The Divisional Manager, The ... vs Smt. Sarojana Wd/O Gautam ...
2017 Latest Caselaw 4615 Bom

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                IN THE HIGH COURT OF JUDICATURE AT BOMBAY,

                                   NAGPUR BENCH : NAGPUR



First Appeal No. 98 of 2017

Appellant               :          The Divisional Manager, The Oriental 

                                   Insurance Company Limited, Old Cotton

                                   Market, Akola

                                   versus

Respondents             :          1) Smt. Malta wd/o Jaishan Dhisale,

                                   Aged 21 years, occupation, Household,

                                   2) Shreyash s/o Jaishan Dhisale, 

                                   Aged 01 year, occupation Nil,

                                   Claimant No. 2 is minor through N.G. 

                                   Mother Claimant no. 1

                                   3) Durgabai w/o Dnyande Dhisale,            

                                   Aged 53 years, occupation household

                                   4) Dnyandeo s/o Haribhau Dhisale,

                                   Aged 56 years, occupation labour

                                   5) Shudhodhan s/o Dnyandeo Dhisale,

                                   Aged 56 years, occupation household

                                   All residents of Kherda, Tahsil Karanja

                                   District Washim


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                                  6) Abdul Rahim s/o Sk. Lal, aged adult,

                                  occupation owner of Truck, resident of 

                                  Kajleshwar, Tahsil Karanja, District Washim

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First Appeal No. 99 of 2017

Appellant : The Divisional Manager, The Oriental

Insurance Company Limited, Old Cotton

Market, Akola

versus

Respondents : 1) Smt. Soni wd/o Sunil Ingle, Aged

23 years, occupation household

2) Ku. Jyoti d/o Sunil Ingle, Aged 4 years,

occupation Nil

Claimant No. 2 and 3 are minor through N.G.

Mother Claimant no. 1

4) Leelabai w/o Bhimrao Ingale, Aged 52 years,

occupation household

5) Bhimrao s/o Namdeo Ingale, Aged 56 years,

occupation labour

All residents of Kherda, Tahsil Karanja

District Washim

6) Abdul Rahim s/o Sk. Lal, aged adult, occupation owner of Truck,

resident of Kajleshwar, Tahsil Karanja, District Washim.

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First Appeal No. 100 of 2017

Appellant : The Divisional Manager, The Oriental

Insurance Company Limited, Old Cotton

Market, Akola

versus

Respondents : 1) Avdhut s/o Chandrabhan Athawale, aged 45

years, occupation Labour

2) Akash s/o Avdhut Athawale, aged 18 years,

occupation education

All residents of Kherda, Tahsil Karanja, District

Washim

3) Abdul Rahim s/o Sk. Lal, aged adult,

occupation owner of Truck, resident of

Kajleshwar, Tahsil Karanja, District Washim.

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First Appeal No. 101 of 2017

Appellant : The Divisional Manager, The Oriental

Insurance Company Limited, Old Cotton

Market, Akola

versus

Respondents : 1 Smt Sarojana wd/o Gautam Athawale,

aged about 30 years, Occ: Household

2. Ku Kiran d/o Gautam Athawale, aged

about 9 years, Education

3. Shivam s/o Gautam Athawale, aged about

7 years, Occ: Education

Claimants no. 2 and 3 are minors, through

natural guardian-mother/respondent no. 1

4. Bainabai w/o Hiraman Athawale, aged

about 60 years, Occ: Household

5. Hiraman s/o Babanrao Athawale, aged

about 65 years, Occ: Labour

All residents of Kherda, Tahsil Karanja,

District Washim

6) Abdul Rahim s/o Sk. Lal, aged adult,

occupation owner of Truck, resident of

Kajleshwar, Tahsil Karanja, District Washim.

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First Appeal No. 102 of 2017

Appellant : The Divisional Manager, The Oriental

Insurance Company Limited, Old Cotton

Market, Akola

versus

Respondents : 1. Padma w/o Deepak Dhoke, aged about 42

years, Occ: Household

2. Deepak s/o Ganpat Dhoke, aged about

47 years, Occ: Labour

Both residents of Kherda, Tahsil Karanja,

District Washim

3) Abdul Rahim s/o Sk. Lal, aged adult,

occupation owner of Truck, resident of

Kajleshwar, Tahsil Karanja, District Washim.

