Delhi High Court High Court

Baljinder Kaur And Ors. vs Sanjiv Saini And Anr. on 19 September, 2011

Delhi High Court
Baljinder Kaur And Ors. vs Sanjiv Saini And Anr. on 19 September, 2011
Author: Reva Khetrapal
                                         REPORTED
*    IN THE HIGH COURT OF DELHI AT NEW DELHI


+                 FAO 689/2007


BALJINDER KAUR AND ORS.                         ..... Appellants
                 Through:            Mr. O.P.Mannie, Advocate.

                  Versus

SANJIV SAINI AND ANR.                             ..... Respondents
                   Through:          Mr. Ashok Popli, Advocate for
                                     the respondent No.1.
                                     Mr. Ram N.Sharma, Advocate
                                     for the respondent No.2.

%                        Date of Decision : September 19, 2011

CORAM:
HON'BLE MS. JUSTICE REVA KHETRAPAL

1. Whether reporters of local papers may be allowed
   to see the judgment?
2. To be referred to the Reporter or not?
3. Whether judgment should be reported in Digest?

                         JUDGMENT

: REVA KHETRAPAL, J.

1. The short question which arises for consideration in the present

appeal is whether the Insurance Company can repudiate a claim made

by the legal representatives of a deceased person in respect of a

vehicle which is duly insured with the Company solely on the ground

FAO 689/2007 Page 1 of 11
that the driver of the vehicle did not hold a valid licence even though

the vehicle was stationary at the time of the accident and the driver of

the vehicle had nothing to do with the accident?

2. Concisely, the facts are that on 28.06.2005 at about 6:30 p.m.

one Gurcharan Singh (hereinafter referred to as “the deceased”) met

with an accident while welding a stationary truck bearing Registration

No. HR-38-G-5351, at Transport Nagar, Samaipur Badli, Delhi, and

died due to electrocution. A DD entry bearing No.19-A dated

28.06.2005 was recorded under Section 174 Cr.P.C. with regard to the

aforesaid accident by the Police of Police Station, Samaipur Badli,

Delhi. A claim petition was filed by the appellant No.1, who is the

widow, the appellants No.2, 3 and 4, who are the minor children and

the appellants No.5 and 6, who are the parents of the deceased under

Section 163-A of the Motor Vehicles Act, 1988 claiming

compensation in the sum of ` 10,00,000/- for the untimely demise of

their sole bread-earner. The respondent No.1 is the registered owner

of the offending truck No.HR-38-G-5351, which was admittedly

insured with the respondent No.2, M/s. Oriental Insurance Company

Limited for all such risks vide policy No.215400/2005/863 valid from

12.07.2004 to 11.07.2005 (Exhibit R2W1/E).

FAO 689/2007 Page 2 of 11

3. The learned Tribunal by its judgment dated 06.08.2007awarded

a sum of ` 5,18,750/- with interest at the rate of 7.5% per annum to be

calculated from the date of the institution of the petition till the date of

actual deposit. On the question as to upon whom the liability to pay

could be fastened, relying upon the judgment of the Hon’ble Supreme

Court in the case of Oriental Insurance Company Limited versus

Meena Variyal and Ors. 2007 ACJ 1284, the Tribunal held that the

owner of the vehicle who gets the vehicle insured is duty-bound to

engage a driver who has a valid and effective driving licence and is

competent to drive. It further held that it was the duty of the insured

to produce the driving licence of the driver and prove the same in

accordance with law, but in the present case despite service of notice

under Order XII Rule 8 Code of Civil Procedure the insured had

chosen not to come up with the driving licence of his driver. It held

that in such circumstances, the Court had no option but to draw

adverse inference against the Respondent No.1 that his driver never

possessed any driving licence. The Tribunal accordingly held that no

liability could be fastened upon the respondent No.2/Insurance

Company and, accordingly, the respondent No.1, the owner of the

vehicle, was liable to pay the award amount to the appellants.

FAO 689/2007 Page 3 of 11

4. Aggrieved by the aforesaid findings rendered by the learned

Tribunal, the present appeal has been preferred by the appellants for

modification of the judgment to the extent of making the Insurance

Company (the respondent No.2) liable to pay the compensation along

with the up-to-date interest to the appellants. Relying upon the

judgment rendered by the Hon’ble Supreme Court in the case of

National Insurance Company Ltd. versus Swaran Singh and Ors.

