Sanjay Yadav, J.
1. This order will govern the disposal of M.A. Nos. 692 and 803 of 2001 arising out of composite order dated 31.7.2001, passed by Fourth Additional Motor Accidents Claims Tribunal, Gwalior whereby the Claim Case Nos. 71, 72, 73 and 74 of 2000 put forth by the claimants therein were rejected on the ground that the negligence of the driver of the offending vehicle was not proved. The present appeals are against the order passed in the Claim Case Nos. 74 and 73 of 2000 respectively.
2. The facts in nutshell giving rise to the aforesaid claim applications are that on 26.9.1996, Chandraprakash Parashar, Lalit Prasad Sharma, Bunti alias Dinesh Agarwal and others were travelling in a jeep bearing registration No. MP 06-D 0116. The said jeep was driven by Ramveer Singh. At about 10 p.m. when the said jeep had reached at loop road opposite Sharma Farm on A.B. Road met with an accident having head-on collision with oncoming truck. The said accident resulted in casualties of Chandraprakash Parashar, Lalit Prasad Sharma, Dinesh Agarwal and the driver of jeep Ramveer Singh. An offence under Sections 304-A, 279 and 337, Indian Penal Code, 1860, was registered against the driver of the truck bearing red colour which had collided with the jeep. Copy of the F.I.R. is brought on record as Exh. P1.
3. Opportune it will be to mention that the parents of Ramveer Singh, the driver of the jeep, had also preferred a claim which was the subject-matter of the Claim Case No. 43 of 2000 and the compensation of Rs. 1,36,000 was granted. The parents of the deceased Ramveer Singh being aggrieved of the inadequacy of the amount preferred an appeal before the court which was a subject-matter of M.A. No. 37 of 2003 and the same was compromised by New India Assurance Co. Ltd., with whom the jeep was insured. In the Lok Adalat on 1.9.2007 the compromise was entered into despite of the fact that the insurance company had the permission under Section 170 of Motor Vehicles Act, 1988.
4. The claims of the appellants in the instant case were disallowed by the Claims Tribunal mainly for the reasons that there was discordance between the contents of F.I.R., which was registered on the version of PW 2 and the evidence of PW 2 and PW 4, who were travelling in jeep. The Tribunal disbelieving the ocular evidence led by PW 2 and PW 4, relied upon the version of F.I.R., holding that negligence of the jeep driver since was not proved and, therefore, the disentitlement. Matter was vehemently argued on behalf of the parties, claimants-appellants criticising the impugned order, whereas the insurance company supporting it number of judgments were cited regarding negligence, the composite negligence in case of head-on collision, the insurance policy whether comprehensive or the Act policy and whether the insurance company would be liable in case of the breach being committed by the policyholder.
5. On hearing the parties at length the following facts have been culled out from record:
(i) On 26.9.1996 jeep bearing registration No. MP 06-D 0116 met with an accident with a truck at 10 p.m. at loop road opposite Sharma Farm on A.B. Road.
(ii) The aforesaid accident resulted in the death of Chandraprakash Parashar, Lalit Prasad Sharma, Bunti alias Dinesh and Ramveer Singh.
(iii) Criminal case was registered for an offence under Sections 304-A, 279 and 337, Indian Penal Code against the driver of truck which dashed into the jeep.
(iv) The jeep was insured with New India Assurance Co. Ltd., respondent No. 2, vide Exh. Dl which covered the own damage and Act risk, entitling thereby the owner to claim reimbursement from the insurer in respect of loss or damage caused to the vehicle. Thus, it is a comprehensive insurance policy. However, it was insured as private vehicle.
(v) Schedule of premium in the cover note, Exh. D1, reveals charging of premium of Rs. 507 to cover the own damage and Rs. 240 and Rs. 120 to cover Act risk, which goes to establish that it is a comprehensive insurance policy. [See Pushpabai Purshottam Udeshi v. Ranjit Ginning and Pressing Co. 1977 ACJ 343 (SC) and National Insurance Co. Ltd. v. Jugal Kishore 1988 ACJ 270 (SC)].
