^- •^- HIGH COURT OF CHHATTISGARH. B8LASPUR M.A.(QNo. 666 of 2007 APPELLANT: The Orientai Company. insurance Versus - RESPONDENTS: Shivnath and others. ^ ORDERroR_CONSIDERATiON '^ Sd/- JUDGE /.6 -8-2007 HON'BLE SVIR. SUNSL KUIVIAR SINHA. J. — ^ POST FOR ORDER QN'^ - ^ -2QQ7 2^ ^ i' Sd/- Sunil Kumar Sinha Judge Sd/- L.C. Bhadoo Judge HI©HCOURT OF CHHATTISGARH. BILASPUR M.A.fCI No. 668 ®f2007 APPELLANT: DEFENDANT N0.3 \, RESPONDENT: CLAIMANTN0.1 RESPONDENT: CLAIMANT N0.2 RESPONDENT: CLAIMANT N0.3 RESPONDENT: CLAIMANT N0.4 RESPONDENT: CLAIMANT N0.5 RESPONDENT: DEFENDAMTN0.1, - Versus 1. 2. 3. 4. 5. RESPONDENT: DEFENDANT N0.2 The Oriental Insurance Company, Branch Office Ambedkar Chow, Manendragarh Road, Ambikapur, Distt. Surguja (C.G.) through its Divisionai Manager, Divisional Office Korba (C.G.) Shivnath, aged about 48 years, son of Shri Ram Prasad. Seetapati, wife of Shivnath Sahu, aged about 40 years, Aasha Kumari, widow of Late Rajkumar Sahu, aged about 24 years, Minor Kumari Priyanka, daughter of Late Rajkumar Sahu, aged about 03 years, Minor Vivek Kumar, aged abput 07 months, son of late Rajkumar, Respondents No.1 to 5 R/o Gram Madneshwarpur, Thana Ramanujnarar, Surajpur, District Sarguja. Respodnent No.4 and 5 (Minor) through their natural guardian - mother, Ashakumari, widow of Late Rajkumar Sahu, aged about 24 years, Murari Lai Sahu, aged about 30 years, son of Shri Sonayee Ram Sahu, Occupation - business (vehicle owner), resident of Manpur, Surajpur, P.S. and Tah. Surajpur, Distt. Surguja (C.G.) Santosh Kumar Jayaswai, aged about 25 years, son of Shri Manikchand Jayaswa!, occupation - driver, resident of village Dedari (Salka) P.S. and Tahsii Surajpur, Distt. Surguja (C.G.) (Mlscelianeous Appeal under Section 173 ofthe M.V. Act, 1988) Present: Shri Prashant Jaiswal, Sr. Advocate With Shri Ali Asgar, Advocate: Shri Sushil Dubey, Advocate: For the appellant. For respondent No.6. CORAIVE: - HON'BLE SHRI L.C. BHADOO AND HON'BLE SHRS SUNIL KUIVSAR SINHA. JJ. ORDER (Passed on Z^.z^.'August, 2007) The foltowina order ofthe Court v^/^s passed bv LC. Stodoo, J:"° 1. The Orientat tnsurance Company, insyrer, has preferred this miscel!aneous appea! chaEienging the legality and correctness of the award dated 31st January, 2007 passed by the 3rd Additionat Motor Accidents Claims Tribuna! (FTC) Surajpur, in Claim case No,. 14/2006 ^iereby iearned Tribunal has passed an award to the tune of Rs.4,30,000/" against the appeliant and respondent No.6l jointly & severa!!y. It was further directed that the claimants shall be entitled for interest @ 6% from the date offiiing ofthe claim petition i.e. 8-12-2005. 2. The matter was listed for hearing on stay application. As smal! point Is jnvolved in this case, therefore, it was decided to dispose oftSiis appea! finally at the admission stage itseif. \ 3. Brief facts of the case,necessary for the disposat of this appeal are that 'on 8-11-2005 Ra| Kumar Sahu (since deceased) was traveling in the offending vehicie of Jai Bhavani Bus Semce bearing registration T ^S^HBsrf No.CGIO-ZA/0128 which wras plying from Surajpur to Devnagar. The bus vras stopped in D^vnagar In front of Mistri shop. On stopping ofthe bus, when Raj Kumar Sahu (since deceased) was aiighting from the bus, by the time he put his one foot dowt on the earth, ail of a sudden, bus driver Santosh Kumar Jaiswal in a rash and negiigent nianner moved the bus, as a result of ^tjich Raj Kumar Sahu feil down frorn the bus. He Vaias crushed under the rear wheel ofthe bus. He sustained injuries. He vras taken to the Community HeaJth Centre, Jainagar wtiere the doctor advised them to take Raj Kumar to Ambikapur. Hte was taken to the Mission Hospitai, Ambikapur. During the treatment, he succumbed to the injuries in the night. 