IN THE HIGH COURT OF JUDICATURE AT PATNA MA No.571 of 2009 MANAGER, THE NEW INDIA ASSURANCE COMPANEY LTD., CHAPRA THROUGH ITS AUTHORIZED SIGNATORY SRI ANIL KUMAR MALLICK. MANAGER AND DULY CONSTITUTED ATTORNEY THE NEW INDIA COMPANY LTD. REGIONAL OFFICE 6TH FLOOR B.S.F.C. BUILDING FRASER ROAD, PATNA. ……. OPP. PARTY NO. 3 ……….. APPELLANT. Versus 1. MEENA DEVI, WIFE OF JANARDAN YADAV, RESIDENTS OF VILLAGE AND P.O. DEWARIYA, P.S. – RIVILGANJ, DISTRICT SARAN AT PRESENT GHORAT, P.S. MANJHI, DISTRICT – SARAN ……….Claimant. 2. Bhola Yadav, Son of Late Bipin Behari Yadav, Resident of village and P.O. Ghorahat, P.S. – Manjhi, District – Saran ……………. (Opp. Party No. 1) 3. Lala Yadav, Son of Sri Mohuee Yadav, Resident of Village Ghorahat Majhawaliya and P.O. Ghorahat Mathiya, P.S. – Manjhi, District – Saran …….. ( Opp. Party No. 2) ….. Respondents. ----------- 06/ 08.11.2010 Heard learned counsel for both the parties. 2. This miscellaneous appeal is directed against the order dated 15.06.2009 passed by Sri Jitendra Mohan Sharma, District & Sessions Judge-cum-Motor Vehicle Accident Claim Tribunal, Chapra in Claim Case No. 30 of 2007 by which he has allowed the claim case allowing the claim of Rs.2,00000/- to the claimants with 6% interest to be paid by the Insurance Company opposite party no. 3. It has further been held that if the opposite party no. 3 feels that the driver having no valid license for driving the said tractor then it can recover the amount paid from the owner who was primarily liable to pay the compensation. 2 3. The claimant is the mother of the deceased Nitesh Kumar Yadav alleging therein that Nitesh Kumar Yadav is the son of claimant aged about 10 years, got injured and succumbed to injury out of the accident with the tractor bearing no. BR 04D 5644. The said tractor was insured with New India Insurance Company and a police case was lodged for the said accident. The Insurance Company appeared and filed the written statement taking the plea that the accident did not take place due to rash and negligent driving. Charge sheet was not admitted. The route permit is required to be verified from R.T.A and the driving license of the alleged driver Lala Yadav is required for verification by the concerned D.T.O. and if verified and found fake then the Insurance Company cannot be compelled to indemnify the award and to produce the route permit, tax token, fitness certificate, driving license, insurance certificate and registration documents for its verification and if these documents are not produced on behalf of the owner then it shall be presumed that there is violation of the policy condition. 4. A show cause was also filed by the owner and Lala Yadav stating therein that Bhola Yadav is the owner of 3 the tractor which is used for agriculture purposes and Lala Yadav is the driver of the said tractor and the owner has got valid papers of the tractor and the said tractor is insured with the Insurance Company. During the period of accident and Lala Yadav was the driver and was well versed in driving and was not negligent at the time of the accident. 5. On the pleadings of the parties the five issues were framed which are as follows:- 1. Whether the claim petition as framed is maintainable? 2. Whether the claimant has any cause of action for compensation as demanded by her? 3. Whether the claimant’s son died due to rash and negligent driving by the driver of the alleged tractor? 4. Whether the claimant is entitled to get compensation, if so, to what extent and from whom? 5. Whether the claimant is entitled to any other relief or reliefs and if so for what? 6. However, on the issues two witnesses examined on behalf of the claimant who were A.W. 1 Meen Devi the claimant and A.W. 2 Bhrigunath Yadav. The documentary 4 evidence proved is Ext. 1 the fardbeyan, Ext. 2 is a photo copy of the insurance policy, Ext. 3 is the post mortem. However, no witnesses have been examined on behalf of the Insurance Company or the driver or the owner. Either oral or documentary and considering the oral and documentary evidence the Tribunal held that the deceased was a minor boy having no income held that Nitesh Kumar Yadav died due to the rash and negligent driving of the driver of the tractor bearing registration no. BR 04 B – 5644 and held that the claimant is entitled for compensation of Rs.2,00000/- and hence assessed the quantum of compensation as Rs.2,00000/- with 6% interest per annum from the date of the filing of the claim petition till its realization and further held that if the opposite party no. 3 the Insurance Company feels that the driver was not having a valid license for driving the said tractor then it can recover the amount paid from the owner. 