Research › Search › Judgment

Punjab High Court · body

2006 DIGILAW 2364 (PNJ)

United India Insurance Company Ltd. v. Amin Chand

2006-05-30

VINOD K.SHARMA

body2006
Judgment Vinod K.Sharma, J. 1. This order will dispose of FAO No. 946 of 1999 and Civil Revision No. 641 of 2001. 2. This appeal has been filed by the United Insurance Company Ltd. against the consolidated judgment passed by the District Judge-cum-Motor Accident Claims Tribunal, Hoshiarpur, dated 25.2.1999 vide which the learned Tribunal disposed of M.A.C.T. Case No. 18 of 14.6.1997/20.11.1996 titled as Amin Chand and Anr. v. Gujjar Singh and Ors. and M.A.C.T. Case No. 17 of 1997 titled Amin Chand v. Gujjar Singh and Ors. 3. The facts of the case borne out from the record are that on 7.8.1996 at about 11 A.M. the deceased Bimla Devi along with her husband Amin Chand and some other persons were standing on G.T. Road, Mukerian, on the katcha portion of the road at the bus stand Hajipur. A bus bearing No. PAB-6160 came from Mukerian side at a high speed without blowing any horn which was being driven by Shri Gulzar Singh in a rash and negligent manner. The bus came in the wrong side and struck against Bimla Devi and Amin Chand. They were taken to Civil Hospital, Hajipur, where Bimla Devi died on the next day and Amin Chand received injuries. 4. The claim petition was contested by the respondent Nos. 1 and 2 denying the accident in question. The stand of the respondents was that the bus was going from Dasuya to Hajipur and when it reached near Bus Stand, Hajipur, its brakes suddenly went out of order. The driver of the bus tried to save the passengers sitting on both sides of the road and accordingly blew horn. It is the case of the respondents that a couple aged about 80-85 years, who was sitting on the wrong side of the road, got nervous on hearing the horn and they ran towards the drain along with the pucca road. In this process, the factum of rash and negligent driving was denied. Even the accident with the bus was denied. 5. The Insurance Company contested the claim petition on the ground that the driver of the bus was not having a valid driving licence. 6. On the pleadings of the parties, following issues were framed: 1. Whether respondent No. 1 has caused the death of Bimla Devi by rash and negligent driving of bus No. PAB-6160 on 7.8.1996 at 11 AM at bus stand Hajipur? 6. On the pleadings of the parties, following issues were framed: 1. Whether respondent No. 1 has caused the death of Bimla Devi by rash and negligent driving of bus No. PAB-6160 on 7.8.1996 at 11 AM at bus stand Hajipur? OPA 2. To what amount of compensation, the claimants are entitled and from whom? OPA 3. Whether respondent No. 1 was not having valid driving licence at the time accident? OPR3 4. Whether the claim petition is bad for non-joinder of necessary parties? OPR3 5. Relief. In the second claim petition also on the allegations referred to above, the learned Motor Accident Claims Tribunal was pleased to frame the following issues: 1. Whether the claimant has sustained injuries by rash and negligent driving of driver of bus No. PA-6160 driven by Gujjar Singh respondent on 7.8.1996 at 11 AM at bus stand, Hajipur? OPA. 2. To what extent, the claimant is entitled as compensation and from whom? OPA 3. Whether respondent No. 1 was not in possession of valid driving licence at the time of accident? OPR3 4. Whether the claim petition is bad for non-joinder of necessary parties? OPR3. 5. Relief. The said claim petitions were consolidated by the learned Tribunal on 25.7.1997 and evidence was recorded in M.A.C.T. Case No. 18. 7 On issue No. 1 which was common in both the cases, the learned Tribunal, on appreciation of evidence on record, was pleased to hold that the deceased and claimant Amin Chand had sustained injuries by rash and negligent driving of Bus No. PAB-6160 by its driver Gulzar Singh on 7.8.1996 at about 11 AM at bus stand Hajipur. 8. Issue No. 3 also being common was decided together and the learned Tribunal was pleased to hold that though the original driving licence was fake, but renewal thereof was valid and under these circumstances, it was held that the driver of the bus was holding a valid driving licence. It was further noticed that even the counsel for the insurance company did not object to this finding. The learned Tribunal further noticed that the stand of the insurance company was that Harvinder Singh was holding the insurance policy, whereas the offending vehicle was purchased by Joginder Singh and. therefore, claimed that the insurance company deserved to be absolved of its liability. This stand was also rejected. The learned Tribunal further noticed that the stand of the insurance company was that Harvinder Singh was holding the insurance policy, whereas the offending vehicle was purchased by Joginder Singh and. therefore, claimed that the insurance company deserved to be absolved of its liability. This stand was also rejected. On issue No. 2, the learned Tribunal granted compensation to the tune of Rs. 1,52,000/- in M.A.C.T. No. 18 of 1998, whereas in M.A.C.T. Case No. 18 of 1997, a sum of Rs. 5,000/- was awarded as compensation on account of injuries suffered by Amin Chand. The claimants were also granted interest @ 12% P.A. from the dates of respective applications till realization and all the respondents were held liable to pay compensation jointly and severally. 