4. As per the ciaimants, Raj Kumar Sahu was aged about 26 years and l<ivas carpenter by profession. He aiso used to do agriculturai work. The claimants daimed that Raj Kumar Sahu was earning Rs.4000/- per month. The claim petition was preferred by the mother, father, widow and two minor children against the owier of the bus, driver and the Insurance Company. Apart from oth'er objectlons, an objection was ralsed by the Insurance Compasiy/appellant herein that offending vehicie was insured as commercial passenger vehicle with effect from 3-2-2005 to 7-2-2006 for 18 passengers, only driver having valid and effective licence was entitied to drive the vehide. On the date ofthe accident, the vehide was not having valid permit and fitness certificate. Respondent No.2 driver vras not holding valid and effective licence to drive commercial vehicle. Therefore, respondents No.1 & 2 in the ciaim petition i.e. owier and driver are responsible for payment of \ compensation amount. '\ ". 5. The Insurance Company has preferred this appeai mainly on the ground that slnce at the time of accident Santosh Kumar Jaiswal was driving offending vehicte without valici and effective ticence to drive commercial vehicle, therefore, on account of breach of policy the insurance Company is not liable to pay compensation. Learned Tribunal has committed error in hoiding the appeliant responsible for making payment ofthe compensation. 6. Shri Prashant Jaiswai, learned Sr. Advocate representing the insurance Company, raised only this limited point that driver was not holding vaiid and effective licnece» there was breach of policy, as such, the Company is not responsible for making paysnient of compensation amount. 7. On the other hand, Shri Sushi! Dubey, learned counsel for respondent No.6, argued that Insurance Company has not adduced any evidence by producing RTO record or an officer of the RTO Office estabiishing that driver was not hoiding vaiid and effective licence as a!so that the owner deliberately permitted the driver to drive vehicle without hoiding vaild and effective licence, that was within his knowiedge. Whiie placing reiiance o.n Swaran SEngh's case as aiso on Sshwar Chandra'& Ors« V« The Orientai Insurance Co. Ltd. & Ors. {2007 (2) CCC 225 (SC)} he further argued that accident did not occur on account ofthe fact that driverwas not hoiding valld iicence. 8. Having heard ieamed counsel for the parties, we have perused t?ie record. In the matter of National Insurance Co. LSd., V. Swaran Singh and others1 the Apex Court held that: - "in ciaimslfor compensation for accidents, various kinds of.breaches 'with regard to the conditions of driving licences arise for consideration before the , Tribunai. A persons possessing a driving licence for 'motor cycle wthout gear', for vriiich he has no 1. 2004 (I)T.A.C. 321 (S.C.) @) licence. Cases nnay also arise wiKere a holder of driving lioence for 'light motor vehicle5 is found to be driving a 'maxhcab', 'motor-cab' or 'omnibus' for which he has no licence. !n each case on evidence led before the Tribunal, a decision has to be taken whether the fact of the driver possessing licence for one type of vehicle but found driving another type of vehicie, was the main or contributoi'y cause of acddent. if on facts, it is.found that acddent was caused solely because of some other unforeseen or inter/ening causes like mechanicai faiiures and sitniiiar other causes having no nexus with driver not possessing requisite type of licence, the insurer will not be allowed to avoid its liability merely for technical breach of conditions concerning driving licence." 9. Considering Swaran Singh's case (Supra) tEie Apex Court in the matter of NatiorsaS Siisurance Co. Ltd.g V« Kusum Rai and others reported in 2008 ACJ1336 heldthat:- "Driver had iicence to drive light motor vehide but he 'AQS driving a jeep which viras being plied as a taxi, a commerciai vehicle - Whether.there was b?aeach of conditiosis of contract of insurance by the insured and the insurance company is exempted from liabiiity •" Held: yes; driver did not possess a va!id licence to drive a commercial vehicle; insurance company may recover the amount paid from the owner by initiating proceedings before the executing court." 