7. The learned counsel for the appellant, however, contended that from the nature of the allegation and the evidence adduced, it is apparent that the occurrence took place due to the trolley / trailer of the tractor as per the evidence of the mother of the deceased that the wheel of the trolley of the tractor passed over the body of the deceased and 5 the witnesses have also said so and submit that the occurrence took place by the trolley of the tractor and since the trolley / trailer though comes under the definition of motor vehicle but the said trailer having not been insured and hence the Insurance Company is not liable to pay the compensation as a trailer was not insured and further contended that the trailer comes under the definition of Motor Vehicles Act, adapted to use on road. It has placed reliance upon decision reported in 2007 (2) PLJR 711 (Chandra Prakash Sah Vs. Jakir Hussain & Anr.) that the tractor and trailer is a goods carriage. 8. Learned counsel for the appellant further contended that the Insurance Company has denied that the driver has no valid license and there is no valid permit and other documents and the owner has not proved the driving license nor came to depose in the case and though have stated that the vehicle was not being driven by him but by one Lala Yadav but neither has come forward to give evidence nor prove that he has got valid driving license and hence submitted that where the owner or the driver did not appear and prove that he had valid driving license, the onus does not shift to the Insurance Company to prove that the driver had 6 no license at all and submits that it is difficult for the Insurance Company to trace the driving license and hence the Insurance Company cannot be fastened with this liability to pay compensation when there is violation in the breach of the condition of the policy and has placed reliance upon decision reported in 2002 (3) PLJR 166 (The New India Assurance Company Ltd. Vs. Most. Lahaso Devi & Ors.) and decision reported in 2009 AIR SCW 2865 (Bhuwan Singh V. M/s. Oriental Insurance Co. Ltd. & Anr.). It has further been contended that the quantum of compensation was fixed to be Rs.2,00000/- without any basis and in case of the death of a child the quantum ought to have been fixed on a lump sum amount or notional income with the multiple having been taken into consideration the age of the parents. It has further been contended that the Insurance Company cannot be fastened with the liability if there is breach of condition even when the vehicle was insured and submitted that the Hon’ble Supreme Court in decision reported in 2009 (8) SCC 785 (National Insurance Company Ltd. Vs. Parvathneni & Anr.) doubted the correctness of the decisions in which the direction has been issued by the Tribunal to the Insurance Company to pay the document and recover it from the owner 7 of the vehicle and has referred the matter to be placed before the Hon’ble Chief Justice for formation of the Bench to decide this question. 9. The learned counsel for the opposite party, however, contended that the plea that trolley / tractor is not a motor vehicle has been taken for the first time in this Court and such plea has neither taken in lower court. The driver was Lala Yadav and the tractor was insured but no evidence has been adduced either by the owner or by the Insurance Company about any breach of condition and has placed reliance on 2002 (3) PLJR 166 (The New India Assurance Company Ltd. Vs. Most. Lahaso Devi & Ors.) and further that the deceased died was a nine years boy and the claimant Meena Devi was only 31 years old on the date of her deposition in the year 2009 whereas the accident is of the year 2007 and hence was less than 30 years on the date of the occurrence. Hence, a multiple of 18 is required and even taking the income of the notion of Rs.15,000/-. The notional income of the deceased as Rs.15,000/- as deceased was a child then Rs.2,00000/- is just and reasonable. 10. Hence on the respective submission of the parties the question for consideration is that whether the accident 8 took place by the tractor when fasten with the trailer having no trailer whereas the tractor was insured and the trailer was not and then whether the Insurance Company is liable to pay compensation. Further whether the compensation of Rs.2,00000/- as decided by the Tribunal is just and reasonable. Further whether the Insurance Company can be fastened with the liability to pay the amount and the order of the Tribunal is sustainable directing the Insurance Company to pay when there is no evidence either by the Insurance Company or by the owner about the license. 11. However, the case of the claimant is that the son got injured while the tractor being plied with trailer and one Lala Yadav was driving the said tractor. The tractor got over the victim by which the victim was succumbed to injury. There is clear evidence that the victim died out of the accident by the tractor with trolley and the wheel and while the tractor was being driven with the trolley the victim got beneath the wheel of the trolley and there is evidence that the deceased died out of the rash and negligent driving of the driver of the tractor and the victim died out of the tractor with trolley. 