Motor Third Party Cell vs Smt. Meena Dhanji Chheda
2013 Latest Caselaw 290 Bom

                                           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



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                                                     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,

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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

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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

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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

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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

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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

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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

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

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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

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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

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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

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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.)

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