IFFCO Tokio General Insurance Company Limited v. Shankar G. Rane & Ors.

1. This is an Appeal preferred by Iffco Tokio General Insurance Company Limited against the judgment and award dated 10th May 2011 passed by the Motor Accident Claims Tribunal, Thane (M.A.C.T.) in Motor Accident Claim Petition No.651 of 2009 filed by the claimants, who are the parents and legal heirs of one Sachin Shankar Rane, who died on 5th April 2008 in a motor accident.

2. The brief facts are that, on 5th April 2008, at about 21.45 hours, Sachin Rane was travelling by a Pulsar motorcycle bearing no.MH-04/DM-1494 owned by his friend Milind Kale, as a pillion rider. That, they were proceeding from Manpada to Thane by Ghodbunder Road and while they were near Tatwadyan Vidhyapith, one unknown Maruti car coming from Tulsidham Road dashed into the said motorcycle at the crossing of Ghodbunder Road, resulting in grievous injuries to Sachin, who succumbed to his injuries at Civil Hospital, Thane. At the time of the accident, Sachin was 19 years old and he was serving with Graphic Charms Printers at Khopat, Thane as a Technician and was earning Rs.3,300/- per month. The motorcycle was owned by his friend, who was arraigned as Opponent No.1, (Respondent No.3 avk 2/12 herein) in the Claim Petition, and insured by Opponent No.2, the Appellant herein. The Claim Petition was filed against both the opponents for compensation of Rs.4,26,900/-. Since the owner of the motorcycle did not appear in the Claim Petition, the Petition proceeded exparte against the owner. There is no dispute that the motorcycle was validly insured by the Appellant-Insurance Company. There is also no dispute that the accident took place on the date and time mentioned by the claimants. However, the issue that has been raised by the Insurance Company is that, the driving licence filed by the Applicants in the name of one Milind Sukhdev Kale, who was driving the motorcycle, has been found to be in the name of one Gafar Abdul Hasan Saiyyed, and that, at the time of the accident, the driver was not holding a valid driving licence and therefore there was breach of the terms and conditions of the insurance policy, and therefore, according to the Appellant- Insurance Company, the claim should have been rejected.

3. With respect to the issue regarding driving licence, the Tribunal has observed that although the numbers of the driving licences in the name of Milind Sukhdev Kale and Gafar Abdul Hasan Saiyyed bear the same number, but the date of issuing both these driving licences are different and their validity periods are also different. The Tribunal has avk 3/12 observed that, no doubt, by way of putting on record the driving licence in the name of Gafar Abdul Hasan Saiyyed, the Insurance Company has created some suspicion but the Insurance Company could not clarify the ambiguity by confronting the copy of driving licence of Milind Sukhdev Kale to the employee of the Regional Transport Office (R.T.O.) who was a witness examined in the matter. The Tribunal has held that, in this backdrop, it could not be said that the insurer had discharged their burden and succeeded to prove that the driving licence issued in the name of Milind Sukhdev Kale was bogus. The Tribunal, in my view, therefore, rightly observed that, with respect to the objection taken by the insurer-Appellant to the driving licence of Milind Sukhdev Kale, that the burden heavily lied on the insurer to prove that Milind Sukhdev Kale was not holding the driving licence at the time of the accident and the owner of the vehicle viz., the Opponent No.1, (Respondent no.3 herein) has committed breach of the terms and conditions of the policy. The Tribunal has rightly relied upon the decision of the Hon'ble Supreme Court in the case of National Insurance Company Ltd. vs. Swaran Singh and Others[1]. In paragraph 15, the Tribunal has categorically held that the Applicants had proved that the accident did take place when the deceased Sachin Rane was avk 4/12 riding the motorcycle as a pillion rider and due to the dash of a Maruti car, he died. The Tribunal has also held that the insurer did not lead any evidence in order to prove that the driver of the motorcycle was at fault or that he contributed to the cause of the accident. Therefore, there is also no issue regarding contributory negligence in this matter nor is it being agitated on behalf of the Appellants herein. The Tribunal has gone ahead and held that in view of the law laid down by the Hon'ble Supreme Court, the insurer cannot avoid its liability to pay reasonable compensation to the claimants.

