Allowed

Ramesh Chand and Anr. v. Oriental Insurance Co. Ltd. and Ors.

Rajasthan HC6 Apr 2022CCOMA/20/2002

Case brief

AI extract

What is this about?

The High Court allowed the Insurance Company's appeal, holding it is not liable to indemnify where the driver lacked a valid license at the time of accident. The Court modified the award to fasten liability on the owner, while directing the Insurance Company to deposit 50% of the compensation under 'pay and recover' principles. Cross-objection regarding age/income assessment was dismissed.

What did the court decide?

The judgment and award of the Tribunal are modified; liability fastened on the vehicle owner; Insurance Company directed to deposit 50% of the awarded amount with interest and recover the balance from

Ramesh Chand and Anr. Vs Oriental Insurance Co. Ltd… — Motor Accident Claims | Rajasthan HC (2022)

¶1

HIGH COURT OF JUDICATURE FOR RAJASTHAN AT JODHPUR

¶2

(1) S.B. Civil Misc. Appeal No. 1101/2001

¶3

The Oriental Insurance Company Ltd through the Divisional Manager, 961, Residency Road, Jodhpur

¶4

----Appellant

¶5

Versus

¶6

1. Ramesh Chander S/o Shri Laxmilal, resident of Dhanmandi, Udaipur

¶7

Kamlesh S/o Laxmilal, resident of Dhanmandi, Udaipur

¶8

Ganesh Lal S/o Shiv Ram R/o Eklaviya Colony, Mallatali, Udaipur

¶9

Mohan Singh S/o Shri Lal Singh Pokharna, resident of 46, Moti Magari Scheme, Udaipur

¶10

----Respondent

¶11

Connected with

¶12

(2) S.B. Civil Cross-Objection No.20/2002

¶13

Ramesh Chand S/o Laxmi Lal

¶14

Kamlesh S/o Mangi Lal

¶15

(both by caste Maheshwari, resident of Dhan Mandi, Udaipur ….. Cross-Objectors-claimants

¶16

Versus

¶17

The Oriental Insurance Company Ltd. through the Divisional Manager, 981, Residency Road, Jodhpur

¶18

Ganesh Lal S/o Sheo Ram Brahmin, Aklaya Colony, Udaipur

¶19

Mohan Singh S/o Lal Singh, Pokrecha 46 Moti Magri Scheme, Udaipur

¶20

….Non-Cross-Objector

¶21

For their respective	: Mr. LD Khatri, Sr. Advocate with Mr.
parties	Varun Gupta
	: Mr. AR Mehta

¶22

(2 of 9)

¶23

[CMA-1101/2001]

¶24

HON'BLE MR. JUSTICE MADAN GOPAL VYAS

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Judgment

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Reserved on 05/04/2022 Pronounced on 06/04/2022 S.B. CMA No.1101/2001:

¶27

The instant appeal has been preferred by the appellant-the Oriental Insurance Company Ltd. against the judgment and award dated 25.08.2021 passed by the learned Judge, Motor Accident Claims Tribunal, Udaipur (hereinafter referred to as “the learned Tribunal” for short) in MAC case No.132/1996, whereby the claim application filed by the respondents-claimants on account of the death of grand-father of the respondents-claimants, namely, Laxmi Narayan in a road accident, which was occurred on 11.08.1995, was partly allowed and they were granted total compensation of Rs.82,000/- with interest at the rate of 9% per annum from the date of filing of the claim application, i.e., 09.01.1996.

¶28

The appellant-Insurance Company has approached this Court assailing the award, whereby the learned Tribunal has held that the non-claimants Nos. 1 to 3 are liable to indemnify the award amount jointly and severely.

¶29

Briefly stated facts of the case are that on 11.08.1995 at about 7:30 P.M., when deceased Laxmi Narayan was walking at Dabok to Udaipur Road, then near the road of Vidya Peeth Office, a vehicle bearing No.RJH-643 (hereinafter referred to as “the offending vehicle” for short), which was being driven by the driver of the offending vehicle Sh. Ganesh Lal rashly and negligently, dashed the deceased Laxmi Narayan, resulting into sustaining grievous injuries and ultimately died.

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(3 of 9)

¶31

[CMA-1101/2001]

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After notice to the non-claimants No. 1 and 2 (driver and owner) since they did not turn up, therefore, their right to file reply to the claim petition was closed by the learned Tribunal.

¶33

On behalf of the non-claimant No.3 (appellant-Insurance Company herein), reply to the claim petition was filed denying the averments made in the claim petition. It was specifically submitted on behalf of the appellant-Insurance Company that the date of accident was 11.08.1995 and on the date of the accident, the driver of the offending vehicle was not having valid and effective driving licence.

