* THE HON’BLE SRI JUSTICE B. CHANDRA KUMAR + M.A.C.M.A. No. 54 of 2009 % 30.04.2011 # The New India Assurance Company Limited, rep. by its Deputy Manager (Legal Cell), 5-2-174/2, 2nd Floor, Madanmohan Building, R.P. Road, Secunderabad. .. Appellant Vs. $ Smt. K. Devi and others .. Respondents <GIST: >HEAD NOTE: ! Counsel for Appellant : Sri B. Devanand ^ Counsel for respondents 1 and 2 : Smt. A. Chaya Devi ? CASES REFERRED : 1. 2004-ALT-5-460 2. (2009) 5 SCC 136 3. 2008 ACJ 2654 4. 2008 ACJ 2860 5. 2004 ACJ 457 6. 2004 ACJ 1 (SC) THE HON’BLE SRI JUSTICE B. CHANDRA KUMAR M.A.C.M.A. No. 54 of 2009 Judgment: The appellant-New India Assurance Company Limited, represented by its Deputy Manager, filed the present appeal challenging the order dated 08.02.2008 passed in MVOP No.1244 of 2006 by the Chairman, Motor Vehicle Accidents Claims Tribunal-cum- XXI Additional Chief Judge-cum-VII Additional Metropolitan Sessions Judge, City Criminal Courts, Hyderabad. The parties hereinafter will be referred to as they are arrayed before the Tribunal for the sake of convenience. The first claimant is the wife and the second claimant is the mother of the deceased Balu Naik. The first respondent is the owner of the vehicle bearing No. AP 28U 9797 and the second respondent is the Insurance Company with which the vehicle was insured. The case of the claimants is that on 02.11.2005 at about 6.00 PM the deceased was traveling in P/Van bearing No. AP 28U 9797 with cement covers. When the said vehicle reached the outskirts of Kondurg village, its driver drove the vehicle in a rash and negligent manner, as a result of which the vehicle turned turtle and the deceased sustained grievous injuries. He was shifted to Osmania General Hospital. However, while he was undergoing treatment, he succumbed to injuries on 03.11.2005. The police, Kondurg police station, registered a case in Crime No.79 of 2005 under Sections 337 and 304-A IPC. The case of the claimants is that the deceased was a labourer and earning Rs.4,500/- per month and therefore the claimants claimed compensation of Rs.3,00,000/- from the respondents. The second respondent-insurance company contested the matter and denied the material averments made by the claimants. The Insurance Company has taken a specific plea that the deceased was unauthorized passenger in a goods vehicle and that the driver of the vehicle was not having valid driving license and thus the insurance company is not liable to indemnify the first respondent-owner of the vehicle. The Tribunal framed the following issues. 1. Whether the accident occurred due to rash and negligent driving of P/Van Vehicle AP-28-U-9707? 2. Whether the petitioners are entitled for compensation? If so, to what amount and from whom? 3. To what relief? On behalf of the claimants, the first claimant was examined as PW.1 and one N. Bajya Naik was examined as PW.2 and Exs.A1 to A6 were marked. On behalf of the respondents RWs.1 and 2 were examined and Exs.B1 and B2 were marked. The Tribunal, on appreciation of oral and documentary evidence, came to the conclusion that the accident occurred due to rash and negligent driving of the driver of the vehicle. Since the said finding of the Tribunal is not challenged in this appeal, there is no need to discuss about the same. The main contention of Sri B. Devanand, learned counsel for the insurance company, is that the vehicle involved in the accident is an auto-trolley and that the deceased was traveling as passenger and therefore he was gratuitous passenger. He further contended that admittedly the driver was not having effective driving license and therefore the insurance company is not liable to indemnify the owner of the vehicle. In support of his contention, he relied on the decisions reported in Vachala v. V.R. Kumar[1], Bhuwan Singh v. Oriental Insurance Company Limited[2], Ram Babu Tiwari v. United India Insurance Co.Ltd.[3], and National Insurance Co.Ltd. v. Vidhyadhar Mahariwala[4]. On the other hand, Smt. A. Chaya Devi, learned counsel for the claimants, submitted that the burden lies on the insurance company to prove that the insured violated the terms and conditions of the policy. It is also submitted that it is not sufficient to prove that the driver was not having valid driving license by the insurance company, but the insurance company should also prove that the driver was disqualified and incompetent to hold the driving license. It is also her submission that merely because the license is not renewed for a brief period it does not mean that the driver was disqualified from driving the vehicle. In support of her contention she has relied on a decision reported in Oriental Insurance Co. Ltd. v. Paulose[5]. She has also relied on a decision reported in National Insurance Co.Ltd. v. Swaran Singh[6], in support of her contention that even if it is held that the driver was not having valid driving license on the date of accident that itself is not sufficient for the insurance company to avoid its liability and that the insurance company must prove that the main cause for occurring the accident is because of the driver not holding the driving license. It is also her submission that the insurance company has not summoned neither the owner nor the driver of the vehicle and it was obligatory on the part of the insurance company to summon them to prove that the insured had violated the terms and conditions of the policy knowingly and willfully. Her main submission