Rajendraprasad, J.
1. This Miscellaneous First Appeal by the Insurance Company is directed against the judgment and award dated 26.12.2000 passed in M.V.C. No. 717 /1992 on the file of the I Addl. Civil Judge (Sr. Dn.) & MACT-IV, Bangalore Rural District, Bangalore, questioning the legality and validity of the judgment impugned, particularly regarding fastening of liability on it.
2. Sri P.B. Raju, learned Counsel for appellant, strenuously contended that the material on record clearly shows that the judgment and award of the Trial Court is illegal and invalid so far as fastening of liability on the Insurance Co. is concerned. The material on record also shows that as on the date of accident, patently, the driver of the vehicle in question did not possess valid Driving Licence and during pendency of the claim petition, the owner of the vehicle died and L.Rs. of the owner had not been brought on record. The learned Counsel relied upon the following decision is support of his contentions:
1) : ILR1995KAR2870
2) AIR 2003 SC 6072
Placing reliance on the ratios laid down in the said decisions, he prayed for allowing the appeal.
3. On the contrary, Sri M. Babu, learned Counsel for respondents-claimants, strenuously contended that the material on record clearly shows that the judgment of the Trial Court is legal and valid. The learned Member of the Tribunal had considered the facts in issue in the right perspective and had arrived at right conclusion in fastening the liability on the Insurance Co. He also relied upon the provisions of Section 155 of the M.V. Act, Order 22 Rule 4A of the C.P.C. and the following decisions:
1) : AIR1984Kant228
2) New India Assurance Co., Shimla v. Kamla, : [2001]2SCR797
3) K.G. Srinivasamurthy v. Smt. Habib Khathun, ILR 2002 KAR 1088
4) Unreported decision of this Court rendered in Rangappadas @ Ranganatha v. K. Srinivasa Rao, M.F.A. No. 5368/ 1999 (D.D. 28.11.2002)
Placing reliance on the ratios laid down in the said decisions, he prayed for dismissal of the appeal.
4. The Court has carefully gone through the material on record and has also given its anxious thoughts over the rival contentions raised at the Bar.
5. From the material on record, it is seen that the appellant has raised two fold submissions while assailing the judgment and award of the Trial Court. Firstly, the appellant contends that the owner of the vehicle in question had died during pendency of the claim petition before the Tribunal and his L.Rs. had not been brought on record and this is a serious lacuna. Let me consider this contention in first instance. The material on record clearly shows that the claim petition had been filed arraying the owner of the vehicle in question as R-1, During pendency of the claim petition, a memo had been filed by the claimants stating that the owner of the vehicle had died and in spite of efforts being made, the L.Rs. of the owner could not be ascertained. The Insurance Company had not raised its little finger in this regard.
6. For better appreciation of the facts in issue, it is felt necessary to quote the provisions of Section 155 of the M.V. Act, which run thus:
'155. Effect of death on certain causes of action.-Notwithstanding any thing contained in Section 306 of the Indian Succession Act, 1925 (39 of 1925), the death of a person in whose favour a certificate of insurance had been issued, if it occurs after the happening of an event which has given rise to a claim under the provisions of this Chapter, shall not be a bar to the survival of any cause of action arising out of the said event against his estate or against the insurer.'
7. It is also necessary to mention the provisions of Order 22 Rule 4A C.P.C. which run thus:
'4A. Procedure where there is no legal representative. - (1) If, in any suit, it shall appear to the Court that any party who has died during the pendency of the suit has no legal representative, the Court may, on the application of any party to the suit, proceed in the absence of a person representing the estate of the deceased person, or may by order appoint the Administrator-General, or an officer of the Court or such other person as it thinks fit to represent the estate of the deceased person for the purpose of the suit; and any judgment or order subsequently given or made in the suit shall bind the estate of the deceased person to the same extent as he would have been bound if a personal representative of the deceased person had been a party to the suit.
(2) Before making an order under this rule, the Court-
(a) may require notice of the application for the order to be given to such (if any) of the persons having an interest in the estate of the deceased person as it thinks fit; and
(b) shall ascertain that the person proposed to be appointed to represent the estate of the deceased person is willing to be so appointed and has no interest adverse to that of the deceased person.'
8. In a decision rendered by a Division Bench of this Court reported in : AIR1984Kant228 , it has been held that the death of the owner of he vehicle pending claim petition would not absolve the insurer and award could be passed against the insurer. In view of the said statutory provisions and also the ratio laid down in the said decision, this Court is of the considered opinion that the death of the owner of the vehicle, during pendency of the claim petition before the Tribunal, has not made any impact on the merits of the case and the insurer cannot escape from liability on this score. It is also pertinent to mention at this stage that it is an admitted fact that there had been a valid insurance policy as on the date of accident covering the risk. It has also to be borne in mind that the claimant is a third party so far as the insurance policy is concerned. In view of these aspects, the Court holds that the contention of the learned Counsel for the appellant in this regard is of no legal consequence.