AIR 2004 SC 1531, Mr. O.P. Mannie, the learned counsel for the

appellants, contended that the Claims Tribunal erred in exonerating

the Insurance Company on the ground that the licence of the driver

was not produced by the insured-owner. The learned counsel pointed

out that even otherwise, the findings of the Tribunal were self-

contradictory, inasmuch as on the one hand the Tribunal while

deciding Issue No.2 relating to the impleadment of the driver as a

party respondent, had ruled that the driver was not a necessary party to

the claim petition, but, on the other hand, it held that the Insurance

Company deserved to be exonerated from its liability to pay

compensation on the ground that the driving licence of the driver had

not been produced by the insured.

FAO 689/2007 Page 4 of 11

5. Mr. Ashok Popli, the learned counsel for the respondent No.1-

insured, sought to support the aforesaid contentions of Mr. Mannie.

6. Mr. Ram N. Sharma, the learned counsel for the respondent

No.2-Insurance Company, on the other hand, contended that the

offending vehicle was admittedly not in use at the time of the accident

and was stationary. The deceased was electrocuted while he was

doing a welding job on the vehicle and was not hit by the vehicle. No

First Information Report had been registered nor any challan was filed

by the Police and, as such, the learned Tribunal had rightly refused to

fasten any liability on the Insurance Company.

7. I am not inclined to agree with the aforesaid contention of the

learned counsel for the Insurance Company in the instant case for the

reason that the petition was filed under Section 163-A of the Motor

Vehicles Act, 1988, which reads as under:

“163-A. Special provisions as to payment of
compensation on structured formula basis. – (1)
Notwithstanding anything contained in this Act or
in any other law for the time being in force or
instrument having the force of law, the owner of
the motor vehicle or the authorised insurer shall
be liable to pay in the case of death or permanent
disablement due to accident arising out of the use
of motor vehicle, compensation, as indicated in the
Second Schedule, to the legal heirs or the victim,
as the case may be.

FAO 689/2007 Page 5 of 11

Explanation. – For the purposes of this sub-
section, “permanent disability” shall have the
same meaning and extent as in the Workmen’s
Compensation Act, 1923 (8 of 1923)

(2) In any claim for compensation under sub-
section (1), the claimant shall not be required to
plead or establish that the death or permanent
disablement in respect of which the claim has been
made was due to any wrongful act or neglect or
default of the owner of the vehicle or vehicles
concerned or of any other person.

(3) The Central Government may, keeping in view
the cost of living by notification in the Official
Gazette, from time to time amend the Second
Schedule.”

8. A bare perusal of the Section 163-A makes it abundantly clear

that it is only the owner of the motor vehicle or the authorised insurer

which shall be liable to pay in the case of death or permanent

disablement due to accident arising out of the use of the motor vehicle,

compensation, as indicated in the Second Schedule to the legal heirs or

the victim, as the case may be. Clearly, Section 163-A is a special

provision with regard to the payment of compensation on no-fault

basis and the driver, therefore, is not a necessary party to a petition

under Section 163-A. Thus, in my view, the reliance placed by the

learned Tribunal upon the decision of the Supreme Court rendered in

the case of Meena Variyal (supra) is entirely misplaced. The

FAO 689/2007 Page 6 of 11
judgment in the said case was rendered in a proceeding under Section

166 of the Motor Vehicles Act. Section 166 of the said Act, it may be

mentioned, falls in Chapter XII of the Act and is governed by the

provisions of Section 168 of the Act. Sub-Section (1) of Section 168

of the Act reads as under:

“On receipt of an application for compensation made
under Section 166, the Claims Tribunal shall, after
giving notice of the application to the insurer and after
giving the parties (including the insurer) an opportunity
of being heard, hold an inquiry into the claim or, as the
case may be, each of the claims and, subject to the
provisions of Section 162 may make an award
determining the amount of compensation which appears
to it to be just and specifying the person or persons to
whom compensation shall be paid and in making the
award the Claims Tribunal shall specify the amount
which shall be paid by the insurer or owner or driver of
the vehicle involved in the accident or by all or any of
them, as the case may be:”

Provided that where such application makes a claim for
compensation under Section 140 in respect of the death
or permanent disablement of any person, such claim and
any other claim (whether made in such application or
otherwise) for compensation in respect of such death or
permanent disablement shall be disposed of in
accordance with the provisions of Chapter X.”

