BHUDEO SINGH Vs. NEW INDIA ASSURANCE CO.LTD.

JUDGEMENT

(1.) Eight misc. appeals mentioned above have been filed by the non-claimant- appellant Bhudeo Singh, who is truck owner in the common award dated 4.12.2002 of the Judge, MACT, Bharatpur in Claim Cases Nos. 21/96, 22/96,23/96, 27/96, 32/9633/96, 34/96 and 81/96, whereby the MACT awarded compensation to the claimants mentioned in the award. The above mentioned eight cross objections have been filed by the non-claimant insurance company in the eight appeals filed by the owner of the truck. The appellant truck owner filed the appeals for directing the insurance company to pay the compensation amount to the claimants and thereafter recover the same from the truck owner. In the cross objections filed by the insurance company, the insurance company claimed that when it is held by the MACT that breach of policy has been established and the driver of the truck was not having valid licence and hence the insurance company may be absolved of its liability to pay the compensation to the claimants and thereafter recover the same from the truck owner.

(2.) Brief facts of the case are that on 9.12.1995 about 1.00 p.lm. Smt. Guddi Devi, Gautam, Jal Singh, Smt. Nawli, Smt. Manju Sharma, Smt. Rita Jain, Smt. Shanti, Shiv Dei and other persons were going by Tempo No. RJ 05 P 0308. When this tempo reached on Naitonal High Way No.1 near village Bahnera and Bartai, it collided with a tuck No. RRD 4281 resulting in death of Jal Singh and injuries to other persons. The truck owner filed its reply along with the driver of the truck. In reply it was pleaded by the truck owner that the driver on his truck was Bahadur Singh and at the time of accident Bahadur Singh gave it to respondent No.2 who was driving the truck at the time of the accident. It was also pleaded that the accident had occurred because of rash and negligent driving by the Tempo Driver and the truck driver was not at fault in this accident. All the claim petitions were consolidated and have been decided by same award. On the basis of the pleadings of both the sides, relevant issues were framed by the MACT. Eight witnesses were examined on behalf of the claimants. The claimants also submitted relevant documents. The appellant i.e. truck driver appeared himself as NAW 3 and two more witnesses NAW 4 and NAW5 were produced by him. The insurance company produced two witnesses. The MACT after hearing arguments decided the issue No.1 in the manner that the accident had occurred because of rash and negligent driving by respondent No.2 and tempo driver was not negligent. While deciding issue No.3 it has been held that the driver who was driving the truck i.e. respondent No.2 was not having a valid driving licence, hence there is a breach of policy condition on the part of the appellant. Issue No.4 has been decided against the insurance company but while deciding issues 2 and 5 the claimants were awarded compensation and it has been held that the insurance company would pay this amount to the claimants and will be at liberty to recover the same from the appellant truck owner. The appellant filed the above eight appeals challenging the findings on issues 1,2, 3 and 5.

(3.) Mr. Sandeep Mathur, learned counsel appearing for the appellant has argued that the MACT has manifestly erred in deciding issue No.1. The appellant has specifically pleaded in its reply that the accident had occurred because of rash and negligent driving by the tempo driver. In support of his plea the appellant produced two witnesses NAW-4 and NAW-5. Whereas the tempo driver and owner of the tempo did not appear as witness before the MACT. It was argued that in these circumstances an adverse inference should have been drawn holding the tempo driver solely negligent in causing the accident. The issue No.3 was related to driving licence of respondent No.2, which was not valid. The evidence in this regard of the insurance company is not satisfactory which can suggest that the driver of the truck i.e. the respondent No.2 was not having a valid driving licence. The witness NAW 1 who is said to have come from the office of the RTO Agra, had not even brought the relevant record from that office. He even did not bring the record from which the certificate with regard to licence of respondent No.2 was issued by declaring the same to be a forged one. The learned counsel has argued that when the insurance company has totally failed to establish the fact that driving licence of respondent No.2 was valid or forged, this issue should have been decided against the insurance company and in favour of the appellant. Even in the cross examination of the appellant as well as that of NAW 4 and NAW 5 nobody had asked about the validity of the driving licnece. Even no notice was ever given by the insurance company to the appellant in this regard. The learned counsel has further argued that the insurance company has totally failed to discharge its burden which can entitle the insurance company to avoid the liability. The learned counsel has further argued that the insurance company is duty bound to establish the fact that the driver of the vehicle was not duly licenced or has been disqualified for holding or obtaining the licence. The finding of the MACT with regard to disqualification from holding and obtaining the driving licnece was deleted from the insurance policy is totally agaisnt the provisions of Motor Vehicles Act. The insurance company cannot itself delete such condition which has been provided in the Act itself. In these circumstances the learned counsel has argued that it was not a case of breach of policy condition on the part of the appellant and hence the insurance company is not at all entitled to recover the amount paid to the claimants from the appellant. The learned counsel for the appellant has further argued without admitting that the driving licence of respondent No.2 was not a valid licence even then it was not a willful breach of policy condition on the part of the appellant. The appellant had employed and authorised Bahadur Singh to drive his truck and it is undisputed fact that Bahadur Singh was having a valid driving licence. At the time of the accident Bahadur Singh gave the truck to respondent No.2 which was not within the knowledge of the appellant. The learned counsel has argued that in these circumstance it cannot be said to be a willful breach of policy condition. The MACT has also erred in holding that the appellant did not plead the fact that Bahadur Singh, the driver of the truck and respondent No.2 was not authorised by him. The MACT has totally ignored the pleadings of the appellant as well as the order dated 5.2.2002 passed by it during the proceedings of the claim petition and has held that this argument of the appellant is after thought. Lastly the learned counsel for the appellant has argued that the insurance company is not entitled to recover the amount paid to the claimants from the appellant. The learned counsel for the appellant in support of his arguments placed reliance on Rukmani and others vs. New India Assurance Co. Ltd. and others, 1999 ACJ 171 and Sohan Lal Passi vs. P. Sesh Reddy,1996 TAC 733.