Vicarious liability of the owner for the driver's actions and the requirement of an effective driving license under the Motor Vehicles Act.

Ashok Kumar Verma, J.

1. This miscellaneous appeal had been filed against the order dated 29.7.1998, passed by the District Judge, Madhubani in Claim Case No. 44 of 1997, whereby the learned District Judge has ordered that both driver and owner shall pay Rs. 25,000 each to the applicants by way of interim compensation and the applicants shall be entitled to receive Rs. 50,000 in total.

2. Appellant No. 1 is the owner of the vehicle and appellant No. 2 is the driver of the vehicle. Respondent Nos. 1 to 3 are the claimants and respondent No. 4 is National Insurance Co. Ltd.

3. According to the appellants, claim case had been filed u/s. 140 of the Motor Vehicles Act without filing any case u/s. 166 of the said Act and independent claim u/s. 140 of the Act is not maintainable without filing a claim case u/s. 166 of the Act. Further according to the appellants for any action of the driver, the owner of the vehicle is vicariously liable. According to the appellants the expiry of the period of driving licence will not absolve the insurance company of its liability.

4. In short, the case of the applicants is that the son of petitioners, respondent Nos. 1 and 2 and brother of petitioner, respondent No. 3, who was aged about thirteen years had died on 7.2.1997 in the accident caused by rash, negligent and reckless driving of the tractor and trailer bearing registration No. BPG 9994 and BPG 9995 by its driver Bhagwat Yadav, who is appellant No. 2. The first information report had been lodged by petitioner-respondent No. 1 Khurshid Anwar at the police station as Rahika (Town P.S. Madhubani) P.S. Case No. 41 of 1997, district Madhubani. The post-mortem examination of the body of the deceased had been conducted. The claim petition was filed u/s. 140 of the Motor Vehicles Act before the District Judge-cum-Motor Accidents Claims Tribunal against appellant No. 1, Mahesh Kumar, owner of the vehicle; appellant No. 2, Bhagwat Yadav, driver of the vehicle and respondent No. 4, National Insurance Co. Ltd.

5. Separate written statement had been filed by opposite party Nos. 1, 2 and 3. Appellant No. 1 (opposite party No. 1 in court below) has denied that the deceased had died on 7.2.1997 due to accident of tractor bearing registration No. BPG 9994 and 9995, due to high speed, rash and negligent driving by the driver. It has been stated in the written statement filed by opposite party No. 1 that tractor bearing registration No. BPG 9994 and 9995 was insured by National Insurance Co. Ltd., Madhubani, and so liabilities are covered by the said insurance company. According to this opposite party the accident had taken place due to the fault of the deceased.

6. According to appellant No. 2 (opposite party No. 2 in court below) he was not driving the tractor with high speed and rashly and the accident had taken place due to fault of the deceased.

7. According to opposite party No. 3, National Insurance Co. Ltd., the driver of the vehicle did not hold a valid driving licence at the time of alleged accident and the owner had violated the condition of insurance policy and insurance company is not liable to pay any claim to the applicants and the liability is of the owner of the vehicle. The owner of the tractor had proposed for insurance of the vehicle for agricultural purpose and had obtained policy from the insurance company accordingly and it has contravened the contract and used the vehicle for commercial purpose. The owner of the vehicle operates brickkiln (itta bhathd) and he had used his vehicle at the time of accident for carrying bricks and has violated the condition of policy and the insurance company is not liable to indemnify the award amount of compensation and the liability is of the owner of the vehicle.

8. It was submitted by learned lawyer for the appellants that it has been held by Patna High Court in L.P.A. No. 1070 of 2001 reported in 2001 (4) PLJR 557, that the Motor Vehicles Act does not create any bar to the filing of any applic