FAO No. 1714 of 1993 1
IN THE HIGH COURT OF PUNJAB AND HARYANA AT
CHANDIGARH
FAO No. 1714 of 1993
Date of Decision: .12.2008
The New India Assurance Company Ltd. ....Appellant
Vs.
Haryana Roadways, Dadri Depot, & Ors. ..Respondents
Coram: Hon'ble Mr. Justice Vinod K.Sharma
Present: Ms.Radhika Suri, Advocate,
for the appellant/petitioner.
Mr.Madan Gupta, Sr.DAG, Haryana
Mr.Vishal Chaudhary, Advocate,
for the Oriental Insurance Co. in all cases.
Mr.Mani Ram Verma, Advocate,
for claimant-respondents in FAO Nos.1444, 1446,
and 1447 of 1993.
Mr.R.A.Sheoran, Advocate,
---
1. Whether Reporters of Local Newspapers may
be allowed to see the judgment?
2. To be referred to the Reporters or not?
3. Whether the judgment should be reported in
Digest?
FAO No. 1714 of 1993 2
Vinod K.Sharma,J.
This order shall dispose of FAO Nos.1714, 1417 to 1421, 1444
to 1450, 1470, and Revision Petitions No.2615 to 2636 and 3079 of 1993,
titled New India Assurance Co. Limited Vs. Smt. Bharto & Ors.; New India
Assurance Co. Limited Vs. Haryana Roadways & Ors.; New India
Assurance Co. Limited Vs. Haryana Roadways & Ors.; New India
Assurance Co. Limited Vs. Haryana Roadways & Ors.; New India
Assurance Co. Limited Vs. Haryana Roadways & Ors.; New India
Assurance Co. Limited Vs. Haryana Roadways & Ors.; New India
Assurance Co. Limited Vs. Raghubir Singh & Ors.; New India Assurance
Co. Limited Vs. Ashok Kumar & Ors.; New India Assurance Co. Limited
Vs. Ram Singh & Ors.; New India Assurance Co. Limited Vs. Samsudin &
Ors.; New India Assurance Co. Limited Vs. Smt.Santosh & Ors.; New India
Assurance Co. Limited Vs. Vinod Kumar & Ors.; New India Assurance Co.
Limited Vs. Sanbir & Ors. New India Assurance Co. Limited Vs. Haryana
Roadways & Ors.; New India Assurance Co. Limited Vs. Rajesh & Ors.;
New India Assurance Co. Limited Vs. Tara Chand & Ors.; New India
Assurance Co. Limited Vs. Vijender & Ors.; New India Assurance Co.
Limited Vs. Balwan Singh & Ors.; New India Assurance Co. Limited Vs.
Suresh Singh & Ors.; New India Assurance Co. Limited Vs. Sada Singh &
Ors.; New India Assurance Co. Limited Vs. Ram Phal & Ors.; New India
Assurance Co. Limited Vs. Krishan & Ors.; New India Assurance Co.
Limited Vs. Tara Chand & Ors.; New India Assurance Co. Limited Vs.
Rajinder Singh & Ors.; New India Assurance Co. Limited Vs. Bir Singh &
Ors.; New India Assurance Co. Limited Vs. Dharam Singh & Ors.; New
FAO No. 1714 of 1993 3
India Assurance Co. Limited Vs. Lakhi Ram & Ors.; New India Assurance
Co. Limited Vs. Rajbir Singh & Ors.; New India Assurance Co. Limited
Vs. Nirmlesh & Ors.; New India Assurance Co. Limited Vs. Rajesh & Ors.
New India Assurance Co. Limited Vs. Sombir & Ors.; New India Assurance
Co. Limited Vs. Sandeep & Ors.; New India Assurance Co. Limited Vs.
Alisher & Ors.; New India Assurance Co. Limited Vs. Mukesh & Ors.; New
India Assurance Co. Limited Vs. Hanuman Singh & Ors.; New India
Assurance Co. Limited Vs. Ajit Singh & Ors.; New India Assurance Co.
Limited Vs. Haryana Roadways & Ors., respectively.
For facility the facts are being taken from FAO No. 1714 of
1993 as common questions of law and facts are involved in all these
appeal/revision petitions.
The appellant/petitioner New India Assurance Company limited
has challenged the award dated 29.1.1993 passed by the learned Motor
Accident Claims Tribunal, Bhiwani on the ground that the driver of bus of
Haryana Roadways bearing No.HNB-1444 which was insured with the
appellant/petitioner did not hold a valid driving licence and was only a
Fitter employed in Haryana Roadways who was not authorised to drive the
bus at the time of accident.
