(1) [CASE NUMBER] [ENTITY] vs. The [ENTITY] and ors. (2) S.B.Civil Cross Objection No. 97 of 2003 In [CASE NUMBER] [ENTITY] vs. The [ENTITY] and ors. (3) [PRECEDENT] [ENTITY] vs. The [ENTITY] and ors. (4) S.B.Civil Cross Objection No. 99 of 2003) In [PRECEDENT] [ENTITY] vs. The [ENTITY] and ors.(5) [CASE NUMBER] [ENTITY] vs. The [ENTITY] and ors. (6) S.B.Civil Cross Objection No. 98 of 2003 In [CASE NUMBER] [ENTITY] vs. The [ENTITY] and ors.(7) [CASE NUMBER] [ENTITY] vs. The [ENTITY] and ors. (8) S.B.Civil Cross Objection No. 102 of 2003 In [CASE NUMBER] [ENTITY] vs. The [ENTITY] and ors.(9) [CASE NUMBER] [ENTITY] vs. The [ENTITY] and ors. (10) S.B.Civil Cross Objection No. 103 of 2003 In [CASE NUMBER] [ENTITY] vs. The [ENTITY] and ors.(11) [CASE NUMBER] [ENTITY] vs. The [ENTITY] and ors. (12) S.B.Civil Cross Objection No. 104 of 2003 In [CASE NUMBER] [ENTITY] vs. The [ENTITY] and ors.(13) [CASE NUMBER] [ENTITY] vs. The [ENTITY] and ors. (14) S.B.Civil Cross Objection No. 100 of 2003 In [CASE NUMBER] [ENTITY] vs. The [ENTITY] and ors.(15) [PRECEDENT] [ENTITY] vs. The [ENTITY] and ors. (16) [CASE NUMBER] In [PRECEDENT] [ENTITY] vs. The [ENTITY] and ors.
3.8.2012 HONBLE MR. JUSTICE [ENTITY] REPORTABLE Mr. [ENTITY] and Mr. [ENTITY] for the appellant [ENTITY], owner of the truck in all the eight misc. appeals and cross objections.
Mr. [ENTITY] for the New India Assurance Company for the respondent No.1 in all the eight appeals and for the cross objectors in all the eight cross objections filed in the appeals.
Eight misc. appeals mentioned above have been filed by the non-claimant- appellant [ENTITY], who is truck owner in the common award dated 4.12.2002 of the Judge, MACT, Bharatpur in [CASE NUMBER], whereby the MACT awarded compensation to the claimants mentioned in the award. The above mentioned eight cross objections have been filed by the non-claimant insurance company in the eight appeals filed by the owner of the truck. The appellant truck owner filed the appeals for directing the insurance company to pay the compensation amount to the claimants and thereafter recover the same from the truck owner. In the cross objections filed by the insurance company, the insurance company claimed that when it is held by the MACT that breach of policy has been established and the driver of the truck was not having valid licence and hence the insurance company may be absolved of its liability to pay the compensation to the claimants and thereafter recover the same from the truck owner.
2. Brief facts of the case are that on 9.12.1995 about 1.00 p.lm. Smt. [ENTITY], [ENTITY], [ENTITY], Smt. [ENTITY], Smt. [ENTITY], Smt. [ENTITY], Smt. [ENTITY], [ENTITY] and other persons were going by Tempo No. RJ 05 P 0308. When this tempo reached on Naitonal High Way No.1 near village Bahnera and Bartai, it collided with a tuck No. RRD 4281 resulting in death of [ENTITY] and injuries to other persons. The truck owner filed its reply along with the driver of the truck. In reply it was pleaded by the truck owner that the driver on his truck was [ENTITY] and at the time of accident [ENTITY] gave it to respondent No.2 who was driving the truck at the time of the accident. It was also pleaded that the accident had occurred because of rash and negligent driving by the Tempo Driver and the truck driver was not at fault in this accident. All the claim petitions were consolidated and have been decided by same award. On the basis of the pleadings of both the sides, relevant issues were framed by the MACT. Eight witnesses were examined on behalf of the claimants. The claimants also submitted relevant documents. The appellant i.e. truck driver appeared himself as NAW 3 and two more witnesses NAW 4 and NAW5 were produced by him. The insurance company produced two witnesses. The MACT after hearing arguments decided the issue No.1 in the manner that the accident had occurred because of rash and negligent driving by respondent No.2 and tempo driver was not negligent. While deciding issue No.3 it has been held that the driver who was driving the truck i.e. respondent No.2 was not having a valid driving licence, hence there is a breach of policy condition on the part of the appellant. Issue No.4 has been decided against the insurance company but while deciding issues 2 and 5 the claimants were awarded compensation and it has been held that the insurance company would pay this amount to the claimants and will be at liberty to recover the same from the appellant truck owner. The appellant filed the above eight appeals challenging the findings on issues 1,2, 3 and 5.
