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2000 DIGILAW 219 (GAU)

ANOWARA BEGUM v. UNITED INDIA INSURANCE CO. LTD.

2000-06-23

J.N.SHARMA

body2000
JUDGMENT : J.N. Sarma, J. 1. This appeal has been filed against the judgment and award dated 30.5.1996 passed by the Member, Motor Accidents Claims Tribunal, Sonitpur at Tezpur in the M.A.C. Case No. 4 of 1992. By the impugned award a total amount of Rs. 50,000 was awarded and the opposite party No. 2 Md. Ali Hazarika was directed to pay the awarded amount of Rs. 50,000 with 12 per cent interest per annum from the date of the claim petition till realisation. 2. The brief facts are as follows: On 30.8.91 at about 12 a.m. the claimant Md. Ibrahim Ali (now dead and substituted by heirs) parked his scooter in front of a 'pan' shop. Meanwhile a vehicle suddenly came from Tezpur side with passengers. The vehicle was driven in a most rash and negligent manner at an exceedingly high speed and while it reached near Panchmile Tiniali at the turning point, the driver of the vehicle could not control the bus and it capsized causing several grievous and multiple injuries to the claimant and to the passengers of the said vehicle. As a result of the accident, the left pelvis bone and right iliac bone of the claimant were fractured and he had to undergo treatment at Civil Hospital, Tezpur and had to incur heavy expenses for medical treatment. His scooter was also completely damaged. The claimant has been completely disabled and is not in a position to do his normal duty. Accordingly a claim petition was filed claiming Rs. 1,00,000. 3. The vehicle belonged to one Md. Ali Hazarika and one Dharani Dhar Deka was the driver of the said vehicle. The said vehicle was insured with the United India Insurance Co. Ltd. (in this appeal O.P. No. 1). The O.P. No. 2 filed a written statement and while admitting the accident denies that the accident took place due to rash and negligent driving of the vehicle. The insurance company denied its liability. As many as three issues were framed. The matter was compromised in the Lok Adalat and the insurance company was asked to pay a sum of Rs. 30,000 subject to verification of the driving licence of the driver of the offending vehicle. The insurance company denied its liability. As many as three issues were framed. The matter was compromised in the Lok Adalat and the insurance company was asked to pay a sum of Rs. 30,000 subject to verification of the driving licence of the driver of the offending vehicle. Subsequently, the insurance company filed an application before the Tribunal stating that the driving licence was a forged one and the Tribunal should proceed with the trial without giving effect to the compromise petition dated 13.6.1993. That was accepted by the Tribunal and subsequently an additional issue was framed which reads as follows: Whether the driver of the alleged offending vehicle had licence to drive the vehicle? 4. In support of the case, the claimant-petitioner examined four witnesses including himself, the O.P. examined no witness. In deciding issue No. 3 the learned Tribunal found that because of the injury suffered, his disability which is approximately 75 per cent and his left leg was also shortened. It was found by the Tribunal that because of injury he became permanently disabled and his disability extended to 75 per cent. Thereafter, the learned Judge in issue No. 3 considered the claim of the injured and assessed the damage/ compensation at Rs. 50,000. Regarding issue No. 4 the learned Tribunal without any evidence before it came to the finding that Dharani Dhar Deka did not have driving licence and as such the insurance company cannot be fastened with the liability to pay compensation. If the insurance company wanted to establish this plea, it was its burden to establish the same and without doing so, the Tribunal came to a finding that the driver did not have a driving licence. As such this appeal is for enhancement of the compensation as well as for an award against the insurance company. 5. I have heard Mr. P. Mahanta, learned advocate for the appellants and Mr. D. Sur, learned advocate for the respondent No. 1. None appears for respondent Nos. 2 and 3. 6. Mr. Mahanta, learned advocate for the appellants in this connection placed reliance on the following decisions: (i) National Insurance Co. Ltd. Vs. 5. I have heard Mr. P. Mahanta, learned advocate for the appellants and Mr. D. Sur, learned advocate for the respondent No. 1. None appears for respondent Nos. 2 and 3. 