Jharkhand High Court

Brajesh Kumar vs Shanti Devi on 5 July, 2021

          IN THE HIGH COURT OF JHARKHAND AT RANCHI
                   [Civil Miscellaneous Appellate Jurisdiction]
                          M.A. No. 133 of 2018
         Brajesh Kumar                                 .... .. ...   Appellant(s)
                                 Versus
         1.Shanti Devi
         2.Minor Jeetendra Mandal
         3.Tribhuwan Mandal
         4.Tusia Devi
         5.M/s Tata AIG General Insurance Company Limited
                                                          .. ... ... Respondent(s)
                          ...........

CORAM :HON'BLE MR. JUSTICE KAILASH PRASAD DEO (Through :-Video Conferencing) .........

      For the Appellant(s)            : Mr. S.K. Verma, Advocate.
      For the Resp. No.5              : Mr. Ashutosh Anand, Advocate
                          ..........
             I.A. No.6693 of 2018.
05 /05.07.2021.

Mr. S. K. Verma, learned counsel for the appellant has submitted that there is delay of 63 days in preferring the instant Misc. Appeal and for condonation of the same, I.A. No.6693 of 2018 has been filed.

Mr. S.K. Verma, learned counsel for the appellant has further submitted that the reasons of delay in preferring the instant Misc. Appeal have been assigned in the aforesaid Interlocutory application.

Mr. Ashutosh Anand, learned counsel for the respondent No.5-M/s Tata AIG General Insurance Company Limited while opposing the same has submitted that aforesaid delay in preferring the instant Misc. Appeal has not been properly explained.

Considering the rival submissions of the parties, the delay of 63 days in preferring the instant Misc. Appeal is hereby condoned.

The aforesaid I.A. stands allowed.

M.A. No. 133 of 2018.

Heard, learned counsel for the parties.

The appellant/owner of the offending vehicle has preferred this Misc. Appeal against the award dated 20.09.2017 passed by learned District Judge-XI-cum- MACT Judge, Dhanbad, in Motor Accident Claim Case No.328 of 2014.

Mr. S.K. Verma, learned counsel for the appellant has further submitted that this case is squarely covered by the judgment of the Apex Court in the case of Nirmala Kothari Vs. United India Insurance Company, reported in 2020

SCC Online 286, at Paras- 12 and 13 as the appellant is the owner and he has seen the licence of the driver, as such, the learned Tribunal has wrongly fastened the liability upon the owner on the ground that there is violation of terms and conditions of the Insurance policy.

Paras 12 & 13 of the judgment of Nirmala Kothari (Supra) may profitably quoted hereunder:-

"12. While hiring a driver the employer is expected to verify if the driver has a driving licence. If the driver produces a licence which on the face of it looks genuine, the employer is not expected to further investigate into the authenticity of the licence unless there is cause to believe otherwise. If the employer finds the driver to be competent to drive the vehicle and has satisfied himself that the driver has a driving licence there would be no breach of Section 149(2)(a)(ii) and the insurance company would be liable under the policy. It would be unreasonable to place such a high onus on the insured to make enquiries with RTOs all over the country to ascertain the veracity of the driving licence. However, if the insurance company is able to prove that the owner/insured was aware or had notice that the licence was fake or invalid and still permitted the person to drive, the insurance company would no longer continue to be liable.

13. On facts, in the instant case, the appellant complainant had employed the driver, Dharmendra Singh as driver after checking his driving licence. The driving licence was purported to have been issued by the licensing authority, Sheikh Sarai, Delhi, however, the same could not be verified as the officer concerned of the licensing authority deposed that the record of the licence was not available with them. It is not the contention of the respondent insurance company that the appellant complainant is guilty of wilful negligence while employing the driver. The driver had been driving competently and there was no reason for the appellant complainant to doubt the veracity of the driver's licence."

Mr. Ashutosh Anand, learned counsel for the respondent No.5-M/s Tata AIG General Insurance Company Limited in support of his submission has also relied upon the judgment passed by the Apex Court in the case of Nirmala Kothari (Supra) at Paras- 12 and 13.

Mr. Ashutosh Anand, learned counsel for the respondent No.5-M/s Tata AIG General Insurance Company Limited in support of his submission has further submitted that in a Larger Bench of the Apex Court in the case of Beli Ram vs. Rajinder Kumar & Another, reported in 2020 SCC Online SC 769, has considered the same Para-20, 21, and 22, which may profitably quoted hereunder:-

"20. The last judgment is of the Himachal Pradesh High Court in National Insurance Co. Ltd. v. Hem Raj [2012 ACJ 1891 (authored by Deepak Gupta, J., as he then was)] This was, once again, a case of an originally valid licence, which had expired, there was no question of a fake licence. It was opined that the conclusions to be drawn from the observations of the judgment in the Swaran Singh(2004) 3 SCC 297) case of this Court, were that the insurance company can defend an action on the ground that the driver was not duly licensed on the date of the accident, i.e., an expired licence having not been renewed within thirty (30) days of the expiry of the licence as provided in Sections 14 & 15 of the MV Act. In this context it was observed that the Swaran Singh(supra) case did not deal with the consequences if the licence is not renewed within the period of

thirty (30) days. If the driving licence is not renewed within thirty (30) days, it was held, the driver neither had an effective driving licence nor can he said to be duly licenced. The conclusion, thus, was that the driver, who permits his licence to expire and does not get it renewed till after the accident, cannot claim that it should be deemed that the licence is renewed retrospectively.

21. The learned Judge debated the question of the consequences of the MV Act being a beneficial piece of legislation. Thus, if two interpretations were possible, it was opined that the one which is in favour of the claimants should be given, but violence should not be done to the clear and plain language of the statute. Thus, while protecting the rights of the claimants by asking the insurance company to deposit the amount, the recovery of the same from the insured would follow as the sympathy can only be for the victim of the accident. The right which has to be protected, is of the victim and not the owner of the vehicle. It was, thus, observed in para 18 as under:

"18. When an employer employees a driver, it is his duty to check that the driver is duly licensed to drive the vehicle. Section- 5 of the Motor Vehicles Act provides that no owner or person incharge of a motor vehicle shall cause or permit any person to drive the vehicle if he does not fulfil the requirements of Sections 3 and 4 of the Motor Vehicles Act. The owner must show that he has verified the licence. He must also take reasonable care to see that his employee gets his licence renewed within time. In my opinion, it is no defence for the owner to plead that he forgot that the driving licence of his employee had to be renewed. A person when he hands his motor vehicle to a driver owes some responsibility to society at large. Lives of innocent people are put to risk in case the vehicle is handed over to a person not duly licensed. Therefore, there must be some evidence to show that the owner had either checked the driving licence or had given instructions to his driver to get his driving licence renewed on expiry thereof. In the present case, no such evidence has been led. In view of the above discussion, I am clearly of the view that there was a breach of the terms of the policy and the Insurance Company could not have been held liable to satisfy the claim."

22. We have reproduced the aforesaid observations as it is our view that it sets forth lucidly the correct legal position and we are in complete agreement with the views taken in all the three judgments of three different High Courts with the culmination being the elucidation of the correct legal principle in the judgment in the Hem Raj (supra) case."

Mr. Ashutosh Anand, learned counsel for the respondent-Insurance Company has thus submitted that the impugned Award does not require any interference by this Court.

Mr. S. K. Verma, learned counsel for the appellant has further submitted that one more indulgence may be granted to the appellant so that he can assist this Court properly.