It is, thus, clear that the owner was aware of the nature of licence possessed by the driver engaged by him and also he was aware of the fact that on the driving licence of the driver, there was no such endorsement of carrying dangerous and hazardous goods.
12. Learned Tribunal seems to have acted too liberally in taking the view that the driver of the offending vehicle was competent to drive gas tanker for which he had undergone training. It is not a case of merely driving a vehicle of the type other than the one for which licence had been issued. It is rather a case of driving a special type of vehicle, which is meant for carrying dangerous and hazardous gas. Bringing out vehicle carrying dangerous and hazardous goods on public places involves a great element of risk to life and property of public at large. Owners of such vehicles must exercise special care to ensure that such vehicles are entrusted for driving and given in the charge of persons, who are duly trained and specifically authorized to take charge of such vehicles. No lenient view is justified if breach in this regard is proved by the insurer.
13. In my considered view, the assertion of learned counsel appearing for the insurance company regarding the fact that there was no endorsement on the driving licence of the driver of the offending vehicle carrying hazardous substance is legally tenable inasmuch as it is not a case of driving a vehicle of a type other than for which licence has been issued. Here the breach relates not to the type of vehicle but to the kind of goods for which the vehicle is meant for.
14. Viewed thus, appeal succeeds and the appellant-insurance company cannot be saddled with liability of indemnifying the owner (insured).
15. For all that has been said and discussed above, appeal is allowed to the extent of exonerating the appellant-insurance company from satisfying the award. Award and judgment rendered by the learned tribunal is modified by providing that the award shall be satisfied by the owner of the offending tanker-respondent No. 2.
IN THE HIGH COURT OF JAMMU AND KASHMIR AT JAMMU
CIMA No. 13/2010 and CMP No. 14/2010
Decided On: 24.04.2017
United India Insurance Co. Ltd. Vs. Subash Singh and Ors.
Hon'ble Judges/Coram:
Tashi Rabstan, J.
1. This appeal is directed against the judgment and award dated 13.10.2009 passed by the learned Motor Accident Claims Tribunal, Jammu (for short "Tribunal") whereby a total compensation of Rs. 1,50,000/- has been awarded in favour of claimant-respondent No. 1 herein, on account of injuries suffered by him in a vehicular accident. An interest @ 7.5% p.a. has also been awarded on the awarded amount of compensation. Liability of paying the compensation has been foisted on the appellant-insurance company with whom the offending tanker was insured. I have heard learned counsel for the appellant and perused the record.
2. The claimant, at the ill-fated time, was travelling on his scooter and was going to his village. When he reached near District Hospital, Kathua, a rashly and negligently driver of tanker bearing registration No. HR-38-6104 is stated to have hit his scooter by coming to the wrong side, as a result whereof, he suffered fracture of right lower leg, fracture of right temporal bone and multiple fracture of right frontal lobe and other injuries on his scalp and nose.
3. Claimant lodged the claim for compensation under Section 166 of the Motor Vehicles Act, 1988 (for short "the Act"). Learned Tribunal, vide impugned judgment and award, found that the accident had occurred due to rash and negligent driving by the driver of the offending Tanker, respondent No. 3 here, and awarded compensation in favour of the claimant under the following heads:
4. The appellant-Insurance company assails the impugned judgment and award inter alia on the grounds, firstly that the driver of the offending tanker did not possess a valid licence authorizing him to drive the offending vehicle, so breach of a condition of policy of insurance was duly proved and liability to pay the compensation should not have been foisted on the insurance company and secondly, that the compensation awarded by the learned Tribunal is much on higher side.
5. Mr. Vishnu Gupta, learned counsel for the appellant while referring to the finding recorded by the learned Tribunal on issue No. 4, submitted that the offending Tanker was being used for carrying inflammable gas, which is a hazardous substance and that the driver of the offending vehicle was not holding a valid effective driving licence at the time of accident as the same was not endorsed by competent authority for driving vehicles carrying goods of dangerous or hazardous nature. He also submitted that the Tribunal also ignored the admission of respondent No. 2 that his LPG carrying gas tanker carrying LPG Gas is admittedly of hazardous nature and the driving licence of his driver on the day of accident did not carry endorsement by competent authority to drive vehicle carrying hazardous goods. Thus, the finding of the Issue No. 4 is contrary to the evidence on record and to the provisions of M.V. Act, 1988.