The plea of the appellant/petitioner is that under the terms of
the insurance policy the appellant is only liable to indemnify Haryana
Roadways when the person who was driving the bus at the time of the
accident was duly authorised by the Haryana Roadways and had necessary
authorization from the competent authority. It was claimed that the
appellant/petitioner was wrongly held liable to pay the amount of
FAO No. 1714 of 1993 4
compensation.
The facts leading to the filing of the present appeal/revisions
are that on 22.6.1991 a vehicle Tata 407 bearing registration No.HRS-17-
0194 was coming from village Pipali to Devrala in which a marriage party
was coming. The vehicle was being driven by one Balbir son of Rameshwar
and many persons including Billu and deceased Richhpal, Rajesh, Nand
Lal, Ram Sarup, Dhanpat, Vijay, Sube and Mukesh son of Ram Kumar
were tavelling in the vehicle being members of the marriage party. When
the vehicle approached the building of Government College, Loharu a bus
of Haryana Roadways bearing registration No.HNB-1444 came from the
opposite side. Said bus was being driven by respondent No.1 Risal Singh.
The bus was said to be driven at a very fast speed rashly and negligently in a
zig zag manner. The bus tried to overtake a camel cart. In the meantime, the
bus driver lost control and as a result the bus colluded with Tata vehicle.
Balbir Singh driver of Tata vehicle No.HR/0194 and 7 other occupants of
the said vehicle expired at the spot and many other occupants of the vehicle
sustained injuries. The injured were removed to hospital where three more
persons expired. Those who died in accident included Richhpal, Rajesh son
of Man Singh, Nand Lal, Ram Sarup, Dhanpat, Vijay, Sube and Mukesh son
of Ram Kumar
Report regarding the accident was lodged with the police by
Krishan son of Balbir Singh and on the basis of said report FIR No.110
dated 22.6.1991 was registered at Police Station Loharu under sections
279/337/304-A of the Indian Penal Code.
Different claim petitions were filed by the
FAO No. 1714 of 1993 5
claimant/respondents.
Learned Tribunal on appreciation of evidence recorded a
finding that the accident had occurred due to rash and negligent driving of
bus driver Risal Singh and compensation to the claimants was awarded.
As the bus was insured with the petitioner/appellant learned
Tribunal held the petitioner/appellant to be responsible for payment of
compensation.
Ms.Radhika Suri, learned counsel appearing on behalf of the
appellant/petitioner in all the cases has challenged the impugned part of the
award vide which the liability has been fastened on the petitioner/appellant.
Learned counsel for the petitioner/appellant referred to driving licence of
Risal Singh produced on record as Ex.R.1 to contend that licence granted to
Risal Singh is for heavy motor transport vehicle (HMV). The contention of
the learned counsel for he appellant, therefore, was that with licence Ex.R.1
Risal Singh was not competent to drive passenger bus and therefore, no
liability could be fixed on the appellant/petitioner as he could not be said to
be a authorised person.
Learned counsel referred to provisions of Section 2 (16) and 2
(17) of the Motor Vehicles Act which reads as under:-
“2. Definitions.–
(16) ‘heavy goods vehicle’ means any goods carriage the gross
vehicle weight of which, or a tractor or a road-roller the
unladen weight of either of which, exceeds 12,000 kilograms;
(17) ‘heavy passenger motor vehicle’ means any public service
vehicle or private service vehicle or educational institution bus
FAO No. 1714 of 1993 6or omnibus the gross vehicle weight of any of which, or a motor
car the unladen weight of which, exceeds 12,000 kilograms;
Learned counsel for the appellant also referred to Section 2 (35)
where the definition of ‘public service vehicle’ is provided.
Learned counsel for the appellant/petitioner thereafter referred
to section 3 of the Motor Vehicles Act to contend that no person is entitled
to drive a motor vehicle in any public place unless he holds an effective
driving licence issued to him authorizing him to drive the vehicle and that
no person is authorised to drive a transport vehicle other than hired for his
own use or allotted under any scheme unless his driving licence
specifically authorise him to do so.
