(1.) APPELLANT New India Assurance Co. Ltd. has questioned the legality and validity of the common and composite judgment dated 7. 2. 2002 and award dated 20. 2. 2002, passed in m. A. C. T. Case Nos. 41 and 42 by Mr. Amresh Kumar Lal, Sixth Additional District judge-cum-Motor Accidents Claims tribunal, Chapra in respect of two claim petitions under the Motor Vehicles Act, 1988 (hereinafter called 'the Act'), arising out of a road accident in which two persons lost their lives.
(2.) MOTOR Accidents Claims Tribunal, chapra awarded an amount of Rs. 2,22,000 by way of compensation to the heirs of the first deceased, namely, Hari Kishore sharma, with interest at the rate of 9 per cent whereas the same Tribunal awarded an amount of Rs. 2,10,000 with the same rate of interest at 9 per cent to the heirs of the second deceased, namely, Birendra sharma, from the date of the application, thus giving rise to two appeals.
(3.) AT the time of admission, upon joint request, the two appeals were consolidated and heard together finally by calling the records and proceedings from the Claims tribunal concerned on merits.
(4.) LEARNED advocates for the parties have offered their submissions which are considered along with the relevant factual matrix, as well as, material legal settings of the Act.
(5.) THE accident in question took place on 15. 5. 1998. On the fateful day, deceased Hari Kishore Sharma was driving motorbike and one Birendra Sharma was sitting on pillion along with one another Jamadar pandey. Thus, three persons were travelling on the motor cycle on Chapra-Masrakh pitch Road at around 12 noon. A private tourist bus bearing registration No. BRIP-8391 dashed against the motor cycle near village Bahrauli, as a result of which the motorcyclist, as well as, two pillion riders were thrown off the motor cycle. Motorcyclist and his brother who was sitting on the pillion sustained fatal injuri
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es, whereas another person sustained personal injuries. The heirs and legal representatives of the deceased motorcyclist and his brother filed the above-mentioned two claim petitions. While in the claim petition filed on behalf of the heirs and legal representatives of deceased Hari Shankar Sharma, claim of an amount of Rs. 6,00,000 (rupees six lakh) has been made in M. A. C. T. Case No. 41 of 1998, the heirs and legal representatives of the deceased Birendra Sharma have made a claim for Rs. 5,00,000 (rupees five lakh)in M. A. C. T. Case No. 42 of 1998 for the rash and negligent driving on the part of the driver of the private tourist bus. The bus driver was also prosecuted for rash and negligent driving. However, there is nothing on the record to show as to what happened to the criminal case.
(6.) THE contention of the heirs and legal representatives of the deceased was that deceased Hari Kishore Sharma, at the relevant time, was earning around Rs. 3,000 per month, whereas the deceased Birendra sharma was earning Rs. 3,500 per month.
(7.) THE owner and the insurer of the bus in question appeared. They filed written statements but no evidence has been led by them. An application was filed by the insurer'under section 170 of the Motor vehicles Act, 1988 (hereinafter called 'the Act')for permission to question the liability on the ground of the driver of the bus having fake licence but it appears that no attempt was made by the insurance company to obtain the order of the tribunal on that application for the permission to question the above on the ground other than the grounds mentioned under section 149 (2) of the Act.
(8.) UPON consideration of the facts and circumstances, the Tribunal finding that the driver of the bus was rash and negligent and responsible for happening of the accident which took the life of two young people, passed awards in both the claim petitions, as aforesaid.
(9.) THE original respondent insurance company of the bus, appellant New India assurance Co. Ltd. has come up in these two appeals questioning the impugned awards of the Tribunal.
(10.) LEARNED counsel for the respondent original petitioners supported the impugned award. The learned counsel for the insurer-appellant has strongly submitted that the insurance company cannot be fastened with the liability to pay the compensation.
(11.) LEARNED counsel for the appellant insurance company has raised following contentions:
(i) that the driver of the private passenger bus was though holding driving licence but it was fake and, therefore, the insurance company is not liable to pay compensation;
(ii) that the amount awarded in both the claim cases is excessive and the Tribunal has committed error in assessment of the damages;
(iii) that there is non-joinder of necessary parties, namely, the insurance company of the motor cycle and the driver of the private passenger bus.
(12.) THE aforesaid three contentions have been countenanced by learned counsel for the original petitioners-respondents herein.
(13.) UPON consideration of the facts and circumstances, relevant proposition of law and the evidence on record, all the three contentions advanced on behalf of the insurance company are not acceptable for the reasons mentioned hereinafter.
(14.) SINCE all the aforesaid points are interconnected, they are being considered and being dealt with and decided simultaneously. There is no doubt in the mind of this court that now it is well settled proposition of law of Tort that the driver of the offending vehicle is not a necessary party. Though he is one of the tortfeasors and is liable for payment of the compensation, he is not the necessary party. The owner-insured of the offending vehicle has been impleaded as party and he has been held liable along with the insurance company for the payment of the compensation of both the awards.