is that the liability of the insurance company is statutory liability and the insurance company has to satisfy the claims of the third parties and then recover the same from the owner of the vehicle. The only point that arises for consideration is whether the insurance company can avoid its liability? It is not in dispute that the burden of proof would be on the insurance company to establish that there has been a breach of the terms and conditions of the policy under Section 106 of the Indian Evidence Act. Where the insurance company asserts that the insured has violated the terms and conditions of the policy, the burden lies on the insurance company to prove the same. It is also settled law that the provisions relating to awarding of compensation are being beneficial provisions, such provisions have to be liberally construed. The main purpose of the provisions is to see that the third parties do not become the helpless victims of motor accidents. It is our experience that for attending the public meetings being organized by the political parties some times, which are being addressed by the Ministers, public is being gathered in Lorries (goods vehicles) to the knowledge of one and all and it is alleged that the supply of such vehicles is being supervised by concerned police and RTA officials. Thus, those who are legally bound to prevent the violations which are the offences under the M.V. Act are either becoming silent spectators or becoming a party to such violations. It is also surprising to note that a vehicle which starts from Delhi reaches Cochin and another vehicle from Bhuvaneshwar to Mumbai passes through several states, check posts and comes under check of several check-post officials, traffic police, RTA officials and other officials, but, the ground reality is that ultimately several violations will be found and with those violations the vehicle was allowed to move thousands of miles. Who is responsible? It appears that there is no proper check to prevent unlicensed persons to drive the vehicles or to prevent the violations under the provisions of the Motor Vehicles Act. When there is no effective machinery to prevent the same and when no steps are being taken to check and prevent the violations and violations continue to occur, can we say that victims of road accidents are responsible for the same? In most of the cases, the entire burden is shifted to the claimants. For several reasons the matters have been pending since several years and ultimately after 20 or 25 years we are saying to a poor widow or the children of the deceased “see the deceased had not verified before he was hit by a vehicle whether the driver’s driving licence expired one day before the date of accident or not? And he ought to have chosen a vehicle which was plying without any violations? The Tribunals went to the extent of saying that there might be collusion between the claimants (deceased) and the insured? How can we say that the dependants of the deceased colluded with the insured even before occurring the accident? Are we justified in denying the compensation to those victims at this stage. Everybody violates the rules. Nobody bother to see that violations do not occur. Is not the failure of the State machinery or is not the failure of the whole system, which is causing this untold misery to the motor accident victims. Is it not the responsibility of entire society, the State to see that justice is done to those victims? Is it not necessary to interpret the relevant provisions keeping in view the very object of those provisions? Is it not the responsibility of the legislature to amend the relevant provisions and see that all the victims of road accidents, irrespective of the fact whether they are third parties or not, get just and reasonable compensation? It is for the legislature to see that the relevant provisions of Section 149 of the M.V. Act are suitably amended to see that initially the claimants are paid compensation and if any violations are proved, to recover the same from insured. In spite of clear and categorical findings of the apex Court since confusion is there, the legislature must consider all the aspects and see that the victims of road accidents ultimately get compensation. However, coming to the facts of this case, learned counsel for the insurance company has relied on a decision reported in Vachala v. V.R. Kumar (1 supra). The facts of that case reveal that the seating capacity of the offending vehicle was only one i.e., the driver alone can travel in the vehicle and in the above circumstances this Court held that when others were allowed to travel besides the driver in that vehicle, carrying of passengers in offending vehicle is not allowed by the Act and therefore the insurance company can avoid its liability. But, coming to the facts of the instant case learned counsel for the claimants has placed a copy of certificate of registration which shows that the seating capacity of the vehicle involved in the accident is two. In the interest of justice the same is marked as Ex.X1. Thus, it is clear that besides the driver another person was allowed to travel in the vehicle as per the certificate of registration. Therefore, the above referred decision appears to be not applicable to the facts of the case on hand. Coming to the issue of driver not holding valid driving license, the respondents have examined RWs.1 and 2. Their evidence reveals that the driver was not having