Delhi High Court
Bajaj Allianz General Insurance ... vs Ramesh Chand Sharma & Ors. on 24 May, 2016
$~19
* IN THE HIGH COURT OF DELHI AT NEW DELHI
Date of Decision: 24th May, 2016
+ MAC.APP. 447/2013
BAJAJ ALLIANZ GENERAL INSURANCE COMPANY
LTD .. ... Appellant
Through: Ms. Suman Bagga, Adv.
versus
RAMESH CHAND SHARMA & ORS. ..... Respondents
Through: Mr. Arun Yadav, Adv. for R-1 to 3.
Mr. Anuj Soni, Adv. for R-4.
CORAM:
HON'BLE MR. JUSTICE R.K.GAUBA
JUDGMENT
R.K.GAUBA, J (ORAL):
1. Karan Sharma was riding on motorcycle bearing registration No. HR
26AH 1279 (the motorcycle) on 19.05.2010 and had reached at Ridge Road,
near Simon Bolivar Marg, Red Light, Chanakyapuri when it was involved in
a collision with motor vehicle described as petrol tanker bearing registration
No. DL 1GB 6850 (the offending vehicle). As a result of injuries suffered
Karan Sharma died in hospital on 26.05.2010. An accident claim case was
filed by his dependant family members, first to third respondents
(claimants,) seeking compensation under Sections 166 and 140 of Motor
Vehicles Act, 1988 (MV Act). In the claim case, the appellant was
impleaded as one of the respondents, it being admittedly the insurance
company which had issued a third party risk insurance policy in respect of
the offending vehicle. Additionally, Ram Kumar (fourth respondent) and
Har Mohinder Kaur Anand (fifth respondent) were also impleaded as parties
on the averment that they were driver and owner respectively of the
offending vehicle.
2. During inquiry before the tribunal, it was proved on the basis of
admission in the pleadings and by evidence that the offending vehicle was
driven at the relevant point of time by the fourth respondent and that it was
owned by the fifth respondent. The tribunal also returned a finding that the
accident had occurred resulting in death due to negligent driving of the
offending vehicle by the fourth respondent, thus, holding him liable to
compensate, he being the principal tort-feasor. The fifth respondent (owner
of the offending vehicle) was held jointly and severally liable with the
former on account of vicarious liability.
3. Before the tribunal, the appellant insurance company (insurer), had,
inter alia, pleaded that its liability to indemnify was subject to proof being
adduced that the driver of the offending vehicle was holding a valid or
effective driving license in respect of the offending vehicle. The insurance
company led evidence to prove that the driving license upon which the
fourth and fifth respondents relied on was not valid or effective for the
purposes of vehicle involved for the reason it was a petrol tanker meant for
carrying hazardous substance and there was no endorsement for purposes of
such vehicle in terms of Section 14 (2) of MV Act read with Rules 9 and
132 of the Central Motor Vehicles Rules, 1989.
4. The evidence led by the insurance company included the testimony of
Vir Narayan Singh (R3W1), dealing assistant of State Transport Authority,
Sudesh Bala (R3W2), a clerk of RTO Alwar, Rajasthan and Shreyas Thakur
(R3W3), Executive (Legal) of the insurance company. While R3W1 proved
the national permit in respect of the offending vehicle, R3W2 proved the
driving license (Ex.R3W2/1) of the fourth respondent (driver). R3W3,
having proved the copy of the insurance policy (Ex.R3W3/1), also proved
notice under Order 12 Rule 8 of Code of Civil Procedure, 1908 (CPC) as per
copy (Ex.R3W3/2), its dispatch in postal transit (vide Ex.R3W3/3), and
delivery vide acknowledgement card (Ex.R3W3/4) besides certified copy of
the driving license (Ex.R3W3/5), verification report (Ex.R3W3/6) and
another copy of the driving license (Ex.R-1), as had already been filed by
the claimants.