3. Mr. [ENTITY], learned counsel appearing for the appellant has argued that the MACT has manifestly erred in deciding issue No.1. The appellant has specifically pleaded in its reply that the accident had occurred because of rash and negligent driving by the tempo driver. In support of his plea the appellant produced two witnesses NAW-4 and NAW-5. Whereas the tempo driver and owner of the tempo did not appear as witness before the MACT. It was argued that in these circumstances an adverse inference should have been drawn holding the tempo driver solely negligent in causing the accident. The issue No.3 was related to driving licence of respondent No.2, which was not valid. The evidence in this regard of the insurance company is not satisfactory which can suggest that the driver of the truck i.e. the respondent No.2 was not having a valid driving licence. The witness NAW 1 who is said to have come from the office of the RTO Agra, had not even brought the relevant record from that office. He even did not bring the record from which the certificate with regard to licence of respondent No.2 was issued by declaring the same to be a forged one. The learned counsel has argued that when the insurance company has totally failed to establish the fact that driving licence of respondent No.2 was valid or forged, this issue should have been decided against the insurance company and in favour of the appellant. Even in the cross examination of the appellant as well as that of NAW 4 and NAW 5 nobody had asked about the validity of the driving licnece. Even no notice was ever given by the insurance company to the appellant in this regard. The learned counsel has further argued that the insurance company has totally failed to discharge its burden which can entitle the insurance company to avoid the liability. The learned counsel has further argued that the insurance company is duty bound to establish the fact that the driver of the vehicle was not duly licenced or has been disqualified for holding or obtaining the licence. The finding of the MACT with regard to disqualification from holding and obtaining the driving licnece was deleted from the insurance policy is totally agaisnt the provisions of [ACT]. The insurance company cannot itself delete such condition which has been provided in the Act itself. In these circumstances the learned counsel has argued that it was not a case of breach of policy condition on the part of the appellant and hence the insurance company is not at all entitled to recover the amount paid to the claimants from the appellant. The learned counsel for the appellant has further argued without admitting that the driving licence of respondent No.2 was not a valid licence even then it was not a willful breach of policy condition on the part of the appellant. The appellant had employed and authorised [ENTITY] to drive his truck and it is undisputed fact that [ENTITY] was having a valid driving licence. At the time of the accident [ENTITY] gave the truck to respondent No.2 which was not within the knowledge of the appellant. The learned counsel has argued that in these circumstance it cannot be said to be a willful breach of policy condition. The MACT has also erred in holding that the appellant did not plead the fact that [ENTITY], the driver of the truck and respondent No.2 was not authorised by him. The MACT has totally ignored the pleadings of the appellant as well as the order dated 5.2.2002 passed by it during the proceedings of the claim petition and has held that this argument of the appellant is after thought. Lastly the learned counsel for the appellant has argued that the insurance company is not entitled to recover the amount paid to the claimants from the appellant. The learned counsel for the appellant in support of his arguments placed reliance on [ENTITY] and others vs. [ENTITY] and others (1999 ACJ 171 and [ENTITY] s. P. Sesh Reddy (1996 TAC 733).
4. The insurance company in [CASE NUMBER] in [CASE NUMBER] filed application under [SECTION] of [ACT] whereby the MACT awarded an amount of Rs. 6,000/-. The appellant is the owner of offending vehicle and he has been held liable to make the payment of compensation jointly and severely by the MACT under the impugned award and till date he has not paid a single penny in pursuance to the award dated 4.12.2002. First proviso to [SECTION] provides that no appeal by the person who is required to pay any amount in terms of such award shall be entertained by the High Court unelss he has deposited Rs. 25,000/- or 50% of the amount so awarded. The provisions contained in [SECTION] are mandatory in nature and in absence of making compliance of statutory provisions, the appeal deserves to be dismissed in limine. [SECTION] further provides that no appeal shall lie against any award of a claims trribunal if the amount in dispute in the appeal is less than Rs. 10,000/-. Hence on this count the appeal deserves to be dismissed. In support of his argument the learned counsel for the insurance company has placed reliance on [ENTITY] and other vs. Kamaljit Kaur and other (2005 (1) TAC 50).
5. It may be submitted that after service of notice of the appeal, the insurance company filed cross objections in the appeal filed by the appellant, truck owner. The insurance company in the cross objections averred that the MACT while deciding issue No.3 has categorically held that the breach of the policy has been established by the insurer and it has been proved that the vehicle was being driven by unlicensed person. Thus there was no reason to impose the liability upon the insurance company and as such the impugned award deserves to be quashed against the cross objector insurance company.
