*THE HON’BLE SRI JUSTICE C.V. NAGARJUNA REDDY + M.A.C.M.A. No.1355 of 2006 % Dated: 12-03-2009 # The New India Assurance Co., Ltd., Tirupati, Chittoor district. … Appellant VERSUS $ G. Sampoorna & others. … Respondents ! Counsel for the Appellant : Sri C.V. Rajeeva Reddy ^ Counsel for respondents 1-5: Sri P. Govind Reddy Counsel for respondent No.6: Sri V. Eswaraiah Chowdary <GIST: > HEAD NOTE: ? Cases referred 1) 2004 (2) ALD 36 (SC) 2) AIR 2009 SC 208 3) 2008 (10) SCC 1 4) 2005 ACJ 721 5) AIR 2007 SC 1971 (1) 6) Appeal (Civil) CC.No.10993 of 2009 IN THE HIGH COURT OF JUDICATURE, ANDHRA PRADESH AT HYDERABAD PRESENT: THE HON’BLE MR. JUSTICE C.V.NAGARJUNA REDDY FRIDAY, THE TWELFTH DAY OF MARCH, TWO THOUSAND TEN MACMA No.1355 of 2006 Between: The New India Assurance Company Limited, Rep., by its Divisional Manager, Tirupti, Chittoor District. …Appellant. And G. Sampoorna & others. …Respondents. Counsel for the Appellant: Sri C.V. Rajeeva Reddy Counsel for Respondents 1-5: Sri P. Govind Reddy. Counsel for respondent No.6: Sri V. Eswraiah Chowdary This Court made the following: THE HON’BLE MR. JUSTICE C.V.NAGARJUNA REDDY M.A.C.M.A. No.1355 of 2006 JUDGMENT:- The New India Assurance Company Limited, respondent No.2 in M.V.O.P.No.372 of 2004 on the file of the Motor Accident Claims Tribunal-cum-III Additional District Judge, Tirupati (for short, “the Tribunal”), is the appellant in this appeal. This appeal is preferred feeling aggrieved by award dated 17.03.2006 of the Tribunal in the said O.P., whereby it has fixed joint and several liability on the appellant and respondent No.6, the owner of the Tractor and Trailor, which was involved in the accident resulting in death of one G. Raja Ramesh (for short, “the deceased”). On 13.01.2004, when the deceased, a coolie, was traveling in the Tractor and Trailor along with other two coolies for loading sand and when they reached near Thondawada bridge on Chandragiri bypass road, the driver of the Tractor drove the same in a rash and negligent manner leading to front wheel of the Tractor being broken and the Tractor along with Trailor falling in a ditch. The deceased, who is sitting on the Trailor, jumped due to fear and the Trailor ran over on the back of the deceased. The deceased was declared dead, after he was shifted to the Government hospital, Chandragiri. Respondent Nos.1 to 5, who are the legal heirs of the deceased, filed the above O.P. claiming compensation. The Tribunal framed the following issues: “1) Whether the pleaded accident occurred resulting the death of the deceased and if so was it due to fault of the driver of the Tractor cum Trailor of 1st respondent bearing No.AP 09 E 7625 and ATW 7589? 2) Whether the Tractor cum Trailor in question belong to R-1 and stood insured with R-2/insurance company by the date of accident and if so whether policy covers the risk of the deceased? 3) Whether the petitioners are the legal representatives of the deceased and entitled to compensation and if so to what amount and from which of the respondents? 4) To what relief?” Under issue No.1, the Tribunal held that the accident occurred due to the fault of the driver of the Tractor-cum-Trailor. Under issue No.2, the Tribunal held that the Tractor and Trailor belong to respondent No.6 and were insured with the appellant and it has further held that the policy covers the risk of the deceased. Under issue No.3, the Tribunal held that respondent Nos.1 to 5 are the legal representatives of the deceased and that they are, therefore, entitled to compensation. Under issue No.4, the Tribunal held that the appellant and respondent No.6 are jointly and severally liable to pay the compensation. At the hearing, Sri C.V. Rajeeva Reddy, learned counsel for the appellant – insurance company, advanced two contentions, namely; (i) that the driving licence of the driver of the Tractor was valid only up to 24.01.2002 and that therefore the driver did not hold valid licence when the accident has taken place on 13.01.2004 and hence the liability of the appellant is excluded by the statute itself under Section 149 (2)(ii) of the Motor Vehicles Act, 1988 (for short, “the Act”) and (ii) that as the insurance company is not liable to pay compensation, the award of the Tribunal, fixing joint and several liability on the appellant along with the owner, cannot be sustained. Opposing the contentions of the learned counsel for the appellant, Sri P. Govinda Reddy, learned counsel for respondent Nos.1 to 5, submitted that the Tribunal has drawn a legal inference on the factum of renewal of driving licence and therefore no exception can be taken to the award fixing joint and several liability on the appellant and respondent No.6. He further submitted that even assuming that there was no liability on the part of the appellant, in view of the settled legal position, the appellant – insurance company is liable to pay the compensation amount first and then recover the same from respondent No.6. In support of his contention, the learned counsel relied on the judgment of the Supreme Court in National Insurance Company Limited vs. Swaran Singh and others[1]. With regard to the first contention of the learned counsel for the appellant, a perusal of the record shows that the appellant has raised specific pleading