9. The learned Counsel for appellant has raised another plea to the effect that as on the date of accident, the licence held by the driver of the vehicle had lapsed and subsequent renewal of the driving licence would not enure to the benefit of the claimants and the learned Counsel for the claimants has submitted that the driver of the vehicle in question did possess valid licence earlier to the accident and subsequently it had been got renewed and the renewal of the licence dates back to the date of original licence and as such the contention of the learned Counsel for the appellant is not correct. In this regard, it is necessary to mention that in a decision rendered by a Division Bench of this Court in the case of K.G. SRINIVASAMURTHY v. SMT. HABIB KHATHUN5, it has been held thus:
'Where breach alleged is not a factor which contributed to the causing of the accident, the said breach would not be a fundamental breach so as to afford a ground to the insurer to avoid the liability altogether and the exclusion clause must be read down as to serve the main purpose of the policy i.e., to indemnify the insurer.'
In this connection, the learned Counsel for appellant has contended that the matter had been taken before the Apex Court, and the Apex Court had granted stay order and as such the ratio laid down in the said decision is not of any legal consequence.
10. It is also necessary to mention a portion of paragraph 438 of Volume 37 of Halsbury's Laws of England, 4th Edition, which runs thus:
'A stay of proceedings is not the equivalent of a judgment or of a discontinuance, and may be removed if proper grounds are shown, even if the stay is imposed by a consent order.'
Emphasis is laid on the phrase 'A stay of proceedings is not the equivalent of a judgment'. It is also necessary to mention that the Apex Court, on considering the material on record, had granted interim order of stay of the judgment impugned, which in the normal sense means that the effect of stay order is not equivalent to a judgment. In other words, the Apex Court had not laid down ay ratio after perusal of the material on record, but had passed an interim order of stay which in the legal parlance means that the operation of the judgment impugned had been kept in abeyance.
11. It is also felt necessary to quote another decision of the Apex Court rendered in the case of NEW INDIA ASSURANCE CO., SHIMLA. v. KAMLA4, wherein the Apex Court has held that even if there had been renewal of a fake driving licence, the insurer had been made liable to pay the compensation to the third party.
12. In an unreported decision of this Court dated 28.11.2002 in M.F.A. No. 5368/1999 in the case of RANGAPPADAS @ RANGANATH v. K. SRINIVAS RAO,6 this Court had followed the judgment rendered by the Apex Court in the case of New India Assurance Co. (referred Supra) and had fastened the liability on the Insurance Co.
13. So far as the second decision relied upon by the learned Counsel for the appellant, it has to be mentioned that the Full Bench of the Apex Court had been dealing with the case wherein the owner of the goods or his authorized representative carried in the vehicle had died or suffered injuries and the Insurance Co., on considering the material on record, was held not liable to pay the compensation. Having regard to the facts and circumstances of the case, In the opinion of this Court, the ratio laid down in the said decision cannot be pressed into service to spell out a case in favour of the appellant.
14. Now, coming to the decision rendered by the apex Court in New India Assurance Co. v. Kamla4, it has to be observed that the Apex Court had fastened the liability on the Insurance Co. even when there had been renewal of fake driving licence. This decision has been followed by this Court as seen from the said unreported decision.
15. Placing reliance on the ratio laid down by the Apex Court in the case of Kamla and the said unreported decision, this court is of the considered opinion that the contention raised by the learned Counsel for appellant is not correct and the same is not sufficient to turn the tables in favour of the appellant.
16. In this regard, it is also necessary to consider another contention of the learned Counsel for the appellant to the effect that if the Insurance Co. in the case of K.G. Srinivasamurthy were to succeed, and on the basis of the judgment rendered by the Apex Court, the appellant would be entitled to claim, reimbursement of the amount from the owner and the owner of the vehicle in this case having died and his L.Rs. not brought on record, the Insurance Company would be totally deprived of taking recourse to reimbursement of the amount. It has to be mentioned that when the learned Counsel for claimants had submitted a memo before the Tribunal to the effect that the owner of the vehicle had died and his L.Rs. could not be ascertained in spite of efforts, the Insurance Co. had not raised its little finger and moreover, no efforts are shown to have been made by the Insurance Co. to ascertain and/or to bring the L.Rs. of the owner of the vehicle on record. On the contrary, the Insurance Co. had let in the oral evidence of one of its officers R.W.1 and relied upon Exs. R-1 to R-3. There is no whisper of the Insurance Co. in this regard either through documentary or oral evidence placed on record. In view of the peculiar facts and circumstances of the case, the submission of the learned Counsel for appellant in this regard is not sufficient to escape from the liability.
17. The appellant has not raised any other grounds at the time of arguments.
18. In view of the facts and circumstances of the case, and in view of the settled law in this regard, this Court is of the opinion that the learned Member of the Tribunal was justified in fastening the liability on the appellant also and in spite of reappreciation of the facts in issue, this Court is unable to arrive at any other conclusion.
19. For the foregoing reasons, the appeal stands dismissed. The judgment and award of the trial Court stands confirmed.
Parties to bear their own costs.
ORDER ON BEING SPOKEN TO
The learned Counsel for appellant submits that the Insurance Company may be permitted to recover the amount of compensation from the available assets of the deceased as per the judgment rendered by the Supreme Court, reported in 2001 A.C.J. 843. Accordingly, the liberty is given to the appellant to recover the compensation amount in accordance with law by executing this award before the M.A.C.T.