(vi) The occupants of the jeep were passengers having paid the fare as would be evident from the evidence of PW 2 and PW 4. Thus the vehicle was used as a taxi in breach of the policy, Exh. D1.
6. Having noted the aforesaid admitted facts the issues which crop up for consideration are:
(a) Whether the driver of jeep or that of truck were at fault?
(b) Whether the claimants would at all be entitled for the compensation?
(c) Whether the insurance company will be liable to indemnify the loss/compensation when there was a breach of policy?
(d) The effect of the insurance company in compromising the claim put forth by the parents of the deceased driver.
7. In respect of issue No. (d), we find from the record of M.A. No. 37 of 2003 that the claim put forth by the parents of the deceased driver was one under Section 163-A of the Act. Section 163-A of the Act stipulates:
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 of the victim, as the case may be.
(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. The aforesaid provision was inserted by Act 54 of 1994 which came into force-w.e.f. 14.11.1994 and as held by the Apex Court in the case of Deepal Girishbhai Soni v. United India Insurance Co. Ltd. 2004 ACJ 934 (SC), wherein in para 39 their Lordships were pleased to hold that Section 163-A was introduced in the Act by way of social security scheme and that 'the remedy for payment of compensation both under Sections 163-A and 166 being final and independent of each other as statutorily provided...' [See para 57].
9. Thus any compromise arrived at in a proceeding initiated under Section 163-A of the Act of 1988 will not, in our considered opinion, have any bearing upon the proceedings initiated by other claimants under Section 166 of the Act of 1988.
10. This brings us to the issue Nos. (a) and (b) regarding negligence. Though two sets of cases were cited having views diametrically opposed to each regarding the factor whether the negligence is required to be proved in a claim application under Section 166 of the Act of 1988.
11. The cases relied upon, requiring the proof of negligence under Section 166 of the Act, are Mangilal v. Parasram 1970 ACJ 86 (MP); Minu B. Mehta v. Balkrishna Ramchandra Nayan 1977 ACJ 118 (SC); Pushpabai Purshottam Udeshi v. Ranjit Ginning and Pressing Co. 1977 ACJ 343 (SC) and Krishna Mourya v. J.P. Sharma 1998 ACJ 877 (MP).
12. The other view gets reflected from the cases of Kaushnuma Begum v. New India Assurance Co. Ltd. 2001 ACJ 428 (SC); Paramjit Kaur v. Murarilal Shankya 2005 ACJ 401 (MP) and Kasturibai v. Kishore Jadhav M.A. No. 46 of 2003; decided on 23.2.2006.
13. However, in the instant case, we are not hampered by the aforesaid diametrically opposite view in respect of whether the negligence is. to be or is not to be proved for compensation under Section 166 of Motor Vehicles Act, 1988, because a close look to the spot map, Exh. P5, prepared in the criminal case will reveal that the head-on collision is almost in the middle of the road and the equity demand that the doctrine of res ipsa loquitur should be invoked. We accordingly hold that the Claims Tribunal was not justified in holding that the driver of the jeep was not at fault and, therefore, no compensation can be awarded. We are, therefore, of considered opinion that both the drivers of jeep and truck were equally responsible for the said accident and claimants of the deceased are entitled for compensation.
14. This leads us to consider issue No. (c). Admittedly, the policy, Exh. D1, was for a private vehicle; whereas, the jeep in question was used as a taxi which fact is evident from the evidence of PW 2 and PW 3. Thus, there was a breach of policy. Section 149 of the Act of 1988 stipulates:
149. Duty of insurers to satisfy judgments and awards against persons insured in respect of third party risks.- (1) If, after a certificate of insurance has been issued under Sub-section (3) of Section 147 in favour of the person by whom a policy has been effected, judgment or award in respect of any such liability as is required to be covered by a policy under Clause (b) of Sub-section (1) of Section 147 (being a liability covered by the terms of the policy) or under the provisions of Section 163-A is obtained against any person insured by the policy, then, notwithstanding that the insurer may be entitled to avoid or cancel or may have avoided or cancelled the policy, the insurer shall, subject to the provisions of this section, pay to the person entitled to the benefit of the decree any sum not exceeding the sum assured payable thereunder, as if he were the judgment debtor, in respect of the liability, together with any amount payable in respect of costs and any sum payable in respect of interest on that sum by virtue of any enactment relating to interest on judgments.