that the driver of the Tractor did not hold valid licence when the accident has occurred. To substantiate this plea, the appellant examined RWs.1 and 2. RW.1 is an employee in the Regional Transport Office, Tirupati and RW.2 is an employee of the appellant. In his evidence, RW.1 deposed with reference to the record of the Regional Transport Office, Tirupati that Guruvaiah, the driver of the Tractor, which was involved in the accident, was holding a light motor vehicle licence and that the same was valid up to 24.01.2002. Neither respondent Nos.1 to 5 nor respondent No.6, the owner of the Tractor, have specifically pleaded that the driving licence of the driver was renewed at any time after 24.01.2002 including the time when the accident has taken place. No evidence was produced by these respondents before the Tribunal to show that the licence was subsequently renewed. The Tribunal, however, had adopted a strange reasoning that since RW.1 in his cross-examination has admitted that the driving licence can be renewed anywhere in India and that he was not sure whether the licence was renewed at any other office, it cannot be said that there was no valid licence for the driver to drive the vehicle on the date of the accident. The Tribunal further reasoned that even in the absence of a driving licence, the insurance company cannot escape from its liability to pay compensation on the ground of breach of policy conditions, as respondent Nos.1 to 5 are not parties to the agreement between the insurance company and respondent No.6, the owner of the vehicle. I find myself unable to agree with these conclusions reached by the Tribunal. Under Section 3 of the Act, it is obligatory for a driver to hold an effective driving licence for the type of the vehicle, which he intends to drive. Section 149(2)(a) of the Act envisages several defences in an action brought against it. One such defences is found in sub-clause (ii) of clause (a) of the said provision, which reads as under: “(ii) a condition excluding driving by a named person or by any person who is not duly licensed, or by any person who has been disqualified for holding or obtaining a driving licence during the period of disqualification.” (Emphasis added) Where, therefore, on the basis of the undisputed facts and the evidence available on record, the insurer is able to establish that the person, who has driven the vehicle at the time of accident, did not hold valid driving licence, the insurer is entitled to avoid its liability. This view of mine derives support from the judgment of the Apex Court in National Insurance Co., Ltd., vs. Vidhyadhar Mahariwala and others[2]. As the statute itself excludes the insurer’s liability in such a case, the fact whether the claimant being a third party is not a privy to the insurance policy between the insurer and the owner, has no relevance. In the instant case, by examining RW.1, who has categorically deposed that the driving licence of the driver of the Tractor, which caused accident, was valid only up to 24.01.2002, the appellant has discharged the initial burden lying on it. Neither respondent Nos.1 to 5 (claimants) nor respondent No.6 (the owner) placed any evidence to prove that the licence was renewed subsequently and was in force at the time of the accident and thereby they failed to discharge the onus shifted to them. The Tribunal has, therefore, committed a serious error in holding that it cannot be said that there was no valid licence for the driver on the date of accident. There was no justification for drawing the presumption by the Tribunal on the facts and available evidence on record that the driving licence was valid and subsisting at the time of the accident. It has therefore necessarily to be held that the driver of the Tractor in question was not holding valid licence at the time of the accident and the appellant had no liability for payment of compensation. Coming to the contention of the learned counsel for respondent Nos.1 to 5 that even in the absence of any liability on the insurance company, the responsibility is still on the latter to pay the amount to the claimants and recover the same from respondent No.6, in Swaran Singh (1 supra) a three Judge Bench of the Apex Court has dealt with this aspect with reference to the case law holding the field on this issue. The Supreme Court made reference to its various earlier judgments including those in British India General Insurance Co., Ltd., vs Captain Itbar Singh and others ((1960) 1 SCR 168), BIG Insurance Co., Ltd., vs. Captain Itbar Singh and others (AIR 1959 SC 1331), Skandia Insurance Company Ltd., vs. Kokilaben Chandevadan and others ((1987) 2 SCC 654), Sohan Lal passi vs. P. Sesh Reddy and others ((1996) 5 SCC 21), Kashiram Yadav and another vs. Oriental Fire and General Insurance Co., Ltd., and others ((1989) 4 SCC 128) and held that the liability of the insurance company to satisfy the decree at the first instance and to recover the awarded amount from the owner or the driver thereof has been holding the field for a long time. Sri P. Govind Reddy, learned counsel for respondent Nos.1 to 5, made a forceful submission that the judgment in Swaran Singh (1 supra) being of Larger Bench of three Judges and the later judgments referred above being