FAO No. 1714 of 1993 1 IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH FAO No. 1714 of 1993 Date of Decision: .12.2008 The New India Assurance Company Ltd. ....Appellant Vs. Haryana Roadways, Dadri Depot, & Ors. ..Respondents Coram: Hon'ble Mr. Justice Vinod K.Sharma Present: Ms.Radhika Suri, Advocate, for the appellant/petitioner. Mr.Madan Gupta, Sr.DAG, Haryana Mr.Vishal Chaudhary, Advocate, for the Oriental Insurance Co. in all cases. Mr.Mani Ram Verma, Advocate, for claimant-respondents in FAO Nos.1444, 1446, and 1447 of 1993. Mr.R.A.Sheoran, Advocate, --- 1. Whether Reporters of Local Newspapers may be allowed to see the judgment? 2. To be referred to the Reporters or not? 3. Whether the judgment should be reported in Digest? FAO No. 1714 of 1993 2 Vinod K.Sharma,J. This order shall dispose of FAO Nos.1714, 1417 to 1421, 1444 to 1450, 1470, and Revision Petitions No.2615 to 2636 and 3079 of 1993, titled New India Assurance Co. Limited Vs. Smt. Bharto & Ors.; New India Assurance Co. Limited Vs. Haryana Roadways & Ors.; New India Assurance Co. Limited Vs. Haryana Roadways & Ors.; New India Assurance Co. Limited Vs. Haryana Roadways & Ors.; New India Assurance Co. Limited Vs. Haryana Roadways & Ors.; New India Assurance Co. Limited Vs. Haryana Roadways & Ors.; New India Assurance Co. Limited Vs. Raghubir Singh & Ors.; New India Assurance Co. Limited Vs. Ashok Kumar & Ors.; New India Assurance Co. Limited Vs. Ram Singh & Ors.; New India Assurance Co. Limited Vs. Samsudin & Ors.; New India Assurance Co. Limited Vs. Smt.Santosh & Ors.; New India Assurance Co. Limited Vs. Vinod Kumar & Ors.; New India Assurance Co. Limited Vs. Sanbir & Ors. New India Assurance Co. Limited Vs. Haryana Roadways & Ors.; New India Assurance Co. Limited Vs. Rajesh & Ors.; New India Assurance Co. Limited Vs. Tara Chand & Ors.; New India Assurance Co. Limited Vs. Vijender & Ors.; New India Assurance Co. Limited Vs. Balwan Singh & Ors.; New India Assurance Co. Limited Vs. Suresh Singh & Ors.; New India Assurance Co. Limited Vs. Sada Singh & Ors.; New India Assurance Co. Limited Vs. Ram Phal & Ors.; New India Assurance Co. Limited Vs. Krishan & Ors.; New India Assurance Co. Limited Vs. Tara Chand & Ors.; New India Assurance Co. Limited Vs. Rajinder Singh & Ors.; New India Assurance Co. Limited Vs. Bir Singh & Ors.; New India Assurance Co. Limited Vs. Dharam Singh & Ors.; New FAO No. 1714 of 1993 3 India Assurance Co. Limited Vs. Lakhi Ram & Ors.; New India Assurance Co. Limited Vs. Rajbir Singh & Ors.; New India Assurance Co. Limited Vs. Nirmlesh & Ors.; New India Assurance Co. Limited Vs. Rajesh & Ors. New India Assurance Co. Limited Vs. Sombir & Ors.; New India Assurance Co. Limited Vs. Sandeep & Ors.; New India Assurance Co. Limited Vs. Alisher & Ors.; New India Assurance Co. Limited Vs. Mukesh & Ors.; New India Assurance Co. Limited Vs. Hanuman Singh & Ors.; New India Assurance Co. Limited Vs. Ajit Singh & Ors.; New India Assurance Co. Limited Vs. Haryana Roadways & Ors., respectively. For facility the facts are being taken from FAO No. 1714 of 1993 as common questions of law and facts are involved in all these appeal/revision petitions. The appellant/petitioner New India Assurance Company limited has challenged the award dated 29.1.1993 passed by the learned Motor Accident Claims Tribunal, Bhiwani on the ground that the driver of bus of Haryana Roadways bearing No.HNB-1444 which was insured with the appellant/petitioner did not hold a valid driving licence and was only a Fitter employed in Haryana Roadways who was not authorised to drive the bus at the time of accident. The plea of the appellant/petitioner is that under the terms of the insurance policy the appellant is only liable to indemnify Haryana Roadways when the person who was driving the bus at the time of the accident was duly authorised by the Haryana Roadways and had necessary authorization from the competent authority. It was claimed that the appellant/petitioner was wrongly held liable to pay the amount of FAO No. 1714 of 1993 4 compensation. The facts leading to the filing of the present appeal/revisions are that on 22.6.1991 a vehicle Tata 407 bearing registration No.HRS-17- 0194 was coming from village Pipali to Devrala in which a marriage party was coming. The vehicle was being driven by one Balbir son of Rameshwar and many persons including Billu and deceased Richhpal, Rajesh, Nand Lal, Ram Sarup, Dhanpat, Vijay, Sube and Mukesh son of Ram Kumar were tavelling in the vehicle being members of the marriage party. When the