Rajesh Gupta vs Unknown
2023 Latest Caselaw 1477 j&K

                                                                   Sr. No. 4
        HIGH COURT OF JAMMU & KASHMIR AND LADAKH
                        AT JAMMU
                                              MA No. 426/2009
                                              IA No. 614/2009

Rajesh Gupta                                        .....Appellant(s)/Petitioner(s)
                      Through: Mr. Siddhant Gupta, Advocate
                 Vs

                                                              ..... Respondent(s)
Krishan Bahadur and ors.
                      Through: Mr. D. S. Chauhan, Advocate and
                               Ms. Damini Singh Chauhan, Advocate
                               Mr. G. S. Thakur, Advocate

Coram: HON'BLE MR. JUSTICE RAJNESH OSWAL, JUDGE

                               ORDER (ORAL)

1. The appellant/owner has impugned the award dated 30.06.2009 passed by

the Motor Accident Claims Tribunal, Jammu (hereinafter to be referred as

„the Tribunal‟) in claim petition No. 685/claim/2002 titled, 'Krishan

Bahadur vs. Rajesh Gupta &Ors.', whereby respondent No. 2-Insurance

Company has been directed to satisfy the award passed in favour of the

claimant with liberty to recover the award amount from the appellant.

2. The appellant has impugned the award to the extent of liberty granted to

respondent No. 2 to recover the amount from the appellant on the ground

that in fact respondent No. 3 was not the driver of the offending vehicle at

the time of alleged accident. It is also stated that there was no proper

service of respondent No. 3 and that breach on the part of the owner of the

offending vehicle was not so fundamental in nature so as to permit the

respondent No. 2 to recover the awarded amount from the appellant. It is

also urged that the witness examined by respondent No. 2 did not prove

the fact that the driver of the vehicle was not holding a valid driving

license. The appellant has also filed an application for placing on record

the judgment of acquittal dated 07.06.2005 recorded by the court of

learned JMIC, Sub Judge, Jammu, whereby the learned court has

acquitted the respondent No. 3.

3. Mr. Siddhant Gupta, learned counsel for the appellant vehemently argued

that subsequent acquittal of respondent No. 3 clearly belied the whole

case projected by respondent No. 1/claimant before the learned Tribunal

that the accident was caused due to rash and negligent driving of

respondent No. 3. He further submitted that statement of RW Jagdish Raj

does not prove that respondent No. 3 was not holding a valid and effective

driving license on the date of alleged occurrence. He placed reliance upon

the judgment of the Hon‟ble Apex Court in case titled, 'National

Insurance Company Limited vs. Swaran Singh' reported in (2004) 3

SCC 297.

4. Per contra, Mr. D. S. Chouhan, learned counsel for the respondent No. 2

has submitted that respondent No. 2-Insurance Company had proved that

respondent No. 3 was not competent to drive the two-wheeler/scooter as

license possessed by respondent No. 3 was in respect of LTV. He placed

reliance upon the judgment of the Hon‟ble Apex Court in case titled,

'Oriental Insurance Co. Ltd. vs. Zaharulnisha&Ors.' reported in 2008

AIR (SC) 638.

5. Heard and perused the record.

6. Respondent No. 1 filed a claim petition for grant of compensation in

respect of death of his wife, namely, Sita Kumari, who met with an

accident on 24.11.2002 when she was hit by a Scooter bearing registration

No. JK02M/1471 and later, succumbed to injuries on 25.11.2002. The

appellant as well as respondent Nos. 2 and 3 were put to notice by the

learned Tribunal. The appellant and respondent No. 2 filed the response.

The appellant in his response denied the accident but admitted the

ownership of a Scooter bearing registration No. JK02M/1471. Respondent

No. 2-Insurance Company admitted the insurance of offending vehicle but

denied its liability to indemnify the owner as it was contended that driver

of the offending vehicle was not possessing a valid and effective driving

license to ply the vehicle.

7. On the basis of pleadings of the parties, the learned Tribunal has framed

the following issues:-

(1) Whether an accident occurred on 24.11.2002 at B.C. Road Jammu due to rash and negligent driving of offending scooter No. JK02M/1471 by its driver in which deceased Sita Kumar has died? OPP (2) If issue No. 1 is proved in affirmative whether petitioner is are entitled to the compensation, if so to what amount? OPP (3) Whether driver of offending vehicle at the time of accident was not holding valid and effective driving license? OPR (4) Relief. O.P. Parties.

