IN THE HIGH COURT OF JUDICATURE AT PATNA MA No.211 of 2009 United India Insurance Company Ltd. Biharsharif Nalanda through Sri Rajesh Kumar, Manager cum and duly constituted Attorney United India Insurance Company Ltd. Regional Office 3rd Floor chanakya Complex B.C. Patel Road, P.O.-G.P.O., P.S.-Sachiwalaya, Patna District-Patna. ………………………… (Opp. Party No. 2) ……………………… Appellant Versus 1. Sangita Devi, wife of Late Ram Pravesh Singh ………………………. (Claimant no. 1) 2. Sanya Singh, daughter of Late Ram Pravesh Singh ………………………. (Minor)………….(Claimant no. 2) 3. Sonali Singh, daughter of Late Ram Pravesh Singh ……………………… (Minor) ……………. (Claimant no. 3) 4. Rahul Raj Singh, son of Late Ram Pravesh Singh ……………………… (Minor) ……………. (Claimant no. 4) 5. Khusbu Kumari, daughter of Late Ram Pravesh Singh ……………………… (Minor) ……………… (Claimant no. 5) 6. Purusotam Kumar, son of Late Ram Pravesh Singh ……………………. (Minor) ………………. (Claimant no. 6) Minors under the Guardianship of their mother Respondent no. 1 Sangita Devi all Residents of Village and P.O.-More Talab, P.s.-Rohni, District-Nalanda. 7. Chairman Bihar State Road Transport Corporation Pariwan Bhawan, B.C. Patel Road, P.O.-G.P.O., P.S.-Sachiwalaya, Patna District-Patna ……………………… (Owner) ………………… (Opp. Party No. 1) …………………………………………………….. Respondents ----------- 2. 21.4.2009 Heard Mr. Ashok Priyadarshi, learned counsel for the appellant. For the reasons mentioned in the accompanying application, seeking condonation of delay in filing of this appeal, being I.A. No. 2514 of 2009 confined to a period of two days, is hereby allowed and the delay in filing of this appeal is condoned. This appeal is directed against the order 2 of the District Judge-cum-Motor Vehicle Accident Claim Tribunal, Nalanda at Biharsharif dated 24.12.2008 in Claim Case No. 74 of 2007 whereby and whereunder the appellant insurance company has been directed to pay compensation of Rs. 8,89,500/- along with interest thereon at the rate of 6% per month from 14.8.2007, the date of filing of the claim application, till its recovery from the insurer, the appellant insurance company. The facts which are not in dispute are that in the fateful night on 10-11.5.2007 Ram Pravesh Singh, an employee of Bihar State Warehousing Corporation, Raxaul had boarded a deluxe bus no. BR-05-0556 run by the Bihar State Transport Corporation at Motihari Bus Stand for traveling to Patna and the said bus at about 3.45 A.M. when it had reached near Hazipur and was passing through Gandhi Setu had fallen in the ditch breaking the railing of the bridge. As a result whereof, a number of passengers in the bus had either succumbed to their injuries or were seriously injured. The driver of the said bus, namely, Rajesh Kumar @ Rajesh Singh had also died in course of such 3 accident along with the aforesaid Ram Pravesh Singh. The claim case, thereafter, was filed by the respondents being the wife and dependant children of late Ram Pravesh Singh on 14.8.2007 for a sum of Rs. 17 lacs by way of compensation on account of loss of life of the deceased Ram Pravesh Singh in the aforesaid accident. The Tribunal after perusing the evidence brought on record by the claimant, the owner and the appellant insurance company had allowed the compensation of Rs. 8,89,500/- and it is this judgment and award of the Tribunal which has been assailed by the appellant insurance company. Mr. Ashok Priyadarshi, learned counsel for the appellant, has not disputed any other findings in the impugned judgment and has confined his submission only on the issue of liability of payment of such compensation being fastened on the insurance company. He would submit that once the Tribunal had come to a finding that the driver of the bus in question owned by the Bihar State Road Transport Corporation was having only a fake driving 4 licence, the liability for payment of such amount should have been plainly and squarely fastened on the Bihar State Road Transport Corporation (hereinafter to be referred to as ‘the Corporation’). He has submitted that the recourse taken by the tribunal of directing the appellant insurance company to pay the amount of compensation in the first instance and later on recover the same from the Corporation, the owner of the bus, was well beyond the jurisdiction of the Tribunal, inasmuch as, such power could be exercised only by the Apex Court in terms of Article 142 of the Constitution of India and no other court much less the Tribunal could take recourse to such procedure. For this purpose, he had referred to the judgment of the Apex Court in the case of Oriental Insurance Co. Ltd. Vs. Brij Mohan & Ors. reported in AIR 2007 SC 1971 and another judgment of the Apex Court in the case of New India Assurance Co. Ltd. Vs. Roshanben Rahemansha Fakir & Anr. reported in AIR 2008 SC 2266. In the opinion of this Court, the aforesaid submission of the learned counsel for the appellant is fit to be rejected for more 5 than one reason. First of all, it has to be kept in mind that the claim had been made by the third party who was not the owner of the vehicle. The liability of insurance company for payment of compensation towards third party in terms of Section 149 of the Motor Vehicle Act (hereinafter to be referred to as ‘the Act’) even in a case of an accident by a driver who was not duly licensed stands well settled in the judgment of the Apex Court in the case of United India Insurance Company Vs. Lehru & Ors. reported in AIR 2003 SC 1292 wherein the Apex Court had held that the insurance company continues to remain liable to third party even when licence is fake. In that case, the Apex Court had further