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Himachal Pradesh High Court · body

2004 DIGILAW 2 (HP)

UNITED INDIA INSURANCE CO. LTD. v. ATMA RAM

2004-01-01

R.L.KHURANA

body2004
JUDGMENT R.L. Khurana, J.—The above noted six appeals arising out of the same accident are being disposed of by this single judgment. 2. On the night intervening 20/21.2.1995 Maruti van bearing No. HP-30-0087 belonging to respondent Baldev Gupta (hereinafter referred to as the owner) being driven by respondent Hira Lal (hereinafter referred to as the driver) at about midnight while proceeding from Pogli to Karsog near Koladhar at Dugha Nallah due to rash and negligent driving of the driver went off the road and rolled down about 1000 feet into the Nallah. As a result of such accident five occupants of the van, namely Bhag Chand, Mohan Lal, Kaul Ram, Gopi Chand and Amar Singh had died and one occupant, that is, Krishan Lal sustained multiple grievous injuries. 3. Respondents No. 1 to 9 in RA.O. No. 510 of 2000 are the legal heirs/ dependents of the deceased Mohan Lal. In Claim Petition No. 76 of 1995 preferred by them seeking compensation for the death of the deceased Mohan Lal, the learned Motor Vehicle Accident Claims Tribunal (II), Mandi (for short : the Tribunal) vide its award dated 29.6.2000 awarded a total compensation of Rs. 1,29,500 in their favour. 4. Respondents No. 1 to 7 in RA.O. No. 511 of 2000 are the legal heirs/ dependents of the deceased Bhag Chand. Vide award dated 29.6.2000 the learned Tribunal in Claim Petition No. 75 of 1995 awarded a total compensation of Rs. 2,25,000 in their favour. 5. Respondents No. 1 to 5 in RA.O. No. 512 of 2000 are the legal heirs/ dependents of the deceased Amar Singh. They have been awarded a total compensation of Rs. 2,00,000 in claim petition No. 72 of 1995 by the learned Tribunal vide award dated 29.6.2000. 6. Respondents No. 1 to 5 in FAO No. 494 of 2000 are the legal heirs/ dependents of the deceased Gopi Chand. Vide award dated 29.6.2000 they have been awarded a total compensation of Rs. 1,89,500 by the learned Tribunal in Claim Petition No. 74 of 1995. 7. Respondents No. 1 to 5 in FAO No. 495 of 2000 are the legal heirs/ dependents of the deceased Kaul Ram. In claim Petition No. 73 of 1995, the learned Tribunal vide its award dated 29.6.2000 awarded a total compensation of Rs. 2,13,500 in their favour. 8. 1,89,500 by the learned Tribunal in Claim Petition No. 74 of 1995. 7. Respondents No. 1 to 5 in FAO No. 495 of 2000 are the legal heirs/ dependents of the deceased Kaul Ram. In claim Petition No. 73 of 1995, the learned Tribunal vide its award dated 29.6.2000 awarded a total compensation of Rs. 2,13,500 in their favour. 8. Respondent No. 1 Krishan Lal in FAO No. 496 of 2000 is the claimant, who has been awarded a total compensation of Rs. 1,75,000 for the multiple grievous injuries and the permanent disability suffered by him in the accident by the learned Tribunal in Claim Petition No. 71 of 1995 vide award dated 29.6.2000. 9. The owner and driver of the offending vehicle, while resisting the claim petition did not deny either the accident or the death of and grievous injuries to the six occupants thereof. They denied the rash and negligent driving on the part of the driver and pleaded that the accident had taken place due to sudden mechanical defect in the vehicle. 10. The appellant Insurance Company, while resisting the claim petitions denied the accident death of and injuries to various occupants of the vehicle for want of knowledge. It was pleaded that in case the accident is proved to have take place, the same was not as a result of rash and negligent driving on the part of the driver, but the same was due to an act of God and mechnical defects. It was further pleaded that the driver was not holding a valid driving licence at the relevant time and the vehicle was being driven in contravention of the terms of the Insurance Policy. Therefore, it was not liable for payment of compensation. 11. The learned Tribunal, on the basis of the evidence coming on record, came to the conclusion that the accident was as a result of rash and negligent driving on the part of the driver; that the driver was holding a valid and effective driving licence and that since the offending vehicle was duly insured with the appellant it was liable to pay the amount of compensation. The learned Tribunal accordingly awarded amounts of compensation in favour of various respondents/claimants, as aforesaid, vide six separate awards against the appellant. 12. The learned Tribunal accordingly awarded amounts of compensation in favour of various respondents/claimants, as aforesaid, vide six separate awards against the appellant. 12. It is by now well settled that in the absence of the requisite permission under Section 170, Motor Vehicles Act 1988 the Insruance Company can not assail either the question of negligence of the driver of the offending vehicle or the quantum of compensation awarded. 