1. CHAIRMANTHIS is an appeal against the judgment and order dated 22.10.1998 passed by District Forum, Nainital allowing a sum of Rs. 78,959/- as compensation in favour of the complainant.
2. THE only point involved in this case is that the truck of the complainant met with an accident. THE claim was lodged. It was repudiated. THE complainant filed the complaint with the allegations that the driver of the truck was Shri Harak Singh Rawat while it proceeded from Haldwani, but while returning from Bageswar, Shri Harak Singh Rawat suffered from dysentery and he handed it over to Shri Dinesh Chandra for driving. When the truck met with an accident, Shri Dinesh Chandra was driving the truck. It is not disputed that Harak Singh Rawat was holding a valid driving licence but, it is said that Shri Dinesh Chandra was not holding a valid driving licence in so far as he was not authorised to drive the vehicle on hill routes. This fact is admitted to the parties that Shri Dinesh Chandra was not having a valid licence for driving the vehicle on hill routes. According to the complainant, he has entrusted a licence to driver Shri Harak Singh Rawat to drive the vehicle. But without the knowledge and information to the complainant, he has handed over the vehicle to an unlicensed driver, which was not in he knowledge of the complainant, therefore, the complainant should not suffer for that. THE learned Counsel for the complainant referred a number of rulings, but the learned Counsel for the Insurance Company Mrs. Anjali Gosain argued that the liability is different in the case of third party claims and it is different for the damage to the own vehicle. It was argued that the driver is an agent of the owner and entrustment to an unlicensed driver by the actual driver shall mean entrustment by the owner and, therefore, the owner has to bear the loss.
The learned Counsel for the complainant referred to the ruling reported in Purushottam Kumar Jain v. Oriental Insurance Co. Ltd., I (2002) CPJ 218, in which there was a claim for the own damage of the vehicle. It was held in this ruling: In view of the law declared by the Supreme Court in the cases referred above, applying the principle, in the own damage claim admittedly, the employer employed a licensed driver Pradeep Singh, who was driving the vehicle who was in control of the vehicle and even assuming for arguments sake he allowed Santosh to drive the vehicle, the Insurance Company cannot disown its liability to pay the own damage claim.
In this ruling in Skandia Insurance Co. Ltd. v. Kokilaben Chandravadan, I (1987) ACC 413=AIR 1987 SC 1184, was referred. This ruling of the Supreme Court was in respect of the third party claim and not in respect of own vehicle of the insured. Again the ruling in a Madhya Pradesh High Court order, United India Insurance Co. Ltd. v. Hukum Singh, 1995 ACJ 1190, was referred to. This ruling also appears to be in relation to the third party.
3. THE third ruling referred is of our own Commission in National Insurance Co. Ltd. v. Din Dayal Chamoli, 2003 (1) JCC 521. In this ruling there is specific finding that where there is no nexus between the driving licence and the accident and if the licence is not valid, then also, on non-standard basis, the claim should be awarded.
Regarding the endorsement, it was decided that even if the driver has got the licence to drive in the whole of India, he has got no right to drive unless such an endorsement is made on his licence. The learned Counsel for the claimant referred the ruling in Sohan Lal Passi v. P. Sesh Reddy, II (1996) ACC 617 (SC)=1996 Supreme Court on Accident Claims 360. In this ruling it was held: Motor Vehicles Act, 1939, Sections 110-B, 92-A and 92-B (Sections 168, 140 and 141 of Act 59 of 1988)Vicarious liability of ownerLiability of owner of the vehicle for motor accidents due to negligent acts of their employees during course of employmentTest to determineAct authorised was being performed in a mode which may not be proper but was directly connected within the course of employmentOwner of the bus employed duly licensed driver to drive the bus but driver of the bus allowed cleaner/conductor of the bus to drive bus who collided the bus with scooter resulting into death of scooteristWhether the owner is liable for the negligent act of his employees done in the course of employmentYesOwner shall nevertheless be responsible for the manner in which driver and the cleaner/conductor executed the authorityMaster cannot escape the liability so far as third parties are concerned on the ground that he had not actually authorised the particular manner in which the act was doneAct was not independent Act which had no nexus or connection with the business of owner so as to absolve him from liabilityNegligent act of driver and the cleaner/conductor was in the course of employment, he shall be liable for the same. Motor Vehicles Act, 1939, Section 96(2)(b)(ii) [Section 149(2)(b)(ii) of Act 59 of 1988]Liability of insurer in respect of third party riskBreach of condition of policyInsurer took the defence that offending vehicle was driven by unauthorised person violating the specified condition to the policy and it cannot be held liable to indemnify the ownerWhen such type of defences not available to insurerManaging of the word breach Owner of the bus authorised a duly licensed driver to drive the bus but the driver allowed the cleaner/conductor of the bus to drive who collided the bus with scooterist who diedWhether defence of breach of the specified condition of policy under Section 96(2)(b)(ii) is available to insurerHeldNoInsurer is liable under Section 96(1)Right to claim compensation should not be defeated on technical groundsInsured had done everything within his powers inasmuch as he engaged a licensed driver and had placed the vehicle in his chargeInsurer shall be jointly and severally liable to pay compensation to the claimants.