12. Learned counsel for the appellant, however, 9 submits that the tractor comes under the definition of motor vehicle as apparent in 2 (46) of the Motor Vehicles Act and further Section 2 (28) of the Motor Vehicles Act defines motor vehicle or vehicle means any mechanically propelled vehicle adapted for the use upon road. However, the tractor has been defined as a motor vehicle which is not itself construed to carry any load. However, the trailer is defined as a vehicle intended to be drawn by the motor vehicle when the tractor is attached with the trailer, it becomes a goods carriage means a motor vehicle construed or adapted for the use solely for carriage of the goods and hence when the tractor was attached with the trailer it becomes a goods carriage and if a person is crashed by a goods carriage then victim or heirs of victim are liable to be compensated by the owner. However, it is not a case that the victim was traveling on the tractor if there would have been a case, it may be said to be a gratuitous passenger traveling on a good vehicle. However, there is no case that he was a gratuitous passenger traveling on the goods vehicle rather the case is that victim was crushed when the wheel got over him by the vehicle being driven rashly and negligently and hence the owner of the tractor liable when tractor with trolley was being used as 10 a goods carriage the occurrence took place and hence the owner as well as the insurer of the said tractor is liable to pay the third party for the death of the deceased and hence the point decided against the appellant as it is not only the trailer but it was the tractor which was being driven attached with the trailer which has caused the injury and hence the owner of the tractor in consequence the Insurance Company is liable to pay. However, if there is any breach of condition then it is incumbent on the Insurance Company to plead and prove that there was a breach of condition and he is not liable to pay. However, there is neither any pleading nor any evidence adduced that the trailer was not registered nor any objection taken or evidence adduced in this regard and to establish any breach of condition and it is well settled that if the breach of condition is not proved then it is the Insurance Company who sill suffer. 13. However, it is true that the owner or the driver has not come forward to depose in the case. However, the show cause has been filed that they have got papers. However, it is true that the primarily onus shift lies on the owner and the driver to prima facie established that they have got the license and then the onus shift on the Insurance 11 Company to prove. However, neither the Insurance Company nor the owner has led any evidence or brought on record led any evidence about the driver having any license. However, the matter and the competition is between the owner and the driver and for which the third party may not suffer. It is true that no evidence has been led and as per decision reported in 2002 (3) PLJR 166 (The New India Assurance Company Ltd. Vs. Most. Lahaso Devi & Ors.) and 2009 AIR SCW 2865 (Bhuwan Singh V. M/s. Oriental Insurance Co. Ltd. & Anr.). However, in decision reported in 2002 (3) PLJR 166 (The New India Assurance Company Ltd. Vs. Most. Lahaso Devi & Ors.) the Insurance Company took plea that he is not liable to pay due to the breach of the condition of insurance policy and the claimant challenged the contention that it was onus on the appellant to prove that vehicle in question was not being driven by the licensed driver and the Hon’ble Supreme Court considered that the Insurance Company had taken the plea that the driver was having fake license or he had entrusted the vehicle to another person having no license and so the High Court held that it was the onus of Insurance Company to prove that driver had no license but has made a distinction that neither the driver nor the owner of the tractor 12 appeared in the trial court in spite of notice nor they appeared in appeal to take a plea that the dumpher was entrusted to the driver having license and there held that where the onus shift to the Insurance Company to prove that the driver had no license and considered that in many cases where the owner and driver appeared and contended that he had a driving license. The onus, of courses, shifted to the Insurance Company to prove that the driver had no license at all and held that when neither owner nor driver appeared in answer to notice issued to them. It would be difficult to the Insurance Company to trace as to who was the person who was driving the vehicle and hence hold that since the driver and owner has not appeared so there was apparently a breach of term of policy and further in decision reported in 2009 AIR SCW 2865 (Bhuwan Singh V. M/s. Oriental Insurance Co. Ltd. & Anr.). It has been