13. In the present apepals, the appellant-Insurance Company has primarily assailed the impugned awards on the ground that the learned Tribunal had erred in closing the evidence of the appellant in spite of the fact that all steps, required to be taken by it to summon the witnesses, were duly taken by it. By closing the evidence, due to no fault on its part, the appellant has been deprived of the opportunity to lead vital and important evidence to show that the driving licence Ex. RW2/A of the driver was a fake licence and that the driver was not holding a valid and effective driving licence. 14. It may be stated that all the six claim petitions were ordered to be consolidated by the learned Tribunal vide order dated 31.1.1997. A perusal of the record of the main case, being claim petition No. 71 of 1995 shows that there is no order passed by the Tribunal closing the evidence of the appellant. 15. The record further shows that only one witness, that is, the dealing official of the office of DTO, Amritsar along with record pertaining to driving licence No. 2613 dated 30.5.1991 was sought to be summoned and examined by the appellant. Such witness firstly did not appear in spite of service and thereafter his service could not be effected even by issuance of bail able warrants. The case then came to be posted for arguments without there being any objection on the part of the appellant. The cases were being adjourned for time to time for arguments. There has been as many as four adjournments in a span of about six months for the purpose of arguments. During this entire period no objection was raised on behalf of the appellant with regard to the production of its evidence. It appears that by its own conduct the appellant had chosen not to lead any evidence. 16. There has been as many as four adjournments in a span of about six months for the purpose of arguments. During this entire period no objection was raised on behalf of the appellant with regard to the production of its evidence. It appears that by its own conduct the appellant had chosen not to lead any evidence. 16. The fact that that the appellant by its own conduct appears to have chosen not to lead any evidence is also borne out from the fact that the appellant before the filing of the present appeals had moved an application, being CMP No. 142 of 2000 before the learned Tribunal for withdrawal of the diet money deposited by it in the following terms:— "That the applicant (U.I.I. Co.) deposited Rs. 1,050 on dated 24.8.1999 as diet money to examine the official of Licencing Authority, Amritsar as witness, but he did not appear as wtiness as such the D/M has not been parted with and still is in the Nazarat. Now the applicant wants to get the said amount to be released/refunded in its favour. It is, therefore, prayed that this application of the applicant, i.e., Insurance Company may kindly be allowed in its favour and justice be done." 17. The amount was ordered to be refunded and the same was paid/ refunded to the appellant by the learned Tribunal. 18. It is significant to note that in such application also no grievance was made by the appellant that no opportunity was given to it for producing evidence. Having applied for and received the amount of diet money by way of refund without any reservation leads to the only inference that the appellant did not want to lead any evidence and as such it is not open to it to say that no opportunity was given to it to lead evidence or that its evidence was wrongly closed by the learned Tribunal. 19. Even if proceeding on the assumption, that the driver was not holding a valid driving licence at the relevant time and that the driving licence Ex. RW2/A is fake, the appellant would still be liable towards the payment of compensation. 20. The Honble Supreme Court in United India Insurance Company Ltd. v. Lehru and others, (2003) 3 SCC 338, reiterated the ratio laid down in Skandia Insurance Co. RW2/A is fake, the appellant would still be liable towards the payment of compensation. 20. The Honble Supreme Court in United India Insurance Company Ltd. v. Lehru and others, (2003) 3 SCC 338, reiterated the ratio laid down in Skandia Insurance Co. Ltd. v. Kokilaben Chandravadan, (1987) 2 SCC 654 and Sohan Lal Passi v. P. Sesh Reddy, (1996) SCC (Cri) 871, and held:— "Now let us consider Section 149(2). Reliance has been placed on Section 149(2)(a)(ii). As seen, in order to avoid liability under this provision it must be shown that there is a "breach". As held in Skandia and Sohan Lal Passi cases the breach must be on the part of the insured. We are in full agreement with that. To hold otherwise would lead to absurd results. Just to take an example, suppose a vehicle is stolen. Whilst it is being driven by the thief there is an accident. The thief is caught and it is ascertained that he had no licence. Can the Insurance Company disown liability? The answer has to be an emphatic "No". To hold otherwise would be to negate the very