National Insurance Co. Ltd. Vs. Debrat Kumar and ors. - Court Judgment

Excerpt:
motor vehicle act, 1988 section 140 - accident--scooter driven by respondent no. 2 was having no driving licence and this fact was within the knowledge of respondent no. 1--insurers directed to indemnify claimants with compensation amount on account of death in accident--whether in view of the finding recorded by tribunal that the insurer was not liable to meet the claim of compensation, it was the owner of the vehicle, who was liable to pay the entire compensation to the claimants--person driving vehicle at the time of accident must be holding a valid driving licence--held: insurance company is not liable to indemnify the compensation amount and the entire amount is payable by the owner of the vehicle--compensation payable if already paid in court shall go to the credit of claimants and..... guru sharan sharma, j.1. the only point which arises for consideration in this appeal is as to whether in view of the finding recorded by the tribunal in the impugned judgment/order that the insurer was not liable to meet the claim of compensation, it was the owner of the vehicle, who was liable to pay the entire compensation to the claimants.2. in the impugned award, the national insurance co. ltd., chamdoria branch, patna, has been directed to indemnify the claimants with the compensation amount of rs. 1,77,140 on account of death of one b.b. narain in the accident by the scooter owned by respondent no. 1 herein, which was being driven by respondent no. 2 at the time of accident.3. it is not in dispute that respondent no. 2 was driving the scooter in question at the time of accident.....

Judgment:

Guru Sharan Sharma, J.

1. The only point which arises for consideration in this appeal is as to whether in view of the finding recorded by the Tribunal in the impugned judgment/order that the insurer was not liable to meet the claim of compensation, it was the owner of the vehicle, who was liable to pay the entire compensation to the claimants.

2. In the impugned award, the National Insurance Co. Ltd., Chamdoria Branch, Patna, has been directed to indemnify the claimants with the compensation amount of Rs. 1,77,140 on account of death of one B.B. Narain in the accident by the scooter owned by respondent No. 1 herein, which was being driven by respondent No. 2 at the time of accident.

3. It is not in dispute that respondent No. 2 was driving the scooter in question at the time of accident with the permission of its owner, respondent No. 1. Respondent No. 2 had no driving licence under the Act. This fact was known to the respondent No. 1.

4. On the basis of evidence on record, the Tribunal found that respondent No. 1 had given his scooter to the respondent No. 2 with the knowledge that he had no driving licence. It was, therefore, held that the owner of the vehicle and not the insurer was liable to pay the entire amount of compensation.

5. The Tribunal also observed that the insurer was bound to pay to the persons entitled to a decree they had obtained in respect of any liability covered by the terms of the insurance policy, irrespective of the fact that it was entitled to avoid or cancel the policy.

6. In such circumstance, the Tribunal was of the view that once it was found that the claimants were entitled to compensation, they were to be left to realise the same from the insured, who may or may not have means to meet the claim, otherwise the purpose of Section 168 of the Motor Vehicles Act, 1988 was to be defeated. There was, therefore, no occasion for a direction to the insurance company to indemnify the entire amount of compensation with a liberty to recover it from the insured.

7. In this regard the counsel for the contesting respondents placed reliance on a decision of the Apex Court in Guru Govekar v. Filomena F. Lobo 1988 ACJ 585 (SC), wherein it was held that when the owner of a motor vehicle entrusted his vehicle to a repairer to carry out repairs, he was in fact allowing the repairer to use his vehicle in that connection. So on account of negligence of either the repairer or his employee, who was engaged in connection with repairs, a third party died or suffered any injury the insurer becomes liable to pay compensation under the provisions of the Act.

8. In my view the ratio of Guru Govekar, 1988 ACJ 585 (C), was not applicable to the facts and circumstances of the present case. In the present case, the admitted position was that the driver of the vehicle in question, who was permitted to use it, had no driving licence at all.

9. The insurance policy was brought on record and marked Exh. A. It reveals that under its clause, insurance company, in the event of accident could be liable only if the driver of the ill-fated vehicle was holding a valid driving licence.

10. In New India Assurance Co. Ltd. v. Mandar Madhav Tambe 1996 ACJ 253 (SC), it was held that the intention and meaning of the policy, in case the vehicle in question was being driven by a person without holding a driving licence, was that the person driving the vehicle at the time of accident must be holding a valid driving licence, otherwise the insurance company was not liable to pay the amount of compensation to the claimants.

11. In such circumstance, I hold that the appellant insurance company is not liable to indemnify the compensation amount in question and the entire amount is payable by the owner of the vehicle.

12. However, the amount, if any, out of the compensation payable to the claimants, already paid or deposited in court shall go to the credit of the claimants and the insurance company shall not be allowed to withdraw the same, rather the claimants shall get it and the insurance company is at liberty to realise the said amount from the insured, i.e., owner of the vehicle, in accordance with law.

13. The counsel for the respondent Nos. 3 to 6 contended that the widow of the deceased, namely, Sarojni Devi, who was one of the claimants and her name stood mentioned in the impugned award too, has been left to be made party in this appeal. In the present appeal, the appellant insurance company has not challenged the quantum of award and the impugned award has already become final. Here the only question was about the liability of the insurance company, if any, to pay the amount of compensation. In such situation even if Sarojni Devi was not made party herein, she was not at all prejudiced in any manner.

14. The impugned judgment and award is modified to the extent that instead of the insurance company the owner of the scooter in question was liable to pay the entire amount of compensation.

15. This appeal is disposed of accordingly.