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2004 DIGILAW 1122 (PNJ)

National Insurance Company Limited v. Chandu Lal

2004-10-01

S.S.SARON, V.M.JAIN

body2004
Judgment V.M.Jain, J. 1. This appeal has been filed by the appellant Insurance Company against the award dated 14.12.2002, passed by the Motor Accident Claims Tribunal, vide which a sum of Rs. 3,20,000/- alongwith interest was awarded as compensation to the claimants on account of death of Smt. Raj Rani, deceased in a motor vehicular accident. The driver, the owner and the Insurance Company were jointly and severally held liable to pay the said amount of compensation to the claimants. 2. Learned counsel for the appellant Insurance Company submitted before us that the appellant Insurance Company had filed an application under Section 170 of the Motor Vehicles Act, 1988 , but the learned Tribunal had wrongly dismissed the same. It has been submitted that even though the driver and owner of the offending vehicle had not contested the petition, yet the Tribunal declined to allow the application of the appellant Insurance Company to take up all the defences. However, we find no force in this submission of the learned counsel for the appellant Insurance Company. A perusal of the record would show that the driver and the owner of the offending vehicle, who were respondents 1 and 2 before the Tribunal, were duly represented by their counsel and in fact, copy of the driving licence was produced in the court as Ex.R1 and as such it could not be said that respondents 1 and 2 had not cooperated with the Insurance Company. In fact, learned Tribunal found that the Insurance Company had failed to prove that the driver and owner of the offending vehicle had colluded with the claimants. In this view of the matter, in our opinion, learned Tribunal was justified in dismissing the application of the appellant Insurance Company under Section 170 of the Motor Vehicles Act, 1988 . 3. It was then submitted by the learned counsel for the appellant Insurance Company that proper opportunity was not given to the appellant Insurance Company to produce the report from the licensing authority about the validity of the driving licence of the driver and that the evidence of the appellant Insurance Company was wrongly closed by court order. However, we find no force in this submission as well. It is no doubt true that the appellant Insurance Company had summoned the Licensing Clerk from the Licensing Authority, Lucknow, in respect of driving licence of Devi Parshad, driver. However, we find no force in this submission as well. It is no doubt true that the appellant Insurance Company had summoned the Licensing Clerk from the Licensing Authority, Lucknow, in respect of driving licence of Devi Parshad, driver. However, since no steps were taken by the Insurance Company to effect the service upon the witness, the remaining evidence of the Insurance Company was closed by court order. It is not the case of the appellant Insurance Company that besides examining the Licensing Clerk, the appellant Insurance Company wanted to produce any other evidence in support of its case. In our opinion, even if the Licensing Clerk had been examined and even if he had produced evidence to show that the driving licence produced by Devi Parshad was not valid or had not been validly renewed, yet in our opinion, the same would be of no consequence, in view of the law laid down by a Bench of three Hon ble Judges of the Supreme Court, in National Insurance Company Ltd. v. Swaran Singh and Ors., J.T. 2004(1) S.C. 109:(2004-1)136 P.L.R. 510 (S.C.). In the reported case, in the summary of findings, it was held by the Hon ble Supreme Court in para 108(iii) that mere absence, fake or invalid driving licence or disqualification of the driver for driving at the relevant time, are not in themselves defences available to the insurer against either the insured or the third parties. It was further held that to avoid its liability towards insured, the insurer has to prove that the insured was guilty of negligence and failed to exercise reasonable care in the matter of fulfilling the condition of the policy regarding use of vehicles by duly licensed driver or one who was not disqualified to drive at the relevant time. It was further held in Clause (iv) that the insurance companies, however, with a view to avoid their liability must not only establish the available defence(s) raised in the said proceedings but must also establish breach on the part of the owner of the vehicle, the burden of proof where for would be on them. It was further held in Clause (iv) that the insurance companies, however, with a view to avoid their liability must not only establish the available defence(s) raised in the said proceedings but must also establish breach on the part of the owner of the vehicle, the burden of proof where for would be on them. It was further held in Clause (vi) that even where the insurer is able to prove breach on the part of the insured concerning the policy condition regarding holding of a valid licence by the driver or his qualification to drive during the relevant period, the insurer would not be allowed to avoid its liability towards insured unless the said breach or breaches of the condition of driving licence is/are so fundamental as are found to have contributed to the cause of the accident. 4. In view of the law laid down by the Hon ble Supreme Court in Swaran Singhs case (supra), in our opinion, no useful purpose would be served in setting aside the award and/or remanding the case to the Tribunal for allowing the appellant Insurance Company to produce the Licensing Clerk in respect of driving licence in question, since admittedly, nothing has come on the record to show that the alleged breach on the part of the owner of the vehicle regarding holding of a valid driving licence by the driver was so fundamental that it had contributed to the cause of accident. In this view of the matter, mere absence, fake or valid driving licence of the driver by itself would not be sufficient for absolving the appellant Insurance Company from its liability to pay compensation to the claimants or to make the owner of the vehicle liable to pay the compensation amount. 5. In view of the above, In our opinion, no case for interference with the award given by the Tribunal is made out in the present appeal filed by the appellant Insurance Company. Hence finding no merit in this appeal the same is hereby dismissed.