Delhi High Court
Oriental Insurance Co Ltd vs Mukesh Kumar & Ors on 18 March, 2016
$~11
* IN THE HIGH COURT OF DELHI AT NEW DELHI
Date of Decision: 18th March, 2016
+ MAC.APP. 526/2011 & CM APPL. 11044/2011
ORIENTAL INSURANCE CO LTD ..... Appellant
Through: Mr. Pradeep Gaur & Mr. Amit Gaur,
Advs.
versus
MUKESH KUMAR & ORS ..... Respondents
Through: Mr. L. K. Tyagi, Adv. for R-7.
Mr. R. D. Sharma, Mr. Rajat Sharma
& Mr. Chetan Sharma, Advs. for R-8
& 10.
CORAM:
HON'BLE MR. JUSTICE R.K.GAUBA
JUDGMENT
R.K.GAUBA, J (ORAL):
1. On 12.09.2000, a motor vehicular accident occurred involving two
vehicles, one being a private deluxe bus bearing registration no.DL-1PA-
4340 (the bus) and the other vehicle described as tanker bearing registration
no.DL-1GA-5948 (the tanker). Whilst the bus was carrying certain
passengers including Sureksha Rani, the unrebutted pleadings and evidence
on record show that the tanker was carrying air-fuel. The accident resulted
in death of Sureksha Rani. Her dependant family members (first to fifth
respondents herein), collectively called the claimants, brought an accident
claim petition under Sections 166 & 140 of the Motor Vehicles Act, 1988
(the MV Act) on 19.01.2002. The claim petition appears to have been
decided initially by judgment dated 13.01.2006 but proceedings were later
revived and inquiry conducted afresh wherein the owner as well as the
registered owner (at the time of the accident) of the tanker were impleaded,
(as eighth and tenth respondents herein). The appellant/insurance company
(the insurer) being the insurer of the tanker at the time of the accident was
also impleaded amongst the party respondents before the tribunal.
Noticeably, inspite of notice, both the owner as well as registered owner of
the tanker, impleaded as third and fifth respondents in the claim petition,
chose to suffer the proceedings ex-parte.
2. During the inquiry, while resisting the claim, the appellant/insurance
company took the plea that its investigation had shown that the driver of the
tanker namely Ram Murat, who had also died in the accident, was not
holding valid or effective driving license meant for the motor vehicle in the
nature of tanker carrying hazardous goods, referring in this context to the
provision contained in the proviso to sub-Section 2 of Section 14 of the MV
Act read with Rules 9 and 132 of the Central Motor Vehicles Rules, 1989
framed thereunder.
3. The tribunal while allowing the claim petition awarding compensation
in the sum of `2,07,000/- in favour of the claimants directed apportionment
fixing the liability on the part of the appellant/insurance company (the
insurer of the tanker) to the extent of 50%, asking it to pay the said amount
to the claimants. By judgment dated 03.01.2011, the tribunal declined to
grant recovery rights against the fifth respondent before the tribunal i.e. M/s
Tayal Oil Solvent & Chemicals (now tenth respondent before this court). In
rejecting the claim of the insurance company to above effect, the tribunal
dealt with the contentions as under:-
" R6W2 Sh.Mahesh Kumar, Jr.Clerk ARTO Office, Sulantpur, U.P
has deposed that he has brought the register with respect to D/L
no.1148/STR/98 which is maintained by their office and as per the
record, the above D/L was issued in the name of Sh.Ram Murat
i.e. driver of the offending vehicle. The D/L no.1148/STR/98
refected in their register is a renewal of old licence and he is not
aware as to from where the original licence was issued as it is not
mentioned in their register and as per his record, the licencee is
not authorized to drive a vehicle meant to carry hazardous goods.
As per their record, the licence holder has never applied for
licence for carrying hazardous goods.
R6W3 Sh.Dharamvir Singh has deposed that he has
brought the summoned register containing entries with respect to
the certificates issued from their office regarding the Training
imparted to the driver with respect to D/L meant for carrying
hazardous goods. He has deposed that as per the record being
maintained in their office, the training certificate no.162 is in the
name of Jeet Singh s/o Narayan Singh and not in the name of Ram
Murat. He has further deposed that mark A showing certificate
filed by the respondent purportedly to be training certificate of
Ram Murat is forged one. None of these three witnesses as
brought by the respondent no.6 were cross examined by the
petitioners or by respondent no.3 or by respondent no.5.
As per the cover note Ex. R6W1/A as filed in the court, the
word 'hazardous goods' has not been mentioned in the said policy
and what is written in the said policy with respect to driving
clause is as follows:
―Any person including insured: Provided that a person driving
holds and effective driving licence at the time of the accident
and is not disqualified from holding or obtaining such a licence.
Provided also that a person holding an effective learner's licence
may also drive the vehicle and that such a person satisfies the
requirements of Rule 3 of the Central Motor Vehicles Rules,
1989‖.