5. Noticeably, no evidence was led, despite opportunity, by the fourth or
fifth respondents. It is clear from the evidence adduced by the insurer that
the driving license relied on by the fourth and fifth respondents (though
valid for a heavy transport vehicle) does not bear any endorsement in the
nature required by Section 14 of MV Act or Rules 9 and 132 of Central
Motor Vehicle Rules 1989.
6. The tribunal, however, rejected the plea of the insurance company
about breach of terms and conditions of the insurance policy on the basis of
following reasoning:-
52. In the written statement respondent no. 3 has taken general
objection that in case it is held that the insured vehicle was not
having a valid and effective route permit, registration
certificate, fitness and authorization of the driver issued from
concerned authority, the respondent no. 3 shall have no
liability. In the written statement respondent no. 3 has not
pleaded that the offending vehicle was carrying hazardous
material at the time of accident and the driver of vehicle i.e
respondent no. 1 did not possess an appropriate licence bearing
endorsement to drive a vehicle carrying hazardous material.
Apart from statement of PW3 in the cross-examination to the
effect that the offending vehicle was a petrol tanker no other
evidence has been adduced by respondent no. 3 to prove that
offending vehicle was a vehicle designed to carry hazardous
material and , at the time of accident the offending vehicle was
carrying hazardous material‖.
7. Similar questions had arisen in another matter MAC Appeal No.
798/2010, New India Assurance Co. Ltd. vs. Ashpal Singh & Ors. decided
by this Court on 18.01.2016. The issue was discussed and adjudicated upon
thus:-
"4. The material on record clearly shows that the offending
vehicle was an oil tanker (10 wheeler) registered in the name of
the first respondent. The learned counsel for the appellant
refers to Section 14(2) of the MV Act which reads as under :
―14. Currency of licences to drive motor vehicles - (1)
...
X X X
(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.
5. It is clear from bare reading of the proviso under Section
14(2) (9) that in the case of transport vehicles carrying goods
which are dangerous or hazardous in nature, the driving
license ordinarily issued is not sufficient in that, such driving
license requires a further endorsement as to the compliance by
the driver with the requirements of the other conditions, such
licenses being effective only for a period of one year and
subject to renewal for similar period from time to time
thereafter.
6. In above context, reference has also been made to rules 9
and 132 of the Central Motor Vehicle Rules, 1989 which, 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. It emerges from the pleadings before the Tribunal, and
the evidence adduced during inquiry into the claim petition
before it, that the offending vehicle was one which would fall in
the category of a transport vehicle meant to carry dangerous or
hazardous substances. In these circumstances, the driving
licence of the driver deputed to drive such vehicle could not be
the one ordinarily issued for purposes of a heavy transport
vehicle, as appears to be the case pleaded by the driver and
owner of the offending vehicle in the matter at hand.
Noticeably, the accident information report (page 46 of the
paper book) shows that the driving license issued in favour of
the driver (the second respondent) in this case was claimed to
be one valid for the period 18.06.2004 to 17.06.2007. There is
no material made available to show that the driver had secured
the authorisation necessary in terms of Section 14(2) of MV
Act, read with rule 9 of Central Motor Vehicle Rules, 1989.
The rules as noted above, do not permit such validity in case
the driver is to be on duty on a vehicle carrying dangerous or
hazardous substances.
8. The insurance company had denied liability to pay
compensation in the case at hand referring to the
aforementioned deficiency in the driving licence of the second
respondent. The contention of the insurance company (the
appellant) was rejected by the Tribunal through the following
observations :
―24. R3 has not examined the investigator. No official
of the Licensing Authority Mathura has been examined to
prove the report ExR3W1/F. No notice u/o 12 Rule 8 CPC
had been issued to R2. The petition had been filed on
5/8/2006. WS dtd 13/10/2006 on behalf of R3 was filed on
21/2/2007. The issues were framed on 3/4/2007. The matter
was not settled by R3 because of the fact that R1 was not
having valid DL. This fact was disclosed to the court by ld.