valid driving license as on the date of accident. The license is valid from 19.04.1995 to 24.03.2002 and it was renewed from 12.08.2002 to 11.08.2005 and again from 05.11.2005 to 04.11.2008. Admittedly, the accident occurred on 02.11.2005 i.e., just three days after the date of accident the driver had renewed his license. In the above circumstances, can we say that the driver was incompetent or disqualified to drive the vehicle from 11.08.2005 to 05.11.2005? If at all, he was disqualified, the authorities concerned would not have renewed his license from 05.11.2005 to 04.11.2008. Merely because for a period of few days the driver’s license was not renewed, would he lose his capacity to drive the vehicle? By stretch of no imagination it can be said that the driver was incompetent to drive the vehicle. The relevant provision of Section 149(2)(a)(ii) of the Motor Vehicles Act, 1988 is as follows. “(ii) a condition excluding driving by a named person or persons 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.” Thus, it is not sufficient to prove by the insurance company that the driver was not duly licensed, but they have to prove that he was disqualified for obtaining a driving license during the period of disqualification. More over, the apex Court comprising of three judges bench, in National Insurance Co.Ltd. v. Swaran Singh (6 supra), categorically held that the liability of the insurer is statutory one, the liability of the insurer to satisfy the decree in favour of the third party is also statutory. It was further held that the Tribunal should verify whether such violations are willful and whether such violations are so fundamental as are found to have contributed to the cause of the accident. It was also held that the insurance companies have to specifically plead and prove the same. It is not the case of the learned counsel for the Insurance Company that the insurance company had specifically pleaded or proved that the violation i.e., non-renewal of driving licence was so fundamental as is found to have contributed to the case of accident. Even if it is accepted for the sake of argument that the insurance company has proved such violations the observations of the apex Court are relevant in this case. The apex Court also observed in the above referred judgment as follows. “Even where the insurer is able to prove breach on the part of the insured concerning the policy condition regarding holding of a valid licence by the driver or his qualification to drive during the relevant period, the insurer would not be allowed to avoid its liability towards insured unless the said breach or breaches of the condition of driving licence is/are so fundamental as are found to have contributed to the cause of the accident.” It was further observed as follows. “The Tribunals in interpreting the policy conditions would apply ‘the rule of main purpose’ and the concept of ‘fundamental breach’ to allow defences available to the insurer under Section 149(2) of the Act.” The apex Court further observed as follows. “The provisions contained in sub-section (4) with proviso thereunder and sub-section (5) which are intended to cover specified contingencies mentioned therein to enable the insurer to recover amount paid under the contract of insurance on behalf of the insured can be taken recourse of by the Tribunal and be extended to claims and defences of insurer against insured by relegating them to the remedy before regular court in cases where on given facts and circumstances adjudication of their claims inter se might delay the adjudication of the claims of the victims.” It was further observed as follows. “Where on adjudication of the claim under the Act the tribunal arrives at a conclusion that the insurer has satisfactorily proved its defence in accordance with the provisions of section 149(2) read with sub-section (7), as interpreted by this Court above, the Tribunal can direct that the insurer is liable to be reimbursed by the insured for the compensation and other amounts which it has been compelled to pay to the third party under the award of the tribunal.” It is nobody’s case that the judgment of the apex Court in Swaran Singh’s case is not holding the field even as on today. In the decisions relied on by the learned counsel for the insurance company there was no issue as to whether the non-holding of valid driving license was main and contributory cause of accident. I n Bhuwan Singh v. Oriental Insurance Company Limited (2 supra), relied on by the learned counsel for the insurance company, the main issue that came up for consideration is whether the learner’s licence could be automatically renewed or not. However, I am of the view that we are bound by the observations made by the three Judges bench of the apex Court in Swaran Singh’s case. In view of the same, I do not see any reason to interfere with the well reasoned order passed by the Tribunal and the appeal is liable to be dismissed. Accordingly, the MACMA is dismissed. No costs. ____________________ B. CHANDRA KUMAR, J. Date: 30.04.2011 Nsr Note: Mark LR copy The Registrar (Judicial) is directed to send the Copies of this judgment To 1. The Hon’ble Chairman, Law Commission of India, New Delhi. 2. The Secretary (Justice), Ministry of Law and Justice, New Delhi. 3. The Secretary, Law Department, Secretariat, Hyderabad. [1] 2004-ALT-5-460 [2] (2009) 5 SCC 136 [3] 2008 ACJ 2654 [4] 2008 ACJ 2860 [5] 2004 ACJ 457 [6] 2004 ACJ 1 (SC)