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2005 DIGILAW 847 (PNJ)

New India Assurance Company Limited v. Shamo Devi

2005-08-10

ASHUTOSH MOHUNTA

body2005
Judgment Ashutosh Mohunta, J. 1. The insurer has filed the present appeal against the judgment of Motor Accidents Claims Tribunal (for short, the Tribunal), Gurdaspur, dated 13.2.2000 by which a compensation of Rs. 1,92,000/- was awarded to the respondents-claimants along with interest. 2. The claimants-respondent No. 1 o 4 filed a claim petition under Section 166 of the Motor Vehicles Act wherein it was averred that on 26.10.1999 at about 11.30 A.M. Dar-shan Kumar along with Joginder Pal and Jagdish Singh were returning to their village Bhada from Pathankot side on a Tonga. When they reached near Railway crossing Jhakholahri, one tractor driven in a rash and negligent manner by Jagir Singh struck against the Tonga, as a result of which Darshan Kumar received serious injuries. He was shifted , to Civil Hospital, Pathankot where he died after five days of the accident i.e. on 1.11.1999. F.I.R. No. 329 dated 1.11.1999 was also lodged at the Police Station Sadar, Pathankot by Joginder Pal. 3. The claimants, who are widow of Darshan Kumar and three children filed a claim petition claiming a sum of Rs. 10,00,000/- as compensation. It was averred that the deceased was earning a sum of Rs. 5,000/- per month and he was 50 years old at the time of his death. It was further averred that the accident took place because of rash and negligent driving by the driver of the tractor. 4. The owner of the driver of the offending vehicle filed written statement and even denied the factum of accident. It was, however, submitted that the tractor was duly insured with New India Assurance Company Limited. 5. The Assurance company filed its written statement wherein it was stated that the tractor did not have valid registration certificate and the driver of the tractor did not possess a valid driving licence. It was, therefore, contended that the Insurance Company cannot be held liable to indemnify the insured. It was also averred that the accident, in fact, took place with a tourist bus and not with the tractor. 6. The Tribunal, after appraising the entire evidence, came to the conclusion that the accident took place because of rash and negligent driving by the driver of the tractor. These findings have neither been challenged by the Insurance Company nor by the owner or the driver of the offending vehicle. 6. The Tribunal, after appraising the entire evidence, came to the conclusion that the accident took place because of rash and negligent driving by the driver of the tractor. These findings have neither been challenged by the Insurance Company nor by the owner or the driver of the offending vehicle. Thus, the finding with regard to the accident having taken place because of rash and negligent driving by the driver of the tractor bearing Engine No. EVA-2343 and Chassis No. EVA-2343 is upheld. The Tribunal awarded a total compensation of Rs. 1,92,000/- taking the monthly income of the deceased as Rs.3,000/-. The quantum of compensation cannot be challenged by the Insurance Company. The only argument raised by Mr. Khosla, counsel for the appellant-Assurance Company is that the Insurance Company is not liable to indemnify the insured as the driver of the offending vehicle did not possess a valid driving licence. He has argued that the owner or the driver of the offending vehicle did not lead any evidence to show that he had taken reasonable care before employing the driver. Although it is correct that no evidence was led before the Tribunal to show that the owner of the offending vehicle had taken reasonable care before engaging the driver, yet the Tribunal has not framed any issue as to whether the driver of the offending vehicle was having a valid driving licence. In absence of any issue in this regard, the Insurance Company cannot now claim that they are not liable because of fake driving licence. The insurer should have got an issue framed before the Tribunal to this effect. Thus, it cannot be said that the owner was guilty of not taking adequate precaution before employing a driver. 7. The Hon ble Supreme Court in the case of National Insurance Co. Ltd v. Swaran Singh and Ors. (2004-1)136 P.L.R. 510 (S.C.), has held as under:- (iii) The breach of policy condition e.g. disqualification of the driver or invalid driving licence of the driver, as contained in Sub-section (2)(a)(ii) of Section 149, has to be proved to have been committed by the insured for avoiding liability by the insurer. Mere absence, fake or invalid driving licence or disqualification of the driver for driving at the relevant time, are not in themselves defenes available to the insurer against either the insured or the third parties. Mere absence, fake or invalid driving licence or disqualification of the driver for driving at the relevant time, are not in themselves defenes available to the insurer against either the insured or the third parties. To avoid its liability towards the 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 a duly licensed driver or one who was not disqualified to drive at the relevant time. 8. This view has also been taken by the Hon ble Supreme Court of India in United India Insurance Co, Ltd, v. Lehru and Ors. (2003-2)134 P.L.R. 124 (S.C.). 9. In view of the above, it is held that the driver of the offending vehicle was having a valid driving licence, therefore, the Assurance Company is liable to indemnify the insured. Resultantly, I find no merit in the present appeal and the same is dismissed.