held that if the appellant has taken the specific plea that he was not driving the vehicle and one Dewan Singh was driving the same, the said fact was within the specific knowledge and the burden of prove. There was to prove the same was on him and he did not examine the Dewan Singh and therein in the facts and circumstances of the case held that it was the appellant who had been driving 13 the vehicle and further he was not holding any valid and effective license and held that the appellant was not duly licensed at his earlier license expired. He filed application for grant of license much later and hence held that the Insurance Company, therefore, not bound to reimburse the owner in terms of the contract of the Insurance Company. However, under the facts and circumstances of the case it was held that the appellant was the driver having no valid license. However, under the present facts and circumstances of the case though no evidence of either party that whether the driver driving the vehicle has got valid license or not and hence the Insurance Company to pay and to realize the amount and in this connection hence under such circumstance the decision reported in 2002 (3) PLJR 166 (The New India Assurance Company Ltd. Vs. Most. Lahaso Devi & Ors.)is relevant. However, the admitted case of the parties that the vehicle was insured on the date of the occurrence and hence prima facie and the owner has come forward and file his show cause that the vehicle was driven by one Lala Yadav since however, it is true that no license has been brought on record by the owner or the driver. However, having regard to the decision reported in 2002 (3) PLJR 166 (The New India 14 Assurance Company Ltd. Vs. Most. Lahaso Devi & Ors.) that even if the breach of condition the Insurance Company is liable to pay and to recover the same from the insured unless the Insurance Company proved that the owner / insured was aware or had noticed that the license was fake or the person having no license was permitted that the person who was driving the vehicle had no license and the Insurance Company is liable to pay to the innocent third party. 14. Learned counsel for the appellant, however, not challenged this proposition, however, relied upon decision reported in AIR 2009 (8) SCC 785 (Supra) and has taken the plea that such a view has been observed by the Supreme Court and doubted its correctness and prayed to decide this issue by a larger Bench. However, till the view is superseded by the larger Bench it still holds the field and hence it can well be held that even if the driver who was driving the license had not valid license and till the Insurance Company proves that the owner of the vehicle had the knowledge that the person to whom he is given the vehicle to drive had got no valid license, he is required to pay to the third party who is suffered by the instance and hence I find and hold that there is no illegality in the view taken by the Tribunal that the 15 insurer is liable to pay compensation the claimant and to recover the amount on establishing that the vehicle was being driven by a person having no driving license to the knowledge of the owner. 15. The next question for consideration about the quantum however, it is established that Rs.2,00000/- has been ordered to be paid as compensation. 16. Learned counsel for the appellant, however, relied upon decision reported in AIR 2006 SCW 6139 (New India Assurance Co. Ltd. V. Satendra & Ors.). However, under the facts and circumstances of this case deceased was aged nine years and was granted a compensation to the tune of Rs.1,80,000/- holding that the award would meet the ends of justice for an accident of the year 2002 whereas the occurrence in this case is of the year 2007 and hence, even if computing that it is neither just nor proper. Further even if computing the quantum taking the Second Schedule of the Motor Vehicles Act in a case of round the income being taken as Rs.15,000/- per annum and since the age of the claimant is less than 31 years on the date of the occurrence as her age is assessed as 31 years in the year 2009 whereas the occurrence is of the year 2007 and hence her age was less 16 than 30 years and hence taking the multiple as per Second Schedule it comes to be 18 and hence, the quantum as per the Second Schedule would be Rs.2,70,000/- and even deducting 1/3rd it comes to be Rs.1,90,000/- and hence Rs.2,00000/- granted as compensation neither appears to be unreasonable nor high but is well reasoned and just compensation. 17. Hence, taking into consideration the entire evidence, I do not find any illegality or irregularity in the impugned order to interfere with the same and hence the appeal is dismissed. 18. Rs.25,000/- deposited by the appellant at the time of filing the appeal be sent down to the lower court so that the same may satisfy the claimant with regard to the award granted by the Tribunal. Kundan (Gopal Prasad, J.)