6. In support of his assertion, Mr. Gupta, learned counsel appearing for the Insurance company has placed reliance upon a judgment of the Apex Court in Nagamani & Anr. v. Singaravelu & Anr., MANU/TN/1293/2009 : 2009 (3) CTC 483. The Apex Court in the judgment (supra) held as under:
"........Suffice it to point out for this Court that the offending vehicle lorry driver Elayasamy was not in possession of a licence/endorsement to drive the hazardous goods vehicle and that he was only possessed of a licence to drive heavy goods vehicle with effect from 30.10.1991 and therefore, there was a violation of policy condition and as such, the Tribunal was quite correct in exonerating the second respondent/Insurance Company from its liability to pay........"
7. Learned Tribunal, after appreciating the evidence, decided the issue No. 4 in favour of the claimant and against respondents there, by holding that driver of offending vehicle was competent to drive gas tanker, for which he had undergone training and that the insurer has not produced any law in support of contention with the endorsement to drive hazardous vehicle is required to be made on the driving licence.
8. There is no denial of the fact that offending tanker was a vehicle, used for transporting gas. The driver of offending Tanker, respondent No. 3, in his evidence as appellant's witness before the learned tribunal, has stated that he had a valid driving licence. He also stated that Licensing Authority used to make endorsement for driving hazardous vehicle, but now training for three days in a year is given for driving such vehicle. He has also got the said training in the year 2002, 2003, 2004 and 2005 and got the certificates which he produced in the court. In cross-examination he has stated that every year he got training for driving the hazardous vehicle.
9. There is also no denial of the fact that offending tanker is a tanker, designed for carrying dangerous and hazardous goods. As at the time of accident, admittedly, it was carrying inflammable gas, which is dangerous and hazardous, but the driving licence possessed by driver of offending vehicle did not bear any endorsement, authorizing him to drive a vehicle used for carrying dangerous and hazardous substances. Observation of the learned Tribunal that an endorsement in this regard would have been made simply because the driver had undergone driving training to drive a vehicle meant for carrying such substances, is a speculation only, which cannot be taken as a substitute for fulfillment of the requirement.
10. Section 3 read with Section 4 of the Act casts obligation on a driver to hold an effective driving licence for a type of vehicle, which he intends to drive and likewise Section 5 casts duty on the owner to engage a driver who possesses a licence authorizing him to drive a vehicle of that type.
11. On examining the record of learned Tribunal, I have found that appellant-insurance company had taken a specific plea that driver of offending vehicle-respondent No. 3, was not possessing a valid and effective driving licence as there was no endorsement on driving licence of driver of offending vehicle to carry hazardous substance and the act of the owner in plying his Tanker through respondent No. 3 was a breach of policy of insurance. In this regard, say of the owner-respondent No. 2 in its statement recorded before the Tribunal was that the driver of the offending vehicle possessed a valid and effective driving licence. It is, thus, clear that the owner was aware of the nature of licence possessed by the driver engaged by him and also he was aware of the fact that on the driving licence of the driver, there was no such endorsement of carrying dangerous and hazardous goods.
12. Learned Tribunal seems to have acted too liberally in taking the view that the driver of the offending vehicle was competent to drive gas tanker for which he had undergone training. It is not a case of merely driving a vehicle of the type other than the one for which licence had been issued. It is rather a case of driving a special type of vehicle, which is meant for carrying dangerous and hazardous gas. Bringing out vehicle carrying dangerous and hazardous goods on public places involves a great element of risk to life and property of public at large. Owners of such vehicles must exercise special care to ensure that such vehicles are entrusted for driving and given in the charge of persons, who are duly trained and specifically authorized to take charge of such vehicles. No lenient view is justified if breach in this regard is proved by the insurer.
13. In my considered view, the assertion of learned counsel appearing for the insurance company regarding the fact that there was no endorsement on the driving licence of the driver of the offending vehicle carrying hazardous substance is legally tenable inasmuch as it is not a case of driving a vehicle of a type other than for which licence has been issued. Here the breach relates not to the type of vehicle but to the kind of goods for which the vehicle is meant for.
14. Viewed thus, appeal succeeds and the appellant-insurance company cannot be saddled with liability of indemnifying the owner (insured).
15. For all that has been said and discussed above, appeal is allowed to the extent of exonerating the appellant-insurance company from satisfying the award. Award and judgment rendered by the learned tribunal is modified by providing that the award shall be satisfied by the owner of the offending tanker-respondent No. 2.
16. Amount deposited by the appellant in this Court, whatsoever available, be returned to the appellant along with interest accrued on that. Recovery from the claimant of the amount released in his favour, if any, shall not be effected. It shall remain open for the appellant to claim recovery of any such amount from the owner (insured) on the strength of this judgment. Copy be sent down.
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