SUBH RAM Vs. SMT. KRIPA DEVI AND OTHERS

JUDGEMENT

(1.) All the three cases arise out of the same accident. FAO No. 239 and 913 of 2004 are at the instance of the owner against the liability cast on him and exonerating the insurance company on the ground that the driver did not have a valid driving licence to drive a transport vehicle. FAO No. 2253 of 2004 is an appeal by the claimants seeking for enhancement. There is no appearance on behalf of the claimants to claim the enhancement and therefore, 1 dismiss it for default of appearance and non-prosecution. The exoneration of liability of the insurance company has arisen on account of the fact that the vehicle which was involved in the accident was a Tata 407 vehicle, which has been insured as a goods vehicle of 5300 kgs. of weight. The driver had only a light motor vehicle licence and evidently a goods carriage, which is a transport vehicle as defined under Section 2(47) of the Motor Vehicles Act, ought to be driven only by a person who holds a special endorsement on his licence in the manner provided under Section 3 of the Motor Vehicles Act. The driver was not duly licenced to drive the category of vehicle that was involved in the accident and therefore, the Tribunal was justified in denying a right of indemnity. However, when the vehicle was insured for third party risk, the claimants were entitled to have the right of securing compensation enforced against the insurer in the manner contemplated under Sections 149(4) proviso and 149(5) of the Motor Vehicles Act. Even while holding that the appellants were not entitled to right of indemnity, I will modify the award in so far as it totally exonerates the insurance company. The duty to pay in the first place and a right to recover is well established by several judgments of the Supreme Court commencing from New India Assurance Company Limited v. Asha Rani and others, 2003 133 PunLR 1 and in the subsequent judgment in National Insurance Company Limited v. Swaran Singh, 2004 136 PunLR 510. Although the claimants appeal for enhancement has been dismissed for non prosecution, I will modify the entitlement portion in exercise of the power under Order 41 Rule 33 CPC.

(2.) Learned counsel appearing on behalf of the owner would still have a point to urge that the entire amount of compensation should not have been paid against him since the accident itself had taken place at the time when the deceased and the claimant injured, who were travelling on scooter were overtaking the jeep and the collision with the insured's vehicle had taken place at the time of such overtaking. In the First Information Report immediately lodged by the claimant Mukesh (which is subject of appeal in FAO No. 913 of 2004), he had stated that the driver of the jeep was responsible for the accident. However, he had resiled from the statement at the time of trial, which according to the learned counsel appearing for the appellants was motivated when they knew that the Tata truck alone had been insured and the jeep had not been insured. So long as no contributory negligence is attributed to the injured claimant, which in fact could not be done since he was himself a pillion rider, it could be taken only a case of composite negligence of the two vehicles namely the driver of the jeep and the driver of the insured's truck. In such an event, the claimants were entitled to proceed against any one of the tort feasors and secure the compensation in full leaving it to one of the tort feasors to seek for contribution against the co-tort feasor to the extent of culpability. I am not, however, prepared to examine the issue of apportionment of negligence between the driver of the truck and the driver of the jeep, for it would be really a futile exercise. Adjudication making such apportionment in the absence of the driver and the owner of the jeep will not bind them. So long as a right of enforcement of the claim is well founded in law against the owner of the truck, which was admittedly involved in the accident, I will allow the right of enforcement to be available for the claimants against the insurance company if the amount has not already been recovered against the owner of the truck. The appeals by the owner in FAO Nos. 230 and 913 of 2004 are dismissed. However, there will be a modification in the operative portion for right of recovery of the compensation against the insurance company, if the amount has not been recovered by the claimant or any portion of the amount is not recovered by the claimants but the insurer will have a right of recovery against the owner of the truck, who is the appellant in the above appeals. The appeals are disposed of with the above modifications.