Reference was also made to Section 10 (2) of the Motor
Vehicles Act which reads as under:-
“10. Form and contents of licences to drive.–
(1) xx xx xx
2) A learner's licence or, as the case may be, driving licence
shall also be expressed as entitling the holder to drive a motor
vehicle of one or more of the following classes, namely:-
(a) motor cycle without gear;
(b) motor cycle with gear;
(c) invalid carriage;
(d) light motor vehicle;
(e) transport vehicle;
(i) road-roller;
(j) motor vehicle
FAO No. 1714 of 1993 7
By making reference to the above provisions of law the
contention of the learned counsel for the appellant/petitioner was that Risal
Singh did not hold a licence to drive a heavy passenger motor vehicle and
therefore, there was violation of terms and conditions of the insurance
policy and thus, no liability could be fastened on the appellant/petitioner.
Reference was also made to the statement made by RW 2 Ram
Kishan, duty clerk, wherein in examination-in-chief he has stated that Risal
Singh was deputed as a driver, where Rajinder as conductor. The duties
were said to have been allotted on the directions of the Duty Inspector,
Haryana Roadways, Charkhi Dadri. He produced original register and got
the entry exhibited as Ex.R.2.
Learned counsel for the appellant/petitioner referred to the
cross-examination of RW 3 wherein it was stated that Risal Singh was
working as fitter,whereas Rajinder Singh was working as Assistant Fitter in
the workshop at Charkhi Dadri. He admitted that no written orders were
given to him for deputing Risal Singh as driver. In further cross-
examination it was admitted by RW 3 that there was no order of General
Manager to depute Risal Singh as driver and Rajinder Singh as conductor.
Strong reliance was placed on the admission of RW 3 that prior
to 22.6.1991 Risal Singh and Rajinder Singh were never deputed as driver
on any bus.
By referring to the statement of RW 3 it was strongly
contended by the learned counsel for the petitioner/appellant that Risal
Singh was not an authorised driver to drive the bus and therefore, no
liability could be fixed on the appellant/petitioner qua the compensation as
FAO No. 1714 of 1993 8
there was breach of the terms of the policy.
Learned counsel for the petitioner/appellant referred to the
judgment of Hon’ble Supreme Court in the case of National Insurance Co.
Ltd. Vs. Swaran Singh and others 2004 ACJ 1, wherein Hon’ble Supreme
Court has considered with respect to liability of Insurance Company to
make payment if the person having licence of one type of vehicle and is
found driving other type of vehicle. The finding recorded by Hon’ble
Supreme Court reads as under:-
“81 Section 10 of the Act provides for forms and contents of
licences to drive. The licence has to be granted in the
prescribed form. Thus, a licence to drive a light motor vehicle
would entitle the holder to drive the vehicle falling within that
class or description.
82. Section 3 of the Act casts an obligation on a driver to
hold an effective driving licence for the type of vehicle which
he intends to drive. Section 10 of the Act enables Central
Government to prescribe forms of driving licences for various
categories of vehicles mentioned in sub-section (2) of said
section. The various types of vehicles described for which a
driver may obtain a licence for one or more of them are (a)
Motorcycle without gear, (b) motorcycle with gear, (c) invalid
carriage, (d) light motor vehicle, (e) transport vehicle, (f) road
roller and (g) motor vehicle of other specified description. The
definition clause in Section 2 of the Act defines various
categories of vehicles which are covered in broad types
FAO No. 1714 of 1993 9mentioned in sub- section (2) of Section 10. They are ‘goods
carriage’, ‘heavy-goods vehicle’, ‘heavy passenger motor-
vehicle’, ‘invalid carriage’, ‘light motor-vehicle’, ‘maxi-cab’,
‘medium goods vehicle’, ‘medium passenger motor-vehicle’,
‘motor-cab’, ‘motorcycle’, ‘omnibus’, ‘private service vehicle’,
‘semi-trailer’, ‘tourist vehicle’, ‘tractor’, ‘trailer’, and ‘transport
vehicle’. In claims for compensation for accidents, various
kinds of breaches with regard to the conditions of driving
licences arise for consideration before the Tribunal. A person
possessing a driving licence for ‘motorcycle without gear’, for
which he has no licence. Cases may also arise where a holder of
driving licence for ‘light motor vehicle’ is found to be driving a
‘maxi-cab’, ‘motor-cab’ or ‘omnibus’ for which he has no licence.
In each case on evidence led before the Claims Tribunal, a
decision has to be taken whether the fact of the driver
possessing licence for one type of vehicle but found driving
another type of vehicle, was the main or contributory cause of
accident. If on facts, it is found that accident was caused solely
because of some other unforeseen or intervening causes like
mechanical failures and similar other causes having no nexus
with driver not possessing requisite type of licence, the insurer
will not be allowed to avoid its liability merely for technical
breach of conditions concerning driving licence.
