Allahabad High Court
The Oriental Insurance Company ... vs Sharafat And Others on 24 August, 2017
Bench: Saumitra Dayal Singh
HIGH COURT OF JUDICATURE AT ALLAHABAD
AFR
Court No. - 34
Case :- FIRST APPEAL FROM ORDER No. - 2272 of 2010
Appellant :- The Oriental Insurance Company Ltd.
Respondent :- Sharafat And Others
Counsel for Appellant :- Viqar Ahmed Ansari,Vinay Khare
Counsel for Respondent :- Shiv Ram Mishra,Sushil Kumar Pandey
With
Case :- FIRST APPEAL FROM ORDER No. - 2558 of 2010
Appellant :- The Oriental Insurance Company Limited
Respondent :- Hashmi And Another
Counsel for Appellant :- Viqar Ahmed Ansari,Vinay Khare
Counsel for Respondent :- Shivram Mishra
With
Case :- FIRST APPEAL FROM ORDER No. - 2560 of 2010
Appellant :- The Oriental Insurance Company Limited
Respondent :- Yusuf And Another
Counsel for Appellant :- Viqar Ahmed Ansari,Vinay Khare
Counsel for Respondent :- Shivram Mishra
With
Case :- FIRST APPEAL FROM ORDER No. - 1299 of 2010
Appellant :- The Oriental Insurance Company Ltd.
Respondent :- Devi Singh And Another
Counsel for Appellant :- Viqar Ahmed Ansari,Mithilesh Kumar Tiwari
Counsel for Respondent :- Shiv Ram Mishra
With
Case :- FIRST APPEAL FROM ORDER No. - 2143 of 2010
Appellant :- The Oriental Insurance Company Ltd.
Respondent :- Jaipal Singh & Another
Counsel for Appellant :- Viqar Ahmed Ansari,Vinay Khare
Counsel for Respondent :- Shiv Ram Mishra
With
Case :- FIRST APPEAL FROM ORDER No. - 2144 of 2010
Appellant :- The Oriental Insurance Company Limited
Respondent :- Harpal Singh & Another
Counsel for Appellant :- Viqar Ahmed Ansari,Vinay Khare
Counsel for Respondent :- Shiv Ram Mishra
With
Case :- FIRST APPEAL FROM ORDER No. - 2145 of 2010
Appellant :- The Oriental Insurance Company Limited
Respondent :- Pravindra & Another
Counsel for Appellant :- Viqar Ahmed Ansari,Vinay Khare
Counsel for Respondent :- Shiv Ram Mishra
With
Case :- FIRST APPEAL FROM ORDER No. - 2557 of 2010
Appellant :- The Oriental Insurance Company Limited
Respondent :- Kallu And Another
Counsel for Appellant :- Viqar Ahmed Ansari,Vinay Khare
Counsel for Respondent :- P.K.Raj,Shivram Mishra
With
Case :- FIRST APPEAL FROM ORDER No. - 2298 of 2010
Appellant :- The Oriental Insurance Company Ltd.
Respondent :- Smt. Amrita & Others
Counsel for Appellant :- Viqar Ahmed Ansari,Vinay Khare
Counsel for Respondent :- Santosh Srivastava,Shiv Ram Mishra
With
Case :- FIRST APPEAL FROM ORDER No. - 2260 of 2010
Appellant :- The Oriental Insurance Company Ltd.
Respondent :- Ravindra Kumar And Others
Counsel for Appellant :- Viqar Ahmed Ansari,Vinay Khare
Counsel for Respondent :- Shiv Ram Mishra
With
Case :- FIRST APPEAL FROM ORDER No. - 2265 of 2010
Appellant :- The Oriental Insurance Company Ltd.
Respondent :- Smt. Husna And Others
Counsel for Appellant :- Viqar Ahmad Ansari,Vinay Khare
Counsel for Respondent :- Shiv Ram Mishra
With
Case :- FIRST APPEAL FROM ORDER No. - 1300 of 2010
Appellant :- The Oriental Insurance Company Ltd.