Coram : S. B. Shukre, J

Dated : 18th July 2017

Oral Judgment

1. By consent of learned counsel for the appellant and learned

counsel for the claimants in all these appeals, these appeals are taken up

for final disposal and they are being disposed of by common judgment as

they involve a common question of law. Filing of paper book is

dispensed with.

2. The appellant was the insurer of the Truck bearing

registration number MH-12/DG-0923 involved in the accident. This truck

was owned at the time of accident by Shri Abdul Rahim Sk. Lal, made one

of the respondents in these appeals. The accident occurred on

11.12.2013 at about 21.30 hours when the truck was being driven from

Kherda to Kamargaon. The accident occurred in front of Krishi Utpanna

Bazar Samiti, Kamargaon. The accident occurred when the driver on the

truck was over-taking the luxury bus which resulted in loss of control over

the stearing wheel by the truck driver and it getting dashed against a tree

standing on the wrong side of the truck. The truck was loaded with some

labourers and many of those labourers died in this accident. The

claimants in these five appeals are the dependents and legal heirs of

those labourers who died in the accident. They are also joined as

respondents in these appeals.

3. When claim petitions were filed under Section 166 of the

Motor Vehicles Act by the claimants, they were resisted by the appellant

on several grounds, one of them being the breach of the essential

conditions of the insurance policy by the driver and owner of the truck.

This breach was alleged to be in the nature of absence of having any

valid licence by the truck driver at the time of accident. On merits of the

case, all the claim petitions were allowed by the Tribunal by separate

judgments, but delivered on the same day i.e. 15 th November 2016 in

MACP Nos. 12 of 2014; 13 of 2014; 11/2014; 14/2014 and 15/2014.

Since the appellant was not satisfied with the finding recorded on the

point of breach of essential conditions of the insurance policy, the

appellant is before this Court in these five appeals.

4. I have heard Shri M. N. Ahmed, learned counsel for the

appellant and Shri S. D. Chopde, learned counsel for the claimants. None

appears for the owner of the truck involved in the accident. Now, the

only point that arises that for my determination is -

Whether it is proved in these cases that breach of the

insurance policy was wilful ?

5. The evidence of the truck owner in this case is relevant. On

going through his evidence, one can find that he had taken all the

reasonable care a truck owner is expected to take before he engaged the

driver of the truck involved in the truck. In the accident, the driver also

died. The owner of the truck, PW 2 Abdul Rahim s/o Sheikh Lal (exhibit

38) in his evidence stated that he had engaged deceased Sanjay Shinde as

driver on the truck about 3-4 years prior to the accident and that he had

taken his test of competency of driving and was satisfied with the driving

skills of Sanjay. He also stated that he had made enquiries about the

driving licence of deceased Sanjay and was satisfied with the same. If one

goes through the cross-examination of this witness taken on behalf of the

appellant, one would find that such an evidence of the truck owner has

not been controverted by the appellant. There is not a single suggestion

given to this witness that his evidence in this regard was false or

inconsistent with the facts available on record. So, it would have to be

said that the owner took all reasonable care about his driver having skills

and legal authority to drive the truck before he engaged him.

6. The other facts available on record disclosed that deceased

Sanjay-truck driver held two kinds of licences - one for the transport

vehicle and the other for non-transport vehicle. The licence for transport

vehicle had expired on 14.12.2012 while the licence for non-transport

vehicle was valid till 9.11.2015. The truck involved in the accident being

a transport vehicle and unquestionably, licence of deceased Sanjay Shinde

having expired on 14.12.2012, it would have to be held that at the time of

accident, deceased Sanjay Shinde did not possess a valid driving licence

for driving a transport vehicle like the truck involved in the accident. If

this is so, one would have to say that there was a breach of essential

condition of the insurance policy.

7. But, the matter does not end here. It has to be looked at

from the perspective of the owner of the truck who engaged the driver for

driving the truck. If it is seen that while engaging him and also

continuing him to be a driver on the truck in question, the owner was

negligent or careless in not enquiring about and verifying about the

possession of a valid transport, then it would have to be said that the

truck owner being negligent, himself was responsible for breach of the

essential condition of the policy. In other words, such breach would have

to be termed as wilful breach.

