Singh and National Insurance Co. Ltd. with this contention that on 27.12.1998 the deceased Satbir Singh by his Truck bearing Registration No. MP 06/6861 was on his way to Mathura Refinery from Aligarh. When he halted his Truck in Aurangabad near a wine shop for attending defect in his aforesaid Truck and when he came down on the road a Truck bearing Registration No. HR 38A/7232 being driven rashly and negligently dashed Satbir Singh, who instantaneously died on the spot. FIR of the accident was lodged by Jaipal Singh, brother of the deceased, which was registered as Case Crime No. 263 of 1998, u/s 279, 304A I.P.C. at Police Station Sadar Bazar, Mathura, the deceased was aged about 25 years and was a trained driver earning Rs. 3000/- per month and was maintaining his parentsclaimants, hence the claim petition in the form of claim of Rs.9,10,000/- was prayed. Owner of offending vehicle as well as its driver did not file written statement even after sufficient service of notice nor appeared before the Tribunal hence vide order dated 24.4.1999 the Tribunal proceeded exparte against them whereas the Insurance Company filed its written statement (Paper No. 15 Ka) denying its liability till it is proved that the offending vehicle was being driven rashly and negligently by the driver and the driver had valid and effective license at the time of the accident. The

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defiance of the terms of the Policy was pleaded. Issues were framed by the Tribunal and documentary as well as oral evidence were brought on record, then after the impugned judgment and award was made.

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The main assail is regarding valid and effective driving license of the driver of the offending vehicle and wrong imposition of liability upon the Insurance Company. Quantum and dependency though pleaded in the memo of appeal but the argument was made on the point of interest only.

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The Tribunal while deciding Issue No. 2 regarding valid and effective driving license of the driver has mentioned that the Insurance Company- O.P. No. 3 since filing of the written statement has challenged the driving license of the driver as the name of the driver given in the claim petition was Baldev Singh whereas the claimant had filed the driving license of some Vinod Kumar, this too was got verified from the R.T.O. office and it was found to be forged and fictitious. This fact was proved by DW1, Kedar Singh, a Junior Clerk in the office of R.T.O. office, Bulandshahar, who in his statement has categorically stated that as per office record no such driving license No. T-2076/Bulandshahar/1996 dated 12.8.1996 was issued in the name of some Vinod Kumar nor paper no. 25 Ga/5 was with the seal of above office nor under signature of any officer of the above office and thus, this witness Kedar Singh has proved that this was a forged and fictitious document. The Tribunal has held that conscious delivery of a vehicle to a driver having no valid and effective driving license by the owner of the vehicle is to be proved by the Insurance Company. This seems with no reason because the driver and owner of the offending vehicle did not appear before the Tribunal nor before this Appellate Court and the Insurance Company took all its pain to get them summoned and also to get the driving license verified even though the

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driving license of Baldev Singh, driver, was not filed on the record. It was filed by the claimants of some Vinod Kumar and even then the Insurance Company took pain to get it verified regarding its genuineness and the report of the R.T.O. office was that it was a forged and fictitious document. Even though this report of the R.T.O. office was admissible in evidence in summary proceedings but the Insurance Company got it proved by the testimony of DW1 that this driving license was a forged and fictitious document. Meaning thereby the offending vehicle was being driven by a person Baldev Singh, who had no driving license and the driving license of one Vinod Kumar filed in the Tribunal was found to be forged and fictitious document. The owner of the offending vehicle never cared to appear before the Tribunal or before this Appellate Court even after service of notice. He was the person to prove delivery of vehicle to a driver having valid and effective driving license. Moreso, the Insurance Company or its employee may never be aware about the mental affair of the insured vehicle owner to determine and prove as to whether the delivery of a vehicle to a person having no valid and driving license was under his conscious knowledge or not. It was pleaded right since very filing of the written statement till award before the Tribunal and even before this court that the driver of the offending vehicle was not having valid and effective driving license and was proved by the Insurance Company but the owner and driver of the offending vehicle did not care to come before the Tribunal to explain as to whether the driver of the offending vehicle had effective and valid driving license at the time of the accident even then the Tribunal has fixed the liability upon the Insurance Company. Hence, this appeal merits its allowance on this issue.

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Regarding interest payable on the amount of

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compensation awarded by the tribunal is concerned, no doubt the rule at present is of giving interest at the rate of 7% per annum but this accident is of the year 1998 and the interest was awarded at the rate of 9% per annum, which was not challenged by the owner of the vehicle, who is responsible to pay the same.

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Hence, under above circumstances this assail on the point of interest is also not to be accepted in view of the law propounded by the Hon'ble Apex Court in National Insurance Company Limited Vs. Swarn Singh and others, AIR 2004 SC 1531 that the offending vehicle was insured on the date, time and place of accident by the appellant, the opposite party no. 1 in the claim petition and respondent no. 3 in this appeal was the registered owner of the offending vehicle, which was being driven in defiance of the terms of the policy by a person having no valid and effective driving license, hence the appellant- Insurance Company is liable to make payment of the amount of Award made by the Tribunal and to recover the same from the owner of the offending vehicle.

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The appeal is allowed . The impugned Award with regard to issue no. 2 and fixation of liability upon the appellant- Insurance Company is amendment to the effect that the appellant-Insurance Company will make payment of compensation and interest thereon given in the Award by the Tribunal to the claimants- respondents and the same shall be distributed as per the Award but the appellant- Insurance Company shall be entitled to recover the aforesaid amount along with interest at the rate of 9% per annum from the registered owner of the offending Vehicle No. H.R. 38A/ 7232 in the same proceeding before the Tribunal concerned.

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The remaining amount shall be deposited by the appellant- Insurance Company before the Tribunal concerned

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within two months from today payable to the claimantsrespondents in accordance with the Award and the same along with previously amount deposited by the appellant shall be recovered from the owner of the offending vehicle.

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Order Date :- 18.1.2019 Pcl

Branch Manager National Insurance Co. Ltd. New Delhi v. Mahraj Singh and Others

Case brief

What is this about?

What did the court decide?

Branch Manager National Insurance Co. Ltd. New Delhi v. Mahraj Singh and Others

Case brief

What is this about?

What did the court decide?

What the court decided

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