Respondent :- Rabbani And Others
Counsel for Appellant :- Viqar Ahmed Ansari,Mithilesh Kumar Tiwari
Counsel for Respondent :- C D Ojha,S.D. Ojha,Shiv Ram Mishra
With
Case :- FIRST APPEAL FROM ORDER No. - 2264 of 2010
Appellant :- The Oriental Insurance Company Ltd.
Respondent :- Smt. Needan Kaur And Another
Counsel for Appellant :- Viqar Ahmad Ansari,Vinay Khare
Counsel for Respondent :- Shiv Ram Mishra
With
Case :- FIRST APPEAL FROM ORDER No. - 2582 of 2010
Appellant :- The Oriental Insurance Company Ltd.
Respondent :- Jaipal & Others
Counsel for Appellant :- Viqar Ahmed Ansari,Vinay Khare
Counsel for Respondent :- Shiv Ram Mishra
With
Case :- FIRST APPEAL FROM ORDER No. - 2315 of 2010
Appellant :- The Oriental Insurance Company Limited
Respondent :- Smt. Susheela And Another
Counsel for Appellant :- Viqar Ahmed Ansari,Vinay Khare
Counsel for Respondent :- Shiv Ram Mishra
With
Case :- FIRST APPEAL FROM ORDER No. - 2273 of 2010
Appellant :- The Oriental Insurance Company Ltd.
Respondent :- Ombir And Others
Counsel for Appellant :- Viqar Ahmed Ansari,Vinay Khare
Counsel for Respondent :- Shiv Ram Mishra
Hon'ble Saumitra Dayal Singh,J.
Heard learned counsel for the parties.
F.A.F.O. No. - 2272 of 2010 and other connected appeals listed today, filed by the insurer, arise from an accident that occurred on 9.9.2005, involving a bus owned by Rajkumar-respondent no. 2, bearing registration no. UP12-C/5011 (hereinafter referred to as the bus). It was insured by the present appellant. These appeals arise from ten death cases and six injury cases. Details of the claims involved in all these appeals given as under:-
Sl.
FAFO No.
MACP No.
Claimant Name
Death/Injury
Amount awarded.
1.
2558 of 2010
46 of 2006
Hashmi and another
Injury case
Rs. 26,502/-
2.
2560 of 2010
45 of 2006
Yusuf and another
Injury case
Rs. 10,086/-
3.
1299 of 2010
411 of 2005
Devi Singh and another
Death case
Rs. 1,30,000/-
4.
2143 of 2010
360 of 2005
Jai Pal Singh and another
Injury case
Rs. 29,819/-
5.
2144 of 2010
426 of 2005
Harpal Singh and another
Injury case
Rs. 21,699/-
6.
2145 of 2010
361 of 2005
Pravinder Kumar and another
Injury case
Rs. 21,756/-
7.
2557 of 2010
446 of 2005
Kallu and others
Death case
Rs. 95,000/-
8.
2272 of 2010
338 of 2005
Sharafat and others
Death case
Rs. 1,10,000/-
9.
2298 of 2010
420 of 2005
Smt. Amrita and others
Death case
Rs. 3,70,000/-
10.
2260 of 2010
367 of 2005
Ravindra Kumar and others
Death case
Rs, 2,39,000/-
11.
2265 of 2010
421 of 2005
Smt. Husna and others
Death case
Rs. 3,46,000-/-
12.
1300 of 2010
419 of 2005
Rabbani and others
Death case
Rs. 2,30,000/-
13.
2264 of 2010
373 of 2005
Smt. Needan Kaur and another
Death case
Rs. 1,30,000/-
14.
2582 of 2010
457 of 2005
Jaipal and others
Death case
Rs. 1,30,000/-
15.
2315 of 2010
544 of 2006
Smt. Susheela and another
Death case
Rs. 1,30,000/-
16.
2273 of 2010
353 of 2005
Ombir and others
Death case
Rs. 2,35,000/-
The claim petition disclosed the name of the owner as bus owner as Rajkumar. The owner of the bus entered appearance and in his written statement contended, at the time of accident, the bus was being driven by one Pravendra Kumar whose driving licence was also produced. The insurer on the other hand stated, the bus was being driven not by Pravendra Kumar but by Shakeel who did not have a valid and effective driving licence.