83. We have construed and determined the scope of sub-
clause (ii) of sub- section (2) (a) of section 149 of the Act.
FAO No. 1714 of 1993 10Minor breaches of licence conditions, such as want of medical
fitness certificate, requirement about age of the driver and the
like not found to have been the direct cause of the accident,
would be treated as minor breaches of inconsequential
deviation in the matter of use of vehicles. Such minor and
inconsequential deviations with regard to licensing conditions
would not constitute sufficient ground to deny the benefit of
coverage of insurance to the third parties.
84. On all pleas of breach of licensing conditions taken by
the insurer, it would be open to the tribunal to adjudicate the
claim and decide inter se liability of insurer and insured;
although where such adjudication is likely to entail undue delay
in decision of the claim of the victim, the Tribunal in its
discretion may relegate the insurer to seek its remedy of
reimbursement from the insured in the civil court.”
The contention of the learned counsel for the
appellant/petitioner is that in view of the judgment of Hon’ble Supreme
Court the liability of the Insurance Company is to be fixed on the facts and
circumstances of each case.
The contention of the learned counsel for the
petitioner/appellant is that the licence brought on record when seen with the
statement of RW 3 it has to be held that the main reason for accident was
that the driver was found driving one type of vehicle qua which he did not
have the valid licence nor he was authorised person, not being appointed as
driver by the State. He was said to have been deputed for the first time that
FAO No. 1714 of 1993 11too by a person not authorised under law/ or terms of appointment.
Learned counsel for the petitioner/appellant placed reliance on
the judgment of Hon’ble Supreme Court in the case of National Insurance
Co. Ltd. Vs. Smt. Kusum Rai & Ors. JT 2006 (4) SC 9, wherein Hon’ble
Supreme Court was pleased to lay down as under:-
“11. It has not been disputed before us that the vehicle was
being used as a taxi. It was, therefore, a commercial vehicle.
The driver of the said vehicle, thus, was required to hold an
appropriate licence therefor. Ram Lal who allegedly was
driving the said vehicle at the relevant time, as noticed
hereinbefore, was holder of a licence to drive a Light Motor
Vehicle only. He did not possess any licence to drive a
commercial vehicle. Evidently, therefore, there was a breach of
condition of the contract of insurance. The appellant, therefore,
could raise the said defence.”
Reliance was also placed on the judgment of Hon’ble Supreme
Court in the case of Oriental Insurance Co. Ltd. Vs. Syed Ibrahim &
Ors. AIR 2008 SC 103, where again Hon’ble Supreme Court was pleased
to lay down that in case a person is found driving a vehicle of category
other than for which he holds licence it would amount to breach of the
terms of the policy. Paras 3 & 10 of the said judgment read as under:-
“3. Learned counsel for the appellant-insurer submitted that
the quantum, as fixed, is extremely high and is without any
basis. Further the insured was the father of the driver and it is
hard to believe that he did not know as to what type of vehicle
FAO No. 1714 of 1993 12the driver was authorised to drive. Reliance is placed on
National Insurance Co. Ltd. Vs. Swaran Singh (2004) 3 SCC
297 to contend that on the facts established and proved
appellant has no liability.
Xx xx xx
10. In view of what has been stated in Swaran Singh’s case
(supra) we are of the view that the appellant-insurer was not
liable to indemnify the award. However, at this juncture, it
would be relevant to take note of paragraphs 11 and 19 of
National Insurance Co. Ltd. Vs. Kusum Rai and others (2006
(4) SCC 250. The quantum, as awarded by the tribunal and
deposited pursuant to the order of this Court dated 29.4.2005 is
maintained. The claimants shall be permitted to withdraw the
amount so deposited along with accrued interest.”
Finally, reliance was placed on the judgment of Hon’ble
Andhra Pradesh in the case of D.Narayanaswami Vs. Suresh Gupta and
others 1990 ACJ 220, wherein Hon’ble Andhra Pradesh High Court was
pleased to lay down that if a vehicle is driven by a person other than the
licenced driver then the Insurance Company would be absolved of its
liability.
In view of the submissions made above, learned counsel for the
petitioner/appellant contended that the State of Haryana i.e. the owner of the
bus should be directed to refund the amount of compensation paid by the
Insurance Company.