¶34

On the basis of the pleadings of the parties the learned Tribunal framed the following issues:

¶35

“1vk;k fnukad 1-8-95 dks x.ks’kyky pkyd us vkj-ts-,p-&643 dks pykdj y{ehyky ds VDdj ekjh vkSj nq?kZVuk dkfjr dh vksj mDr nq?kZVuk ds dkj.k y{eh ukjk;.k dh e`R;q dkfjr gwbZ\

¶36

2- vk;k izkFkhZx.k Dyse esa crk;h x;h jkf’k 2]03]500@& ;k vU; dksbZ jkf’k izfrdj esa foi{khx.k ls ikus ds vf/kdkjh gS vkSj ;fn gka rks fdruh o fdl fdl ls\

¶37

3- vk;k foi{kh la[;k 3 }kjk viuh mRrj esa mBk;h x;h vkifRr ds vk/kkj ij mldh dksbZ ns;rk ugha gS\ 4- nknljh\”

¶38

On behalf of the claimants, one witness was examined and as many as seven documents were got exhibited. On the other hand, on behalf of the appellant-Insurance Company two witnesses were examined and as many as seven documents were exhibited.

¶39

After completion of the trial, the learned Tribunal passed the impugned judgment and award and awarded a sum of Rs.82,000/- as compensation alongwith interest at the rate of 9% per annum with further finding that the appellant-Insurance Company also liable to indemnify the award amount.

¶40

(4 of 9)

¶41

[CMA-1101/2001]

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Learned counsel for the appellant-Insurance Company vehemently submitted that the driving licence issued to the driver of the offending vehicle was valid upto 01.04.1995 and the said driving licence was got renewed by the driver on 31.10.1995, which was valid upto 10.10.1998, whereas the fact of the matter remains that it is an admitted position that the accident occurred on 11.08.1995. It is also submitted that if the benefit of grace period of one month as provided by the then first proviso to Section 15(1) of the Motor Vehicles Act, 1988 (hereinafter referred to as “the MV Act” for short) is given in renewing the licence then also, the date on which the accident occurred, the driver of the offending vehicle was not having the valid and effective driving licence and therefore, the appellant-Insurance Company cannot be held liable to pay the compensation amount awarded by the learned Tribunal. In support of his contentions, learned counsel for the appellant-Insurance Company relied upon the judgment of Karnataka High Court delivered in the case of United India Insurance Company Ltd. vs. Parvathi Hebbar and others reported in 2018 ACJ, 1420.

¶43

Learned counsel appearing for the respondents-claimants submitted that the learned Tribunal has rightly passed the impugned judgment and award and there is no illegality and irregularity in the same and therefore, the appeal preferred by the appellant-Insurance Company deserves to be dismissed. 11. I have carefully considered the arguments advanced by the learned counsel for the parties, perused the judgment and award, oral and documentary evidence adduced by the parties.

¶44

The dispute in this appeal is only with regard to the liability to compensate the claimants.

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(5 of 9)

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[CMA-1101/2001]

¶47

The occurrence of accident is due to rash and negligent driving by the offending vehicle and the death of deceased Laxmi Narayan in the road accident occurred on 11.08.1995, are not in dispute. The defence of the appellant-Insurance Company is that on the date of accident, the driver of the offending vehicle was not having valid and effective driving licence because the driving licence issued by the Competent Authority has expired on 01.04.1995, whereas the accident occurred on 11.08.1995. The then first proviso to Section 15(1) of the Motor Vehicles Act, 1988 provides that in any case where the application for the renewal of a licence is made more than 30 days after the date of its expiry, the driving licence shall be renewed w.e.f. the date of its renewal. Thus, it is clear that on the date of accident, the driver of the offending vehicle was not having valid and effective driving licence, resulting into violation of not only the Motor Vehicles Act, but also the terms and conditions of the policy.

¶48

Section 3 of the MV Act contemplates that no person shall drive a motor vehicle in any public place unless he holds an effective driving licence issued to him authorizing him to drive the vehicle and no person shall so drive a transport vehicle other than a motorcap or motorcycle hired for his own use or rented under any scheme made under sub-section 2 of Section 75 unless his driving licence specifically entitles him so to do. Therefore, it is clear that under the MV Act, holding of a valid and effective driving licence is mandatory requirement and one of the conditions of contract of insurance. The driving of the vehicle without valid licence is an offence. In case of expiry of driving licence, the same is ordinarily renewed in terms of the Act and Rules framed thereunder. Despite the fact that during the

¶49

(6 of 9)

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[CMA-1101/2001]

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interregnum period, viz the date of accident and the date of expiry of license, the driver of the offending vehicle did not possess a valid licence.