On such pleadings, four issues were framed by the Tribunal. First, as to the cause of accident; second, whether at the time of accident the bus was being driven by a person holding a valid and effective driving licence; third, whether at the time of the accident the bus was being driven in violation of the terms and conditions of the policy of insurance and; fourth, as to compensation to be awarded.
It is admitted to the parties, the accident occurred at Village Lachera wherein the bus overturned and collided with a tree. In that accident many passengers travelling in the bus died and some received injuries. About 22 claim petitions in all are stated to have been filed.
Today, ten appeals involving claims arising out of death and six appeals involving claims arising out of injuries suffered in that accident are listed. It is stated at the bar that there are some other matters which are not listed today or their files have not reached the Court.
The only issue raised in these appeals, all filed by the insurer, is it was a case of clear breach of terms and conditions of the contract of insurance and therefore, the Tribunal has erred in fact and in law in reaching the conclusion there was no breach and consequently, it further erred in not making the award against the owner or in not granting to the appellant a right to recover against the owner.
According to the insurer, the breach in the terms and conditions of the contract is on two counts. The first breach, on which there is much dispute, is whether the bus in question was being driven by a person having a valid and effective driving licence on the date of the accident. According to the appellant insurer the aforesaid bus was being driven by one Shakeel who did not have a valid and effective driving licence on the date of the accident and therefore, the liability for compensation should have been fixed on the owner of the vehicle Rajkumar, to the exclusion of the present appellant.
On the other hand, learned counsel for the owner-respondent no.2 submits, on the date of the accident the vehicle was being driven by a person holding a valid and effective driving licence, namely, one Pravendra Kumar and therefore the Tribunal has not committed any error in making the award against the insurer.
He further submits, the owner had at the very first instance named the driver of the bus as Pravendra Kumar and that he never stated that the bus was being driven by Shakeel. As to Shakeel being named by the police, he submits the owner had no control over those proceedings and the first informant Feren Singh apparently recorded the name of Shakeel on basis of heresay.
Though he does not deny, two injured claimants had categorically stated on oath before the Tribunal that the bus was being driven by Shakeel whom they knew from before, he submits in view of the categorical statement made by the owner it is that statement which has been rightly believed by the Tribunal over oral evidence of the claimants and the insurer. He relies on the division bench in the case of National Insurance Co. Ltd. Vs. Jai Deo Singh reported in 2010 (4) ADJ 616.
Learned counsel for the claimant-respondents, is faced with a piquant situation. The award may be easily satisfied if pressed against the insurer appellant. However, the argument raised by the learned counsel for the appellant insurer stems, on the testimony of two claimant respondents. He prays the award may be directed to be first satisfied by the insurer and right to recovery may be granted to the insurer against the owner.
On the second aspect of breach of terms and conditions of the contract of insurance, learned counsel for the appellant has submitted, the permit of the bus in question was to carry 53 passengers whereas at the time of the accident there were about 72-75 passengers on board the bus.
Learned counsel for the owner and claimants submit, the number of claims arising from deaths and injuries, taken together, does not exceed 52 in number (for which the permit was valid). Therefore, the insurer cannot claim any benefit of that breach.
The accident itself appears to have occurred at a place that was sparsely populated and therefore, there was no independent eye witness of the same. This is reflected from the undisputed fact that the first intimation of the accident was received by Feren Singh, Head Constable from a passer-by namely a motorcyclist who had seen the overturned bus and shared that news with Feren Singh for necessary police help.
The driver of the bus, whoever it be, was not arrested from the accident site, probably because he escaped in the meanwhile. In view of the above, there is no evidence other than the testimony of the claimants and the owner of the bus to rely upon to ascertain the identity of the driver of the bus.
Here, it is noted, while none of the claimants appear to have impleaded either Shakeel or Pravendra Kumar in the claim proceedings, at the same time, at least two of the injured claimants namely Bilkis and Yusuf, both of whom filed their respective claim petitions, categorically stated before the Tribunal that the bus was being driven by one Shakeel r/o Village Bamnauli, PS Doghat, District Bagpat. They further claimed to know Shakeel from before.
Bilkis filed MACT No. 44 of 2006 which has given rise to the appeal by the insurer being appeal no. 2259 of 2010. That file has not been sent by the office despite an earlier order to list all appeals. However, learned counsel for the owner-respondents has during the course of hearing, supplied a certified copy of the award in the case of Bilkis being MACT No. 44 of 2006. The same is retained on record.
