NATIONAL INSURANCE CO LTD Vs. BEENA KUMARI

JUDGEMENT

(1.) In this appeal, the National Insurance Co. Ltd. has challenged its liability to indemnify the owners respondent Nos. 4 and 5 for the compensation awarded against them by award dated 29.5.1990, passed by Motor Accidents Claims Tribunal, Bilaspur, in favour of respondent-claimant Nos. 1 to 3. The case set up by the appellant insurance company is that since Piar Chand, the husband of respondent-claimant No. 1 and father of respondent-claimant Nos. 2 and 3, had died in the tractor accident which was caused due to his own rash and negligent driving, the claim petition under section 110-A of the Motor Vehicles Act was not maintainable and at best the respondents-claimants could file petition before the Commissioner under Workmen's Compensation Act. Another point raised is that deceased Piar Chand was not having driving licence and was driving the tractor in violation of the terms and conditions of insurance policy.

(2.) This court has heard learned counsel for the parties and gone through the record. The respondents-claimants filed their claim petition under section 110-A of Motor Vehicles Act praying for compensation of Rs. 6,00,000 alleging that deceased Piar Chand was engaged as driver by the owners respondent Nos. 4 and 5 of their. tractor on monthly wages of Rs. 1,000 and on 29.10.1988 at about 9.30 p.m. when he was ploughing their fields on their directions and in their presence, all of a sudden, the tractor turned turtle as a result of which he received fatal injuries and died on the spot. It is further alleged in the claim petition that lights of the tractor were defective which was in the knowledge of the owners respondent Nos. 4 and 5 but they did not get them repaired despite repeated requests of deceased Piar Chand. In their reply, owners respondent Nos. 4 and 5 admitted that deceased Piar Chand was engaged by them as driver of their tractor and he had died in the alleged accident on 29.10.1988 which had taken place at 8.30 p.m. and not at 9.30 p.m. According to them, monthly wages of deceased Piar Chand were Rs. 300 with meals. It is denied that the lights of the tractor were defective. However, there is no specific denial to the allegations that deceased Piar Chand was driving the tractor during night time on their direction and the accident had taken place in their presence. Even they have not given the cause of accident. The appellant insurance company in its reply took a number of preliminary objections and has denied its liability to indemnify the owners respondents. In reply to para 22 of the claim petition, it is submitted that, "the deceased was driving the vehicle in the night and without lights hence he is also liable for contributory negligence. If he is driving the vehicle in the night then the insurance company is not liable to pay any compensation". On the pleadings of the parties, issues were framed and issue No. 1 was, "whether the death of Piar Chand was caused because of rash and negligent driving of the respondent", onus of which was on parties. This issue was not framed correctly as admittedly none of the respondents was driving the tractor at the time of accident and the correct issue was, whether respondents owners were negligent in maintaining the tractor by not repairing its defective lights which caused the accident in which Piar Chand had died. However, defective framing of issue has not affected the merits of the case as the parties very well knew it. From the pleadings, it is clear that the cause of accident was in the knowledge of only owners respondents who were present at the time of accident besides the driver Piar Chand, who had died on the spot but they have withheld it in their reply as well as evidence. In these circumstances, applying the maxim res ipsa loquitur, the Motor Accidents Claims Tribunal has held that the accident had taken place because of the negligence of the owners respondents on whose directions deceased Piar Chand was ploughing the fields during the night. In view of the allegations made in the claim petition that the lights of the tractor were defective it was for the owners respondents to prove that there was no such defect and the tractor was in a fit working condition which onus has not been discharged by them. In view of these findings, the appellant insurance company is not right in challenging the award in this appeal that the accident in which Piar Chand had died was caused due to his rash and negligent driving. In fact, they should not urge this point by filing this appeal as neither they insisted upon framing of issue in this regard nor cross-examined the witnesses suggesting its defence to them in order to produce any evidence in support thereof.

(3.) In view of the above findings, the judgment in New India Assurance Co. Ltd. v. Meenal, 1993 ACJ 522 (Madras), which was further followed in National Insurance Co. Ltd. v. R. Mohan, 1996 ACJ 1151 (Madras), is not attracted in the present case. However, there cannot be any dispute in respect of the proposition laid in these judgments that the driver himself or his legal heirs cannot claim compensation for the wrong or tort committed by himself for holding the owner liable for compensation under Motor Vehicles Act and the insurance company liable to indemnify the owner. In a case in which the driver or his legal heir is the claimant he must plead and prove the wrong or tort committed by the owner directly and not vicariously, In the case in hand, the direct wrong and tort committed by owners respondents in directing deceased driver Piar Chand to drive the tractor and plough the fields during night and in not proving that the tractor was not having defective lights, the claim petition filed by the legal heirs of deceased driver Piar Chand was maintainable and rightly allowed.