of the Benches with lesser strength, the earlier Bench judgment deserves to be followed, as it operates as a binding precedent. In support of this submission, the learned counsel placed reliance on certain judgments including the one in Official Liquidator vs. Dayanand and others[3]. The proposition that the judgments of Larger Benches should be preferred to that of Benches of lesser strength does not admit of any debate, but the question here, as noted above, is whether the judgment in Swaran Singh (1 supra) laid down an absolute proposition on the liability of the insurance company to pay the compensation amount where its defence is accepted and is found not liable. In this connection, the observations contained in paragraph 104 are worth noticing. It is instructive to reproduce the said para. “We may, however, hasten to add that the Tribunal and the Court must, however, exercise their jurisdiction to issue such a direction upon consideration of the facts and circumstances of each case and in the event such a direction has been issued despite arriving at a finding of fact to the effect that the insurer has been able to establish that the insured has committed a breach of contract of insurance as envisaged under sub-clause (ii) of clause (a) of sub-section (2) of Section 149 of the Act, the insurance company shall be entitled to realise the awarded amount from the owner or driver of the vehicle, as the case may be, in execution of the same award having regard to the provisions of Sections 165 and 168 of the Act. However, in the event, having regard to the limited scope of inquiry in the proceedings before the Tribunal it had not been able to do so, the insurance company may initiate a separate action therefor against the owner or the driver of the vehicle or both, as the case may be. Those exceptional cases may arise when the evidence becomes available to or comes to the notice of the insurer at a subsequent stage or for one reason or the other, the insurer was not given opportunity to defend at all. Such a course of action may also be resorted when a fraud or collusion between the victim and the owner of the vehicle is detected or comes to the knowledge of the insurer at a later stage.” (Emphasis added) In my opinion, from the afore-extracted passage of the judgment, it is evident that direction to the insurance company to pay the compensation does not automatically follow in every case where the insurance company is found not liable. The same depends upon the facts and circumstances of each case. In all the aforementioned cases, which were referred to by the Supreme Court, directions were given on the facts of each case and considering the fact that the provisions of the Act dealing with insurance and payment of compensation are beneficial in nature. In paragraph 81 of the judgment in Swaran Singh (1 supra), the Supreme Court observed as under: “The right to avoid liability in terms of sub-section (2) of Section 149 is restricted as has been discussed hereinbefore. It is one thing to say that the insurance companies are entitled to raise a defence but it is another thing to say that despite the fact that its defence has been, accepted having regard to the facts and circumstances of the case; the Tribunal has power to direct them to satisfy the decree at the first instance and then direct recovery of the same from the owner. These two matters stand apart and require contextual reading.” (Emphasis added) That the Supreme Court in subsequent judgments have not treated the previous judgments including Swaran Singh (1 supra) as laying down unexceptionable principle that in every claim brought before the Tribunal, the insurance company should be directed to pay the compensation amount first even though its defence was found accepted, is evident from some of the later judgments of the Apex Court. In National Insurance Co., Ltd., vs. Bommithi Subbhayamma and others[4], the Supreme Court reversed the Division Bench judgment of this Court in making the insurance company liable for payment of compensation in respect of gratuitous passengers. The Supreme Court held that the Division Bench judgment of this Court was based on the judgment in New India Assurance Company vs. Satpal Singh (AIR 2000 SC 235), which was overruled in New India Assurance Co., Ltd., vs. Asha Rani (2003 ACJ 1 (SC)) and followed in Oriental Insurance Co., Ltd., vs. Devireddy Konda Reddy (2003 ACJ 468 (SC)) and other similar cases and held that the insurance companies were not liable for payment of compensation in cases of passengers carried in a goods vehicle for hire or reward or otherwise. While so holding, the Supreme Court gave liberty to the claimants therein to recover the amount of compensation awarded in their favour by the Motor Accident Claims Tribunal from the owner of the vehicle. A similar view was expressed by a two Judge Bench of the Supreme Court in National Insurance Co., Ltd., (2 supra), wherein the insurance company was fastened with the liability by the Tribunal and the said award was upheld by the High Court even though the driving licence of the offending vehicle was not in force on the date of the accident. The Supreme Court, while holding that the insurance company has no liability, permitted the claimant to recover