9. It needs to be emphasised that in view of the provisions of sub-

Section (1) of Section 168, reproduced hereinabove, in a case where

the accident is caused by the rash and negligent driving of the driver

and a claim petition is preferred for compensation under Section 166

FAO 689/2007 Page 7 of 11
of the Act, in the form prescribed thereunder, the Claims Tribunal

shall specify the amount which shall be paid by the insurer or owner

or driver of the vehicle involved in the accident or by all or any of

them as the case may be. The necessary corollary is that it is

incumbent upon the claimant to implead the driver of the vehicle

involved in the accident as a party respondent to a claim petition

under Section 166 of the Act. The rationale, quite obviously, is that

primarily, it is the driver, who is liable for the accident caused through

his rashness and negligence, while the owner is vicariously liable for

the act of his employee and the insurer is liable on account of having

issued the policy of insurance in favour of the insured-owner. It is not

so in the case of a claim petition filed under Section 163-A, where the

impleadment of the driver is irrelevant for the reason that it is only the

involvement of the vehicle which is relevant for the purpose of

determining the compensation payable by the owner of the motor

vehicle or the authorized insurer, and not any act of omission or

commission committed by the driver of the vehicle in question.

10. In view of the aforesaid, it must be held that the driver, in the

instant case, was not a necessary party to the proceedings and it was

irrelevant whether he had a valid driving licence or held no licence at

FAO 689/2007 Page 8 of 11
all. I am fortified in coming to the aforesaid conclusion from the

judgment of the Hon’ble Supreme Court rendered in the case of

Jitendra Kumar versus Oriental Insurance Company Limited 2003

ACJ 1441. In the said case, the vehicle in question was damaged due

to a mechanical fault and for no fault of the driver. It caught fire and

was burnt beyond repair. The Insurance Company repudiated the

claim of the appellant solely on the ground that the driver did not have

a valid driving licence at the time of the accident in question. The

question arose as to whether the holding of a valid driving licence was

a condition precedent to claim any damage from the Insurance

Company even when the accident in question had occurred due to no

fault/act of the driver. The Supreme Court held as follows:

“So far as the facts of this case are concerned,
there is hardly any dispute, therefore we can safely
proceed on the basis that the vehicle in question
was damaged due to a mechanical fault and no
fault of the driver. For the purpose of argument,
we may also proceed on the basis that the driver of
the car did not have a valid driving licence.
Question then is: can the Insurance Company
repudiate a claim made by the owner of the vehicle
which is duly insured with the Company, solely on
the ground the driver of the vehicle who had
nothing to do with the accident did not hold a valid
licence? Answer to this question, in our opinion,
should be in the negative. Section 149 of the Motor
Vehicles Act, 1988 on which reliance was placed
by the State Commission, in our opinion, does not

FAO 689/2007 Page 9 of 11
come to the aid of the Insurance Company in
repudiating a claim where driver of the vehicle
had not contributed in any manner to the accident.
Section 149(2)(a)(ii) of the Motor Vehicles Act
empowers the Insurance Company to repudiate a
claim wherein the vehicle in question is damaged
due to an accident to which driver of the vehicle
who does not hold a valid driving licence is
responsible in any manner. It does not empower
the Insurance Company to repudiate a claim for
damages which has occurred due to acts to which
the driver has not, in any manner, contributed, i.e.,
damages incurred due to reasons other than the
act of the driver.”

11. In the present case it is not in dispute that the deceased died due

to electrocution, which occurred while he was engaged in a welding

job on the vehicle, and not due to any fault or act or omission of the

driver. The Insurance Company could not, therefore, in my opinion,

have repudiated the claim of the appellants, and the learned Tribunal

erred in holding that the liability to pay the compensation could not be

fastened upon the respondent No.2-Insurance Company. The

judgment of the learned Tribunal to this extent is accordingly set aside

and it is held that the respondent No.2 is liable to pay the award

amount to the appellants.

12. The appeal is accordingly allowed with a direction to the

respondent No.2 to deposit the award amount with the Registrar

FAO 689/2007 Page 10 of 11
General of this Court not later than 30 days from the date of the

passing of this order.

13. Records of the Tribunal shall be sent back to the concerned

Tribunal. There shall be no order as to costs.

REVA KHETRAPAL
JUDGE
September 19, 2011
ak

FAO 689/2007 Page 11 of 11