FA 205 OF 2012
vks
IN THE HIGH COURT OF JUDICATURE AT BOMBAY
CIVIL APPELLATE JURISDICTION
FIRST APPEAL NO.205 OF 2012.
WITH
CIVIL APPLICATION NO.227 OF 2012
IN
FIRST APPEAL NO.205 OF 2012
WITH
CIVIL APPLICATION NO.3776 OF 2011
IN
FIRST APPEAL NO.205 OF 2012
The New India Assurance Co. Ltd.
Moti Mahal, 6th Floor, Jamshedji Tata
Road,
Churchgate,
Mumbai 400 020
AND
Motor Third Party Cell,
New India Centre,
8th floor, 17-A, Cooperage,
Mumbai 400 039. .. Appellant
Orig. opposite party No.2
V/s.
1. Smt. Meena Dhanji Chheda,
age: 52 years, Occn. Housewife.
Residing at Jasatwala Mansaion
Habib Flat, Room No.23, 2nd
floor, Ganpatrao Kadam Marg,
Lower Parel,
Mumbai - 400 013. Respondent No.1
Orig. Applicant.
page 1 of 13
::: Downloaded on - 29/03/2014 18:43:11 :::
FA 205 OF 2012
2. M/s Hindustan Coca Cola Beverages
Pvt. Ltd.
Survey No.284, Post Kudas,
Wada, Dist.Thane .. Respondent No.2
Orig. Opposite party No.1.
Mr. H. G. Misar, for the Appellant.
Mr. H. Rehman i/by D. H. Assocates, for the
Respondent No.2.
Mr. R. P. Chheda, for Respondent No.1.
CORAM : MRIDULA BHATKAR, J.
DATE ig : 6th December, 2013 Oral Judgment Admit.
2. Heard finally at the stage of admission, with the consent of the parties.
3. This appeal is directed against award dated 16th November, 2010, passed by the learned Member, Motor Accident Claims Tribunal, Mumbai. The widow of the deceased has filed application under Section 166 of the Motor vehicle Act (for short called, as "M. V.
Act") for compensation. The accident has taken place at about 1.30 p.m. on 5th February, 2005, page 2 of 13 ::: Downloaded on - 29/03/2014 18:43:11 ::: FA 205 OF 2012 near Takia Masjid, Dr. B. A. Road, Parel, Mumbai. A truck owned by Respondent No.2 (Original opponent No.1.), bearing MH-04-AG-
6626, was carrying some goods. The driver wanted to order some material and therefore, has parked the said truck and went to shop.
The driver was accompanied by to loaders employed Respondent No.2. The driver went to the shop alongwith one of the loaders. When he was talking with the shopkeeper, he noticed truck was taking reverse in excessive speed and it dashed one passerby namely Dhanaji Chheda, who was injured and succumbed to the injuries. He was 60 years old at the time of accident and he was working as a Cashier and was earning salary of Rs.4,850/- and was also doing some part time job. Widow of Dhanji Chheda filed application for compensation.
4. The notices were issued to the opponent and Insurance Company i.e. appellant.
Respondent No.1 resisted the claim by filing page 3 of 13 ::: Downloaded on - 29/03/2014 18:43:11 ::: FA 205 OF 2012 written statement. Respondent No.2 the owner of the truck did not appear inspite of the notice.
5. The applicant stepped in the witness box and tendered her evidence. She was cross-
examined by the appellant Insurance company.
In support of income of the deceased one Khushalchand was also examined. The insurance company did not examine any witness. After considering the evidence, the learned Member of the claim Tribunal, allowed the application partly and ordered the owner and the Insurer to pay jointly and severally compensation of Rs.3,44,000/- with interest.
6. Being aggrieved by the said judgment and award, this appeal is filed. The main contention in this appeal is that at the relevant time, the truck was driven by a person who was not holding valid driving license. The learned counsel for the appellant Insurance company submits that a loader who page 4 of 13 ::: Downloaded on - 29/03/2014 18:43:11 ::: FA 205 OF 2012 was accompanying the driver of the truck, at the relevant time, had driven the tuck. He took reverse and in the accident Dhanji died.
The learned counsel in support of his submissions relied on Section 3(1) and 5 of the Motor Vehicles Act. He submitted that the provisions of section 5 require the valid licence for the driver and it cast responsibility on the owner of the vehicle to entrust the vehicle to a driver holding valid license. In support of his submissions, he placed reliance on the judgments of Supreme Court in New India Assurance Company Ltd -vs-
Sureschandra Aggarwal reported in IV (2009) CPJ 14, and Sardari and others -vs- Sushil Kumar and ors reported in 2008 ACJ 1307. On the point of facts, the learned counsel submitted that in the insurance policy, it is mentioned that persons or class of persons entitled to drive must hold effective driving licence. The learned counsel further page 5 of 13 ::: Downloaded on - 29/03/2014 18:43:11 ::: FA 205 OF 2012 submitted that Member Tribunal has observed that the police papers are not challenged and hence police papers can be relied on. The learned counsel pointed out that statement of one Nagesh Atmaram Upadhaya recorded on 5th February, 2004. He submitted that Nagesh Atmaram was the regular driver, who was driving the said truck at the relevant time.
In his statement he has specifically mentioned that he parked his truck near a shop. He entered a shop alongwith one loader and when he was talking with shopkeeper, he saw his truck coming back in reverse mode and hit one passerby i.e the deceased and also had dashed one shed of a cobbler. In the statement, the driver has disclosed the name of one Subhedar Yadav, the loader driving the truck had caused accident and was responsible for the accident.
The learned counsel, thus, submits that considering the facts and the law and the legal position, the finding given by the page 6 of 13 ::: Downloaded on - 29/03/2014 18:43:11 ::: FA 205 OF 2012 learned Tribunal is erroneous and the same is required to be set aside.
7. In reply the learned counsel for the applicant and the owner of the vehicle submitted that the Insurance Company did not examine any witness to put up their defence that the person who was driving vehicle was not holding valid driving licence. The learned counsel for the original applicant, in support of his submission placed reliance on the judgment in National Insurance Co.Ltd -vs-
Swaran Singh and others, reported in AIR 2004 SC 1531. He submitted that it is a liability of the Insurance Company to pay compensation and insurance Company cannot shake off its liability.
8. It is true that the Insurance Company has taken specific defence in its written statement that the person who drove the vehicle and who was responsible for the accident was one of the loaders and he was not page 7 of 13 ::: Downloaded on - 29/03/2014 18:43:11 ::: FA 205 OF 2012 holding valid licence at the time of driving.
If such defence is taken by the Insurance Company, it is necessary for the Insurance Company to lead evidence to that effect to substantiate its defence. The learned Member of the Tribunal has rightly observed in para 9 of its judgment that if a defence that the driver was not holding valid licence is taken by the Insurance Company, then burden is on the insurance company to prove this fact.
However, insurance company did not examine any witness in support of its defence.
9. The relevant Sections (3)(1) and (5) of the Motor Vehicle Act, reads thus:-
"3. Necessity for driving licence -
(1) No person shall drive a motor vehicle in any public place unless he hold an effective driving licence issued to him authorising him to drive the vehicle...........
page 8 of 13 ::: Downloaded on - 29/03/2014 18:43:11 ::: FA 205 OF 2012
5. Responsibility of owners of motor vehicles for contravention of Sections 3 and 4. No owner or person in-charge of a motor vehicle shall cause or permit any person who does not satisfy the provisions of S. 3 or S.5 to drive the vehicle".
Thus, section 5 places duty on the owner or person in-charge of the motor vehicle shall not cause or not permit any person who does not satisfy the provisions of Sections 3 and 4 to drive vehicle. Section 3 of the Motor Vehicles Act puts a restraint on the person to drive motor vehicle without any licence. So no person shall drive motor vehicle in the public place unless he holds a valid licence.
10. In both the cases viz. New India Assurance Co. Ltd -vs- Suresh Chandra Agrawal (supra), and Sardari and others -vs- Sushil Kumar (supra), the Hon'ble Supreme Court has held that when the driver was not holding page 9 of 13 ::: Downloaded on - 29/03/2014 18:43:11 ::: FA 205 OF 2012 valid licence, then the owner of vehicle is under statutory obligation to see that the driver who is authrized to drive vehicle holds valid licence. This position of law cannot be disputed. However, in the present case the owner i.e. respondent No.1 has appointed a driver namely Nagesh Atmaram, who in his statement disclosed that on 5th February, 2005 he was driving the truck of goods alongwith two loaders. Thus, the said truck was driven by a driver, and the owner has taken precaution to appoint driver holding valid license. There is no challenge to the validity of licence of Nagesh. So Nagesh was an authorised driver appointed by the owner of the vehicle.
11. The Legislature while enacting section 5 of the Motor Vehicles Act, has used words "owner & person in-charge" with a view to give wider meaning to concept of control over the vehicle. The Lawmakers could have used the page 10 of 13 ::: Downloaded on - 29/03/2014 18:43:11 ::: FA 205 OF 2012 words "owner & driver" but they deliberately opted for the words "owner & person in-
charge". Undoubtedly driver is a person in-
charge of the vehicle, however, while taking into account all the possibilities of the accidents and with a view to minimise the same, the responsibility to have control over the vehicle is not restricted to only a driver but extended ig to a person in-charge of the vehicle. A person who drives the vehicle and causes accident is generally a person in-
charge of the vehicle. However, the term "in-
charge of the vehicle" covers wider purport.
Thus driver or any other person depending on the fact situation can be a person in-charge of the vehicle.
12. The driver who drives a vehicle is in-
charge of the motor vehicle when he is driving. It is entirely a responsibility of the driver to take precaution when the vehicle is parked or stationery. Therefore, a page 11 of 13 ::: Downloaded on - 29/03/2014 18:43:11 ::: FA 205 OF 2012 stationery vehicle should not become mobile without his consent or control. His control over the vehicle is not ceased when the vehicle is parked. A process of being a person-in-charge continues. The Section 5 of the Act, does not cast liability only on the owner, but it also covers a person in-charge of the motor vehicle. For example if at night time vehicle is stationery on the road, then it's parking lights or tail lamps should be on to give signal to other vehicles. Such responsibility of the driver is continuous and does not cease even the vehicle is parked by him when he is on duty. It is the duty of the concerned driver to park the vehicle with due diligence and caution that any other person shall not drive the vehicle in his absence and shall not cause any accident. In the event of any accident, principle of vicarious liability is applied.
13. In the present case, the regular page 12 of 13 ::: Downloaded on - 29/03/2014 18:43:11 ::: FA 205 OF 2012 driver Mr. Nagesh appointed by the owner of the vehicle was holding valid licence and in-
charge of the truck at the relevant time.
However, the loader accompanied with the driver without permission of regular driver drove the truck which was parked, and caused accident. Obviously the driver was careless to leave the keys in the vehicle itself. He should have carried the keys with him. So the responsibility of driver is continuous responsibility as a person in-charge as contemplated under Sections 3 and 5 the M.V.
Act. Hence the submission of the learned counsel for the appellant cannot be accepted and the appeal is dismissed.
14. Civil Applications are accordingly disposed of.
(MRIDULA BHATKAR, J.) page 13 of 13 ::: Downloaded on - 29/03/2014 18:43:11 :::