vehicle approached the building of Government College, Loharu a bus of Haryana Roadways bearing registration No.HNB-1444 came from the opposite side. Said bus was being driven by respondent No.1 Risal Singh. The bus was said to be driven at a very fast speed rashly and negligently in a zig zag manner. The bus tried to overtake a camel cart. In the meantime, the bus driver lost control and as a result the bus colluded with Tata vehicle. Balbir Singh driver of Tata vehicle No.HR/0194 and 7 other occupants of the said vehicle expired at the spot and many other occupants of the vehicle sustained injuries. The injured were removed to hospital where three more persons expired. Those who died in accident included Richhpal, Rajesh son of Man Singh, Nand Lal, Ram Sarup, Dhanpat, Vijay, Sube and Mukesh son of Ram Kumar Report regarding the accident was lodged with the police by Krishan son of Balbir Singh and on the basis of said report FIR No.110 dated 22.6.1991 was registered at Police Station Loharu under sections 279/337/304-A of the Indian Penal Code. Different claim petitions were filed by the FAO No. 1714 of 1993 5 claimant/respondents. Learned Tribunal on appreciation of evidence recorded a finding that the accident had occurred due to rash and negligent driving of bus driver Risal Singh and compensation to the claimants was awarded. As the bus was insured with the petitioner/appellant learned Tribunal held the petitioner/appellant to be responsible for payment of compensation. Ms.Radhika Suri, learned counsel appearing on behalf of the appellant/petitioner in all the cases has challenged the impugned part of the award vide which the liability has been fastened on the petitioner/appellant. Learned counsel for the petitioner/appellant referred to driving licence of Risal Singh produced on record as Ex.R.1 to contend that licence granted to Risal Singh is for heavy motor transport vehicle (HMV). The contention of the learned counsel for he appellant, therefore, was that with licence Ex.R.1 Risal Singh was not competent to drive passenger bus and therefore, no liability could be fixed on the appellant/petitioner as he could not be said to be a authorised person. Learned counsel referred to provisions of Section 2 (16) and 2 (17) of the Motor Vehicles Act which reads as under:- “2. Definitions.-- (16) 'heavy goods vehicle' means any goods carriage the gross vehicle weight of which, or a tractor or a road-roller the unladen weight of either of which, exceeds 12,000 kilograms; (17) 'heavy passenger motor vehicle' means any public service vehicle or private service vehicle or educational institution bus FAO No. 1714 of 1993 6 or omnibus the gross vehicle weight of any of which, or a motor car the unladen weight of which, exceeds 12,000 kilograms; Learned counsel for the appellant also referred to Section 2 (35) where the definition of 'public service vehicle' is provided. Learned counsel for the appellant/petitioner thereafter referred to section 3 of the Motor Vehicles Act to contend that no person is entitled to drive a motor vehicle in any public place unless he holds an effective driving licence issued to him authorizing him to drive the vehicle and that no person is authorised to drive a transport vehicle other than hired for his own use or allotted under any scheme unless his driving licence specifically authorise him to do so. Reference was also made to Section 10 (2) of the Motor Vehicles Act which reads as under:- “10. Form and contents of licences to drive.-- (1) xx xx xx 2) A learner's licence or, as the case may be, driving licence shall also be expressed as entitling the holder to drive a motor vehicle of one or more of the following classes, namely:- (a) motor cycle without gear; (b) motor cycle with gear; (c) invalid carriage; (d) light motor vehicle; (e) transport vehicle; (i) road-roller; (j) motor vehicle FAO No. 1714 of 1993 7 By making reference to the above provisions of law the contention of the learned counsel for the appellant/petitioner was that Risal Singh did not hold a licence to drive a heavy passenger motor vehicle and therefore, there was violation of terms and conditions of the insurance policy and thus, no liability could be fastened on the appellant/petitioner. Reference was also made to the statement made by RW 2 Ram Kishan, duty clerk, wherein in examination-in-chief he has stated that Risal Singh was deputed as a driver, where Rajinder as conductor. The duties were said to have been allotted on the directions of the Duty Inspector, Haryana