(15.) THIS finding of the Tribunal could not be said to be in any way vulnerable. It may also be mentioned that so far as the point of impleading the driver of the offending bus and the insurance company of the motor cycle as party is concerned, they are also not necessary party as no claim is raised against them. Otherwise also, let it be mentioned that in the realm of law of Tort, it is the choice of the victim or the heirs of the deceased victim of a road accident to select the tortfeasor. Therefore, the impugned awards cannot be faulted with on the ground that they suffer from non-joinder of party, namely, driver of the offending bus, as well as, the insurance company of the motor cycle on which the deceased were travelling at the relevant time.
(16.) IT will not lead to the consideration as to whether the contention with regard to holding of fake licence, as alleged by the insurance company, is acceptable or not? In this connection, it may be mentioned that there is no material on record to suggest, even remotely, that the driving licence held by the driver of the offending bus was fake. Merely raising of a plea is not enough. The insurance company raised the plea of fake licence held by the driver of the offending bus, but such plea was not, seriously, attempted to be proved. Even no serious effort was made to lead evidence in this regard before the Tribunal. Mere production of one certificate, without proof, is of no avail. It leads nowhere. No insurance company can be absolved from the liability of payment of compensation under the law of Tort merely by raising a plea. Raising of a plea is a part of the pleading which has to be proved by leading evidence. More so, when such a plea goes to the root of the liability for payment of the compensation, it ought to have been proved to the satisfaction of the court. Therefore, this contention must also fail.
(17.) IT will also be interesting to note that even if the licence is held to be fake, according to the latest proposition of law, insurance company cannot be permitted to avoid it to make a loss good in terms of the awards recorded by the Tribunal under the Act.
(18.) SO far as the liability in regard to third party claims is concerned, the Tribunal can decide the liability of the insurer in such a situation like one on hand even though plea of fake licence or no licence at all has been raised. So inter se liability between the insurer and the insured can be decided by the Tribunal which has not been decided in the present case. Probably, there might not be a request for that. Since it is not dealt with and not decided, the presumption would be that no such request has been made before the Tribunal. But in anyway, the original claimant cannot stand deprived of reimbursement of the awarded amount by the appellant insurance company as the insurance company has, otherwise, also right to initiate a proceeding for reimbursement from its insured. So on either count, this contention also does not help the insurance company so far as the satisfaction of the award is concerned.
(19.) SO far as the challenge against the amount of quantification of damages as made by Tribunal on merits is concerned, strictly speaking, the appellant insurance company cannot be allowed to raise this issue as no order had been solicited or obtained on the application presented before the Tribunal in terms of the provisions of section 170 of the Act. Mere presentation of an application and not pressing it at the time of leading evidence or raising such a point, cannot help the insurance company insofar as the merit of the award is concerned.
(20.) NOTWITHSTANDING the fact that the insurance company was also heard on the quantification of damages so as to avoid future complication and multiplication of litigation, the amount awarded in both the claim petitions, upon correct assessment and analysis of the evidence on record, could not be said to be, in any way, excessive or unreasonable or perverse requiring interference by this court in appeal. In both the cases, structured formula in terms of the provisions of section 163-A of the Act, has been adopted by the Tribunal. Both the deceased persons were young. They were earning their livelihood and were breadwinners of the family. This court is also satisfied alternatively, that the amount of compensation awarded could not be questioned and cannot be faulted. Therefore, alternatively, also the contention regarding quantification of the damages of both the appellants raised by the appellant insurance company must fail.
(21.) IT would be material at this stage to have a peep into the relevant legal settings. So far as the legal propositions are concerned, in these two appeals, we are concerned with the provisions of sections 149 (2), 163-A, 166, 170 and 173 of the act. These provisions are examined and considered. Section 149 (2) of the Act relates to the special defence available to the insurance company against its liability with regard to the breach of specified conditions of the policy. Section 149 (2) of the Act reads hereunder:
"149. Duty of insurers to satisfy judgments and awards against persons insured in respect of third party risks.-xxx xxx xxx (2) No sum shall be payable by an insurer under sub-section (1) in respect of any judgment or award unless, before the commencement of the proceedings in which the judgment or award is given the insurer had notice through the court or, as the case may be, the Claims Tribunal of the bringing of the proceedings, or in respect of such judgment or award so long as execution is stayed thereon pending an appeal; and an insurer to whom notice of the bringing of any such proceedings is so given shall be entitled to be made a party thereto and to defend the action on any of the following grounds, namely:
(a) that there has been a breach of a specified condition of the policy, being one of the following conditions, namely:
(i) a condition excluding the use of the vehicle- (a) for hire or reward, where the vehicle is on the date of the contract of insurance a vehicle not covered by a permit to ply for hire or reward, or (b) for organised racing and speed testing, or (c) for a purpose not allowed by the permit under which the vehicle is used, where the vehicle is a transport vehicle, or (d) without side-car being attached where the vehicle is a motor cycle; or (ii) a condition excluding driving by a named person or persons or by any per-son 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; or
(iii) a condition excluding liability for injury caused or contributed to by conditions of war, civil war, riot or civil commotion; or
(b) that the policy is void on the ground that it was obtained by the non-disclosure of a material fact or by a representation of fact which was false in some material particular. "
(22.) AS observed above in the foregoing paras, the plea which appellant insurance company advanced with the help of subsection (2) of section 149 of the Act is that the driver of the offending private passenger bus was, though holding a licence, but not a valid one, as it was fake. On the assessment of the evidence, it is noticed that this ground probably is raised for the sake of raising, as no attempt has been made to prove it. It is, absolutely necessary, to get absolved from the payment of liability to make demand of the amount of compensation or reimbursement to the victim of the road accident on account of liability of the insured-owner of the vehicle which has the dominant purpose to pay the third party claims under the Act.
(23.) LET it be also mentioned that according to the settled proposition of law, it is also incumbent upon the insurance company to prove the breach of the policy condition as it is raised in this case, to the satisfaction of the Tribunal for absolving of its liability. The breach of the policy condition like disqualification of the driver or invalid driving licence of the driver or plea of fake or invalid driving licence or disqualification of the driver for driving the vehicle on the relevant time are not, in themselves, defences available to the insurance company against either the insured or the third parties. To avoid its liability towards the insured, the insurer has to prove that the insured was guilty of negligence and failed to exercise reasonable care in the matter of fulfilling all the conditions of the policy of the insurance company regarding use of vehicles by a duly licensed driver or one who was disqualified to drive at the relevant time. Insurance companies with a view to avoid their liability must not only establish the defence raised but must also establish breach on the part of the owner of the vehicle by proving it in accordance with law and it has to be shown to the satisfaction of the Tribunal concerned that even the insured was in know of the disqualification of the driver which is raised in the instant case, to avoid the liability. This proposition is amply explicit and succinctly explored by the Apex Court in a decision in the case of National Insurance co. Ltd. v. Swaran Singh, 2004 ACJ 1 (SC). In this three-Judge Bench decision very relevant and material observations are made in paras 83, 84, 90, 91, 99 and 102 of the report. From the proposition propounded in the National Insurance Co. Ltd. (supra), the insurance company is unable to make any profit out of the contentions raised in these appeals.
(24.) SECTION 170 of the Act leaves no manner of doubt that in order to question the award on merit on the ground other than the defences as mentioned in subsection (2) of section 149 of the Act, it is required to satisfy the Tribunal about the conditions mentioned in section 170 of the act. This proposition is also very well established and as such it requires no caselaw to be mentioned. However, the latest decision on this point may be mentioned is as in the case of National Insurance Co. Ltd. v. Nicolletta Rohtagi, 2002 ACJ 1950 (SC), which fully supports and reinforces the aforesaid proposition which is dealt with by this court.
(25.) IT is unfortunate that instead of making serious attempt to prove the plea raised by the insurance company, an attempt has been made to thwart the liability to avoid payment of compensation to the unfortunate victims of the road mishap or their dependants. Be that as it may, the aforesaid contentions raised on behalf of the appellant insurance company are without any substance and merit. Therefore, both the appeals preferred against the impugned awards and the composite judgment of the tribunal must fail. Accordingly, these appeals shall stand dismissed with costs.
(26.) LET it be mentioned that unfortunately no amount of compensation is paid by the insurance company so far, except the statutory liability under the no fault liability provisions, as well as, liability under section 173 (2) of the Act. Therefore, this court is left with no alternative but to direct the appellant insurance company in both the cases to deposit the remaining amount out of the awarded amount before the Tribunal within a period of six weeks with interest and costs. The Registry of this court is directed to transmit the amount of deposit made by the appellant insurance company to the Tribunal concerned.
(27.) BEFORE parting, Tribunal is directed to make disbursement of the amount after due verification of the original claimants who are heirs and legal representatives of the unfortunate victims of the road accident in question in such a way that the full amount is not paid to the claimants as most of the claimants cannot expect to exercise physical discipline as required and again money in hand is always sensitive to be spent. The underlying object and design of the Act has been to see that the victim and the legal representative of the deceased victim of road accident are placed in the same status to the extent as far as possible, and in the same financial position in which they would have been, had there been no road accident and the breadwinner of the family had not died. In absence of other schemes or provisions in the Act, the lump sum amount, by utilisation of the multiplier or structured formula, is being awarded by way of damages to pay compensation which, otherwise would have been enjoyed by the heirs and legal representatives of the victims for their remaining span of life. It is, therefore, not only necessary but also incumbent upon the Tribunal to see that certain facts and considerations including their educational background and other requirements, etc. are taken into consideration for making disbursement. The peculiar judicial responsibility in such a situation under the Act does not come to an end as it is in case of a civil dispute. The role of claims Tribunal is like the role of loco parentis and the Tribunal has to disburse the amount keeping in mind that amount of compensation is utilised properly, expediently and appropriately and not frittered away.
(28.) IN this connection the directions contained in the decision of the Hon'ble apex Court in the case of Lilaben Udesing gohel v. Oriental Insurance Co. Ltd. , 1996 ACJ 673 (SC), ought to be taken into consideration. Tribunal is directed to pass the order of disbursement, upon request being made, keeping in mind the guidelines mentioned hereinbefore. Appeals dismissed