Telangana High Court

Hdfc Ergo General Insurance ... vs Kalpesh Shah, Hyd 2 Others on 1 November, 2022

Bench: A.Santhosh Reddy

THE HONOURABLE SRI JUSTICE A.SANTHOSH REDDY

                  M.A.C.M.A.No.321 OF 2016
JUDGMENT:

This appeal is directed against the award dated 27.08.2015 in

O.P.No.365 of 2010, on the file of the Motor Accidents Claims

Tribunal-cum-XI Additional District Judge (FTC), at L.B.Nagar,

Ranga Reddy District (for short 'the Tribunal'), wherein the said

claim application filed by the respondent No.1 herein seeking

compensation, was allowed-in-part, awarding compensation of

Rs.1,63,500/- with interest at 9% per annum from the date of

petition.

2. Heard learned counsel for the appellant-insurer and learned

counsel for respondent No.1-claimant. No representation on behalf

of respondent Nos.2 and 3. Perused the record.

3. Respondent No.1 herein filed claim application seeking

compensation of Rs.4 lakhs for the injuries sustained by him in a

motor vehicle accident that occurred on 02.10.2008 at 04:15 p.m.,

on Injapur-Gurramguda road, near Injapur. According to the

claimant, when the claimant along with his friend was traveling on

a motorcycle bearing No.AP 29 BD 614 from Injapur, a santro car

bearing No.AP 10 AN 0069, driven by its driver in a rash and

negligent manner and in high speed came in the opposite direction

and dashed the motorcycle of the deceased, as a result of which, the

claimant sustained grievous injuries and immediately he was

admitted in Kamineni Hospital and was treated as inpatient for

some time. The claimant spent Rs.1 lakh for treatment and

suffered loss of income for some time besides pain and agony on

account of injuries. Police, Vanasthalipuram registered a case in

Cr.No.588 of 2008 against the driver of the santro car for the

offences under Sections 304-A and 337 IPC. It is further pleaded

that the deceased, aged 38 years, was hale and healthy at the time

of accident. He used to do business in automobile spare parts and

earn Rs.10,000/- per month.

4. Respondent No.2-driver and respondent No.3-owner of the

santro car remained ex parte before the Tribunal. The appellant-

insurer filed counter opposing the claim and denying its liability to

pay the compensation.

5. On a consideration of the evidence available on record, the

Tribunal held that the accident occurred due to the rash and

negligent driving of the santro car by its driver. The Tribunal

further held that the claimants was entitled for a total compensation

of Rs.1,63,500/-. Accordingly, an award was passed for the said

amount with interest 9% per annum from the date of petition till

realization. Aggrieved by the said award of compensation, the

appellant-insurer filed the present appeal.

6. Learned counsel for the appellant-insurer would contend that

the Tribunal erred in fixing the liability only against the insurer and

failed to see that the driver of the crime vehicle was not possessing

any licence at the time of accident. Learned counsel further

submits that there is no liability on the insurer and liberty may be

given to the insurer to recover the compensation amount from the

owner, as there was breach of terms and conditions of policy, as the

owner had permitted the driver who did not possess driving licence

to drive the vehicle at the time of accident. Learned counsel relied

on the decision of the Hon'ble Apex Court in SARDARI &

OTHERS v. SUSHIL KUMAR & OTHERS1.

7. Per contra, learned counsel for respondent Nos.1 to 3

contends that there is no error apparent on the face of the award

and the Tribunal had awarded such compensation only after

considering the oral and documentary evidence available in right

perspective.

8. The finding of the Tribunal that the accident occurred due

to the rash and negligent driving of the santro car by its driver

is not seriously disputed by the insurer. It is also not in dispute

that the deceased was aged 38 years at the time of accident.