4. IN this ruling several other rulings of the Honble Supreme Court were referred, but this ruling is also in respect of third party claim. IN this ruling the Motor Accident Tribunal has absorbed the INsurance Company and directed the owner and driver to pay compensation to the third party. The Honble Supreme Court held that the owner has already appointed a licensed driver, he should not be allowed to suffer. But in this case, the owner has claimed damages for his own loss for authorization of his licensed driver to a person not duly authorized to drive.
The learned Counsel for the complainant, further, referred another Madhya Pradesh ruling in Oriental Insurance Co. Ltd. v. Lekhiram, III (1997) CPJ 179. In this ruling the accident did not take place due to any lack in driving skills. The claim was allowed. Licence in this case was a forged one.
In the ruling in Jai Hind Knitting Machine v. Brij Mohan, III (2003) CPJ 125 (NC), the driver was not holding a valid driving licence. It met with an accident with an oil tanker, caught fire and was completely damaged. The case is of loss to the own vehicle, where the National Commission did not allow the compensation.
5. IN our case, the parties did not care to file copies of the complaint and the written statement, but it was admitted that while the vehicle was running, it become disbalance and fell down into the valley approximately 100 ft. down.
6. THE driving on hill routes requires special skills. Even an expert driver of plains cannot drive a vehicle in the hills safely. THErefore, the accident in this particular case is the direct result of the drivers act and, therefore, it cannot be said that there was no nexus between the licence and the accident.
After going through the entire law as produced by the parties, our considered opinion is that if the claim is in respect of third party, the claim cannot be repudiated merely on the ground that the vehicle was being driven by unqualified driver, but as regard the claim for the damage of his own vehicle, the owner cannot get the benefit of the acts of his own driver by authorising an unqualified person to drive the vehicle. This is specific in the policy that the claim can be repudiated if the driver was not holding valid licence to drive a vehicle. The learned Counsel for the claimant argued that the conditions of the policy shall be read down to serve the main purpose of the policy and that is to allow the claim. But, there is no ruling at all that there may be licence, there may not be licence, the vehicle may be driven even by a child, but if there is an accident and if the vehicle is insured, the insured amount must be given to the claimant. If that is taken to be the law, there is no need of any exercise; purchase a vehicle, get it damaged by being driven by any person qualified or unqualified and take the claim for the Insurance Company. That can never be the spirit of any insurance. The claim must be allowed only in accordance to the terms and conditions of the policy. Even in third party cases, the Insurance Company is liable to the claimant, but in that case also, according to the rulings of the National Commission and Supreme Court, the Insurance Company is entitled to be indemnified by the owner. If in case like this, claim is allowed, the Insurance Company cannot be called once to pay the claim to the owner and again to be indemnified by him.
In view of what has been said above, the order passed by the learned Forum is not correct and is to be set aside. ORDER
7. THE appeal is allowed. THE judgment and order dated 22.10.1998 passed by District Forum, Nainital is, hereby, set aside. THE complaint is, hereby, dismissed. Cost of this appeal shall be easy. Appeal allowed.
