Delay condoned.
Substitution allowed.
Application for setting aside the abatement is allowed.
Leave granted.
This appeal is directed against the judgment and order dated 20.5.2004
passed by a Division Bench of the Punjab and Haryana High court at Chandigarh
whereby and whereunder the Letters Patent Appeal preferred by the appellant
herein from the judgment and order dated 9.10.2000 passed by the learned Single
Judge in the said F.A.No. 2627 of 1998 was dismissed.
One Balwant Singh filed an application claiming a sum of Rs. 10,00,000/-
(Rupees Ten Lakhs) by way of compensation for death of his son Virender Singh
in
an accident which took place on 5.2.1997. The owner of the vehicle contested the
said claim. Appellant herein, inter alia, raised a contention before the Tribunal
that the driver of the vehicle, namely, Karan Arora was a minor on the date of the
accident and was not holding a valid and effective driving licence and thus it was
not liable to reimburse the owner of the vehicle.
In view of the aforementioned stand taken by the appellant inter alia the
following issue was framed:
Whether the accident resulting in death of Virender Singh alias
Rinku, took place due to rash and negligent driving of car bearing
registration No. HR41/3347 by respondent driver Karan Arora?
While determining the said issue the learned Tribunal opined that the
Insurance Company was not liable for payment of the amount of compensation to
the claimants, stating:
“From the bare perusal of the evidence of respondent
driver Karan Arora appearing as RW1, which has been reproduced
almost in its entirety in para nos. 19 to 22 at pages 10 to 13 of this award, it becomes absolutely clear that he was aged about 15 years,
he does not know driving; he was born on 7.8.1983 and that he is not
having any driving licence till 25.7.1998, when his statement was
recorded. In these circumstances, I return a firm finding that
respondent driver Karan Arora had no valid/effective driving
licence on the day of the accident i.e. 5.2.1997.”
An appeal under Sec.173 of the Motor Vehicles Act 1988 was filed before
the High court which was marked as First Appeal from Order No.2627/1998. A
learned single Judge of the said Court allowed the said appeal, holding:
“After considering the rival contentions of the parties, I
am of the opinion that the material point for determination is
whether there was any breach of contract between the
owner of the vehicle and the insurance company. If the breach is
committed on behalf of the vehicle, certainly the Insurance
Company has a case. In order to bring the case within the mischief
of “breach” it has to be proved that there was a willful default on
the part of the insured. I have already stated above that no sane
father would like to give the custody or keys of the vehicle to his
minor son aged 14 years much less to the friend of the minor. Had
Rakesh Kumar Arora parted the possession of the vehicle to his son he would have contemplated very easily that by doing so he would
have incited the trouble. The Hon'ble Supreme Court 1987 while
interpreting the expression “Breach” came to the conclusion that if
it is proved on the record that the owner of the vehicle had done
every thing his power to keep, honour, and fulfil the promise, in
such a situation he cannot be held guilty of a deliberate breach.
There is no evidence on the record to indicate that the owner of the
vehicle parted the keys of the vehicle to his son deliberately or
knowingly. If in the absence of the father son takes the keys of the
vehicle and drives the vehicle for a fun and caused accident, it
cannot be said that there was an express or implied consent on the
part of the owner. The judgments which have been relied upon by
the learned
counsel for the Insurance Company may not be any assistance to
him for the simple reason that in the said judgments it has proved
prima facie that there was a breach of contract on the part of the
insured.”
A Letters Patent Appeal was preferred thereagainst, which was
entertained.
The Division Bench of the High Court by reason of the impugned
judgment dismissed the said appeal, only relying upon or on the basis of some
precedent, viz. V. Mepherson and another vs. Shiv Charan Singh and others 1998 ACJ 601 and Skandia Insurance Company Limited vs. Kokilaben Chandravadan
and others 1987 ACJ 411.
Mr. K.L. Nandram, learned counsel appearing on behalf of the appellant
contended that keeping in view the provisions of Secs.4 and 5 of the Motor
Vehicles Act 1988, the question of any willful default on the part of the owner is
wholly irrelevant in this case as neither a
licence could be granted in favour of minor nor in fact the driver of the vehicle
was holding a valid licence. Reliance in this behalf has been placed on National
Insurance Co. Ltd. vs. Kaushalaya Devi & Ors. (2008 (8) SCALE 500.
No body appears on behalf of respondent No.1.
The learned counsel appearing on behalf of the proforma respondent-
Smt. Kaushalya Devi submitted before us that she has already received the amount
of compensation which had been deposited by the appellant.