6. Mr. Mahanta, learned advocate for the appellants in this connection placed reliance on the following decisions: (i) National Insurance Co. Ltd. Vs. Santosh and Others, In that case a Division Bench of Punjab and Haryana High Court held that when an insurance company takes up a defence regarding Section 149(2)(a)(ii) of the Motor Vehicles Act, 1988, the burden is on the insurance company to establish that plea. Section-149(2)(a)(ii) of the Act of 1988 reads as follows: (ii) a condition excluding driving by a named person or persons or by any person who is not duly licensed., or by any person who has been disqualified for holding or obtaining a driving licence during the period of disqualification; or A photocopy of the driving licence is available in the record and that photocopy was filed on 20.8.1993 by the claimant. That application reads as follows: BEFORE THE MEMBER, MOTOR ACCIDENTS CLAIMS TRIBUNAL SONITPUR AT TEZPUR M.A.C. No. 4 of 1992 Claimant: Ibrahim Ali Opp. party: Md. Ali Hazarika & ors. It is respectfully submitted by the claimant: (1) That the above claim case was settled at Rs. 30,000 (Rupees thirty thousand) only in the Lok Adalat held on 12.6.1993. (2) That the Hon'ble Tribunal was pleased enough to pass a preliminary order directing the claimant to submit the driving licence of O.P. No. 2. (3) That accordingly, the claimant carried out the said order and submitted the driving licence of O.P. No. 2 before the Tribunal on 17.7.93 but the final order is yet to be passed by the Hon'ble Tribunal as learnt by the claimant. It is, therefore, prayed that Hon'ble Tribunal would be pleased to accept the petition and further be pleased to pass necessary order directing the O.P. No. 3 (The United India Insurance Co. Ltd., Tezpur Branch) to make payment of the settled amount as hereinbefore stated. And for this act of kindness the claimant as is duty bound shall ever pray. Dated 20.8.1993. From the photocopy of the driving licence it will appear that this licence was issued on 10.6.90 and it was valid up to 9.6.1993. Ltd., Tezpur Branch) to make payment of the settled amount as hereinbefore stated. And for this act of kindness the claimant as is duty bound shall ever pray. Dated 20.8.1993. From the photocopy of the driving licence it will appear that this licence was issued on 10.6.90 and it was valid up to 9.6.1993. An objection was filed by the insurance company to this application on 29.9.1993 and thereafter a report was called for from the issuing authority. In the judgment of the Punjab and Haryana High Court (supra) it was pointed out as follows: When the copy of the driving licence of the driver is produced in the trial court, the insurance company had relied upon a report issued by the Licensing Authority to the effect that the driving licence had not been issued by it and contended that the driver did not possess a valid driving licence; if no witness from the Licensing Authority is examined to prove the report, the report could not be read in evidence to establish that the driver had no valid licence so as to exonerate the insurance company. (ii) To the same effect is the decision of the Karnataka High Court in H.G. Ramachandra Rao Vs. Master Srikantha and others, where the Karnataka High Court pointed out that where the insurance company contended that the driver of the offending vehicle had no licence and the insurance company made no effort to summon either the driver or any evidence from R.T.O.'s office or any other evidence to prove its contention but relied upon the admission of the driver in criminal trial that he had no licence and on the deposition of police officer. It was held that the insurance company cannot be held to have discharged its burden to establish that the driver had no licence and is exempted from liability. (iii) The Supreme Court in Narcinva V. Kamat v. Alfredo Antonio Doe Martins 1985 ACJ 397 (SC), in para 14 at page 400 held as follows: The burden to prove that there was breach of the contract of insurance was squarely placed on the shoulders of the insurance company. It could not be said to have been discharged by it by a mere question in cross-examination. It could not be said to have been discharged by it by a mere question in cross-examination. The appellant No. 2 was under no obligation to furnish evidence so as to enable the insurance company to wriggle out of its liability under the contract of insurance. Further, the R.T.A. which issues the driving licence keeps a record of the licences issued and renewed by it. The insurance company could have got the evidence produced to substantiate its allegation. Applying the test who would fail if no evidence is led, the obvious answer is the insurance company. (iv) It was further pointed out by the Supreme Court in the case of Kashiram Yadav v. Oriental Fire & Genl. Ins. Co. Ltd. 1989 ACJ 1078 , that: It must be established by insurance company that the breach was on the part of insured. In the case of Bishan Devi v. Sirbaksh Singh 1979 ACJ 496 , his Lordship expressed the view: Under Section 96(2)(b)(ii), the insurance company can defend the claim for compensation...Apart from making the averment in the statement the insurer did not take any steps to establish that the vehicle was driven by a person, who was not properly licensed...It is the duty of the insurer to have substantiated the plea. These judgments of the Apex Court are