Icici Lombard General Insurance ... vs Krishna Rani Khera & Ors
2014 Latest Caselaw 5963 Del

$~A-7
*    IN THE HIGH COURT OF DELHI AT NEW DELHI

                                              Date of decision:19.11.2014
+     MAC.APP. 816/2011

      ICICI LOMBARD GENERAL INSURANCE CO LTD..... Appellant
                    Through Ms.Suman Bagga, Advocate.

                          versus

      KRISHNA RANI KHERA & ORS                ..... Respondents

Through Mr.S.K.Vashisth, Advocate for R-1.

Mr.Yogesh K.Chandna, Advocate for R-

2&3

CORAM:

HON'BLE MR. JUSTICE JAYANT NATH

JAYANT NATH, J.(ORAL)

CM No. 142/2014 (for restoration) For the reasons stated in the application, the same is allowed. The appeal is restored to its original position.

MAC.APP. 816/2011

1. By the present appeal the appellant seeks recovery rights from the driver and the owner of the offending vehicle, namely, respondents No.2 and 3.

2. The brief facts which led to filing of the claim petition and thereafter the present appeal are that respondent No.1 was returning home from a temple at Uttam Nagar on 22.02.2010. While crossing the road at Sanatan Dharam Mandir Gate, Uttam Nagar, she was hit by a speeding scooter coming from behind said to be driven rashly and negligently. Due to the forceful impact,

respondent No.1 fell down on the road and sustained grievous injuries.

3. Based on the evidence on record, she was awarded a total compensation of Rs.1,28,346/-.

4. Learned counsel appearing for the appellant submits that the driver of the offending vehicle, namely, respondent No.2 was not having a valid driving license to drive a scooter. She submits that the driver was having a license to drive an LMV. Reliance is placed on Section 10 (2) of the Motor Vehicles Act, 1988.

5. Learned counsel for respondents No. 2 and 3 submits that firstly the findings recorded by the Tribunal holding that the accident took place due to the scooter driven by respondent No.2 is entirely erroneous. He submits that no such accident took place and respondent no.1 actually on her own fell down on the road and suffered injuries and was helped by respondent No.2 who took her to the hospital. He also submits that a criminal case filed against respondent No.2 before the court of Sh.Sharad Gupta, Metropolitan Magistrate, Dwarka who has vide order dated 28.01.2013 acquitted respondent No.2 from the offence under Sections 279/338 IPC

6. A perusal of the evidence on record shows that R1W1 Sh.Naresh Chander, Record Clerk from the Department of Transport Authority, West Zone-1, Janak Puri, New Delhi has confirmed that the driving license of respondent No.2 was issued from their authority and issued for LMV. Section 10 (2) of the Motor Vehicles Act, 1988 states as follows:-

"10. Form and contents of licenses to drive-

(1) ....

(2) A learner's license or, as the case may be, driving license shall also be expressed as entitling the holder to drive a motor vehicle of one or more of the following classes, namely-

(a) motor cycle without gear;

(b) motor cycle with gear;

(c) invalid carriage;

(d) light motor vehicle;

1[(e) transport vehicle;]

(i) road-roller

(j) motor vehicle so a specified description."

7. Hence a driving license has to express the holder to drive a motor vehicle of one or more of the classes enumerated in Section 10(2) of the MV Act. It is not possible that a person having a driving license for an LMV can drive any vehicle of any other description which falls under different categories as enumerated in Section 10(2) of the Motor Vehicles Act, 1988.

8. Reference in this context may be had to the judgment of the Supreme Court in the case of Oriental Insurance Company Limited. Vs. Zaharulnisha and Others, AIR 2008 SC 2218 where the driver was driving a two wheeler and hit the deceased who was riding a cycle. In that case also the driver of the two wheeler scooter had a license for driving an HMV only. In those facts the Supreme Court relying on sections 3,5 and 10 of the M.V.Act held as under:-

"21. In the light of the above settled proposition of law, the appellant Insurance Company cannot be held liable to pay the amount of compensation to the claimants for the cause of death of Shukurullah in road accident which had occurred due to rash and negligent driving of scooter by Ram Surat who admittedly had no valid and effective licence to drive the vehicle on the day of accident. The scooterist was possessing driving licence of driving HMV and he was driving totally different class of vehicle, which act of his is in violation of Section 10(2) of the MV Act."

