IN THE HIGH COURT OF JUDICATURE FOR RAJASTHAN AT JAIPUR BENCH, JAIPUR JUDGMENT 1. S.B. Civil Misc. Appeal No.1022/2000 {National Insurance Company Ltd. Versus Kanhaiya & Others} 2. S.B. Civil Cross Objection No.8/2001 In S.B. Civil Misc. Appeal No. 1022/2000 (National Insurance Company Ltd. Versus Kanhaiya & Others) 3. S.B. Civil Misc. Appeal No. 1023/2000 (National Insurance Company Ltd. Versus Kanhaiya & others) 4.S.B.Civil Misc.Cross Objection No.9/2001 In S.B. Civil Misc. Appeal No. 1023/2000 (National Insurance Company Ltd. Versus Kanhaiya & others) Date of Judgment :: 26th October, 2009 PRESENT HON'BLE MR. JUSTICE MAHESH BHAGWATI Mr. Tripurari Sharma, counsel for the appellant-Insurance Company Mr. Brijesh Dhabai for Mr. Virendra Agarwal,counsel for the respondent - RSRTC BY THE COURT: Since the aforesaid appeals arise out of and pertain to judgment and award dated 13th August, 1999 rendered by MACT, Hindaun city, whereby an amount of Rs. 80,000/- in accident claim petition no. 47/95 and an amount of Rs. 1,50,000/- in claim petition no. 48/1995 has been decreed in favour of the claimants respondents no. 1 to 4 and against the appellant-Insurance company and the non claimants -respondents 5 to 8, they are being disposed of by this common judgment. 2. The appellant National Insurance Company has questioned its liability by way of these appeals. The claimant- respondents no. 1 to 4 being dissatisfied with the quantum of compensation under the award, have filed cross objections for the disallowed portion of the claim on various grounds. 3. Skipping unnecessary details, the necessary facts for the disposal of aforesaid appeals succinctly stated are thus: That on 3rd October, 1995, the claimant respondent Kanhaiya was going with his wife Mooli from village Jharoti to Gopalpura by Jeep RJQ 2250. It is alleged that the driver of the Jeep was driving the same very rashly and negligently at a fast speed. The passengers sitting inside the Jeep asked the driver not to drive it at such a high speed, but he did not pay any heed to their request. It is further alleged that when the Jeep crossed the petrol pump, on account of its negligent driving at a very high speed, the driver lost its balance and the Jeep collided with Bus RJ 14/P/1302 coming from opposite direction. This accident resulted into injuries of Kanhaiya Lal and death of his wife Smt. Mooli. Other passengers are also found to have sustained injuries. 4. Heard learned counsel for the parties and perused the relevant material on record including the impugned award. 5. Learned counsel for the appellant National Insurance Company has assailed the impugned award on the following grounds: (i) That the accident is alleged to have taken place on 3rd October, 1995. It has emerged during investigation that Jeep RJQ 2250 was being driven by Driver Arjun Lal at the time of accident. The learned counsel has canvassed that on 3rd October, 1995 Arjun Lal had no driving license to drive the motor vehicle. He obtained the driving license on 5th October, 1995 after the alleged accident. (ii) That the said Jeep was insured for private use, but the same was found to have been used for carrying passengers for hire or reward. The gratuitous passengers were not covered under the insurance policy. Thus, the owner of the vehicle violated the terms and conditions of the Insurance Policy. (iii)In case, where the Insurance Company questions its liability, the cross objections praying enhancement of the quantum of compensation are not maintainable. 6. Learned counsel for the appellant has contended that for the aforesaid reasons, the Insurance Company should be absolved of its liability and the impugned award being contrary to law should be set- aside. 7. Learned counsel appearing for the respondent no. 7 RSRTC has not preferred to argue as no relief has been claimed against him. 8. None has appeared for the claimants respondents no. 1 to 4. 9. Having reflected over the submissions made at the bar and carefully scanned the relevant material on record, it is noticed that Arjun Lal was driving the Jeep RJQ 2250 at the time of accident. Albeit, he denied before the Tribunal that he was driving the Jeep on 3rd October, 1985 and caused any accident, but there is ample evidence collected by the police during investigation, which suggests that Arjun Lal was the driver of the Jeep at the relevant time of accident. 