10. Allegations in this matter were that taxl was being driven rashly and negligentiy by Ram Lai, driver. The taxi was insured with National Insur'ance Company. One of the issues raised during the proceedings whether driver ^fthe said jeep was having valid and effective licence, another question \was raised as to whether said Ram Lal was yriving the said vehicle. The Court held that it was admitted that driver Vi^s driving commerclai vehicle, he was required to hold an appropriate Ijceoce. ? / Ram Lal was holder of a licence to drive a light motor vehicle only. He did not possess any ticence to drive a commercial vehicle. Evidentiy, therefore, there was a breach of condition of the contract of insurance. The appeilant, therefore, couid raise the said defence. In a case of this nature, therefore, the ov^^ner of a vehicle cannot contend that he has no liabiiity to verify the fact as to whether the driver of the vehicle possessed a valid licence or not. v 11. In the matter of SVIalla Prakasarao V. SVIalIa Janaki reported in (2004)3 SCC 343 the Apex Court heid that: "It is not disputed that the driving iicence ofthe driver of the vehicle had expired on 20.11.1982 and the driver did not apply for renewal within 30 days of the expiry of the said licence, as required under sectlon. 11 of the Motor Vehicles Act, 1939. It is also not disputed that the driver of the vehicle did not have driving licence when the accident took place. According to the terms of the contract, the insurance company has no liability to pay any compensation where an accidenit takes place by a vehicle driven by a driver without a driving iicence. !n that view of the matter, we do not 11nd any merit in the appeal." 12. In the matter of Swaran Singh's case (Supra) the Apex Court held that:- "The liability of the insurance company vis-a-vis the owner would depend upon several factors. The owner would be liabie for payment of compensation in a case where the driver vras not having a licence at ali. It was the obiigation on the paft ofthe owier to take -adequate care to see that the driver had an appropriafe licence to drive the vehicle." 'l 13.1n the present case atso defence taken by the appellant .jnsurance Gompany v/as that driver Santosh Kumar Jaiswal was driving the bus, commercial passenger vehicle, without valid and effective licence, as he was having licence only to drive light motor vehide. He was not authorized to drive the commerciai vehide. The Insurance Company has examined its Development Officer A.P. Gupta. He has stated that the offending vehicle bearing registration No.CG10MZA/0128 was insured with the Oriental Insurance Company, Ambikapur with effect from 8-2-- 2005 to 7-2-2006 as passenger commercial vehicle. Certified copy ofthe insurance policy is Ex.D/4. At B'to B portion of the policy it has been mentibned that only driver having vaiid and effective licence can drive the vehicle. Certified copy is Ex.D/5. After receivlng photocopy of the ciriving licence, investigator Nand Kishore Dubey got verified licence from the RTO office, Ambikapur. His letter is Ex.D/6. RTO certificate is Ex.D/7. As per Ex.D/6 & D/7, driver was entitled to drive the light motor vehicle. He was not entitled to drive the bus, commercial veliicle. Driver Santosh Kumar Jaiswal was not legaily authorized to drive the vehicie No.CG10WZA/0128. Therefore, the insurance company is not !iable to pay compensation. Owner of the vehicie Murarilai Sahu has examined himsetf. He has admitted that the offending vehicle i.e. mini bus was operating between Surajpur to Sirmlna as passenger vehicle. Insurance policy is Ex.D/1. Photocopy is Ex.D/1-C. Reglstration of the vehicie is Ex.D/2. Photocopy is Ex.D/2-C. Driving ticence is Ex.D/3. Copy ofthe driving licence is Ex.D/3-C. In cross-examination, he has stated that he Es the o^Tier of 3 buses. !t is correct that he knows Engiish. It is correct that in the insurance policy it has been wrltten that bus shaii be operated and drivenjn accordance with the provisions ofthe MVAct. It Is correct that in the driving licence Ex.D/3 RTO has wt-itten that for LMV i.e. Light Motor VehicEes.< 407 bus is a light motor vehicle. It is incorrect to say that in,.the licence. of driver for driving passenger bus the RTO 'i? required to make the entry as PSV, PSV is given oniy on the basis of experience. it Is incorrect fco say that the driver was not having experience of driving. <. He was operating the bus for the last 5 years. It is incorrect that bus was being driven in vioiation ofthe insurance policy. 