9. Keeping in view the provisions of Section 3 of the Motor Vehicles Act which states that no person shall drive a motor vehicle in any public place unless he holds an effective driving license issued to him, there is clear breach of the statutory provisions by respondents No.2 while driving the scooter and consequently breach of the terms and conditions of the Insurance Policy.

10. As far as the submission of the learned counsel appearing for respondents No.2 is concerned regarding the exoneration of respondent No.2 from the criminal case, it is not possible for this court to accept the said contention. Proof required for conviction in a criminal case is of a much higher level as compared to the kind of proof required before a claims Tribunal. Reference in this context may be had to the judgement of the Supreme Court in the case of Iqbal Singh Marwah & Anr vs Meenakshi Marwah & Anr (2005) 4SCC 370. Para 32 of the judgment reads as follows:-

"32. Coming to the last contention that an effort should be made to avoid conflict of findings between the civil and criminal Courts, it is necessary to point out that the standard of proof required in the two proceedings are entirely different. Civil cases are decided on the basis of preponderance of evidence while in a criminal case the entire burden lies on the prosecution and proof beyond reasonable doubt has to be given. There is neither any statutory provision nor any legal principle that the findings recorded in one proceeding may be treated as final or binding in the other, as both the cases have to be decided on the basis of the evidence adduced therein."

11. Coming to the contention of learned counsel for respondents No.2 and 3 that no accident took place and that respondent No.1 fell down on her own; I may note that respondents No. 2 and 3 have not filed any appeal or cross appeal

before this court challenging the findings of the Tribunal whereby the Tribunal held that the accident took place on account of rash and negligent driving of respondent No.2. In the absence of an appeal or cross-appeal, it is not possible for this court to in any case go behind the findings recorded by the Tribunal which have attained finality. In this context reference may be had to the judgment of the Supreme Court in the case of Ranjana Prakash vs. Divisional Manager 2011 ACJ 2418 where in para 6 the Supreme Court held as follows:-

"6. We are of the view that High Court committed an error in ignoring the contention of the claimants. It is true that the claimants had not challenged the award of the Tribunal on the ground that the Tribunal had failed to take note of future prospects and add 30% to the annual income of the deceased. But the claimants were not aggrieved by Rs. 23,134/- being taken as the monthly income. There was therefore no need for them to challenge the award of the Tribunal. But where in an appeal filed by the owner/insurer, if the High Court proposes to reduce the compensation awarded by the Tribunal, the claimants can certainly defend the quantum of compensation awarded by the Tribunal, by pointing out other errors or omissions in the award, which if taken note of, would show that there was no need to reduce the amount awarded as compensation. Therefore, in an appeal by the owner/insurer, the Appellant can certainly put forth a contention that if 30% is to be deducted from the income for whatsoever reason, 30% should also be added towards future prospects, so that the compensation awarded is not reduced. The fact that claimants did not independently challenge the award will not therefore come in the way of their defending the compensation awarded, on other grounds. It would only mean that in an appeal by the owner/insurer, the claimants will not be entitled to seek enhancement of the compensation by urging any new ground, in the absence of any cross-appeal or cross- objections."

12. Hence, the findings of the Tribunal that accident took place due to the

rash and negligent driving by respondent No.2, not having been challenged by appeal or cross-appeal, by respondent No.2, cannot be gone into by this court. In the light of the above position, the appeal is allowed to the extent that the appellant shall have recovery rights from respondents No. 2 and 3. The appeal stands disposed of.

13. All the interim orders stand vacated.

14. As per the interim order dated 09.09.2011, the entire award amount was deposited with the Registrar General of this court. The said amount be released to the claimant/respondent No.1 along with accumulated interest as directed by the Tribunal.

15. Statutory amount, if any, be refunded to the appellant.

JAYANT NATH, J NOVEMBER 19, 2014 rb