Counsel for R3, on 16/5/2007. Thus, R3 was required to
bring on record the registration certificate of the vehicle. It
(R3) was also required to examine the investigator and
official of the Licensing Authority. In the absence of
evidence, the mechanical inspection report of the offending
vehicle referred to by counsel for R3 is not being taken into
account.
25. Admittedly the offending vehicle was being driven
by R1. It was owned by R2 and was insured with R3.
Therefore, R1, is the principal tort feaser. R2 and R3 are
vicariously liable. All the respondents are held jointly and
severally liable to pay the awarded amount. However, since
the vehicle was insured with R3, therefore, it shall pay the
awarded amount.‖
9. It appears the Tribunal has fallen into error by calling
for negative evidence. The insurance company had pleaded
that it was not liable because the driver did not have a valid
endorsement in terms of the requirements of Section 14 of MV
Act read with rules 9 and 132 of Central Motor Vehicle Rules,
1989. It was the burden of the owner and driver respectively of
the offending vehicle, in the facts and circumstances of the
case, to prove by positive evidence that the driving license of
the second respondent was one carrying the necessary
authorisation.
10. On being asked, learned counsel for the first and second
respondent (owner and driver respectively) fairly concedes that
the driving license carried by the driver of the offending vehicle
did not have the necessary authorisation in terms of proviso to
Section 14(2) of the MV Act read with rule 9 (3) and rule 132
(5) of the Central Motor Vehicles Rules, 1989 quoted above.
11. In these circumstances, the driving license on which the
said party respondents have been relying cannot be accepted as
a valid license for purpose of the offending vehicle. Thus, there
has been breach of provisions of insurance policy. The
Insurance company (the appellant) has already paid the
amount to the claimant in terms of impugned judgment-award.
It is entitled to recover it from the registered owner (the first
respondent) of the offending vehicle.
6. The reasoning set out by the tribunal in rejecting the contention of the
insurance company to above effect cannot be accepted. It was wrong on the
part of the tribunal to observe that no evidence had been led to prove that the
offending vehicle was carrying hazardous material at the time of the
accident. The statement of R3W3 to this effect, on the basis of his affidavit
(Ex.R3W3/A) has gone unchallenged. There was no evidence led to the
contrary. The documents and evidence on record confirm that the driving
license held by the fourth respondent did not bear any endorsement in the
nature compulsorily required by Section 14(2) (9) of MV Act. Though,
during the cross-examination of R3W2, a photocopy of document mark 'A'
purported to be a training certificate obtained by the driver was tendered to
claim that the driver had actually undergone the requisite training and had
applied for endorsement but the application had been misplaced by the RTO,
the witness denied the said suggestions. No further effort was made by the
fourth and fifth respondents to prove the necessary facts by any other
evidence. Thus, mark 'A' has remained unsubstantiated and, is of no import.
7. In the above facts and circumstances, the insurance company has
brought home its case about breach of terms and conditions of the insurance
policy on which basis it is entitled to avoid the liability. However, given the
fact that insurance policy was for the benefit of third party (claimant), it is
desirable that the insurance company is first made to satisfy the award and
thereafter have the liberty to recover the amount paid from the owner and
driver of the offending vehicle.
8. By order dated 17.05.2013, the insurance company had been directed
to deposit the entire awarded amount with upto date interest with the
Registrar General within the period specified and out of such deposit 60%
was allowed to be released to the claimants. The balance kept in fixed
deposit receipts in UCO Bank, Delhi High Court Branch, New Delhi shall
now be released to the claimants in terms of the impugned award. The
insurance company is granted liberty to recover the amount thus paid from
the fourth and fifth respondents in accordance with law.
9. Statutory deposit, if made, shall be refunded.
10. The appeal is disposed of in above terms.
R.K. GAUBA
(JUDGE)
MAY 24, 2016
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