Section 4 of the Motor Vehicles Act prohibits driving of a vehicle by any person under the age of eighteen years in any public place. Section 5 of the Act
imposes a statutory responsibility upon the owners of the motor vehicles not to
cause or permit any person who does not satisfy the provisions of Sec.3 or 4 to
drive the vehicle.
The vehicle in question admittedly was being driven by Karan Arora
who was aged about fifteen years. The Tribunal, as noticed hereinbefore, in our
opinion, rightly held that Karan Arora did not hold any valid licence on
the date of accident, namely 5.2.1997.
The learned single Judge as also the Division Bench of the High Court
did not put unto themselves a correct question of law. They proceeded on a wrong
premise that it was for the Insurance Company to prove breach of conditions of
the contract of insurance.
The High Court did not advert to itself the provisions of Sections 4 and 5 of the
Motor Vehicles Act and thus misdirected itself in law.
This aspect of the matter has been considered by this Court in Oriental
Insurance Co.Ltd. vs. Prithvi Raj (2008 (1) SCALE 727) wherein upon taking into
consideration a large number of decisions, it was held that the Insurance
Company was not liable, stating :
“In the instant case, the State Commission has
categorically found that the evidence on record clearly established
that the licensing authority had not issued any license, as was
claimed by the Driver and the respondent. The evidence of Shri
A.V.V.Rajan, Junior Assistant of the Office of the Jt.
Commissioner & Secretary, RTA, Hyderabad who produced the
official records clearly established that no driving license was
issued to Shri Ravinder Kumar or Ravinder Singh in order to
enable and legally permit him to drive a motor vehicle. There was
no cross examination of the said witness. The National
Commission also found that there was no defect in the finding
recorded by the State Commission in this regard.”
Yet again this court in National Insurance Co.Ltd. vs. Kaushalaya Dvi &
Ors. 2008 (8) SCALE 500 took the same view stating:
“The provisions relating to the necessity of having a licence
to drive a vehicle is contained in Section 3,4 and 10 of the Act. As
various aspects of the said provisions, vis-a-vis, the liability of the
Insurance Company to reimburse the owner in respect of a claim of a
third party as provided in Section 149 thereof have been dealt with in
several decisions, it is not necessary for us to reiterate the same once
over again. Suffice it to notice some of the precedents operating in
the field.
In National Insurance Co. Ltd. vs. Swaran Singh & Ors.
[(2004) 3 SCC 297] this Court held:
“88. Section 10 of the Act provides for forms and contents
of licences to drive. The licence has to be granted in the prescribed
form. Thus, a licence to drive a light motor vehicle would entitle the
holder there to drive the vehicle falling within that class or
description.
89. Section 3 of the Act casts an obligation on a driver to
hold an effective driving licence for the type of vehicle which he
intends to drive. Section 10 of the Act enables the Central
Government to prescribe forms of driving licences for various
categories of vehicles mentioned in sub-section (2) of the said
section.”
It was furthermore observed:
“90. We have construed and determined the scope of sub-
clause (ii) of sub-section (2) of Section 149 of the Act, Minor breaches
of licence conditions, such as want of medical fitness certificate,
requirement about age of the driver and the like not found to have
been the direct cause of the accident, would be treated as minor
breaches of inconsequential deviation in the matter of use of vehicles.
Such minor and inconsequential deviations with regard to licensing
conditions would not constitute sufficient ground to deny the benefit
of coverage of insurance to the third parties.
91. On all pleas of breach of licensing conditions taken by
the insurer, it would be open to the Tribunal to adjudicate the claim
and decide inter se liability of insurer and insured; although where
such adjudication is likely to entail undue delay in decision of the
claim of the victim, the Tribunal in its discretion may relegate the
insurer to seek its remedy of reimbursement from the insured in the
civil court.”
The decision in Swaran Singh, however, was held to be not
applicable in relation to the owner or a passenger of a vehicle which
is insured.”
In view of the authoritative pronouncement of this Court as noticed
hereinbefore, the impugned judgment cannot be sustained. It is set aside
accordingly and that of the learned Tribunal is restored. However,
keeping in view the admitted fact that as no stay had been granted by the High
Court the appellant has deposited the entire amount which has since been
withdrawn by the claimant-respondent; we direct that the appellant shall be
entitled to recover the amount in question from the owner of the vehicle, namely,
respondent No.1.
The appeal is allowed accordingly.
No costs.
(S.B. SINHA)
New Delhi, September 24, 2008.