gone to hold that if the owner was aware that the licence was fake, insurer can recover from the owner the insured amount paid by it to the third party but in no event the third party could have been denied of a payment on account of the licence of the driver being fake. It was in this context that the Apex Court having examined the scheme of Section 149 of the Act and referring to the earlier judgments of the Apex Court in the case 6 of S. Kandia Insurance Co. Ltd. Vs. Kokilaben Chandravadan reported in AIR 1987 SC 1184 and Sohan Lal Passi Vs. P. Sesh Reddy reported in AIR 1996 SC 2627 had held as follows:- 18. Now let us consider Section 149(2). Reliance has been placed on Section 149(2)(a)(ii). As seen in order to avoid liability under this provision it must be shown that there is a „breach‟. As held in Skandia‟s and Sohan Lal Passi‟s cases (supra) the breach must be on part of the insured. We are in full agreement with that. To hold otherwise would lead to absurd results. Just to take an example, suppose a vehicle is stolen. Whilst it is being driven by the thief there is an accident. The thief is caught and it is ascertained that he had no licence. Can the Insurance Company disown liability? The answer has to be an emphatic “No”. to hold otherwise would be to negate the very purpose of compulsory insurance. The injured or relatives of person killed in the accident may find that the decree obtained by them is only a paper decree as the owner is a man of straw. The owner himself would be an innocent sufferer. It is for this reason that the Legislature, in its wisdom, has made insurance, at least third party insurance, compulsory. The aim and purpose being that an Insurance Company would be 7 available to pay. The business of the Company is to insurance. In all businesses there is an element of risk. All persons carrying on business must take risks associated with that business. Thus it is equitable that the business which is run for making profits also bears the risk associated with it. At the same time innocent parties must not be made to suffer or loss. These provisions meet these requirements. We are thus in agreement with what is laid down in aforementioned cases viz. that in order to avoid liability it is not sufficient to show that the person driving at the time of accident was not duly licensed. The Insurance Company must establish that the breach was on the part of the insured. 19. Section 3 of the Motor Vehicles Act, 1988 prohibits driving of a motor vehicle in any public place unless the driver has an effective driving licence. Further Section 180 of the Motor Vehicle Act makes an owner or person in charge of a motor vehicle punishable with imprisonment or fine if he causes or permits a person without a licence to drive the vehicle. It is clear that the punishment under Section 180 can only be imposed if the owner or person in charge of vehicle “causes or permits” driving by a person not duly licensed. Thus there can be no 8 punishment if a person without a licence drives without permission of the owner. Section 149(2)(a)(ii) merely recognizes this condition. It therefore only absolves the Insurance Company where there is a breach by the insured. 20. When an owner is hiring a driver he will therefore have to check whether the driver has a driving licence. If the driver produces a driving licence which on the face of it looks genuine, the owner is not expected to find out whether the licence has in fact been issued by a competent authority or not. The owner would then take the test of the driver. If he finds that the driver is competent to drive the vehicle, he will hire the driver. We find it rather strange that Insurance Companies expect owners to make enquiries with RTO‟s, which are spread all over the country, whether the driving licence shown to them is valid or not. Thus where the owner has satisfied himself that the driver has a licence and is driving competently there would be no breach of Section 149(2)(a)(ii). The Insurance Company would not then be absolved of liability. If it ultimately turns out that the licence was fake the Insurance Company would continue to remain liable unless they prove that the owner/insured was aware or had noticed that the licence was fake and still permitted that 9 person to drive. More importantly even in such a case the Insurance Company would remain liable to the innocent third party, but it may be able to recover from the insured. This is the law which has been laid down in Skandia‟s, Sohan Lal Passi‟s and Kamla‟s case. We are in full agreement with the views expressed therein and see no reason to take a different view.” In view of the aforesaid authoritative pronouncement of the Apex Court which has not been either distinguished or overruled in the subsequent Supreme Court Judgment relied by the counsel for the appellant, it cannot be held as a proposition of law that the tribunal or this Court are denude of their power in holding the insurance company liable to pay the amount of compensation to a third party leaving the option for the insurance company to recover the same from the owner. It is in that context that one will have to go into the observations/directions given by the Apex Court in the two judgments relied by the learned counsel for the appellant. From the facts of Brij Mohan case (supra), it would be found that an accident of a labourer had taken place while he had slipped 10 down from trolley attached to a tractor and the insurance company had proved that there was no insurance cover in respect of trolley and only tractor was insured and that too for carrying out