8. Respondent No. 1 besides examining himself, has also examined two

witnesses, namely, PW Pardeep Kumar and Hem Raj in support of his

claim, whereas respondent No. 2 examined Jagdish Raj (clerk, RTO) and

Mahnga Ram in its support. The appellant also appeared as his own

witness. A perusal of the statements made by PW Pardeep Kumar and PW

Hem Raj reveals that on 24.11.2002 at 06:00 AM, a Scooter bearing

registration No. JK02M/1471, driven by respondent No. 3 in rash and

negligent manner, hit the wife of respondent No. 1, who was crossing the

road at that time, as a result of which, she fell on the road and sustained

head injury. From the statement of these two witnesses, it is established

that the accident took place because of rash and negligent driving by

driver of a Scooter.

9. The learned counsel for the appellant laid much stress upon acquittal of

respondent No. 3 in a criminal trial by the court of learned JMIC, Sub

Judge, Jammu vide judgment dated 07.06.2005. The judgment was passed

before the order was passed by the Tribunal and even the same was not

produced before the Tribunal. Be that as it may, otherwise also, the

acquittal of the driver in an accident would not have any bearing upon the

finding returned by the Tribunal in respect of accident caused by

respondent No. 3. The Hon‟ble Supreme Court in case titled, „ Janabai v.

ICICI Lambord Insurance Co. Ltd., (2022) 10 SCC 512 has held as

under:-

"11.We find that the rule of evidence to prove charges in a criminal trial cannot be used while deciding an application under Section 166 of the Motor Vehicles Act, 1988 which is summary in nature. There is no reason to doubt the veracity of the statement of Appellant 1 who suffered injuries in the accident. The application under the Act has to be decided on the basis of evidence led before it and not on the basis of evidence which should have been or could have been led in a criminal trial. We find that the entire approach of the High Court is clearly not sustainable."

(emphasis added)

10. Further, the Hon‟ble Supreme Court in case titled, „Mangla Ram v.

Oriental Insurance Co. Ltd., (2018) 5 SCC 656 has held as under:-

"27. Another reason which weighed with the High Court to interfere in the first appeal filed by Respondents 2 & 3, was absence of finding by the Tribunal about the factum of negligence of the driver of the subject jeep. Factually, this view is untenable. Our understanding of the analysis done by the Tribunal is to hold that Jeep No. RST 4701 was driven rashly and negligently by Respondent 2 when it collided with the motorcycle of the appellant leading to the accident. This can be discerned from the evidence of witnesses and the contents of the charge-sheet filed by the

police, naming Respondent 2. This Court in a recent decision in Dulcina Fernandes [Dulcina Fernandes v. Joaquim Xavier Cruz, (2013) 10 SCC 646] , noted that the key of negligence on the part of the driver of the offending vehicle as set up by the claimants was required to be decided by the Tribunal on the touchstone of preponderance of probability and certainly not by standard of proof beyond reasonable doubt. Suffice it to observe that the exposition in the judgments already adverted to by us, filing of charge-sheet against Respondent 2 prima facie points towards his complicity in driving the vehicle negligently and rashly. Further, even when the accused were to be acquitted in the criminal case, this Court opined that the same may be of no effect on the assessment of the liability required in respect of motor accident cases by the Tribunal."

(emphasis added)

11. The moot question that arises for consideration of this Court is that

whether the driver possessing LTV license can drive a two-wheeler. In

this context, it is appropriate to take note of the judgment of Hon‟ble

Apex Court in case titled, 'Oriental Insurance Co. Ltd. vs.

Zaharulnisha&Ors.' reported in 2008 AIR (SC) 638. A perusal of the

above judgment reveals that holding a valid and effective driving license

is one of the conditions of the contract rules and driving of a vehicle

without valid driving license is an offence. The Hon‟ble Supreme Court

after taking note of its earlier judgment, in case titled, 'National

Insurance Company Limited vs. Swaran Singh' (2004) 3 SCC 297, has

held as under:-

"18.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."

(emphasis added)

12. Thus, when respondent No. 3 was not possessing a license to drive a two

wheeler but was having a license to drive LTV only, no liability can be

fastened upon the Insurance Company to indemnify the owner. Further

from the record, it is evident that after respondent No. 3 was impleaded as

party in claim petition, due notice was issued to him as is evident from

postal receipt dated 13.12.2007. Otherwise also, the appellant cannot raise

the present plea that no proper notice was issued to the respondent No. 3.

13. In view of this, this Court does not find any illegality in respect of the

liberty granted by the Tribunal to respondent No. 2 to recover the amount

from the owner of the offending vehicle i.e. appellant herein, as such, the

award dated 30.6.2009 passed by the learned tribunal is upheld and the

appeal is dismissed.

(RAJNESH OSWAL) JUDGE

Jammu 03.08.2023 Neha-II Whether the order is speaking: Yes Whether the order is reportable: Yes