M.A.C.M.A. No. 1655 of 2009. Case: Sri Jayaprakash Agarwal, S/o Late Motilal Agarwal, Smt. Vijayalakshmi Agarwal, W/o Jayaprakash Agarwal and Kum Radhika Agarwal D/o Jayaprakash Agarwal Vs Mohd. Kaleemulla, S/o Abdul Hussain and The New Insurance Company Limited. High Court of Andhra Pradesh (India)
| Case Number | M.A.C.M.A. No. 1655 of 2009 |
| Counsel | For Appellant: A.Chaya Devi, Adv. And For Respondents: A. Jayanthi, Adv. |
| Judges | B. Chandra Kumar, J. |
| Issue | Motor Vehicles Act 1939 - Sections 3, 4, 5, 11, 18, 140, 146(1), 149, 149(2) 149(7), 158, 158(6), 160, 161, 165, 168, 174 and 181; Insurance Act, 1938 - Section 4; Motor Vehicles Act, 1988 - Sections 4 and 5; Constitution of India - Article 142; Indian Penal Code - Section 304A; Civil Procedure Code (CPC) - Section 13 |
| Judgement Date | April 30, 2011 |
| Court | High Court of Andhra Pradesh (India) |
Judgment:
B. Chandra Kumar, J., (At Hyderabad)
1. Aggrieved by the award dated 02.02.2007 passed in OP No. 2656 of 2003 on the file of the XXII Additional Chief Judge-cum-before the Motor Accidents Claims Tribunal, City Criminal Court, at Hyderabad, (hereinafter referred to as 'the Tribunal') to the extent of holding that the second Respondent-Insurance Company is entitled to avoid its liability to pay the compensation to the claimants, the claimants have preferred this appeal.
2. The parties hereinafter will be referred to as they are arrayed before the Tribunal for the sake of convenience.
3. The first claimant is the father, second claimant is the mother and the third claimant is the sister of the deceased. Their case is that on 15.08.2003 at about 12.30 hours the deceased Alok Kumar Agarwal was proceeding on his Scooter bearing No. AP 12A 851 from Katedan to his house at Siddiambar Bazar and when he reached Miralam tank road, the offending lorry bearing No. ATT 3035 being driven by its driver-cum-owner Mohd. Kaleemulla came from opposite direction and dashed against the scooter and ran over the deceased. The deceased sustained grievous injuries and succumbed to injuries on the spot. The police, Bahadurpura, registered a case in Crime No. 154 of 2003, under Section 304-A Indian Penal Code. It is also their case that the deceased was aged about 19 years, unmarried and working as a Purchase Manager in Pooja Priya Plasto Pack (P) Limited, Gaganpahad, Rajendranagar and earning Rs. 8500/- per month as on the date of his death. Contending that they have lost their bread winner and love and affection of the deceased for untimely death of the deceased the claimants have filed the claim petition claiming total compensation of Rs. 11,00,000/- against the first Respondent-owner of the vehicle and the second Respondent-the insurance company with which the vehicle was insured contending that both the Respondents are jointly and severally liable to pay the compensation to them.
4. The first Respondent filed a counter and denied the material averments made by the claimants with regard to age, occupation and income of the deceased. It is also denied that he had driven the lorry in a rash and negligent manner and caused the accident. It is his case that he was having valid driving licence on the date of accident issued by the RTA and that the vehicle was insured with the second Respondent-Insurance Company and therefore the insurance company is liable to indemnify him. He has also mentioned that he filed Xerox copy of the driving license along with counter.
5. The second Respondent filed a counter and denied the material averments made by the claimants. In their additional counter the second Respondent has taken a specific plea that the driver of the vehicle was issued a driving license to drive non-transport vehicle valid for the period from 21.06.1992 to 11.02.1993 and whereas the accident occurred on 15.08.2003 and therefore on the date of accident the driver was not having valid driving license and consequently the Insurance Company is not liable to pay compensation to the claimants.
6. On behalf of the claimants, the first claimant was examined as PW.1 and PWs.2 and 3 were examined and Exs.A1 to A8 were marked. On behalf of the Respondents, RWs.1 and 2 were examined and Exs.B1 and B2 were marked.
7. The Tribunal, on appreciation of oral and documentary evidence, particularly the evidence of PW.2, came to the conclusion that the accident occurred due to rash and negligent driving of the driver of the lorry. This issue is not in dispute in this appeal. On issue No. 2, the Tribunal, relying on the judgment of the Apex Court in National Insurance Company Ltd., v. Swaran Singh 2004 ACJ 1, came to the conclusion that though the driver of the lorry was not having valid driving license on the date of accident, but, however, the first Respondent is liable to pay compensation to the claimants and accordingly directed the first Respondent to pay compensation to the claimants. On the quantum of compensation the Tribunal assessed the income of the deceased at Rs. 15,000/- per annum and after deducting 1/3rd towards personal expenses of the deceased, the loss of contribution was estimated at Rs. 10,000/- per annum and on applying the multiplier '16' determined the total compensation at Rs. 1,72,000/-, which includes Rs. 2,000/- towards funeral expenses and Rs. 10,000/- towards loss of estate. As indicated supra, the claimants being aggrieved by the order of the Tribunal exonerating the second Respondent-insurance company preferred this appeal.