On the other hand, Yusuf had filed MACT No. 45 of 2006 which has given rise to the appeal filed by the appellant-insurer being appeal no. 2560 of 2010. It is being decided as part of this bunch of cases.
It may be kept in mind, in absence of any independent eye witness, both Bilkis and Yusuf and all other claimants may have had an incentive, so to say, to support the case set up by the owner Rajkumar-of the bus being driven by Pravendra Kumar. It is so, because there is no dispute as to his driving licence being valid and effective on the date of the accident. Had the claimants stood by the owner's case they would have been in a better position to get the award satisfied by the appellant-insurer. It is a matter of common knowledge, recoveries against owners are difficult to complete whereas those against the insurers are fairly simpler and take less time.
Yet, in the instant case, two injured claimants Bilkis and Yusuf specifically stated that the bus was being driven by Shakeel who they claimed to know from before. He never appeared in the claim proceedings as the owner never produced him. These two witnesses were also cross-examined but they stood by the statement made in their examination-in-chief and no inconsistency or doubt as to the correctness of the statement so made by them emerged in their cross-examination.
Then, though Feren Singh, head constable was not examined as the witness before the Tribunal, yet copy of the FIR and the charge-sheet etc. were filed before the Tribunal. It is here that certain discrepancies are alleged to arise.
From a perusal of the award of the Tribunal, it is clear, a document claimed to be copy of driving licence of Shakeel and an investigator's report submitted in respect thereof were filed by the insurer to contend the licence issued to Shakeel had been valid and effective only up to 20.1.2004 and that it was not renewed thereafter.
The Tribunal noted, in pursuance of the FIR some efforts were made to arrest Shakeel. However, it is on record, Shakeel was neither arrested by the police nor did he ever appear in the proceedings before the Tribunal.
In this regard, it had been further noted, the Investigating Officer of the police, Rohtash Singh submitted an application before the Chief Judicial Magistrate stating, at the relevant time, Shakeel had been absconding and was trying to dispose of his properties. Therefore, permission to proceed under Section 82/83 Cr.P.C. was sought. It was also the case of the insurer that an arrest warrant had been issued by the Chief Judicial Magistrate against Shakeel but it never came to be enforced.
The Tribunal, then took note of the fact, subsequent to the FIR being lodged, Pravendra Kumar, though he was not an accused in the FIR, himself tried to surrender before the Chief Judicial Magistrate, Muzaffar Nagar and submitted an application in that regard. The said application, according to the Tribunal was rejected.
It is thereafter, that the owner-respondent Rajkumar filed a written statement and disclosed the name of the driver of the offending bus as Pravendra Kumar. At that stage, it appears he was named as an accused in the police case also and subsequently a charge-sheet was also submitted against him.
Being faced with such a situation, it then appears, the insurer filed a certified copy of the statement of Bilkis in the present claim proceedings which has been noted by the Tribunal in the impugned award inasmuch as the Tribunal has taken note of the fact that the Bilkis has admitted during her cross-examination that the offending bus was being driven by Shakeel at the time of accident.
Upon such evidence being led, while the insurer urged before the Tribunal, it was a statement of Bilkis that should be relied upon to determine the identity of the driver of the offending bus, the owner insisted that the identity of the driver of the bus should be determined on the basis of the disclosure made in his written statement.
Upon consideration of the aforesaid pleadings, evidence and argument, the Tribunal recorded its finding on issue no.2 that the offending bus was being driven by Pravendra Kumar and not Shakeel.
In reaching that conclusion the Tribunal reasoned that the claimant Sharafat was not an eye witness of the accident; while initially the police had named Shakeel as the driver of the offending bus, but, later during investigation it had named Pravendra Kumar as the accused driver of the bus; Shakeel could not be traced out and was not arrested. Also, he was never produced in the proceeding before the Tribunal.
Accordingly, the Tribunal concluded that the bus was being driven by Pravendra Kumar a person holding a valid and effective driving licence and therefore, there was no breach of the terms and conditions of the contract of insurance.
In so far as the learned counsel for the appellant does not dispute the validity and effectiveness of the driving licence of Pravendra Kumar, there is no consideration of the same required in the present appeal.
FIR version or police version of the case is not decisive for the purpose of inquiry conducted by the Tribunal on the issues framed by it.
In this regard reliance is placed on a Division Bench decision of this Court in Parashuram Pal and others Vs. Ram Lakhan Rajawat and another, reported in [2013 (2) AICC 1407], paragraph 6 whereof reads as below;
"Now the question is whether claim petition is sustainable against the offending tractor simply on the basis of the charge-sheet submitted by the police after investigation against its driver? It is not res-integra that in motor accident claim petition charge-sheet filed by the police investigating the accident as a crime is not substantive evidence and compensation cannot be awarded only on the basis. The claimants can succeed only on the basis of substantive evidence adduced by them before the Motor Accident Claims Tribunal. The claimants have not examined any other witness who had informed the police about involvement of tractor of respondent No.1."
As a corollary to the above, the claim version that is supported with sufficient evidence led before the Tribunal, cannot be defeated merely because the police investigation may suggest existence of facts contrary to the case proven before the Tribunal. The correctness of inference drawn by the police are only an investigators opinion. They are required to stand the test of a criminal trial, where evidence is required to be led by the prosecution in support of the police version. Also, evidence would be led by the defence. In that, witnesses such as Bilkis and Yousuf in this case, may also be produced in defence of Pravendra Kumar who, in view of their pre-existing statements made on oath before the Tribunal would be expected to only reiterate the same and thus ensure Pravendra Kumar's acquittal of the criminal charges.
At present, there is sufficient and fully reliable evidence existing before the Tribunal to hold, the bus was not being driven by Pravendra Kumar but by Shakeel.
Even otherwise, in the instant case, the original FIR version itself clearly supports the claimant's case inasmuch as, in the original FIR, name of the driver of the offending bus was given as Shakeel and not Pravendra Kumar. That name and description was changed much later at the behest of owner Rajkumar to suit his stand before the Tribunal. Therefore, the Tribunal appears to have erred in relying entirely on the charge-sheet version of the event by overlooking the original FIR version itself.
While the accident occurred in the afternoon on 9.9.2005. First intimation of the same appears to have been made to head constable Feran Singh, P.S. Budhana by a motorcyclist who informed Feren Singh about a bus he saw lying over turned, on Budhana road near Lachera.
Then, according to the FIR lodged (by Feren Singh), he went to the accident site and found the bus was lying overturned with some passengers crushed under it. It has been further narrated in the FIR, with same local help he organised, accident victims were evacuated from the accident site and taken to the hospital.
The FIR then states, on inquires made by Faren Singh he was informed (by some persons found at the accident site) that the bus was being driven one Shakeel r/o Village Bamnauli, PS Doghat, District Bagpat, in a rash and negligent manner at very high speed, though the road fitness of the bus was not good.
Coming to the evidence led before the Tribunal, in the instant case there were claimant witnesses who had been injured in the accident and who had no reason to speak falsehood especially one which would prejudice their own claim or recovery to be made in pursuance of the award in their favour.
Shakeel was from very beginning absconding. However, once the owner had filed his written statement and disclosed the name of the driver of the offending bus as Pravendra Kumar, the claimant's would have only benefited by either going along the story set up by the owner or by staying quite with respect to the same.
However, in the instant case at least two injured claimants specifically stated that the vehicle was being driven by Shakeel whom they knew from before. It may be noted that there is no other testimony of any other injured claimant either to doubt the correctness of the statement given by the Bilkis and Yusuf or to support the statement given by Pravendra Kumar and the owner Rajkumar.
Also, there was delay or time gap between the occurrence of the accident, naming of Shakeel immediately thereupon and in the subsequent action on the part of the owner Rajkumar in introducing as the driver of the bus.
Even the application moved by Pravendra Kumar, on his own, to surrender in the criminal proceeding. It was not accepted by the Court on account of the police objection that he was not an accused in the accident. This, clearly brings out the falsity/hollowness in the stand of the owner.