4. With respect to the quantum of the compensation, the Tribunal has, on the basis of evidence, held that, at the time of the accident, the age of the deceased was 19 years and was earning Rs.3,300/- and has calculated the yearly dependency to Rs.39,600/- and after deducting 1/3rd of expenses towards maintaining himself, had he been alive, the dependency for the Respondents-claimants has been worked out to Rs.26,400/-. Considering the age group of the deceased as 19, the multiplier of 16 has been applied, and accordingly, the total amount of future dependency has been worked out to Rs.4,22,400/-. In addition, an amount of Rs.5,000/- has been awarded towards funeral expenses and the total claim that has been awarded is Rs.4,27,400/-. However, avk 5/12 the Tribunal has gone ahead and held both, the owner of the motorcycle as well as the Insurance Company, jointly and severally liable to pay compensation to the claimants. Both Mr. Mehta for the Appellant and Ms.Kundu for the Respondents-claimants, submit that in view of the decision of the Hon'ble Apex Court, starting from National Insurance Company Ltd. vs. Swaran Singh and Others (supra) followed by Shamanna and Another vs. The Divisional Manager, The Oriental Insurance Company Ltd. and Others[2] relied upon by this Court in several cases including the case of the Appellant in Iffco Tokio General Insurance Company vs. Smt.Namrata Namdeo Vishe & Others[3], where following the above two Apex Court decisions, this Court has held that in case of third party risks, the insurer has to indemnify the compensation amount to the third party and after paying the third party, the Insurance Company may recover the same from the insurer.

5. I have considered the above judgments referred to by the learned Counsel in the light of the facts of this case. It is not in dispute that Sachin Rane died in the said accident and that his parents are entitled to the amount of compensation as awarded by the Tribunal. The only

3 First Appeal No.50 of 2019 decided on 22nd December 2022 avk 6/12 question is whether the order of joint and several liability passed by the Tribunal can be sustained. In the light of the Hon'ble Supreme Court decisions in such matters where the Hon'ble Supreme Court has categorically directed that pay and recover is the way forward, I am inclined to respectfully follow the same course of action. The deceased was a pillion rider, as in the case cited by the learned Counsel, viz., Iffco Tokio General Insurance Company vs. Smt.Namrata Namdeo Vishe & Others (supra). In that case also, this Court, after considering in detail the decisions of the Hon'ble Supreme Court in National Insurance Company Ltd. vs. Swaran Singh and Others (supra) and Shamanna and Another vs. The Divisional Manager, The Oriental Insurance Company Ltd. and Others (supra), dismissed the Appeal and granted liberty to the Insurance Company to recover the amount from the insurer, if so advised.

6. A perusal of the above mentioned decisions would make it clear that the insurer is entitled to raise a defence in a claim Petition filed under Section 163-A or Section 166 of the Motor Vehicles Act, 1988 (the ‘said Act’) as in this case inter alia in terms of Section 149(2)(a)(ii) of the said Act. Section 149(2)(a)(ii) refers to the disqualification of the driver on account of invalid driving licence being a breach of the avk 7/12 insurance policy conditions. It is clear from paragraphs 110(iii), (iv), (vi), (vii) and (viii) of the decision in the case of National Insurance Company Ltd. vs. Swaran Singh and Others (supra) that, in the event, the insurer is desirous of raising the defence of invalid driving licence to avoid the liability, the onus is always upon the Insurance company to prove the same that there was a breach of the Insurance policy conditions. It is gathered from this decision that there is a very heavy burden on the Insurance Company to prove the breach of policy on the ground of invalidity of driving licence. Paragraph 110 of the said decision is usefully quoted as under: