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IN THE HIGH COURT OF JUDICATURE AT BOMBAY
NAGPUR BENCH, NAGPUR
FIRST APPEAL NO. 571 OF 1996
The United India Insurance Company Ltd.,
Branch at Akola through its Manager, Akola,
Tq. and Distt. Akola. ... ... APPELLANT
VERSUS
1. Mrs. Bindiya w/o Udaykumar Adwani,
aged about 32 years, Occupation Tailoring,
Embroidery work and Household work,
r/o Kacchi Kholi Khadan Camp Sindhi Colony,
Akola, Tq. And Distt. Akola.
2. Dharmendra s/o Balram Gurbani,
aged about 18 years, C/o Balram
s/o Kartarmal Gurbani, Wholesale Kirana
Merchant, Kacchi Kholi Khadan Camp,
Sindhi Colony, Akola, Tq. and Distt. Akola.
3. Mahadeorao s/o Rajaram Waikar,
Appeal is dismissed against R-3 vide
Court's order dated 16/8/2005.
4. Balram s/o Kartarmal Gurbani,
Aged about 55 years, Occupation Wholesale
Kirana Merchant, R/o Kacchi Kholi Khadan Camp,
Akola, Tq. And Distt. Akola. ... ... RESPONDENTS
Mr. H.V. Thakur, Advocate, for the appellant.
Mr. V.P. Panpalia, Advocate, for respondent no.4.
CORAM : Smt. Vasanti A. Naik, J.
DATED : SEPTEMBER 17 & 19, 2008
ORAL JUDGMENT
1. By this first appeal, the appellant challenges the judgment
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and Award passed by the Motor Accident Claims Tribunal, Akola, on
22/4/1996, in Motor Accident Claim Petition No. 105/1994, so far as it
holds the appellant-United India Insurance Company jointly and
severally liable to pay the amount of Rs. 77,465/- to the respondent
no.1-claimant. According to the appellant-Insurance Company, it
was not liable to pay compensation to the claimant in view of the
provisions of Section 149 (2) of the Motor Vehicles Act, 1988.
2. Few facts giving rise to the first appeal are stated thus-
On 30/12/1993, respondent/claimant- Bindiya was
standing near the house of one Rajandas in Sindhi Camp, along with
her son. At that time, a car bearing No. MH-30/8573 came from her
left side in high speed and gave a dash to her while taking a turn at the
square. As a result of the accident, Bindiya received fracture to her
left femur bone. The car also dashed against one Savitrabai who was
standing beside Bindiya and Savitrabai died on the spot.
3. Claimant Bindiya filed a claim petition before the
Tribunal at Akola, which was registered as M.A.C.P. No. 105/1994. It
was stated in the claim petition that Bindiya suffered injury in the
accident though she was not at fault. According to the claimant,
respondent no.2- Dharmendra, the son of the owner of the vehicle,
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was driving the car rashly and negligently in high speed while taking a
turn at the square. Balram, father of Dharmendra, and respondent
no. 4 to this appeal, was the owner of the car. Mahadeo, the regular
Driver of the vehicle, was sitting beside Dharmendra on the front seat.
The claimant sought compensation to the tune of Rs. 2,28,000/-.
4. Respondent no.2-Dharmendra filed his written statement
and denied that he was driving the car at the relevant time. He did
not dispute that Mahadeo was the regular Driver of the car. He stated
in the written statement that he was unnecessarily made a party to
the proceeding. He sought for the dismissal of the claim petition.
5. The regular Driver of the vehicle also filed his written
statement and stated that he was driving the car at the relevant time
and the car was not driven by Dharmendra at the time of accident. He
further denied that the accident was caused due to the rash and
negligent driving by Dharmendra. Mahadeo also sought for the
dismissal of the claim petition.
6. Balram, the owner of the vehicle and father of Dharmendra,
did not file his written statement. The Insurance Company also
denied the claim of the claimant. It was denied that Bindiya had
sustained permanent disability. It was the case of the Insurance
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Company that the car was being driven by Dharmendra a minor who
did not posses a valid Driving Licence. It was stated in the written
statement that the owner of the car committed a breach of the Policy
by permitting Dharmendra, a minor, to drive the vehicle.
7. On the aforesaid pleadings of the parties, the issues were
framed and the Tribunal came to a conclusion that the claimants
succeeded in proving that the accident was caused due to rash and
negligent driving of the Fiat car by Dharmendra. The Tribunal held
that both Dharmendra and Mahadeo were negligent as Mahadeo, the
regular Driver, had permitted Dharmendra to drive the vehicle. The
Tribunal held that the claimant succeeded in proving that
Dharmendra was driving the car at the time of the accident. The
Tribunal also held that the Insurance Company failed to prove the
breach of policy condition. Since the claimant was successful in
proving the permanent disability, the Tribunal held Dharmendra,
Mahadeo, Balram, and the United India Insurance Company, jointly
and severally liable to pay the amount of Rs. 77,465/- towards
compensation along with interest @ 12% per annum from 18/6/1994
till its realization. The judgment passed by the Tribunal on 22/4/1996
is challenged by the appellant-Insurance Company in the instant
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appeal as, according to the Insurance Company, the Tribunal wrongly
fastened the liability on the Insurance Company.
8. Shri Thakur, the learned counsel for the appellant,
submitted that the Tribunal was not justified in fastening the liability
on the appellant. It is submitted on behalf of the appellant that the
Tribunal could not have held that it was a proved fact that the regular
Driver of the vehicle allowed minor Dharmendra to drive the car and
this fact was not within the knowledge of the owner, Balram. The
counsel for the appellant then submitted that the Tribunal was also
not justified in applying the ratio laid down by the Hon’ble Supreme
Court in the case of Skandia Insurance Co. Ltd. Vs. Kokilaben
Chandravadan and ors reported in (1987) ACC 413, to the facts of the
case. The counsel for the appellant submitted that the Tribunal came
to the conclusion that Mahadeo had permitted Dharmendra to drive
the car only on the basis of the evidence of claimant- Bindiya who had
stated in her evidence that the regular Driver of the car was sitting
beside Dharmendra when Dharmendra was driving. The counsel for
the appellant took this Court through the provisions of Section 149(2)
of the Motor Vehicles Act, 1988 and specially sub-clause (ii) of clause
(a) of Sub-section (2) of Section 149, to point out that the appellant
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was not liable as , Dharmendra was driving the car though he was not
duly licenced and was also not qualified for holding or obtaining the
Driving Licence in view of Section 4 of the Motor Vehicles Act, 1988.
According to the counsel for the appellant, since the car was rashly
and negligently driven by a minor who was not qualified to drive the
vehicle, there was obviously a breach of the material condition in the
policy and the appellant was not liable in view of the provisions of
Section 149(2) of the Motor Vehicles Act, 1988. It is submitted on
behalf of the appellant that the owner of the vehicle had not entered
the witness box and, therefore, it was necessary to draw an adverse
inference against him. The counsel for the appellant relied on the
decision of the Hon’ble Supreme Court, reported in (1997) 7 SCC 558,
to substantiate this submission. The counsel for the appellant also
relied on the decision of this Court, reported in 1989 Mh.L.J. 488 to
canvass that there is a presumption that the Driver of a vehicle was
driving the vehicle with the knowledge and consent of the owner. The
counsel for the appellant then submitted that though this
presumption is rebutable, in the instant case, there was no evidence
whatsoever to rebut the same.
9. Shri Panpalia, the learned counsel for the respondent no.4
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supported the judgment passed by the Motor Accidents Claim
Tribunal on 22/4/1996, and submitted that the Tribunal was justified
in holding that Dharmendra was driving the vehicle on the
authorization of the regular Driver of the car. The counsel for the
respondent no.4 then submitted that the Tribunal had rightly held
that Mahadeo was negligent in authorizing Dharmendra to drive the
car. It was submitted on behalf of the respondent no.4 that it was
necessary for the Insurance Company to prove that the car was
entrusted by the owner to his son for driving, at the relevant time or
atleast that Dharmendra was driving the car with the consent and
knowledge of his father, Balram. According to the counsel for the
respondent no.4, the Tribunal rightly held that the Insurance
Company had failed to prove that Dharmendra drove the car with the
knowledge of Balram and Balram willfully allowed him to drive the
car. The counsel for the respondent no.4 relied on the decision
reported in (2006)7 SCC 318, to canvass that it was necessary for the
Insurance Company to prove that the insured, namely, the owner of
the vehicle, was guilty of negligence, and failed to exercise reasonable
care in the matter of fulfilling the condition of the policy regarding
use of vehicles by a duly licensed driver. Then, by relying on the
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decision reported in 2008 (1) Maharashtra Law Journal 626, it was
canvassed on behalf of the respondent no.4 that if there was a breach
of condition of policy, the Insurance Company had a right to proceed
against the insured. The Insurance Company can not avoid its
liability as far as a third party is concerned.
10. On hearing the learned counsel for the parties and after
perusal of the judgment and the record and proceedings, it appears
that the following points arise for determination.
(1) Whether the appellant-Company had failed to prove the
breach of policy condition?
(2) Whether the Insurance Company was not liable to pay
compensation to the claimant in view of the provision of
Section 149(2) of the Motor Vehicles Act, 1988?
(3) What order?
11. To render the findings on the aforesaid points, it is
necessary to consider few facts. Though, initially, it was submitted on
behalf of the respondent no.4 that the Tribunal wrongly came to a
conclusion that Dharmendra was driving the car at the relevant time,
the submission was not pressed in view of the judgment passed by the
Judicial Magistrate, First Class, Akola in Criminal Case No. 104/1994
filed against Dharmendra for the offences punishable under Sections
279, 304A, 338 and 427 of the Penal Code. The Judicial Magistrate,
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First Class, Akola, had convicted Dharmendra for the offences and
Dharmendra was also asked to pay nominal compensation to the
legal heirs of Savitrabai who died in the accident, and Bindiya, the
claimant in this case. The criminal appeal filed by Dharmendra
against the judgment passed by the Judicial Magistrate, First Class,
Akola, on 15th November, 1997, was also dismissed by the Sessions
Judge, Akola, by the judgment dated 13/5/1999, upholding the
conviction of Dharmendra under Sections 279, 304A, 338 and 427 of
the Penal Code. The certified copies of the judgments dated 15th
November, 1997 and 13th May, 1999 are placed in the record and are
marked as Exh. A and Exh.B. Thus, it is amply clear in view of the
aforesaid two judgments in the criminal cases and findings rendered
by the Tribunal in the present matter, that Dharmendra was driving
the vehicle at the relevant time. A categorical finding of fact has been
recorded by the Tribunal that Dharmendra was a minor on the date of
the accident and was taking education in Carmel School.
12. It is necessary to note that under the provisions of Section 3
of the Motor Vehicles Act, 1988, a person is prohibited from driving a
motor vehicle in a public place unless he holds an effective driving
licence. In view of the provisions of Section 4 of the Motor Vehicles
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Act, 1988, no person under the age of 18 years, is permitted to drive
the motor vehicle in a public place. In view of the finding that
Dharmendra was driving the car rashly and negligently on the date of
the incident, while he was minor, it is clear that there was a breach of
the condition of the policy which excludes a person who has no
licence or who has been disqualified for holding or obtaining a driving
licence, from driving. This is not a case of a person driving a vehicle
without a licence, but is a case of a person driving the vehicle though
he was not qualified for holding or obtaining a driving licence in view
of the provisions of Section 4 of the Motor Vehicles Act, 1988. The
provisions of Section 5 of the Motor Vehicles Act, 1988, further
stipulate that an owner of the vehicle is responsible for contravention
of the provisions of Section 3 as no owner or in-charge of the motor
vehicle shall cause or permit any person who does not satisfy the
provisions of Section 3 or Section 4 of the Motor Vehicles Act to drive
the vehicle.
13. Though it is pleaded by the claimant that the regular Driver
of the vehicle was negligent in permitting Dharmendra to drive the
vehicle, it is necessary to consider whether the vehicle was driven by
Dharmendra at the relevant time, without the knowledge and
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consent of Balram. It is conspicuous to note that Balram had not filed
a written statement and had also failed to tender evidence. The
regular Driver of the vehicle and Dharmendra had, however, stated, in
their written statements, that Dharmendra was not driving the car at
the relevant time and Mahadeo was driving the same. The Tribunal
had rightly disbelieved the evidence of the Driver of the vehicle and
had rightly relied on the evidence of claimant Bindiya, to hold that
Dharmendra was driving the vehicle at the relevant time.
ig The
evidence of Mahadeo, the regular Driver of the vehicle, clearly shows
that he was trying to save his master, Balram. Though he had stated in
his evidence that he was prosecuted for rash and negligent driving of
the car in the said incident by the Police, the judgment dated
15/11/1997 in Regular Criminal Case No. 104/1994 clearly shows that
only Dharmendra was tried for the offences punishable under Section
279, 304A, 338 and 427 of the Penal Code. This shows that Mahadeo
was not desirous of speaking the truth. He had stated in his evidence
that he went to the Police Station to lodge a report, but his report was
not recorded by the Police as nobody was there in the Police Station.
He then admitted in his cross-examination that he did not lodge a
complaint to the higher authorities when his report was not recoded
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by the Police. He denied the suggestion that the steering of the car
was in Dharmendra’s hands and Dharmendra was driving the car
under his instructions. The evidence on record shows that
Dharmendra was driving the car at the relevant time and Mahadeo
was seated beside him on the front seat of the vehicle. It is not the
case of either Mahadeo or Dharmendra that Dharmendra was driving
the car as they had flatly denied the aforesaid fact. In view of the
denial, there was no question of either Mahadeo or Dharmendra
pleading before the Tribunal that Mahadeo had wrongly permitted
Dharmendra to drive the car at the relevant time or that the car was
driven by Dharmendra without the knowledge and consent of Balram,
father of Dharmendra. It is necessary to apply the principle of falsus
in uno falsus in omnibus while appreciating the evidence of Mahadeo
as Mahadeo had deposed falsely on a material fact that he was driving
the vehicle when it is proved beyond doubt that Dharmendra was
driving the same. As rightly submitted on behalf of the appellant,
there is a presumption in law that the driver of the vehicle was driving
the same with the knowledge and consent of the owner. In the instant
case, neither did the owner file a written statement, nor did he enter
into the witness box to state that he had no knowledge that
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Dharmendra was driving the car at the relevant time or that he had
not consented to the said action of Dharmendra. The Insurance
Company had clearly pleaded in the written statement that
Dharmendra, a school-going boy, was driving the vehicle and as he
was not possessing any valid driving licence at the relevant time, there
was a clearcut breach of the insurance policy. The Insurance
Company had further stated that in view of breach of insurance
policy, the claim against the Insurance Company was not
maintainable. In such circumstances, the burden heavily lay on
Balram to prove that he had not permitted Dharmendra to drive the
vehicle and he also had no knowledge of the same. It was necessary
for Balram to enter the witness box and state about the absence of
knowledge or consent. No evidence about the absence of consent or
knowledge was brought on record, though there is a presumption in
law, of knowledge and consent. In this background, the judgments
reported in (1997)7 SCC 558 and 1989 Mh.L.J. 488 would surely assist
the case of the appellant to a certain extent.
14. The judgment reported in 2006(7) SCC 318 would, however,
not be of much assistance to the case of the respondent no.4 as the
owner in the reported decision had not only seen or examined the
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driving licence produced by the driver, but had also taken a driving
test of the driver and found that the driver was competent to drive the
vehicle. In the facts of that case, the Hon’ble Supreme Court held that
the owner of the vehicle having satisfied himself that the driver had a
licence and was driving competently, engaged him and in such
circumstances, there was no breach of the provisions of Section
149(2)(a)(ii) of the Motor Vehicles Act and the Insurance Company
could not be absolved of its liability. In the reported case, it was the
case of the Insurance Company that the Driver was not holding a
valid driving licence and in view of the evidence of the owner as
aforestated, the Supreme Court held that the Insurance Company
would not be absolved of its liability. In this case, in the absence of
any evidence from the side of the owner of the vehicle and in the
absence of any written statement, it has to be held that the owner of
the vehicle had failed to exercise reasonable care in the matter of
fulfilling the condition of the policy regarding use of the vehicle by a
duly licenced driver. The judgment reported in 2008 (1) Mh.L.J. 626
also cannot be made applicable to the facts of the case as the
Insurance Company has in the present case paid the entire
compensation to the claimant in terms of the Award of the Tribunal.
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Since this is a case of breach of condition of policy, the Insurance
Company is entitled to recover the amount paid to the claimant.
15. For the reasons aforesaid, the appeal is partly allowed. The
judgment passed by the Motor Accident Claims Tribunal Akola on
22/4/1996 is hereby modified. It is hereby held that the respondent
nos. 2 to 4 are jointly and severally liable to pay the amount of
Rs. 77,465/- to the respondent no. 1 along with interest @ 12% per
annum from 18/6/1994 till the date of deposit of the same. It is
brought to the notice of this Court that the appellant-Insurance
Company had deposited an amount of Rs. 58,870/- in the Motor
Accident Claims Tribunal, and deposited an amount of Rs. 38,735/- in
the this Court. It appears that the respondent no. 1 has not
withdrawn the amount of Rs. 38,735/- deposited by the appellant in
this Court. The appellant is, therefore, permitted to withdraw the
amount of Rs. 38,735/-. In the facts and circumstances of the case,
the respondent nos. 2 to 4 are directed to refund the amount of
Rs. 58,870/- deposited by the appellant in the Tribunal towards
compensation payable to the respondent no. 1. In the peculiar facts
and circumstances of the case, interest is not payable to the appellant
on this amount. The respondent nos. 2 to 4 are directed to make the
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payment of Rs. 58,870/- to the appellant within a period of three
months from today. Order accordingly. No order as to costs.
(Smt. Vasanti A. Naik)
JUDGE
RMP
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