10. Adverting to the statements of DW- 1 Chhote Lal Meena, DW-2 Sunil Kumar Goyal and DW-3 Arjun, it is found that the Jeep was insured with the Insurance Company and the cover note of the insurance policy is Ex. 2. DW-1 Chhote Lal Meena was the Assistant, employed in National Insurance Company, Sawai Madhopur and DW-2 Sunil Kumar Goyal was the Surveyor, who was assigned the task of verifying the driving license Ex. 3 owned by driver Arjun Lal. DW-2 Sunil Kumar Goyal is found to have gone to DTO office, Sawai Madhopur and enquired about the license owned by Arjun Lal. It is found that the licensing authority, Sawai Madhopur had issued one driving license No. 8267/SWM/95 on 5th October, 1995 in favour of Arjun Lal S/o Kanhaiya Lal, R/o Bhainsa. This driving license was valid upto 6th August, 2021. The accident is alleged to have taken place on 3rd October, 1995 and the driving license was issued to driver Arjun on 5th October, 1995 by competent authority. Thus, it becomes tangible that the driver had no license on 3rd October, 1995, the date of accident, to drive the motor vehicle. This evidence has been substantiated by the driver himself DW-3 Arjun who deposed in his cross-examination that he had no license to drive any motor vehicle on 3rd October, 1995. Though he has denied that he ever caused any accident by Jeep, but so far as the possession of driving license is concerned, he has admitted that he had no license to drive any motor vehicle on 3rd October, 1995. 11. Now the question arises as to whether the Insurance Company can be held liable to pay any compensation in an accident case when the alleged motor vehicle is being driven by a person, who had no license to drive the vehicle. This question came up for consideration before the Hon'ble Apex Court in the case of United India Insurance Co. Ltd. v. Gian Chand 1997 ACJ 1065, wherein it was held:- "(12). Under the circumstances, when the insured had handed over the vehicle for being driven by an unlicensed driver, the Insurance Company would get exonerated from its liability to meet the claims of the third party who might have suffered on account of vehicular accident caused by such unlicensed driver...." A three Judges' Bench of Hon'ble Apex Court, in National Insurance Co. Ltd. Vs. Swaran Singh and Others [(2004) ACJ 1 (SC)], upon going through the provisions of the Act as also the precedents operating in the field, laid down the following dicta; "(77) We have analysed the relevant provisions of the said Act in terms whereof a motor vehicle must be driven by a person having a driving licence. The owner of a motor vehicle in terms of Section 5 of the Act has a responsibility to see that no vehicle is driven by a person who does not satisfy the provisions of Section 3 or 4 of the Act. In a case, therefore, where the driver of the vehicle, admittedly, did not hold any licence and the same was allowed consciously to be driven by the owner of the vehicle by such person, the insurer is entitled to succeed in its defence and avoid liability. The matter, however, may be different where a disputed question of fact arises as to whether the driver had a valid licence or where the owner of the vehicle committed a breach of the terms of the contract of insurance as also the provisions of the Act by consciously allowing any person to drive a vehicle who did not have a valid driving licence. In a given case, the driver of the vehicle may not have any hand in it at all e.g. a case where an accident takes place owing to a mechanical fault or vis major. (See Jitendra Kumar 2003 ACJ 1441 (SC))" 12. The Hon'ble Apex Court in umpteen cases has loudly pronounced that the owner would be liable for the payment of compensation in a case where the driver was not having a valid driving license at all. It is the obligation on the part of the owner to take adequate care to see whether the driver had an appropriate license to drive the vehicle. In the instant case, it has tangibly emerged from the relevant documents that the licensing authority, Sawai Madhopur had issued driving license in favour of Arjun Lal on 5th October, 1995, whereas the accident is found to have taken place on 3rd October, 1995. Even DW-3, Arjun Lal, the driver himself has admitted in the cross- examination that he had no driving