While computing the compensation, the Tribunal had awarded

Rs.50,000/- towards pain and agony as he suffered two fractures to

his right leg, Rs.73,345/- towards treatment between 02.10.2008

and 07.10.2008 at Kamineni Hospital and Rs.20,000/- towards

transportation and attendant expenses and Rs.20,000/- towards

disability. Thus, in all, the Tribunal had awarded a total

compensation of Rs.1,63,345/- (Rs.50,000/- + Rs.73,345/- +

2008 ACJ 1307

Rs.20,000/- + Rs.20,000/-). Learned counsel for the appellant-

insurer had also not disputed about the award of such

compensation.

9. The question that arises for determination in the present

appeal is - whether the driver of the santro car was possessing any

driving licence to drive the vehicle and whether the owner of the

santro car is liable to pay compensation absolving the liability of

insurer?

10. The appellant-insurer examined the Senior Manager of their

company as R.W.1 before the Tribunal. In his evidence, he

deposed that the driver of the car i.e., R.W.3 was not holding a

driving licence and in the charge sheet, the police concerned

mentioned about violation of provisions of Section 181 of the

Motor Vehicles Act, besides the IPC offences. R.W.1 further

deposed that the owner of the vehicle is under obligation to furnish

all the documents pertaining to the vehicle involved in the accident

and notice was also issued to the owner of the car R.W.2 to furnish

the vehicle record and the driving licence of the driver and in spite

of the same, they failed to furnish any particulars.

11. R.W.2 in his evidence stated that he is the owner of the

santro car which was involved in the accident on 02.10.2008.

He further stated that R.W.3 was his friend and he was possessing

a valid driving licence to drive four wheeler. He also admitted that

he received a notice from the counsel of R.W.1 wherein he was

asked to produce the driving licence of the driver of the car. R.W.2

stated that he ascertained the same from the driver i.e., R.W.3, who

informed him that he lost the driving licence in the accident.

12. The driver of the car was examined as P.W.3. He admitted

that he was driving the crime vehicle at the time of accident. He

stated that he sustained head injury in the accident and he lost the

driving licence in the accident and he neither could trace the same

nor secure its copy.

13. From the evidence of R.Ws.1 to 3, the appellant-insurer had

rightly proved before the Tribunal that the driver (respondent No.2

herein) of the crime vehicle i.e., santro car was not at all possessing

driving licence. Since the insurer had proved with the oral

evidence of R.W.1 that the driver of the crime vehicle was not

possessing driving licence at the relevant point of time, R.Ws.2 and

3 in their evidence cleverly stated that R.W.3 was possessing

driving licence, but the same was lost in the accident. As the

insurer had issued a notice, it is the bounden duty of the owner

of the car to produce all the relevant record and the burden of

proof shifts on him when he consciously allowed R.W.3 to drive

the vehicle who did not possess driving licence. In the said

circumstances, the insurer succeeded in its defence that the driver

of the car R.W.3 who was allegedly driving the same, at the

relevant point of time, did not possess any driving licence and

therefore, it is clear breach of conditions of contract of insurance

and also violation of the terms of policy.

14. In SARDARI's case (supra) relied on by learned counsel for

the appellant-insurer, the Hon'ble Apex Court held as under:

"This Court in Swaran Singh clearly laid down that the liability of the Insurance Company vis-à-vis the owner would depend upon several factors. The owner would be liable for payment of compensation in a case where the driver was not having a licence at all. It was the obligation on the part of the owner to take adequate care to see that the driver had an appropriate licence to drive the vehicle.

The question as regards the liability of the owner vis-à- vis the driver being not in possession of valid license has also been considered in para 89 in Swaran Singh (supra).

8. Yet again in New India Assurance Co. Ltd. Vs. Prabhu Lal [JT 2007 (13) SC 246], the Court stated the law in the following terms:- "33. In the present case, all the facts were before the District Forum. It considered the assertion of the complainant and defence of the Insurance Company in the light of the relevant documentary evidence and held that it was established that the vehicle which met with an accident was a 'transport vehicle'. Ram Narain was having a licence to drive Light Motor Vehicle only and there was no endorsement as required by Section 3 of the Act read with Rule 16 of the Rules and Form No. 6. In view of necessary documents on record, the Insurance Company was right in submitting that Ashok Gangadhar does not apply to the case on hand and the Insurance Company was not liable."