the amount from the owner. Further more in Oriental Insurance Co., Ltd., vs. Brij Mohan and others[5] S.B. Sinha, J., who spoke for the three Judge Bench in Swaran Singh (1 supra), while holding that the insurance company had no liability, however, invoked the power vested in the Supreme Court under Article 142 read with Article 136 of the Constitution of India to direct the insurance company to pay the compensation amount first and then realize the same from the owner of the Tractor. It may be apt to reproduce the relevant paragraphs in this connection: “However, respondent No. 1 is a poor labourer. He had suffered grievous injuries. He had become disabled to a great extent. The amount of compensation awarded in his favour appears to be on a lower side. In the aforementioned situation, although we reject the other contentions of Ms. Indu Malhotra, we are inclined to exercise our extraordinary jurisdiction under Article 142 of the Constitution of India so as to direct that the award may be satisfied by the appellant but it would be entitled to realize the same from the owner of the tractor and the trolley wherefor it would not be necessary for it to initiate any separate proceedings for recovery of the amount as provided for under the Motor Vehicles Act. It is well settled that in a situation of this nature this Court in exercise of its jurisdiction under Article 142 of the Constitution of India read with Article 136 thereof can issue suit directions for doing complete justice to the parties.” Had the judgment in Swaran Singh (1 supra) laid down in absolute terms on the liability of the insurance company, there was no necessity for the Court to invoke Article 142. A Division Bench comprising two Judges of the Supreme Court in National Insurance Co., Ltd., vs. Parvathneni and another[6] by an order dated 10.08.2009 doubted the correctness of the directions issued in various judgments to the insurance company to pay the amount even though they are not held liable. The Supreme Court observed thus: “We have some reservations about the correctness of the aforesaid decisions of this Court. If the insurance company has no liability to pay at all, then, in our opinion, it can not be compelled by order of the Court in exercise of its jurisdiction under Article 142 of the Constitution of India to pay the compensation amount and later on recover it from the owner of the vehicle. In our view, Article 142 of the Constitution of India does not cover such type of cases. When a person has no liability to pay at all how can it be compelled to pay? It may take years for the insurance company to recover the amount from the owner of the vehicle, and it is also possible that for some reason the recovery may not be possible at all.” The Supreme Court framed the following issues for consideration of Larger Bench: “1) If an insurance company can prove that it does not have any liability to pay any amount in law to the claimants under the Motor Vehicles Act or any other enactment, can the Court yet compel it to pay the amount in question giving it liberty to later on recover the same from the owner of the vehicle. 2) Can such a direction be given under Article 142 of the Constitution, and what is the scope of Article 142? Does Article 142 permit the Court to create a liability where there is none?” On the strength of the discussion undertaken above, it is not possible for this Court to treat the judgment in Swaran Singh (1 supra) as containing mandatory directions to the Tribunals and Courts to invariably direct the insurance companies to pay the amounts at the first instance and recover the same from the owners of the offending vehicles even though they are held not liable. Pending resolution of the issues by the Larger Bench of the Supreme Court, it would be reasonable to understand the judgment in Swaran Singh (1 supra) as leaving discretion to the Tribunals and Courts to give appropriate directions depending upon the facts and circumstances of each case. Applying the said ratio to this case, a perusal of the proceeding sheet shows that this Court has granted a conditional interim order in favour of the appellant subject to it depositing half of the awarded amount and permitting respondent Nos.1 and 5 to withdraw Rs.45,000/- and Rs.30,000/- respectively without furnishing any security and directing the balance amount to be kept in fixed deposit for a period of three years in a nationalized bank. In my view, to balance the interests of both the parties, I hold that respondent Nos.1 to 5 are entitled to retain the amount of Rs.75,000/- already permitted to be withdrawn by them and also to withdraw the balance amount of compensation deposited by the appellant. The appellant is not liable to deposit further compensation. Respondent Nos.1 to 5 are entitled to recover the balance compensation from respondent No.6. Subject to the above, the appeal is allowed. As a sequel to disposal of the appeal in the manner indicated above, MACMAMP No.2880 of 2006 filed by the petitioner for interim relief is disposed of as infructuous. C.V.NAGARJUNA REDDY,J. Date: 12.03.2010. ES LR copies to be marked. [1] 2004 (2) ALD 36 (SC) [2] AIR 2009 SC 208 [3] 2008 (10) SCC 1 [4] 2005 ACJ 721 [5] AIR 2007 SC 1971 (1) [6] Appeal (Civil) CC.No.10993 of 2009