Mr. Madan Gupta, learned Deputy Advocate General,
FAO No. 1714 of 1993 13
Haryana, however, contends that the pleas sought to be raised by the
petitioner/appellant in this court with regard to the validity of the driver to
drive the bus was not taken in the written statement and only general plea
was raised to claim that the driver of the bus did not have proper and valid
driving incence. Learned counsel for the State contended that no issue was
framed with regard to the fact that respondent No.1 did not hold a valid
driving licence to drive the vehicle and thus, it is not open to the
appellant/petitioner now for the first time to raise the pleas now sought to
be raised.
It is also the contention of the learned counsel for the State that
no separate licence qua heavy passenger vehicle as is claimed by the
petitioner/appellant is referred to in Ex.R1, whereas the types of vehicles are
mentioned in the driving licence as under:-
(a) Motor Cycle/Scooter
(b) Invalid carriage
(c) Light Motor Transport vehicle
(d) Medium motor/Transport/vehicle
(e) Heavy motor Transport vehicle
(f) Road rollers/Tractor
(g) A motor vehicle hereunder described, wherein it has been
mentioned that he driver was entitled to drive
H.M.Vehicle.
Learned counsel for the appellant/petitioner also referred to the
statement of RW 1 Risal Singh, the driver of the bus who denied the factum
of his driving the bus. However, this plea of RW 1 was not accepted and he
FAO No. 1714 of 1993 14
was found driving the bus at the time of accident.
Learned Sr.Deputy Advocate General, Haryana appearing on
behalf of the State contends that in the present case the question whether
respondent Risal Singh was holding a valid licence or was authorised to
drive the vehicle was not raised and therefore, no issue was framed in this
regard and therefore, it is not open to the petitioner/appellant to raise this
plea for the first time in these appeal/revisions.
It is also the contention of the learned counsel for the State that
there is no special category of heavy passenger vehicle in the licence and
thus, the person holding heavy motor vehicle license was authorised to
drive the bus and therefore, it could not be said that there was no valid
licence.
It was contended by the learned counsel for the State that in
the present case once the bus was insured with the appellant/petitioner it
was to indemnify the owner under the terms of the policy and thus, the
appeal/revisions deserve to be dismissed.
It was also contended by the learned counsel for the State that
once a person incharge has authorised Risal Singh to drive the vehicle it
could not be said that the driver was not authorised to drive.
On consideration of the matter, I find force in the contentions
raised by the learned counsel for the appellant/petitioner.
Reading of Section 10 would show that a person to drive a
vehicle must hold the driving licence of the particular vehicle. The driving
licence Ex.R.1 would show that the category of vehicle which the person is
authorised to drive has to be mentioned therein. It may further be noticed
FAO No. 1714 of 1993 15
that in the present case the evidence has come on record that Risal Singh
was not employed as a driver with Haryana Roadways nor there was any
order by the competent authority authorizing him to drive the vehicle.
Interestingly, in the present case Risal Singh has taken a
positive stand that he was not even driving the vehicle nor he was
authorised to do so. The stand of Risal Singh has been found to be wrong in
view of the evidence brought on record. The plea of the respondent/State
that no specific plea was taken to challenge the validity of driving licence is
not correct as the insurance company had taken a stand that the driver of
the bus did not hold valid driving licence to drive the vehicle.
Even though no issue was framed in the present case with
regard to the validity of the driving license but the parties were alive to the
issue and the evidence was led on this point. Mere non-framing of that issue
cannot be a ground to reject the contention raised by the learned counsel for
the petitioner/appellant, once the parties were aware of the case and had led
evidence in support thereof.
As already observed above in the present case it is proved on
record that respondent Risal Singh did not have a valid licence to drive
heavy passenger vehicle nor he was appointed as driver or authorised to
drive the vehicle. The act for accident, therefore, has to be directly
attributed to his conduct, for absolving the insurance company of its liability
to indemnify the State as there has been breach of the terms of the policy.
However, in view of the settled law it is for the insurance
company to first pay to the claimant and then recover the same from the
State/owner.
FAO No. 1714 of 1993 16
In the present case it has been stated that compensation already
strands paid by the Insurance Company to the claimants if not already paid
and therefore, all these appeal/revisions are disposed of by modifying the
award passed by the learned Tribunal as under:
That it shall be the responsibility of the appellant/petitioner
Insurance Company to pay to the claimants if not already paid. However, it
shall be entitled to recover the same from the owner i.e. State of Haryana.
16.12.2008 (Vinod K.Sharma) rp Judge