(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 person 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.
(3) Where any such judgment as is referred to in Sub-section (1) is obtained from a court in a reciprocating country and in the case of a foreign judgment is, by virtue of the provisions of Section 13 of the Code of Civil Procedure, 1908 (5 of 1908) conclusive as to any matter adjudicated upon by it, the insurer [being an insurer registered under the Insurance Act, 1938 (4 of 1938) and whether or not he is registered under the corresponding law of the reciprocating country] shall be liable to the person entitled to the benefit of the decree in the manner and to the extent specified in Sub-section (1), as if the judgment were given by a court in India:
Provided that no sum shall be payable by the insurer in respect of any such judgment unless, before the commencement of the proceedings in which the judgment is given, the insurer had notice through the court concerned of the bringing of the proceedings and the insurer to whom notice is so given is entitled under the corresponding law of the reciprocating country, to be made a party to the proceedings and to defend the action on grounds similar to those specified in Sub-section (2).
(4) Where a certificate of insurance has been issued under Sub-section (3) of Section 147 to the person by whom a policy has been effected, so much of the policy as purports to restrict the insurance of the persons insured thereby by reference to any condition other than those in Clause (b) of Sub-section (2) shall, as respects such liabilities as are required to be covered by a policy under Clause (b) of Sub-section (1) of Section 147, be of no effect:
Provided that any sum paid by the insurer in or towards the discharge of any liability of any person which is covered by the policy by virtue only of this sub-section shall be recoverable by the insurer from that person.
(5) If the amount which an insurer becomes liable under this section to pay in respect of a liability incurred by a person insured by a policy exceeds the amount for which the insurer would apart from the provisions of this section be liable under the policy in respect of that liability, the insurer shall be entitled to recover the excess from that person.
(6) In this section the expression 'material fact' and 'material particular' means, respectively a fact or particular of such a nature as to influence the judgment of a prudent insurer in determining whether he will take the risk and, if so, at what premium and on what conditions, and the expression 'liability covered by the terms of the policy' means a liability which is covered by the policy or which would be so covered but for the fact that insurer is entitled to avoid or cancel or has avoided or cancelled the policy.
(7) No insurer to whom the notice referred to in Sub-section (2) or Sub-section (3) has been given shall be entitled to avoid his liability to any person entitled to the benefit of any such judgment or award as is referred to in Sub-section (1) or in such judgment as is referred to in Sub-section (3) otherwise than in the manner provided for in Sub-section (2) or in the corresponding law of the reciprocating country, as the case may be.
Explanation.-For the purposes of this section, 'Claims Tribunal' means a Claims Tribunal constituted under Section 165 and 'award' means an award made by that Tribunal under Section 168.
15. In the case of National Insurance Co. Ltd. v. Swaran Singh 2004 ACJ 1 (SC), it was held by the Apex Court in para 102 (ii), (iii), (iv), (v), (vi) and (x) as under:
(102) (ii) Insurer is entitled to raise a defence in a claim application filed under Section 163-A or Section 166 of the Motor Vehicles Act, 1988, inter alia, in terms of Section 149(2)(a)(ii) of the said Act.
(iii) The breach of policy conditions, e.g., disqualification of driver or invalid driving licence of the driver, as contained in Sub-section (2) (a) (ii) of Section 149, has to be proved to have been committed by the insured for avoiding liability by the insurer. Mere absence, fake or invalid driving licence or disqualification of the driver for driving at the relevant time, are not in themselves defences available to the insurer against either the insurer or the third parties. To avoid its liability towards insured, the insurer has to prove that the insured was guilty of negligence and failed to exercise reasonable care in the matter of fulfilling the condition of the policy regarding use of vehicle by duly licensed driver or one who was not disqualified to drive at the relevant time.
