National Insurance Company Ltd. v. Avnish Kumar & Ors.

1. Whether reporters of local papers may be allowed to see the judgment?

2. To be referred to the Reporter or not?

3. Whether judgment should be reported in Digest? JUDGMENT: REVA KHETRAPAL, J. This appeal is directed against the award dated 08.08.2007 passed by the learned Motor Accident Claims Tribunal whereby and whereunder the appellant Insurance Company has been held liable to 2011:DHC:280 pay compensation to the respondent No.1 in the sum of ` 78,692/along with interest @ 7.5% p.a.

2. Briefly delineated the facts are that the respondent No.1 received injuries in a road accident while travelling as a passenger in TSR bearing No.DL1R-F3281 being driven rashly and negligently and at a high speed by the driver, the respondent No.2 herein. The respondent No.1 filed a claim petition under Section 166 of the Motor Vehicles Act for award of compensation to the tune of ` 2.[5] lacs. During the course of proceedings before the Tribunal, it was established beyond doubt that the vehicle was being driven by the respondent No.2 driver rashly and negligently. It was also established beyond doubt that the respondent No.2 driver was having a driving licence entitling him to drive a motor cycle and LMV(NT) only.

3. The sole contention of the learned counsel for the appellant Insurance Company, Mr.Manoj R.Sinha is that the learned Tribunal erred in fastening the liability of the award amount on the appellant Insurance Company. Mr.Sinha contended that where the driver of the offending vehicle is driving such class of vehicle for which he is not authorised, the insurer is to be completely exonerated of all liability. In the instant case, he contended that the respondent No.2 was driving a TSR-autorickshaw, which was a commercial vehicle, and he had a driving licence for a light motor vehicle only and as such, the appellant Insurance Company was not at all liable to indemnify the insurer.

4. Reliance was placed by the learned counsel for the appellant, in the above context, upon the judgment of the Hon’ble Supreme Court in National Insurance Company Ltd. Vs. Kusum Rai & Ors., 2006 (4) SCC 450. In the said case, the death of a minor girl was caused by a jeep, which was admittedly being used as a taxi and thus as a commercial vehicle. The person who was driving the said vehicle at the time of the accident had a driving licence for driving a light motor vehicle. In such circumstances, the Supreme Court held: “ It has not been disputed before us that the vehicle was being used as a taxi. It was, therefore, a commercial vehicle. The driver of the said vehicle, thus, was required to hold an appropriate licence therefor. Ram Lal who allegedly was driving the said vehicle at the relevant time, as noticed hereinbefore, was holder of a licence to drive a light motor vehicle only. He did not possess any licence to drive a commercial vehicle. Evidently, therefore, there was a breach of condition of the contract of insurance. The appellant, therefore, could raise the said defence. It further held: “This Court in Swaran Singh clearly laid down that the liability of the insurance company vis-a-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-a-vis the driver being not possessed of a valid licence was considered in Swaran Singh stating: (SCC pp.336-37, para 89)

7. In the present case as stated above, there is no manner of doubt that the driving licence of the driver of the offending TSRautorickshaw was valid for driving motorcycle and light motor vehicle (non-transport). R3W[1] Dal Chand, who appeared from the Loni Transport Authority, Government of NCT of Delhi unequivocally stated that the driving licence of Rajiv Kumar, son of Ashok Kumar, PO50 12004251560-Exhibit R3W1/1, was issued by the Loni Transport Authority on 23.01.2004 and was valid till 22.01.2024 for driving motorcycle and light motor vehicle (non-transport). In view of this position, clearly, the respondent No.2 Rajiv Kumar was not authorised to drive a TSR, which is a commercial vehicle and does not fall in the category of light motor vehicle (non-transport). It was possibly for this reason that the respondent No.2 could not control the vehicle and it overturned, causing grievous injuries to the respondent No.1. The respondent No.2, who appeared in the witness box as R1W[1] and his mother Smt.Ram Kali, who appeared in the witness box as R2W[1], made a half hearted attempt to prove that no accident with the respondent No.1 had taken place and were rightly disbelieved by the Tribunal in view of the inconsistent statements made by both the said witnesses.

8. In view of the aforesaid and also keeping in view the law laid down by the Hon’ble Supreme Court in Kusum Rai’s case (supra), I have no hesitation in holding that the Insurance Company must be exonerated from all liability as the driving licence of the offending vehicle was not valid for driving the vehicle which caused the accident. However, in view of the fact that by an earlier order passed by my learned predecessor, 50% of the award amount has been deposited by the Insurance Company, which was directed to be released to the respondent No.1 claimant while the balance 50% of the award amount along with interest thereon is kept in a fixed deposit in the name of the respondent No.1 for a period of three years, the Insurance Company is given the right to recover the amount from the driver and owner of the offending vehicle, the respondent Nos.[2] and 3 herein, in accordance with the judgment of the Supreme Court in Nanjappan’s case ( supra). The appeal stands disposed of in the above terms.

REVA KHETRAPAL (JUDGE) January 18, 2010 aks