The division bench of this court in the case of National Insurance Co. Ltd. Vs. Jai Deo Singh (supra) relied upon by learned counsel for the owner had held as below :
"6. Once the owner of the vehicle has taken a plea that the driver of the vehicle was Anuj Kumar Bajpai and accordingly, an application was also moved to the insurance company for payment of the insured amount, then the burden to prove that Kallu Bajpai was driving the vehicle shifts on the shoulder of the appellant insurance company. In that regard, the appellant insurance company has not produced any evidence which may establish that Kallu Bajpai was driving the vehicle. Merely because the name of Kallu Bajpai has been given in the charge-sheet, filed by the appellant without any further proof shall not be sufficient evidence to establish that the vehicle was not driven by Anuj Kumar Bajpai.
7. The trial in a Criminal Case and the proceeding of the tribunal under Motor Vehicles Act, are governed by different law and the finding recorded by the police while recording statement under Section 161, Cr.P.C. or while filing charge-sheet is not a substantive evidence. It is settled law that the contents in the First Information Report or the statement recorded under Section 161, Cr.P.C. are not a substantive evidence. It shall always be incumbent on the concerned party that while relying upon such statement, he or she should also prove the same like other evidence in accordance with the provisions contained in the Evidence Act. The burden was on the appellant insurance company to prove by cogent and trustworthy evidence that the vehicle was being driven by Kallu Bajpai. Without any corroborative evidence, the contents of the charge-sheet or the statement recorded under Section 161, Cr.P.C. or the First Information Report may not be taken as substantive evidence. Moreover, the contents of Section 161, Cr.P.C. or the charge-sheet are the statement given before the police and lacks evidentiary value unless proved in accordance to law.
8. Accordingly, submission of the petitioner's counsel to treat the contents of statement recorded under Section 161, Cr.P.C. or the charge-sheet or the First Information Report as substantive evidence in the case in hand before the tribunal seems to be mis-conceived and not sustainable. The sole witness of the appellant Shri Sanjai Trivedi (DW 2) has stated that he does not know Kallu Bajpai.
9. In view of above, the argument advanced by the learned counsel for the appellant that the vehicle was being driven by Kallu Bajpai, in absence of any corroborative evidence, seems to be not acceptable. The burden was on the appellant to prove by cogent and trustworthy evidence that the vehicle was driven by Kallu Bajpai and not by Anuj Kumar Bajpai as stated by the owner during course of trial. The tribunal has rightly believed the evidence led by owner with regard to the driver of the vehicle and seems to not suffer from any perversity or illegality".
The aforesaid judgment, in my opinion is wholly distinguishable inasmuch as in that case there was no evidence of the claimant witness either in support of the case of the owner or to oppose it. In that view of the matter, the division bench had taken view that the version of the owner respondent was credible. Here in face of credible evidence being led by the claimants themselves that the bus was being driven by Shakeel an unlicensed driver; Shakeel not being produced in evidence by the owner; no claimant supporting the owner's case (though it would have been to their advantage and; rejection of surrender application by Pravendra Kumar (being an attending circumstance) the Tribunal could not have disregarded such evidence and proceeded to make the award against the insurer solely on the basis of self-serving statements of the owner & Pravendra Kumar.
On the other hand, another division bench of this Court in National Insurance Company Limited v. Brijpal Singh reported in 2003 ALJ 873.
"the insurance company shall be liable only when it is proved that the driver of the offending vehicle has valid licence. The burden to prove that the driver had valid licence is on the owner of the vehicle and not on the insurer. There is no dispute with regard to the proposition of law laid down by the Division Bench of this Court but seems to be not applicable under the facts and circumstances of present case".
(emphasis supplied)
Thus, the owner cannot preclude the opportunity to the insurer to prove the invalidity or ineffectiveness of the driving licence of the driver by setting up a driver, falsely.
In the instant case admittedly, Shakeel was not only named in the FIR, but serious efforts appear to have been made by the police authorities to arrest him. He however absconded. The police also tried to initiate the proceeding for attachment of his properties and in the meantime Pravendra Kumar filed a surrender application. That was also rejected initially as upto that time the police was convinced, Pravendra Kumar was not the accused.
Thus, while subsequently, he may have been charge-sheeted by the police for unexplained circumstance, it would not result in an indisputable conclusion in favour of the statement made by the owner that the vehicle was being driven by Pravendra Kumar and not Shakeel.