Roadways, Charkhi Dadri. He produced original register and got the entry exhibited as Ex.R.2. Learned counsel for the appellant/petitioner referred to the cross-examination of RW 3 wherein it was stated that Risal Singh was working as fitter,whereas Rajinder Singh was working as Assistant Fitter in the workshop at Charkhi Dadri. He admitted that no written orders were given to him for deputing Risal Singh as driver. In further cross- examination it was admitted by RW 3 that there was no order of General Manager to depute Risal Singh as driver and Rajinder Singh as conductor. Strong reliance was placed on the admission of RW 3 that prior to 22.6.1991 Risal Singh and Rajinder Singh were never deputed as driver on any bus. By referring to the statement of RW 3 it was strongly contended by the learned counsel for the petitioner/appellant that Risal Singh was not an authorised driver to drive the bus and therefore, no liability could be fixed on the appellant/petitioner qua the compensation as FAO No. 1714 of 1993 8 there was breach of the terms of the policy. Learned counsel for the petitioner/appellant referred to the judgment of Hon'ble Supreme Court in the case of National Insurance Co. Ltd. Vs. Swaran Singh and others 2004 ACJ 1, wherein Hon'ble Supreme Court has considered with respect to liability of Insurance Company to make payment if the person having licence of one type of vehicle and is found driving other type of vehicle. The finding recorded by Hon'ble Supreme Court reads as under:- “81 Section 10 of the Act provides for forms and contents of licences to drive. The licence has to be granted in the prescribed form. Thus, a licence to drive a light motor vehicle would entitle the holder to drive the vehicle falling within that class or description. 82. Section 3 of the Act casts an obligation on a driver to hold an effective driving licence for the type of vehicle which he intends to drive. Section 10 of the Act enables Central Government to prescribe forms of driving licences for various categories of vehicles mentioned in sub-section (2) of said section. The various types of vehicles described for which a driver may obtain a licence for one or more of them are (a) Motorcycle without gear, (b) motorcycle with gear, (c) invalid carriage, (d) light motor vehicle, (e) transport vehicle, (f) road roller and (g) motor vehicle of other specified description. The definition clause in Section 2 of the Act defines various categories of vehicles which are covered in broad types FAO No. 1714 of 1993 9 mentioned in sub- section (2) of Section 10. They are 'goods carriage', 'heavy-goods vehicle', 'heavy passenger motor- vehicle', 'invalid carriage', 'light motor-vehicle', 'maxi-cab', 'medium goods vehicle', 'medium passenger motor-vehicle', 'motor-cab', 'motorcycle', 'omnibus', 'private service vehicle', 'semi-trailer', 'tourist vehicle', 'tractor', 'trailer', and 'transport vehicle'. In claims for compensation for accidents, various kinds of breaches with regard to the conditions of driving licences arise for consideration before the Tribunal. A person possessing a driving licence for 'motorcycle without gear', for which he has no licence. Cases may also arise where a holder of driving licence for 'light motor vehicle' is found to be driving a 'maxi-cab', 'motor-cab' or 'omnibus' for which he has no licence. In each case on evidence led before the Claims 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 vehicle, was the main or contributory cause of accident. If on facts, it is found that accident was caused solely because of some other unforeseen or intervening causes like mechanical failures and similar 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. 83. We have construed and determined the scope of sub- clause (ii) of sub- section (2) (a) of section 149 of the Act. FAO No. 1714 of 1993 10 Minor breaches of licence conditions, such as want of medical fitness certificate, requirement about age of the driver and the like not found to have been the direct cause of the accident, would be treated as minor breaches of inconsequential deviation in the matter of use of vehicles. Such minor and inconsequential deviations with regard to licensing conditions would not constitute sufficient ground to deny the benefit of coverage of insurance to the third parties. 