6. I have heard the learned counsel for the appellant and the counsel for the insurance company. I have also gone through the common award dated 4.12.2002 passed by [CASE NUMBER]. The MACT in the common award dated 4.12.2002 dealt with in detail findings on all the issues on the basis of the material and the evidence of both the parties. I am in agreement with the findings recorded by the MACT in the common award dated 4.12.2002.
7. The Apex Court in [ENTITY] v. P. Sesh Reddy, (1996) 5 SCC 21, held as under :
We are in respectful agreement with the view expressed in the case of [PRECEDENT].
14. As in the facts of the present case, the appellant shall be deemed to be liable to pay compensation applying the principle of vicarious liability because the accident took place when the act authorised was being performed in a mode which may not be proper but was directly connected with in the course of employment, [SECTION] of the Act shall come into play and the insurance company shall be deemed to be the judgment-debtor, so far the claim made by the heirs and legal representatives of the deceased is concerned.
15. Accordingly, the appeals are allowed and the orders of the Claims Tribunal and the High Court are modified where only the appellant has been held to be liable to pay the compensation and the respondent-insurance company has been absolved of the liability. The respondent-insurance company shall be jointly and severally liable to pay the compensation to the claimants. There shall be no order as to costs.
In the above case of [ENTITY] (supra)the orders of the Claims Tribunal and the High Court were modified where only the appellant has been held to be liable to pay the compensation and the respondent-insurance company has been absolved of the liability. The respondent-insurance company shall be jointly and severally liable to pay the compensation to the claimant. This is exactly done by the MACT in the instant matter in the common award dated 4.12.2002.
8. The Hon'ble Apex Court in [ENTITY] v. New India Assurance Co., (1998) 9 SCC 160 held as under :
1. Leave granted.
2. The Insurance Company has been absolved from liability in respect of the claim for compensation by the High Court on the ground that the driver had no valid licence. The High Court has noted that under [SECTION] of the [ACT], if the Insurance Company contends that the driver of the vehicle had no valid driving licence, the burden is on the Insurance Company to establish it. The High Court, however, came to the conclusion that this burden had been discharged by the Insurance Company.
3. We have seen the only evidence which the Insurance Company produced in support of the plea. This is the evidence of Inspector of Police who investigated the accident. In his evidence, PW 1 who was the Inspector of Police, stated in his examination-in-chief, My enquiry revealed that the 1st respondent did not produce the licence to drive the abovesaid scooter. The 1st respondent even after my demand did not submit the licence since he was not having it. In his cross-examination he has said that it is the Inspector of Motor Vehicles who is required to check whether the licence is there but he had not informed the Inspector of Motor Vehicles that the 1st respondent was not having a licence since he thought it was not necessary. In our view, this evidence is not sufficient to discharge the burden which was cast on the Insurance Company. It did not summon the driver of the vehicle. No record from the Road Transport Authority has also been produced. In these circumstances, the Insurance Company has not discharged the burden cast upon it under [SECTION] of the [ACT]. The impugned order of the High Court is, therefore, set aside and the order of the Tribunal is restored. The appeal is allowed accordingly. No order as to costs.
9. In the case of [ENTITY] (supra) the High Court set aside the order of the MACT and the order of the MACT was restored. In the instant matter the Tribunal by a detailed order fixed the liability of the truck owner and the insurance company to pay the compensation and simultaneously the insurance company was directed to recover the amount from the truck owner. The MACT decided the matter on the basis of the material available on record and hence the order of the MACT cannot be set aside when the appeals filed by the truck owner are found to be not maintainable.
10. In the case of [ENTITY] and another (supra), the Punjab and Haryana High Court on the basis of proviso to [SECTION] of the [ACT] held that any person who is required to pay any amount under an award passed by the MACT prefers an appeal, his appeal can be entertained by the High Court only if he makes deposit of a specific amount as required by the said proviso and he cannot claim exemption from making the deposit on the ground that a co-respondent before the Tribunal has filed an appeal and has made the requisite deposit.
11. In view of the ratio laid down in the case of [ENTITY] (supra), the appeals filed by the owner of the truck i.e. the appellant are not maintainable as he has not deposited the amount of compensation as has been mentioned in the award passed by the MACT. Since the appeals are found to be not maintainable, there is no need to deal with the arguments of the learned counsel for the appellant on merits.
12. Since the appeals are not maintainable, the cross objections filed by the insurance company on the ground that they may be absolved from its liability cannot be sustained as has been held by the Apex Court in the case of [ENTITY] (supra).
13. For the reasons mentioned above, the appeals filed by the truck owner and the cross objections filed by the insurance company stand dismissed. The stay applications filed along with the appeals also stand dismissed. No order as to costs. The record if any received by this court, the same may be sent back to the MACT immediately.
([ENTITY] )J. OPPareek/ All corrections made in the judgment/order have been incorporated in the judgment/ order being emailed ([ENTITY]) PS-cum JW