8. In the case of Sohan Lal Passi v. P. Sesh Reddy & ors

reported in AIR 1996 SC 2627, the Hon'ble Supreme Court has observed

thus :

".... In a case where the person who has got insured the

vehicle with the insurance company, has appointed a duly

licensed driver and if the accident takes place when the

vehicle is being by a person not duly licensed on the basis of

the authority of the driver duly authorised to drive the

vehicle whether the insurance company in that event shall be

absolved from its liability ? The expression "breach"

occurring in Section 96 (2) b) means infringement or

violation of a promise or obligation. As such the insurance

company will have to establish that the insured was guilty of

an infringement or violation of a promise. The insurer has

also to satisfy the Tribunal or the Court that such violation or

infringement on the part of the insured was wilful. If the

insured has taken all precautions by appointing a duly

licensed driver to drive the vehicle in question and it has not

been established that it was the insured who allowed the

vehicle to be drived by a person not duly licensed, then the

insurance company cannot repudiate its statutory liability

under sub-section (1) of Section 96....."

9. In the present case, it is seen that the owner of the truck had

taken all reasonable care in engaging the deceased driver for the purpose

of driving the truck in question and he had even enquired about

possession of valid driving licence by him and was satisfied about the

same. The deceased driver had even possessed licence for a transport

vehicle, but it had expired some time about one year prior to the

occurrence of the accident and it appears that the driver did not take

enough care to renew the licence. But, the fact remains that at the time of

his engagement by the owner of the truck as a driver, the owner had not

only satisfied himself about the possession of valid driving licence, but the

driver himself did possess such a driving licence. Now, if during the

course of employment of driver, if the driving licence expired and is not

renewed by the driver, blame for it cannot be placed upon the shoulder of

owner unless it is shown that the owner too had knowledge about the

same. However, there is no evidence brought on record by the appellant

to prove such knowledge of the owner.Therefore, the breach of the

insurance policy in the instant case cannot be termed as a wilful breach as

rightly found by the Tribunal.

10. Learned counsel for the appellant has invited my attention to

the case of Oriental Insurance Company Limited v. Angad Kol & ors

reported in (2009) 11 SCC 356 wherein it is held that although the

definition of the "light motor vehicle" brings within its umbrage both

"transport vehicle" or "omnibus", indisputably, a distinction between an

effective licence granted for transport vehicle and passenger motor vehicle

exists. It is further held that the distinction between a "light motor

vehicle" and a "transport vehicle" is evident. A transport vehicle may be a

light motor vehicle but for the purpose of driving the same, a distinct

licence is required to be obtained. The distinction between a "transport

vehicle" and a "passenger vehicle" can also be noticed from Section 14 of

the Act. Learned counsel further submits that the Tribunal in the present

case has perhaps been carried away by the fact that the deceased

possessed a valid driving licence for non-transport vehicle. Sofar as

concerned the ratio laid down by the Hon'ble Apex Court in Angad Kol &

ors (supra) and view taken by the learned single Judge of this Court in

National Insurance Company Ltd. v. Devnath M. Yadav & ors reported

in 2015 (5) Mh. L. J. 231, there can be no dispute about the same. There

is in law a clear distinction between the two licence. But, in the instant

case, there is also no dispute about the fact that out of two licences

possessed by the deceased driver, one licence relating to a transport

vehicle had already expired on the date of the accident. Therefore, the

question involved was not just about breach of the condition of the

insurance policy, but also a wilful breach of the insurance policy and the

same has been decided by recording a finding that there was no wilful

breach of the insurance policy by owner of the truck. Therefor, the cases

cited by learned counsel for the appellant would not help the appellant in

any case.

11. In the result, I find that there is no merit in these appeals and

they deserve to be dismissed. The point is answered accordingly. Appeals

stand dismissed. Parties to bear their own costs. Claimants are at liberty

to withdraw the amounts deposited in this Court by the appellant.

S. B. SHUKRE, J

joshi