The Tribunal was obliged to record a finding on the basis of evidence led before it and it could not have found an excuse to ignore the evidence so led by merely relying on the subsequent charge-sheet submitted by the police. To do that would be act contrary to the ratio laid down in Parshuram Pal Vs. Ramlakhan Rajawat (supra). The evidence of Bilkis and Yusuf was specific and categorical and there is no denial of the same. Also, there is no reason to doubt the correctness or truthfulness of those statements, in view of the discussion has already made above as to adverse impact of such evidence on prospects of successful satisfaction of the award being claimed by those witnesses. The finding of the Tribunal is therefore perverse an erroneous. It cannot be sustained.
I have no hesitation in drawing an adverse inference against the said owner-respondent as to non-existence of a valid and effective driving license in favour of Shakeel at the time of accident. The Tribunal committed a grave error in drawing such conclusion and in proceeding against the insurer on the basis of driving license of Pravendra Kumar.
Then, alternatively, learned counsel for the owner respondent has submitted that though it is not admitted to the owner that the vehicle was being driven by Shakeel and not Pravendra Kumar, yet, even if it were to be assumed for the sake of argument that the offending bus was being driven by Shakeel, even then, it could not be inferred that there was a breach of terms and conditions of the contract of insurance.
He submits, Shakeel was never examined by the Tribunal and that he was not made a party in the proceedings before the Tribunal. The document claimed to be a copy of the driving licence of Shakeel was produced not by the owner but by the insurer. Then, according to him, the investigator's report was also submitted by the insurer. The address of Shakeel as given in the copy of the driving licence and the investigator's report both produced by the insurer are of district Ghaziabad and the description of Shakeel as given in the FIR, is of district Baghpat which is entirely different.
He therefore, submits, the insurer had not led any evidence to establish that the driver of the bus Shakeel as described in the FIR did not have a valid and effective driving licence. As such, the finding of the Tribunal that there was no breach of terms and conditions of the contract of insurance, is wholly valid and should be sustained.
Responding to the aforesaid submission made by the learned counsel for the respondent owner, learned counsel for the appellant submits, the insurer having raised a plea of breach of terms and conditions of the contract of insurance on account of absence of a valid and effective driving licence in favour of the driver of the bus, it was for the owner to have first led some evidence to establish that the driver of the vehicle had a valid and effective driving licence.
Having considered the argument so made, I find that the owner respondent set up a single plea of the insured bus being driven by Pravendra Kumar. He did not ever, even in the alternative set up a plea that the said bus was being driven by Shakeel.
Even if the driving licence and the investigator's report are to be ignored on the submission made by learned counsel for the respondent owner, it is seen that the vehicle was not being driven by Pravendra Kumar as has been discussed above.
As noticed above division bench of this court in National Insurance Company Limited v. Brijpal Singh, 2003 ALJ 873 has held that the insurance company would be liable only when it is proven that the driver of the offending vehicle has valid licence. The burden to prove that the driver had valid licence is on the owner of the vehicle and not on the insurer. Therefore the stage never reached for the insurer to lead evidence against the licence of Shakeel.
Here, the owner did not produce the driving licence of Shakeel.
The factum of accident and the cause of accident being undisputed the liability of compensation stood established. The only question remaining to be ascertained was whether the liability was to be borne by the insurer or the owner. For the liability to remain on the insurer, the owner was only to plead that the vehicle was being driven in accordance with terms and conditions of the contract of insurance by Shakeel. By not producing either Shakeel or his driving licence, the owner prevented any inquiry in that regard. Thus, it is not open to the owner to contend that the validity or effectiveness of the driving license of Shakeel was not disproved by the appellant. That stage was never reached because of conduct of owner.
Therefore, for this reason, the argument raised by learned counsel for the owner respondents deserves to be rejected. The difference in the description of Shakeel in the FIR and the driving licence and or the investigator's report, is of no consequence.
Accordingly, it is held, on 9.9.2005 the bus bearing registration no. UP12-C.5011 was being driven by a person not having a valid and effective driving licence, when it met with the accident giving rise to the claim involved in this appeal. In view of this, the breach of essential terms and conditions of the contract of insurance stood established. The Tribunal has erred in making the award against the insurer. It should have made against the owner.