purpose of compulsory insurance. The injured or relatives of the person killed in the accident may find that the decree obtained by them is only a paper decree as the owner is a man of straw. The owner himself would be an innocent sufferer. It is for this reason that the legislature, in its wisdom, has made insurance, at least third-party insurance, compulsory. The aim and purpose being that an insurance company would be available to pay. The business of the company is insurance. In all business there is an element of risk. All persons carrying on business must take risks associated with that business. Thus it is equitable that the business which is run for making profits also bears the risk associated with it. At the same time innocent parties must not be made to suffer or loss. These provisions meet these requirements. We are thus in agreement with what is laid down in the aforementioned cases viz. that in order to avoid liability it is not sufficient to show that the person driving at the time of accident was not duly licensed. The insurance company must establish that the breach was on the part of the insured." 21. We are thus in agreement with what is laid down in the aforementioned cases viz. that in order to avoid liability it is not sufficient to show that the person driving at the time of accident was not duly licensed. The insurance company must establish that the breach was on the part of the insured." 21. The objection raised by the appellant in its written statement is in the following terms:— "That the claim petition is not maintainable against the replying respondent on the ground that the respondent No. 2, i.e., driver of Maruti Van No. HP-30-0087 was not having a valid and effective driving licence at the relevant time, therefore, the said vehicle was being driven by respondent No. 2 in contravention of the provisions of M.V. Act and in violation of the terms and conditions of Insurance Policy, hence the replying respondent is not liable to indemnify the claim." 22. In the present case, it is not the case of the appellant that the breach of the terms and conditions of the Insurance Policy was on the part of the insured, namely, the owner of the vehicle. During the course of cross-examination of the owner, who appeared as RW 1, it was never suggested to him either that the driving licence Ex. RW 2/A of the driver was fake or that knowing that the driver was not possessed of a valid and effective driving licence he had permitted and allowed the driver to drive the vehicle. In fact, he was never cross examined on the aspect of the validity or otherwise of the driving licence. 23. In the absence of the specific case set up by the appellant that the breach of the terms and conditions was on the part of the owner (insured), the mere fact that the driver was not holding a valid driving licence would not absolve the appellant from its liability. 24. There is yet another significant aspect of the case. The owner of the offending vehicle had lodged a claim with the appellant in respect of loss/ damage to his vehicle in the accident. It appears that the appellant had repudiated such claim. As a result, the owner was forced to approach the District Consumer Forum, Mandi. An amount of Rs. There is yet another significant aspect of the case. The owner of the offending vehicle had lodged a claim with the appellant in respect of loss/ damage to his vehicle in the accident. It appears that the appellant had repudiated such claim. As a result, the owner was forced to approach the District Consumer Forum, Mandi. An amount of Rs. 59,000 along with interest at the rate of 12% per annum was awarded in favour of the owner as damages by the District Forum. The appeal preferred by the appellant before the State Consumer Disputes Redressal Commission was dismissed on 4.5.1999 vide order, copy of which is Ex. RY. In such proceedings, no plea appears to have been raised by the appellant that it was not liable since the driver was not holding a valid driving licence. The claim was resisted only on the ground of limitation. Failure on the part of the appellant to raise the plea before the Consumer Forum that the driver was not holding a valid driving licence would lead to the inference that the driver was holding a valid and effective driving licence. 25. The learned Tribunal on the facts and in the circumstances of the present cases has rightly held the appellant to be liable for payment of compensation. 26. For the foregoing reasons the present appeals, being devoid merit, are dismissed leaving the parties to bear their own costs. 27. The amount of compensation deposited by the appellant in these appeals and lying invested in fixed deposits along with interest accrued due thereon shall be released/paid to the respective respondent-claimants as per their shares by remitting the same to their respective bank accounts, the particulars of which shall be supplied to the Registry by the counsel for the respondents/claimants.