84. On all pleas of breach of licensing conditions taken by the insurer, it would be open to the tribunal to adjudicate the claim and decide inter se liability of insurer and insured; although where such adjudication is likely to entail undue delay in decision of the claim of the victim, the Tribunal in its discretion may relegate the insurer to seek its remedy of reimbursement from the insured in the civil court.” The contention of the learned counsel for the appellant/petitioner is that in view of the judgment of Hon'ble Supreme Court the liability of the Insurance Company is to be fixed on the facts and circumstances of each case. The contention of the learned counsel for the petitioner/appellant is that the licence brought on record when seen with the statement of RW 3 it has to be held that the main reason for accident was that the driver was found driving one type of vehicle qua which he did not have the valid licence nor he was authorised person, not being appointed as driver by the State. He was said to have been deputed for the first time that FAO No. 1714 of 1993 11 too by a person not authorised under law/ or terms of appointment. Learned counsel for the petitioner/appellant placed reliance on the judgment of Hon'ble Supreme Court in the case of National Insurance Co. Ltd. Vs. Smt. Kusum Rai & Ors. JT 2006 (4) SC 9, wherein Hon'ble Supreme Court was pleased to lay down as under:- “11. It has not been disputed before us that the vehicle was being used as a taxi. It was, therefore, a commercial vehicle. The driver of the said vehicle, thus, was required to hold an appropriate licence therefor. Ram Lal who allegedly was driving the said vehicle at the relevant time, as noticed hereinbefore, was holder of a licence to drive a Light Motor Vehicle only. He did not possess any licence to drive a commercial vehicle. Evidently, therefore, there was a breach of condition of the contract of insurance. The appellant, therefore, could raise the said defence.” Reliance was also placed on the judgment of Hon'ble Supreme Court in the case of Oriental Insurance Co. Ltd. Vs. Syed Ibrahim & Ors. AIR 2008 SC 103, where again Hon'ble Supreme Court was pleased to lay down that in case a person is found driving a vehicle of category other than for which he holds licence it would amount to breach of the terms of the policy. Paras 3 & 10 of the said judgment read as under:- “3. Learned counsel for the appellant-insurer submitted that the quantum, as fixed, is extremely high and is without any basis. Further the insured was the father of the driver and it is hard to believe that he did not know as to what type of vehicle FAO No. 1714 of 1993 12 the driver was authorised to drive. Reliance is placed on National Insurance Co. Ltd. Vs. Swaran Singh (2004) 3 SCC 297 to contend that on the facts established and proved appellant has no liability. Xx xx xx 10. In view of what has been stated in Swaran Singh's case (supra) we are of the view that the appellant-insurer was not liable to indemnify the award. However, at this juncture, it would be relevant to take note of paragraphs 11 and 19 of National Insurance Co. Ltd. Vs. Kusum Rai and others (2006 (4) SCC 250. The quantum, as awarded by the tribunal and deposited pursuant to the order of this Court dated 29.4.2005 is maintained. The claimants shall be permitted to withdraw the amount so deposited along with accrued interest.” Finally, reliance was placed on the judgment of Hon'ble Andhra Pradesh in the case of D.Narayanaswami Vs. Suresh Gupta and others 1990 ACJ 220, wherein Hon'ble Andhra Pradesh High Court was pleased to lay down that if a vehicle is driven by a person other than the licenced driver then the Insurance Company would be absolved of its liability. In view of the submissions made above, learned counsel for the petitioner/appellant contended that the State of Haryana i.e. the owner of the bus should be directed to refund the amount of compensation paid by the Insurance Company. Mr. Madan Gupta, learned Deputy Advocate General, FAO No. 1714 of 1993 13 Haryana, however, contends that the pleas sought to be raised by the petitioner/appellant in this court with regard to the validity of the driver to drive the bus was not taken in the written statement and only general plea was raised to claim that the driver of the bus did not have proper and valid driving incence. Learned counsel for the State contended that no issue was framed with regard to the fact that respondent No.1 did not hold a valid driving licence to drive the vehicle and thus, it is not open to the appellant/petitioner now for the first time to raise the pleas now sought to be raised. It is also the contention of the learned counsel for the State that no separate licence qua heavy