squarely binding on me and I respectfully agree with the decisions of the Punjab and Haryana High Court and Karnataka High Court as indicated above. So, I hold that the insurance company did not discharge its burden that the driver did not have a valid driving licence. Accordingly, that finding of the learned Tribunal must be set aside which I hereby do. Further, this matter can be looked at from another angle as has been pointed out by the Apex Court in G. Govindan Vs. New India Assurance Co. Ltd. and Others, wherein the Supreme Court held as follows: The heading of Chapter VIII of the 1939 Act reads as 'Insurance of Motor Vehicles Against Third Party Risks'. Its provisions clearly indicate that the legislature made insurance of motor vehicles compulsory against third party (victim) risks. New India Assurance Co. Ltd. and Others, wherein the Supreme Court held as follows: The heading of Chapter VIII of the 1939 Act reads as 'Insurance of Motor Vehicles Against Third Party Risks'. Its provisions clearly indicate that the legislature made insurance of motor vehicles compulsory against third party (victim) risks. Since insurance against third party risks is compulsory, once the insurer company had undertaken liability to third parties incurred by the person specified in the policy, the third parties' right to recover any amount under or by virtue of the provisions of the Act is not affected by any condition in the policy. M/s. Complete Insulations (P) Ltd. Vs. New India Assurance Company Ltd., The New India Assurance Co. Ltd. Vs. Smt. Sheela Rani and Others, ; New Asiatic Insurance Co. Ltd. v. Pessumal Dhanamal Aswani 1958 ACJ 559 (SC), relied on. In both, under the old Act and under the new Act, the legislature was anxious to protect the third party (victim) interest, what was implicit in the provisions of the old Act is now made explicit, presumably in view of the conflicting decisions on this aspect among the various High Courts. From that angle also the stand of the insurance company cannot be accepted. 7. In Narcinva V. Kamat v. Alfredo Antonio Doe Martins 1985 ACJ 397 , the Supreme Court pointed out that the court must take a liberal view to uphold the right of a third party and there also in para 14, it has been pointed out as follows: The burden to prove that there was breach of the contract of insurance was squarely placed on the shoulders of the insurance company. It could not be said to have been discharged by it by a mere question in cross-examination. The appellant No. 2 was under no obligation to furnish evidence so as to enable the insurance company to wriggle out of its liability under the contract of insurance. In para 15 of the judgment, the Supreme Court has pointed out as follows: To sum up, the insurance company failed to prove that there was a breach of the term of the contract of insurance as evidenced by the policy of insurance on the ground that the driver who was driving the vehicle at the relevant time did not have a valid driving licence. Once the insurance company failed to prove that aspect, its liability under the contract of insurance remains intact and unhampered; and it was bound to satisfy the award under the comprehensive policy of insurance. So, I hold that the insurance company is squarely liable for compensation which may be assessed. The next question is that what should be the adequate compensation. Mr. Narjary, learned advocate for the appellants rightly urges that in assessing the compensation by the Tribunal, the Tribunal must not adopt a niggardly attitude. 1980 ACJ 435 . It is the duty of the Tribunal to arrive at a just compensation. In this particular case, as will be evident from the documents the claimant suffered grievous injury and he suffered 75 per cent disability and in the meantime he has also died. A large number of documents have been filed. Exh. 13 shows the following injuries: Comminuted fracture is seen in the body of the right ilium (iliac crest in the supraacetabular region). Fracture also seen in the inferior ramus in the left side. Exh. 14 also shows as follows: The skiagrams reveal old fractures of the inferior ramus of the left pubic bone and comminuted fractures of the right iliac bone. The pubic bone fragment is separated downward. That of iliac bone are somewhat apart. 8. The claim which was made by the claimant was a reasonable amount of Rs. 1,00,000. I find that this claim is absolutely justified. Accordingly, this appeal is allowed and the compensation is enhanced to Rs. 1,00,000 with interest at the rate of 12 per cent from the date of the filing of the claim petition till realisation. It will be responsibility of the insurance company, respondent No. 1 to pay the entire amount. The amount may be deposited within a period of two (2) months by adjusting the amount, if any, paid earlier. If the amount is not paid within a period of two months, the amount shall carry interest at the rate of 18 per cent per annum after two months.