¶52

In view of the above, the liability fastened on the appellantInsurance Company to indemnify the award amount is contrary to law. The learned Tribunal ought to have fastened the liability on the owner of the vehicle, who entrusted the vehicle to a person who did not possess a valid and effective driving licence on the date of accident. Admittedly, he got the driving licence renewed after two months of expiry of the driving licence. Hence he is not entitled to the benefit under Section 15 of the Act. The subsequent renewal on 31.10.1995 will come into operation only from the date of renewal and not from the retrospective period. Hence the judgment and award passed by the learned Tribunal fastening the liability on the Insurance Company to compensate the claimants is liable to be set aside and the liability has to be fastened on the owner of the vehicle.

¶53

Since, it is the statutory right of the third party to recover the amount of compensation so awarded either from the owner or the driver, as the vehicle in question is insured, the Insurance Company shall pay the amount and recover the same from the driver or the insured. 17. Vide order dated 11.12.2001 this Court while admitting the present Misc. Appeal and while issuing notices to the respondents-claimants granted interim order in favour of the appellant-Insurance Company in the manner that the execution of the impugned award is stayed on the condition of depositing of 50% of the amount by the appellant including already deposited amount within two weeks and the said interim order dated

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(7 of 9)

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[CMA-1101/2001]

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11.12.2001 has been confirmed by this Court vide order dated 24.07.2006, and 50% of the award amount has already been paid to the claimants-respondents therefore, now the appellantInsurance Company shall deposit the remaining 50% amount alongwith interest in the learned Tribunal, which shall be paid to the claimants-respondents applying the principles of “pay and recover”.

¶57

The appeal is therefore allowed. The judgment and award dated 25.08.2001 passed by the learned Tribunal in MAC case No.132/1996 is modified. The liability is fastened on the owner of the offending vehicle, however, as observed above, the Insurance Company is directed to deposit the 50% of the remaining awarded amount alongwith interest to be paid to the claimantsrespondents and then to recover the entire awarded amount from the insured in the same proceedings by applying the principles of “pay and recover”.

¶58

S.B. Civil Cross-Objection No.20/2002:

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The present cross-Objection under Order 41 Rule 22 CPC read with Section 173 of the Motor Vehicle Act, 1988 has been preferred by the cross-objectors-applicants-respondentsclaimants in SB Civil Misc. Appeal No.1101/2001 against the award and judgment dated 25.08.2021 passed by the learned Judge, Motor Accidents Claims Tribunal, Udaipur in claim case No.132/1996, whereby the cross-objectors-claimants prayed that while allowing the cross-objection, the appeal filed by the appellant-Insurance Company may be dismissed and the impugned award passed by the learned Tribunal may be modified to the extent of amount claimed in the claim petition.

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(8 of 9)

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[CMA-1101/2001]

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Vide order dated 15.07.2002, the cross-objection preferred by the cross-objectors-claimants was admitted and the same was ordered to be heard and decided alongwith the SB CMA No.1101/2001.

¶63

Learned counsel for the cross-objectors-claimants argued that at the time of accident, the deceased Laxmi Narayan was 60 years’ old and his monthly income was Rs.3,000/-, however, the learned Tribunal while passing the impugned judgment and award has assessed the monthly income of the deceased at Rs.2,000/and has also wrongly held that the deceased was 70 years’ old at the time of accident.

¶64

Per contra learned counsel appearing for the non-crossobjections-appellant-Insurance Company vehemently submitted that the learned Tribunal has not committed any error of fact or law while assessing the monthly income of the deceased as well as his age.

¶65

Heard, learned counsel for the parties and perused the record.

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Having heard learned counsel for the parties and considering the record specially Para No.5 of the Claim Petition itself it is clear that even the cross-objectors-claimants have claimed that the monthly income of the deceased was only Rs.2,000/-. In the claim petition though the cross-objectors-claimants have claimed that the deceased was 60 years old at the time of accident, but if the postmortem report (Ex.3) is seen, then it is clear that the age of the deceased at the time of accident was 70 years.

¶67

In view of the above it cannot be said that the learned Tribunal has wrongly assessed the income as well as the age of the deceased while passing the impugned judgment and award.

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(9 of 9)

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[CMA-1101/2001]

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Hence, the cross-objection is dismissed being devoid of force.

¶71

(MADAN GOPAL VYAS),J

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2-CP Goyal/Jagjeet/-

Ramesh Chand and Anr. v. Oriental Insurance Co. Ltd. and Ors.

Case brief

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Ramesh Chand and Anr. v. Oriental Insurance Co. Ltd. and Ors.

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