passenger vehicle as is claimed by the petitioner/appellant is referred to in Ex.R1, whereas the types of vehicles are mentioned in the driving licence as under:- (a) Motor Cycle/Scooter (b) Invalid carriage (c) Light Motor Transport vehicle (d) Medium motor/Transport/vehicle (e) Heavy motor Transport vehicle (f) Road rollers/Tractor (g) A motor vehicle hereunder described, wherein it has been mentioned that he driver was entitled to drive H.M.Vehicle. Learned counsel for the appellant/petitioner also referred to the statement of RW 1 Risal Singh, the driver of the bus who denied the factum of his driving the bus. However, this plea of RW 1 was not accepted and he FAO No. 1714 of 1993 14 was found driving the bus at the time of accident. Learned Sr.Deputy Advocate General, Haryana appearing on behalf of the State contends that in the present case the question whether respondent Risal Singh was holding a valid licence or was authorised to drive the vehicle was not raised and therefore, no issue was framed in this regard and therefore, it is not open to the petitioner/appellant to raise this plea for the first time in these appeal/revisions. It is also the contention of the learned counsel for the State that there is no special category of heavy passenger vehicle in the licence and thus, the person holding heavy motor vehicle license was authorised to drive the bus and therefore, it could not be said that there was no valid licence. It was contended by the learned counsel for the State that in the present case once the bus was insured with the appellant/petitioner it was to indemnify the owner under the terms of the policy and thus, the appeal/revisions deserve to be dismissed. It was also contended by the learned counsel for the State that once a person incharge has authorised Risal Singh to drive the vehicle it could not be said that the driver was not authorised to drive. On consideration of the matter, I find force in the contentions raised by the learned counsel for the appellant/petitioner. Reading of Section 10 would show that a person to drive a vehicle must hold the driving licence of the particular vehicle. The driving licence Ex.R.1 would show that the category of vehicle which the person is authorised to drive has to be mentioned therein. It may further be noticed FAO No. 1714 of 1993 15 that in the present case the evidence has come on record that Risal Singh was not employed as a driver with Haryana Roadways nor there was any order by the competent authority authorizing him to drive the vehicle. Interestingly, in the present case Risal Singh has taken a positive stand that he was not even driving the vehicle nor he was authorised to do so. The stand of Risal Singh has been found to be wrong in view of the evidence brought on record. The plea of the respondent/State that no specific plea was taken to challenge the validity of driving licence is not correct as the insurance company had taken a stand that the driver of the bus did not hold valid driving licence to drive the vehicle. Even though no issue was framed in the present case with regard to the validity of the driving license but the parties were alive to the issue and the evidence was led on this point. Mere non-framing of that issue cannot be a ground to reject the contention raised by the learned counsel for the petitioner/appellant, once the parties were aware of the case and had led evidence in support thereof. As already observed above in the present case it is proved on record that respondent Risal Singh did not have a valid licence to drive heavy passenger vehicle nor he was appointed as driver or authorised to drive the vehicle. The act for accident, therefore, has to be directly attributed to his conduct, for absolving the insurance company of its liability to indemnify the State as there has been breach of the terms of the policy. However, in view of the settled law it is for the insurance company to first pay to the claimant and then recover the same from the State/owner. FAO No. 1714 of 1993 16 In the present case it has been stated that compensation already strands paid by the Insurance Company to the claimants if not already paid and therefore, all these appeal/revisions are disposed of by modifying the award passed by the learned Tribunal as under: That it shall be the responsibility of the appellant/petitioner Insurance Company to pay to the claimants if not already paid. However, it shall be entitled to recover the same from the owner i.e. State of Haryana. 16.12.2008 (Vinod K.Sharma) rp Judge