8. Smt. A. Chayadevi, learned Counsel for the claimants, submitted that the Tribunal failed to appreciate the evidence on record in proper perspective and erred in holding that the insurance company proved that the insured had violated the terms and conditions of the policy. It is her main submission that the evidence of RWs.1 and 2 reveals that the driving licence can be renewed from any one of the offices of RTA and that originally the driver had obtained licence from RTA Office, Nandhed, Maharashtra and subsequently he got renewed his licence from RTA Office, East Zone, Hyderabad, but, since there are several similar offices in Hyderabad city itself as admitted by RW.2, the evidence of RWs.1 and 2 is not helpful to the insurance company and basing on such evidence it cannot be conclusively held that the driver was not having valid driving licence on the date of accident. It is also her submission that the insurance company had not furnished the copy of application which they filed before the RTA for obtaining Ex.B2 the particulars of the driving licence of one Kaleemulla. Her main submission is that even if it is held that the insured had violated the terms and conditions of the policy by not holding valid driving licence on the date of accident, the deceased being third party the insurance company cannot avoid its liability in respect of third parties. It is also her submission that merely because the driver was not having valid driving license it is not a valid reason to avoid its liability by the insurance company, but the insurance company has to prove that it was the main cause for occurrence of the accident and in this case there is No. such evidence on record. She had relied on the decisions reported in Skandia Insurance Company Ltd v. Kokilaben Chandravadan AIR 1987 SC 1184 (1), New India Assurance Company, Shimla v. Kamla and Ors. AIR 2001 SC 1419 (1), National Insurance Company Ltd v. Swaran Singh 2004 ACJ 1(supra) and Oriental Insurance Company Ltd. v. Paulose 2004 ACJ 457. Her submission is that the decisions of the Apex Court in Swaran Singh's case and Paulose's cases hold the field as on today and even if any other High Court or a Bench of lesser than three judges of the Apex Court had taken a different view, the same is not binding on this Court and this Court is bound to follow the decision of the Apex Court as long as the same is not reviewed by the larger bench of the Apex Court.
9. Per contra, Smt. A. Jayanthi, learned Counsel for the insurance company, submitted that in the case on hand the owner is the driver and in spite of receiving summons he did not appear before the Tribunal or before this Court. It is vehemently argued that it was obligatory on his part to inform the insurance company about the occurrence of the accident and he ought to have furnished all the particulars to the insurance company. Besides not furnishing the particulars to the insurance company, the first Respondent did not appear before the Tribunal. It is her submission that mere taking a plea in the counter that he was holding a valid driving licence is not sufficient and it was obligatory on the part of the first Respondent to establish that he was having valid driving licence on the date of accident. It is her main submission that the Apex Court had considered the violations under Section 149(2)(a)(ii) of the Motor Vehicles Act and categorically held that wherein the insured had entrusted the vehicle to a driver who was not holding valid driving licence on the date of accident the insurance company can avoid its liability and it is a statutory right given to the insurance company to avoid its liability. When the statute itself gives a right to the insurance company to avoid its liability and when it is established that the insured had violated the terms and conditions of the policy the Tribunal cannot direct the insurance company to pay the amount. It is her submission that the decisions relied on by the learned Counsel for the claimants are not applicable to the facts of this case and the latest decisions of this Court and the Apex Court clarify the position that the insurance company is not liable to indemnify the insured when he had violated the terms and conditions of the policy.
10. The point that arises for consideration is whether the insurance company has proved that the insured had violated the terms and conditions of the policy and if so whether it can avoid its statutory liability as per the guidelines of the Apex Court in Swaran Singh's case?
Sections 3, 4 and 5 of the Act are as follows:
3. Necessity for driving licence: (1) No. person shall drive a motor vehicle in any public place unless he holds an effective driving licence issued to him authorizing him to drive the vehicle; and No. person shall so drive a transport vehicle other than (a motor cab or motor cycle) hired for his own use or rented under any scheme made under Sub-section (2) of Section 75 unless his driving licence specifically entitles him so to do.
(2) The conditions subject to which Sub-section (1) shall not apply to a person receiving instructions in driving a motor vehicle shall be such as may be prescribed by the Central Government.
4. Age limit in connection with driving of motor vehicles:
(1) No. person under the age of eighteen years shall drive a motor vehicle in any public place:
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