Then, learned counsel for the appellant has submitted that there was another breach of the terms and conditions of the contract of insurance inasmuch as against the permitted capacity 52 passengers it was carrying in excess of 70 passengers. From the submission made by learned counsel for the parties, it appears that the total number of claims for death as also for injuries, arising from the accident in question do not exceed 52. At present there are only 16 appeals that are being decided today and the records of few cases have not been sent to the Court today. Thus, it appears there are about 20 appeals in all. The total number of claims arising from the accident is clearly below 53.
The Supreme Court in the case of United India Insurance Co. Ltd. v. K.M. Poonam, (2015) 15 SCC 297, had while dealing with limit of liability of an insurer, arising from excess number of passengers and consequent claims exceeding the number of risk covered passengers, had directed the insurance company to first discharge the entire liability and then to seek recovery from the owner in respect of such number of claims as fell outside its liability. In para 36 of that judgement, it held :
"The liability of the insurer, therefore, is confined to the number of persons covered by the insurance policy and not beyond the same. In other words, as in the present case, since the insurance policy of the owner of the vehicle covered six occupants of the vehicle in question, including the driver, the liability of the insurer would be confined to six persons only, notwithstanding the larger number of persons carried in the vehicle. Such excess number of persons would have to be treated as third parties, but since no premium had been paid in the policy for them, the insurer would not be liable to make payment of the compensation amount as far as they are concerned. However, the liability of the Insurance Company to make payment even in respect of persons not covered by the insurance policy continues under the provisions of sub-section (1) of Section 149 of the Act, as it would be entitled to recover the same if it could prove that one of the conditions of the policy had been breached by the owner of the vehicle".
Here, in this case the total number of claims is far below 52 for which the insurer had covered the risk. Thus, the argument advanced by the learned counsel for the appellant as to breach of terms and conditions of the contract of insurance arising on account of excess passenger is rejected.
There being no dispute as to quantification of the compensation awarded, there remains no other issue to be decided in the present appeal.
Accordingly, all the appeals deserve to be allowed and the liability of compensation is fixed on the owner respondents. The award stands modified to extent below described.
At the time of present appeal being entertained, by an interim order the entire decretal amount awarded was required to be deposited by the appellant. Learned counsel for the appellant states that it has complied with that order. Some part of the amount so deposited has been released in terms of the conditions imposed by individual orders in each appeal. The remaining amount is still lying deposited with the Tribunal.
Accordingly, it is provided as below:-
(i) Out of the balance amount lying deposited with the Tribunal in each case, (at the instance of the appellant), such amount shall be released in each case to ensure that 100% of the compensation awarded is received by each claimant, without any money being paid towards interest as awarded, within one month from today.
(ii) In case, if any amount has already been released in excess of the principal amount of compensation, no recovery would be made from such claimant.
(iii) The balance amount which would not exceed the interest awarded under the impugned award together with interest earned on amount deposited shall be continued to be retained in an interest bearing term deposit with a nationalized bank for a further period of two months.
(iv) In the meantime, that is within a period of three months from today, owner respondents shall furnish security equal to the entire decretal amount as deposited by the present appellant which may in the shape other than cash or bank guarantee, to the satisfaction of the Tribunal.
(v) Upon such security being furnished, the Tribunal shall release the interest amount/balance interest amount in favour of the claimant respondents within four months from today and discharge the claimants in entirety.
(vi) Within the same time, i.e. four months from today, the Tribunal shall proceed to recover an amount equal to the amount deposited by the appellant in compliance of the interim order passed in this appeal, either from the security already furnished by the owner respondent or from such other source as the owner respondent may offer.
(vii) In case of default on part of the owner respondent in furnishing the security within time provided above, the Tribunal shall still release the interest amount/balance interest amount in favour of the claimant respondents within four months from today and discharge the claimants in entirety. However, in that case, it shall recover the entire decretal amount deposited by the present appellant together with 6% interest from the date of deposit made by the appellant till the date of payment/recovery being made, and pay out the same to the appellant.
The appeal is allowed. No order as to costs
Order Date :- 24.8.2017
Mini