agricultural work which would not include digging of earth and taking it on trolley to brick kiln. In the special facts of that case, the Apex Court had held that the labourer being a mere passenger and not owner or driver, his claim petition could not have been allowed. Having held so, the Apex Court in exercise of its power under Article 142 of the Constitution of India had directed that since the labourer was a poor person and had become disabled, the insurance company should satisfy the award with a right to realize the same from owner of the tractor and trolley. One fails to understand as to how the aforesaid facts leading to the ratio in the case of Brij Mohan can be made applicable to the facts of the present case. Neither in that case the Apex Court had held that the judgment referred to in the case of Lehru (supra) was a bad law or that such a direction to insurance company to pay the compensation to the claimant, the family 11 members of the deceased, for its being realized from the owner could be exercised only by the Apex Court and no other court or tribunal. It is really unfortunate that the learned counsel for the appellant wanted to create an impression which is not borne out from the aforementioned judgment. Similar is the position with regard to the other case relied by the learned counsel for the appellant namely the case of Roshanben Rahemansha Fakir (supra). In that case, the driver of the offending vehicle was the holder of licence of a three wheeler i.e. auto- rickshaw and the licence was not meant for driving transport vehicle but for a goods carrier. In such a situation, it was held that insurer is not liable to pay the compensation. The Apex Court in that case too having absolved the insurance company, in exercise of power under Article 142 of the Constitution of India had directed the insurance company to satisfy the award in favour of the claimants with a liberty to recover the same from the owner. No law has been laid down even in that case that such recourse in exercise of power under 12 Section 149 of the Act could not be taken by tribunal and/or any other court. Learned counsel for the appellant then had made some stray references to an earlier judgment of the Apex Court in the case of Oriental Insurance Co. Ltd. Vs. Nanjappan & Ors. reported in AIR 2004 SC 1630 to contend that from long line of judgment, it was well settled that where the liability for payment of compensation was on the insured i.e. the owner of the vehicle, the insurer i.e. the insurance company could not be fastened the liability to pay the compensation by way of indemnification. This Court, however, would find that even in that case of Nanjappan (supra), the Apex Court had only noted reversal of the earlier judgment of the Apex Court in the case of New India Assurance Co. Vs. Satpal Singh reported in 2000 (1) SCC 237 and had held that since the same had been reversed in the subsequent judgment in the case of New India Assurance Co. Ltd. Vs. Asha Rani reported in 2003 (2) SCC 223, which was also followed by the Apex Court in the case of Oriental Insurance Co. Ltd. Vs. Devireddy Konda Reddy reported in 2003 (2) SCC 339, the 13 view taken by the Madras High Court by directing the insurance company to pay the amount by way of indemnification, even when the liability of payment of such compensation was squarely found to be on the owner of the vehicle, was bad. The ratio of Nanjappan case (supra) can be only applied in such a case where there is already a finding either by the tribunal or any court that the owner was plainly and squarely responsible and was liable to pay. Such is not the case here because tribunal has ultimately held the insurance company liable. The findings of the tribunal as with regard to the driver of the Corporation having a fake licence by itself will not mean that the tribunal had already held the owner, the Corporation, liable for payment of compensation. As a matter of fact, no evidence was laid by the appellant insurance company to show that when the Corporation had hired the services of the driver who incidentally had also died in the same accident, it was aware of the fact that the driving licence of the driver of the vehicle was fake. In fact, this very aspect has been 14 explained in paragraph no.20 of the judgment in Lehru case (supra) and therefore, the tribunal has rightly not held the Corporation liable for payment of compensation despite arriving at a finding that the licence of the driver of the vehicle was fake. At this stage, it would also be some relevance to look into the evidence of the insurance company as with regard to fake licence of the driver of the vehicle. It has to be noted that in the written statement filed by the appellant insurance company, no such plea was taken as would appear from perusal of paragraph no.3 of the impugned judgment. In fact when on the basis of such pleadings of the parties the issues were framed as recorded in paragraph no.4, there was no specific issue as with regard to the insurance company being not liable to pay the compensation on account of the fake licence of the vehicle in question. It is only because a certificate of the District Transport Officer had been produced by the appellant insurance company stating therein that the licence no. 775/2004 in the name of the holder Rajesh Kumar @ Rajesh Singh was not 15 issued by the office of District Transport Officer, Muzzaffarpur on which some adverse inference has been drawn by the Tribunal for holding that such licence was fake. In this context, it is significant to note herein that the said District Transport Officer