However, Swaran Singh (supra) has been distinguished by this Court in some cases holding that where the owner of the vehicle himself is involved, insurance company will not be liable.

In Premkumari & Ors. Vs. Prahlad Dev & Ors.

[(2008) 1 SCALE 531], a Bench of this Court following Kusum Rai (supra), opined; "10. In the case of National Insurance Co. Ltd. v. Kusum Rai and Ors., (2006) 4 SCC 250, the vehicle was being used as a taxi. It was, therefore, a commercial vehicle. The driver of the said vehicle was required to hold an appropriate licence

therefor. Ram Lal, who allegedly was driving the said vehicle at the relevant time, was holder of a licence to drive light motor vehicle only. He did not possess any licence to drive a commercial vehicle. Therefore, there was a breach of condition of the contract of insurance. In such circumstances, the Court observed that the appellant-National Insurance Co. Ltd., therefore, could raise the said defence while considering the stand of the Insurance Company. This Court, pointing out the law laid down in Swaran Singh (supra) concluded that the owner of the vehicle cannot contend that he has no liability to verify the fact as to whether the driver of the vehicle possessed a valid licence or not. However, taking note of the fact that the owner has not appeared, the victim was aged only 12 years, the claimants are from a poor background and to avoid another round of litigation applying the decision in Oriental Insurance Co. Ltd. v. Nanjappan (2004) 13 SCC 224 and finding that though the appellant-Insurance Company was not liable to pay the claimed amount as the driver was not possessing a valid licence and the High Court committed an error in holding otherwise, in the peculiar facts and circumstances of the case and in exercise of jurisdiction under Article 136 of the Constitution declined to interfere with the impugned judgment therein and permitted the appellant- Insurance Company to recover the amount from the owner of the vehicle."

In Oriental Insurance Co. Limited Vs. Prithvi Raj [2008 (1) SCALE 727], however, noticing Swaran Singh (supra), it was opined; "10. In the instant case, the State Commission has categorically found that the evidence on record clearly established that the

licensing authority had not issued any license, as was claimed by the Driver and the respondent. The evidence of Shri A.V.V. Rajan, Junior Assistant of the Office of the Jt. Commissioner & Secretary, RTA, Hyderabad who produced the official records clearly established that no driving license was issued to Shri Ravinder Kumar or Ravinder Singh in order to enable and legally permit him to drive a motor vehicle. There was no cross examination of the said witness. The National Commission also found that there was no defect in the finding recorded by the State Commission in this regard."

In Ishwar Chandra & Ors. Vs. The Oriental Insurance Co. Ltd. & Ors. [2007 (4) SCALE 292], this Court held;

"9. From a bare perusal of the said provision, it would appear that the licence is renewed in terms of the said Act and the rules framed thereunder. The proviso appended to Section 15(1) of the Act in no uncertain terms states that whereas the original licence granted despite expiry remains valid for a period of 30 days from the date of expiry, if any application for renewal thereof is filed thereafter, the same would be renewed from the date of its renewal. The accident took place 28.04.1995. As on the said date, the renewal application had not been filed, the driver, did not have a valid licence on the date when the vehicle met with the accident."

15. For the foregoing reasons, I am of the view that the

appellant-insurance company has proved with the oral evidence

placed before the Tribunal that since the owner of the car handed

over the car for being driven by an unlicenced driver, the insurer

would rightly get exonerated from its liability to meet the claims of

third party who have suffered on account of the accident caused by

such unlicenced driver i.e., R.W.3. However, in the facts and

circumstances of the present case, I find that though the appellant

insurance company was not liable to pay the claim amount, as the

driver was not possessing a driving licence, in the interest of

justice, the appellant-insurer has to pay the compensation amount

determined by the Tribunal and confirmed by this court, to