No doubt the respondent no.6 has placed one certificate on
the court record to the effect that Ram Murat, the driver of the
tanker had undergone a training from Murthal District Sonepat
from Government Training School, Murthal, Sonepat to
demonstrate that the driver had undergone a training to drive
vehicle with hazardous goods (and this certificate as per
testimony of R6W3 has been proved to be forged). R6W2 has
proved the fact that the said Ram Murat was having valid D/L
with him. The fact, therefore, remains as to whether the vehicle
i.e. .tanker was carrying hazardous goods and if the answer
comes in affirmative then as to whether the driver was having a
licence to drive such vehicle and this would revolve around the
fact as to what are the hazardous goods. In the definition clause
of Motor Vehicles Act, the word 'hazardous goods' have not been
defined. Even otherwise none of the witnesses have turned up to
depose either from the respondent no.5 or respondent no.6 that
the vehicle was carrying oil, petrol or such other inflammable
articles. The court could only gather from newspaper cutting filed
on court record that the vehicle was carrying oil/lubricant. Which
oil or lubricant it was carrying or upto which extent it was
hazardous goods has not been explained on record by any of the
witnesses. The court is of the opinion that per-se that it was an oil
tanker, it can not be presumed that it might be carrying hazardous
goods. The onus to prove the fact that vehicle was carrying
hazardous goods was either upon the respondent no.5 or upon the
respondent no.6. Respondent no.5 has remained Ex.parte
throughout and respondent no.6 although has tried to prove that
there is violation of terms and conditions of the insurance policy
or there is violation with respect to having effective D/L for
carrying hazardous goods yet has failed to prove the fact as to
what articles the offending vehicle no.2 was carrying at the time
of accident. Therefore, the court is of the opinion that appropriate
evidence has not come on record to establish that the tanker was
carrying hazardous goods or the driver of the tanker, namely.
Ram Murat was not having a licence to carry such articles.
Further, the evidence which the respondent no.6 is filing is on the
basis of the licence no.162 issued by the Murthal Authority,
Sonepat. Who has procured the certificate & who has given the
same to police & where from the respondent no.6 might have
received are the facts which have not been covered by respondent
no.6. Admittedly, Ram Murat has died on the spot. Therefore,
much relevance cannot be placed even on this certificate procured
by the respondent no.6. The liability of the respondent no.6
otherwise has been established . In these circumstances, the court
is of the opinion that the respondent no.6 is not entitled to have
recovery rights from the respondent no.5."
4. Clearly, the approach of the tribunal was wholly misdirected. It
missed the nub of the argument.
5. Section 14(2) of the MV Act reads as under:-
"(2) A driving licence issued or renewed under this Act shall--
(a) in the case of a licence to drive a transport vehicle, be effective
for a period of three years:
[Provided that in the case of licence to drive a transport vehicle
carrying goods of dangerous or hazardous nature be effective for a
period of one year and renewal thereof shall be subject to the
condition that the driver undergoes one day refresher course of the
prescribed syllabus ; and ]
(b) in the case of any other licence-
(i) if the person obtaining the licence, either originally or on
renewal thereof, has not attained the age of [ fifty years ] on the
date of issue or, as the case may be, renewal thereof -
(A) be effective for a period of twenty years from the date of
such issue or renewal ; or
(B) until the date on which such person attains the age of [ fifty
years ], whichever is earlier;
[ (ii) if the person referred to in sub-clause (i), has attained the
age of fifty years on the date of issue or, as the case may be,
renewal thereof be effective, on payment of such fee as may be
prescribed, for a period of five years from the date of such issue
or renewal;]
Provided that every driving licence shall, notwithstanding its expiry
under this sub-section, continue to be effective for a period of thirty
days from such expiry.‖
6. The rules 9 and 132 of Central Motor Vehicle Rules, 1989 to the
extent relevant, read as under:-
"9. Educational qualifications for drivers of goods
carriages carrying dangerous or hazardous goods.--
X X X
(3) The licensing authority, on receipt of the application
referred to in sub-rule (2), shall make an endorsement in the
driving licence of the applicant to the effect that he is
authorised to drive a goods carriage carrying goods of
dangerous or hazardous nature to human life.
X X X
132. Responsibility of the transporter or owner of goods
carriage.--
X X X
(5) It shall be the duty of the owner to ensure that the driver of
the goods carriage carrying dangerous or hazardous goods
holds a driving licence as per provisions of rule 9 of these
rules.
X X X
7. The learned counsel for the tenth respondent tried to argue that there
is no evidence showing that the tanker in question was carrying any
hazardous goods at the time of accident. This is also the wrong impression
on which the tribunal proceeded. It ignored the evidence led before it that
the tanker was carrying air-fuel at the time it met with accident. It was not
correct to observe that the only material showed to the tribunal was some
media coverage about the accident. The reference to the insurance cover
note (R6W1/A) by the tribunal was correct but it failed to note that the
insistence in the contract was on the driver holding an affective driving
license. For purpose of oil tanker actually carrying air-fuel, the driving
licence would not be what is the ordinarily issued but one with an
endorsement in terms of Section 14 of the MV Act. The document
purporting to be a certification of special training undergone by the driver
for purpose of hazardous goods was found to be a forged one. In these
circumstances, it was all the more necessary for the tribunal to examine the
evidence more acutely. The observations of the tribunal that the onus to
prove that the tanker was carrying hazardous goods was on the fifth
respondent was incorrect. The fifth respondent rather owed an explanation
to the evidence brought on record affirming that the vehicle was actually
carrying hazardous goods at the time of the accident.
8. On being asked, the learned counsel for the eighth and tenth
respondents fairly conceded that the driver of the tanker did not have any
endorsement in the nature required under Section 14 of the MV Act on the
driving licence he possessed.
9. In above facts and circumstances, the appeal must be allowed. There
was a clear breach of terms and conditions of the insurance policy. The
impugned judgment, to the extent it declined recovery rights against the
tenth respondent, is set aside. The appellant is granted recovery rights
against the party respondent (M/s Tayal Oil Solvent & Chemicals).
10. The statutory deposit, if made, shall be refunded.
11. The appeal is disposed of in above terms.
R.K. GAUBA
(JUDGE)
MARCH 18, 2016
ssc