was not examined by the appellant insurance company and in that view of the matter such cursory or casual findings of the Tribunal cannot be made the basis by the appellant insurance company to altogether deny its liability for payment of compensation to a third party. Law in this regard, in the opinion of this Court, stands well settled as noted in the judgment of the Apex Court in Lehru case (supra). In fact, such assumption of the learned counsel for the Appellant based on judgment of the Apex Court in the case of Nanjappan (supra) seems to be wholly misconceived inasmuch as the reference in the said judgment to a passage of the judgment of the Apex Court in the case of M/s National Insurance Co. Ltd. Vs. Baljit Kaur & Ors. reported in 2004 AIR SCW 212 was only with regard to an issue that even in a case where it had been held that the insured, the 16 owner of the vehicle, was liable to satisfy the decree could the claimant be kept waiting for recovery of such amount or should the insurance company be made liable to pay such amount. Paragraph no.21 of the judgment in this context in the case of Baljit Kaur (supra) assumes significance and is quoted hereinbelow:- 21. The upshot of the aforementioned discussions is that instead and in place of the insurer the owner of the vehicle shall be liable to satisfy the decree. The question, however, would be as to whether keeping in view the fact that the law was not clear so long such a direction would be fair and equitable. We do not think so. We, therefore, clarify the legal position which shall have prospective effect. The Tribunal as also the High Court had proceeded in terms of the decisions of this Court in Satpal Singh (supra). The said decision has been overruled only in Asha Rani (supra). We, therefore, are of the opinion that the interest of justice will be subserved if the appellant herein is directed to satisfy the awarded amount in favour of the claimant if not already satisfied and recover the same from the owner of the vehicle. For the purpose of such recovery, it would not be necessary for the insurer to file a separate suit but it may initiate a proceeding before the executing Court as if the dispute between the insurer and the owner was the subject-matter of determination before the Tribunal and the 17 issue is decided against the owner and in favour of the insurer. We have issued the aforementioned directions having regard to the scope and purport of S. 168 of the Motor vehicle Act, 1988 in terms whereof it is not only entitled to determine the amount of claim as put forth by the claimant for recovery thereof from the insurer, owner or driver of the vehicle jointly or severally but also the dispute between the insurer on the one hand and the owner or driver of the vehicle involved in the accident inasmuch as can be resolved by the Tribunal in such a proceeding.” (Underlining for emphasis) From perusal of the aforementioned passage and specially the aforementioned underlined sentences, it would be clear that use of expression ‘interest of justice’ has to be also read along with the overall terms clarifying the law in the matter of realization of an amount by the insurance company from the owner by not taking recourse to a filing of a suit but by initiating a proceeding before the executing court as if the dispute between the insurer and the owner was the subject matter before the tribunal. It would be thus very difficult for this Court to hold that on the basis of the aforementioned observations in the case of Baljit Kaur (supra) it can be held that 18 no court except the Apex Court has power to direct recovery of the amount from the insurance company for its being paid to the claimant, a third party, by giving a liberty to the insurance company to recover it from the owner of the vehicle. In fact, when the Apex Court even in the case of Nanjappan (supra) had taken recourse to the law laid down in the case of Baljit Kaur (supra) by directing the insurance company to pay the amount for its being recovered from the owner, it cannot be said that all these judgments are under Article 142 of the Constitution and the recourse to that procedure adopted by the Apex Court cannot be adopted by any other court. In the opinion of this Court, this issue as with regard to the liability of the insurance company to pay such amount to the third party, the claimant, stands well settled not only in terms of the provision of Section 149 (4 & 5) of the Act, but also by the judgment of the Apex Court in the case of New India Assurance Company, Shimla Vs. Kamla & Ors. reported in AIR 2001 SC 1419 wherein after going into the whole gamut of fake licence and 19 the liability of the insurance company, the Apex Court had laid down the law in the following terms:- 21. A reading of the proviso to sub- section (4) as well as the language employed in sub-section (5) would indicate that they are intended to safeguard the interest of an insurer who otherwise has no liability to pay any amount to the insured but for the provisions contained in Chapter XI of the Act. This means, the insurer has to pay to the third parties only on account of the fact that a policy of insurance has been issued in respect of the vehicle, but the insurer is entitled to recover any such sum from the insured if the insurer were not otherwise liable to pay such sum to the insured by virtue of the conditions of the contract of insurance indicated by the policy. 22. To repeat, the effect of the above provisions is this : When a valid insurance policy has been issued in respect of a vehicle as evidenced by a certificate of insurance the