Jharkhand High Court
Kokali Mandal @ Kokil Mandal vs Kalawati Devi on 8 August, 2022
IN THE HIGH COURT OF JHARKHAND AT RANCHI
M. A. No. 294 of 2013
Kokali Mandal @ Kokil Mandal .... .... Appellant
Versus
1. Kalawati Devi
2. Jitendra Rai
3. The New India Assurance Company Ltd., Jamshedpur
4. Bada Majhi
.... .... Respondents
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CORAM: HON'BLE MR. JUSTICE GAUTAM KUMAR CHOUDHARY
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For the Appellant : Ms. Amrita Sinha, Advocate
For the Respondents : M/s RCP Sah & Sunita Ojha, Advocates
C.A.V. ON 25.04.2022 PRONOUNCED ON 08 /08/2022
1. The appellant is the owner of the vehicle and the instant appeal
has been preferred against the judgment and award of compensation in
Compensation Case No. 06 of 2006 whereby and whereunder, the owner
has been directed to pay compensation amount.
2. The order of the learned court below has been assailed mainly
on the ground that at the relevant time of accident the vehicle was under
insurance cover of O.P. No. 3 - The New India Assurance Company Ltd.
and the driver of the offending vehicle had also been impleaded in the
compensation case as O.P. No. 2 against whom charge sheet was
submitted.
3. It is further submitted that the driver was engaged after seeing
his license by the owner but the learned Tribunal in its finding under Issue
No. V has held that the driver was not having any valid and effective
driving license and saddled the owner of the vehicle to pay the
compensation amount. This finding has been recorded on the basis of the
report of the D.T.O., Chaibasa who has not been adduced into evidence.
It is submitted that the owner can be held liable only where he has acted in
a negligent manner while engaging the driver. There is nothing on record
to establish that the owner had acted negligently while engaging the
driver.
4. Hon'ble Apex Court has reiterated the law in Rishi Pal Singh
Vs New India Assuracne Company Limited Civil Appeal No.4919 of
2022 that the owner of the vehicle is expected to verify the driving skills
and not to run to the licensing authority to verify the genuineness of the
driving licence before appointing a driver. Therefore once the owner is
satisfied that the driver is competent to drive the vehicle it is not expected
of the oner thereafter to verify the genuineness of driving licence issued to
the driver.
The law is settled that the owner can be held liable only if it can be
established in any manner that he was negligent in engaging the driver. It
has been held in (Swaran Singh case {National Insurance Co.
Ltd. v. Swaran Singh, (2004) 3 SCC 297}
"110. (iii) The breach of policy condition e.g. disqualification of the
driver or invalid driving licence of the driver, as contained in sub-section
(2)(a)(ii) of Section 149, has to be proved to have been committed by the
insured for avoiding liability by the insurer. Mere absence, fake or
invalid driving licence or disqualification of the driver for driving at the
relevant time, are not in themselves defences available to the insurer
against either the insured or the third parties. To avoid its liability
towards the insured, the insurer has to prove that the insured was guilty
of negligence and failed to exercise reasonable care in the matter of
fulfilling the condition of the policy regarding use of vehicles by a duly
licensed driver or one who was not disqualified to drive at the relevant
time."
5. In the present case the liability of paying the compensation has
been fixed on the owner of the vehicle as the driver of the vehicle was not
having a valid licence at the time of the accident. There is nothing on
record to remotely suggest that the owner was in any way negligent while
engaging the driver. Learned Tribunal has recorded finding under issue
no. 5 that on verification by investigating officer of the Insurance
Company it was found that driving licence was valid upto 6.11.2003 and
the occurrence took place on 30.04.05. From this it is apparent that the
driver had the driving licence, but it was not renewed when the accident
took place for which the owner of the vehicle cannot be faulted.
6. From the award of compensation it is evident that no
compensation has been awarded under the head of future prospect and
compensation under the head of funeral expenses, loss of consortium and
loss of estate is Rs.2000/-, Rs.5000 and Rs.2500. In view of the ratio
decided in National Insurance Company Limited VS Pranay Sethi,
2017 16 SCC 680, the deceased shall also be entitled to compensation
under the head of future prospect at the rate of 10% and Rs.77000/- under
conventional head.
The final compensation therefore shall work out as under :
Loss of dependency- Rs.2,88,000/-
Future prospect - Rs.28,800/-
Conventional head-Rs.77000/-
Total- Rs.3,93,800/-
The claimant shall therefore be entitled to compensation of
Rs.3,93,800/- with interest at the rate of 7.5% per annum on the
compensation amount from the date of filing of claim application from the
appellant Insurance Company. The Insurance Company is accordingly
directed to make payment of the compensation amount to the Tribunal
within a month of this order. The Tribunal shall pay the compensation
amount to the claimant after due verification.
The appeal is allowed as at above.
(Gautam Kumar Choudhary, J.)
Jharkhand High Court, Ranchi
Dated the 8th August, 2022
AFR / AKT