(iv) The insurance companies are, however, with a view to avoid their liability must not only establish the available de-fence(s) raised in the said proceedings but must also establish 'breach' on the part of the owner of the vehicle, the burden of proof wherefor would be on them.
(v) The court cannot lay down any criteria as to how said burden would be discharged, inasmuch as the same would depend upon the facts and circumstances of each case.
(vi) Even where the insurer is able to prove breach on the part of the insured concerning the policy condition regarding holding of a valid licence by the driver or his qualification to drive during the relevant period, the insurer would not be allowed to avoid its liability towards insured unless the said breach or breaches of the condition of driving licence is/are so fundamental as are found to have contributed to the cause of the accident. The Tribunals in interpreting the policy conditions would apply 'the rule of main purpose' and the concept of 'fundamental breach' to allow defences available to the insurer under Section 149(2)of the Act.
(x) Where on adjudication of the claim under the Act the Tribunal arrives at a conclusion that the insurer has satisfactorily proved its defence in accordance with the provisions of Section 149(2) read with Sub-section (7), as interpreted by this Court above, the Tribunal can direct that the insurer is liable to be reimbursed by the insured for the compensation and other amounts which it has been compelled to pay to the third party under the award of the Tribunal. Such determination of the claim by the Tribunal will be enforceable and the money found due to the insurer from the insured will be recoverable on a certificate issued by the Tribunal to the Collector in the same manner under Section 174 of the Act as arrears of land revenue. The certificate will be issued for the recovery as arrears of land revenue only if, as required by Sub-section (3) of Section 168 of the Act the insured fails to deposit the amount awarded in favour of the insurer within thirty days from the date of announcement of the award by the Tribunal.
16. In the instant case, we find from paras 15 and 17 of the written statement filed on behalf of insurance company that objections were raised in respect of breach of policy. In para 17 it was categorically urged that the jeep though insured as a private vehicle was used as a taxi/passenger vehicle. Thus, there was a breach of policy. In his evidence also, the defendants witness Lalit Kishore Ekka, Senior Assistant, New India Assurance Co. Ltd., Gwalior, DW 1, categorically deposed that the jeep was insured as a private vehicle and that the same was operated as a taxi in contravention of the insurance policy. This fact is nowhere contradicted by the claimants, nor, by the owner who had chosen to remain ex parte, despite of the service by affixture as ordered on 10.5.2006 and a personal service of notice affected on 19.6.2006.
17. Having regard to the aforesaid facts we are of considered opinion that New India Assurance Co. Ltd. cannot be held liable to indemnify the insured and they are accordingly absolved therefrom. However, in view of the law laid down by the Apex Court in Swaran Singh's case, 2004 ACJ 1 (SC) and Pramod Kumar Agrawal v. Mushtari Begum 2004 ACJ 1903 (SC), let the insurer to pay the compensation fixed hereunder and recover 50 per cent of the same from the insured and remaining 50 per cent from the owner of truck which collided with the jeep.
18. So far as amount of compensation is concerned we find that the same is being worked out in paras 20 and 21 of the impugned order and we do not find any discrepancy thereof. Thus, we hold that the claimants-appellants in M.A. No. 692 of 2001 would be entitled for compensation of Rs. 1,79,500 (rupees one lakh seventy-nine thousand five hundred) along with interest at the rate of 7 per cent per annum from the date of claim application till realisation. Similarly, the claimants in M.A. No. 803 of 2001 would be entitled for compensation of Rs. 7,31,300 (rupees seven lakh thirty-one thousand three hundred) along with interest at the rate of 7 per-cent per annum from the date of claim application till realisation.
19. We further direct that out of the aforesaid amounts 80 per cent of the same would be deposited in fixed deposit for a period of five years in joint names of the claimants who will not be permitted to withdraw the same till its maturity; however, they will be entitled for the monthly interest. The appeals are allowed in part to the extent above. No order as to costs.