14.Perusai ofthe certificate-cum-policy schedule Ex.D/4 shows that against the poiicy type it has been written that bus for carrying commercial vehicle. Ex.D/3-C photocopy of the driving iicence of Santosh Kumar Jaiswat shows that it was oniy for LMV. There is no endorsement oo the Ilceiiice that he was entitled to drive commercial vehicle: Admittedly, v offending vehicle was commerciaj vehicle. It was insured as passenger canying commercial vehicie. It was insured for 18 passengers as per tSie policy. Admittedly, driver Santosh Kumar at the time of driving of the vehicSe was holding the licence oniy for iight motor vehicie, there was no endorsement on the licence by RTO that he was entltied to drive GQmmercial light motor vehicle i.e. passenger bus, hence it was wthin the kno'wtedge of the owner ofthe bus. Therefore, admittedly, driver of the offending vehicie was not hoiding va!id and effective ticence, that was breach of the poiicy as contemplated under Section 149 (2) of the MV AcS, 1988. 15.Now, coming to the point, as per the observation ofthe Apex Court in the matter of Swaran Singh's case (Supra) that i?i each case on evidence led before the Tribunal, a decisioii has to be taken vrfietherthe fact ofthe driver possessing licence for one type of vehicle but found driving another type of vehicle, was the main or contributory cause of accident. If on facts, it is found that accident was caused soieiy because of some other unforeseen or intervening causes iike mechanical faiiures and simiiar other causes havlng no nexus wth driver not possessing requisite type of licence, the insurer wili not be allowed to avoid its liability merely •\ for technical breach of conditions concerning driving licence. The above Swaran Singh's case (Supra) has also been retied upon in the case of \ ^ Ishwar Chandra & Ors- (Supra) cited by learned counse! for the respondent No.6. 16.1n the present case, neither driver nor conductor has been examined to rebut the claimants' case that the accident took piace on account of rash and negligent driving of driver Santosh Kumar Jaiswal because as per the ciaimants' case when the bus was stopped, Raj Kumarwas asked to alight, by the time Raj Kurnar put his one foot cn the ground, the driver v moved the bus in a rash and negligent manner, Raj Kumarfell down and crushed under the rear tyre. Witness No.3 narneiy, Rajendra Prasad has categorica!ly stated that at the time of the acddent he was sitting at a distance of 20 meters on the shop of his brother. After hearisig commotion he reached near bus. Deceased Raj Kumar was alighting from the bus. The accident occurred on account of the fact that the driver moved the bus. No evidence has been led on behalf ofthe owner ofthe bus or driver to rebut above evidence.. There is no evidence ofthe owner or driver of the bus to show that accident was caused soiely because of some other unforeseen or' inteivening causes iike mechasiicai faiiures and simiEar otlier causes having no nexus wth driver not possessing requisite type of licence. Therefore, it Isestabiished that the accident occurred on account of rash and negiigent driving of driver Santosh Kumar Jaiswal. Therefore, finding ofthe Tribunal that insurance company is liabie to pay compensation cannot be sustained for the foregoing reasons, The appe!!ant insurance company cannot be he!d jlable to pay oonnpensation. For this, we are fortified in our view by the judgment oftheApex Court in the matter ofKusyrrs Rai (Supra). \ 17»The claimants are from poor background. They have alsa suffered mental agony. !n the circumstances, it may not be appropriate to force thern to recover the amount from the owner of the vehicie. Therefore, 10 Ban/e the appeliant tnsurance Company is directed to pay compensation amount to the claimants in terms of the impugned award, thereafter, the insurance Company can recover the amount frosTs the o^mer of the vehicle, in accordance with law. IS.Accordingly, the appeal is aliowed in the aforesaid manner. Cost is mde easy. Sd/- L.C.Bhadoo Judge Sd/- Sunil Kumar Sinha Judge