license on 3rd October, 1995 to drive any motor vehicle. Thus, in view of the above pronouncements of the Hon'ble Apex Court, it can safely be inferred that the Insurance Company is not liable to pay any amount of compensation to the victims if the offending vehicle was being driven by a driver having no license to drive the same at the time of accident. The learned Tribunal ignoring the judicial pronouncements of this Court as also of the Hon'ble Apex court on this issue, arbitrarily held while deciding issue no.4 that: “इस ूकार से यह िसƨ नहȣ है Ǒक दघ[टना के Ǒदन ु अजु[न लाल के पास कोई वैध लाइसɅस नहȣ था". This observation is not based on any reasoning. This finding of the learned Tribunal is based on surmises and conjectures in-toto. It not only suffers from legal infirmity, but it is also against the facts as they stand on record. The approach of the learned Tribunal is undeniably and un- disputably deplorable. In view of above, the appellant Insurance Company deserves to be exonerated or absolved of its liability to pay the amount of compensation. 13. So far as the cross objections of the claimants respondents are concerned, Madras High Court in the case of Divisional Manager, United India Insurance Company Versus Dulasi Ammal and Others reported in 1998(2) TAC 212 (Madras) has held that the cross objections filed by the claimants claiming enhanced compensation in an appeal filed by the Insurance Company questioning its liability, are not maintainable. The Madras High Court has held thus: “In an appeal filed by the Insurance Company questioning only its liability it is not open to one of the respondents to claim any other relief more particularly higher compensation, which has nothing to do with the relief claimed by the appellant. The present claim in the cross- appeal is not an exceptional case to take the aid of Rule 33 apart from Order XLI, Rule 22, CPC in the present appeal namely CMA 504 of 1987 the appellant/Insurance Company has confined its liability only hence in the appeal the claimant cannot make a claim for enhancement which is really directed against the owner of the vehicle who is co-respondent in the appeal.” 14. It is clear from the memo of appeals that the appeals of the appellant Insurance Company are limited to its liability. The Insurance Company has not questioned the quantum of compensation awarded. That being so, the question of quantum of compensation would not arise in an appeal instituted by an Insurer. Therefore, the cross-objections in the aforesaid appeals are not tenable and they deserve to be dismissed. 15. For the reasons stated above, both the aforesaid appeals filed by the Insurance company succeed. The appellant- Insurance Company is absolved of its liability and the impugned award in respect of the Insurance company is set- aside. The rest of the terms under the award shall remain unchanged. The impugned award stands modified as indicated here- in-above and the cross objections filed by the claimants respondents are dismissed. 16. There shall be no order as to costs. (MAHESH BHAGWATI), J. DK/- IN THE HIGH COURT OF JUDICATURE FOR RAJASTHAN AT JAIPUR BENCH, JAIPUR 1. S.B. Civil Misc. Appeal No.1022/2000 {National Insurance Company Ltd. Versus Kanhaiya & Others} 2. S.B. Civil Cross Objection No.8/2001 In S.B. Civil Misc. Appeal No. 1022/2000 (National Insurance Company Ltd. Versus Kanhaiya & Others) 3. S.B. Civil Misc. Appeal No. 1023/2000 (National Insurance Company Ltd. Versus Kanhaiya & others) 4.S.B.Civil Misc.Cross Objection No.9/2001 In S.B. Civil Misc. Appeal No. 1023/2000 (National Insurance Company Ltd. Versus Kanhaiya & others) Date of Order :: 26th October, 2009 PRESENT HON'BLE MR. JUSTICE MAHESH BHAGWATI Mr. Tripurari Sharma, counsel for the appellant-Insurance Company Mr. Brijesh Dhabai for Mr. Virendra Agarwal,counsel for the respondent - RSRTC BY THE COURT: For the reasons stated above, both the aforesaid appeals filed by the Insurance company succeed. The appellant- Insurance Company is absolved of its liability and the impugned award in respect of the Insurance company is set- aside. The rest of the terms under the award shall remain unchanged. The impugned award stands modified as indicated here- in-above. The cross objections filed by the claimants respondents are dismissed. (See separate judgment). (MAHESH BHAGWATI), J. DK/-