9. The case earlier came up for hearing on 23.7.2001 before Hon ble Mr. Justice Mehtab Singh Gill and his Lordship was pleased to pass the following order: Heard. The matter is remanded to the Motor Accident Claims Tribunal with a direction to adjudicate afresh on the issue of fake driving licence after giving opportunity to the parties to adduce their evidence and then give its decision qua fake driving licence keeping itself strictly within the parameters of the law laid down by the apex Court in the case of New India Assurance Co. Shimla v. Kamla and Ors. (2001-1) 127 P.L.R. 830 (S.C.). The Tribunal is further directed that in the cases where it has already given its finding on the question of fake driving licences on the basis of evidence already on the record, those cases shall be sent back to the High Court. This exercise shall be completed on or before December 15, 2001. The FAO stands disposed of with the above directions. 10. In pursuance to the aforesaid order of this Court, report dated 12.12.2001 has been submitted by the learned Motor Accident Claims Tribunal, Hoshiarpur, by holding therein as under: The resultant effect of the findings recorded under issue No. 3 above, after applying the ratio of law laid down in the judgment of the Apex Court in the case of New India Assurance Company, Shimla v. Kamla and Ors. (supra), is that as there has been breach of violation of the insurance policy conditions incorporated in the insurance policy Ex. (supra), is that as there has been breach of violation of the insurance policy conditions incorporated in the insurance policy Ex. RY, the amount of award paid by the insurer to the third party i.e. the claimants can be recovered from the insured, because as per the policy conditions, the insurer had no liability to pay such amount to the insured for want of a valid driving licence of driver of the offending vehicle. 11. Learned Counsel appearing for the appellant, on the basis of the above report, contended that as the finding on issue No. 3 stand reversed, therefore the appeal filed by the Insurance Company deserves to be allowed and the Insurance Company is to be absolved of its liability. In support of this argument, reliance was placed on the judgment of Hon ble Supreme Court in the case of New India Assurance Co. Ltd. v. Kamla and Ors. (2001-1) 127 P.L.R. 830 (S.C.), notice of which was taken by the learned Motor Accident Claims Tribunal while sending the report referred to above. A reading of the judgment of the Hon ble Supreme Court of India in Kamlas case (supra), would show that the liability of the Insurance Company to pay compensation to the 3rd party has been affirmed and only liberty is given to the Insurance Company to recover from the insured the amount so paid to the third party, if as per policy condition, the insurer has no lability to pay such sum. The contention of the learned Counsel for the appellant, therefore, was that the Insurance Company should be given the liberty to recover the amount from the owner of the vehicle after making payment to the claimants. 12. Mr. C.L. Sharma, learned Counsel appearing for respondent Nos. 1 to 3 submitted that the liability of the Insurance Company under the given circumstances cannot be absolved. In support his submission, he placed reliance on the judgment of the Hon ble Supreme Court in the case of United India Insurance Co. Ltd. v. Lehru and Ors. (2003-2) 134 P.L.R. 124, wherein the Hon ble Supreme Court has been pleased to lay down as under: Held, that where the owner has satisfied himself that the driver has a licence and is driving competently there would be no breach of Section 149(2)(a)(ii). The insurance company would not then be absolved of liability. Ltd. v. Lehru and Ors. (2003-2) 134 P.L.R. 124, wherein the Hon ble Supreme Court has been pleased to lay down as under: Held, that where the owner has satisfied himself that the driver has a licence and is driving competently there would be no breach of Section 149(2)(a)(ii). The insurance company would not then be absolved of liability. If it ultimately turns out that the licence was fake the insurance company would continue to remain liable unless they prove that the owner/insured was aware or had noticed that the licence was fake and still permitted that person to drive. More importantly even in such a case the insurance company would remain liable to the innocent third party, but it may be able to recover from the insured. 13. In the present case also, it would be seen that the insurance company did not lead any evidence to show that the owner was aware of the fact that the licence of the driver was fake and despite that he had permitted the driver to drive the vehicle. It is not in dispute in the case in hand that the subsequent endorsement was held to be valid and, therefore, it would be presumed that the driver was allowed to drive the vehicle by the owner after satisfying himself about the drivers having a valid driving licence. It was for the insurance company to lead evidence on record to show that the owner was aware of the licence being fake so as to claim its right not to indemnify the driver and owner due to breach of the terms of the policy. Therefore, the contention of the learned Counsel for the appellant that the insurance company should be allowed to recover the amount from the owner merely on account of the fact that the original license has been found to be fake, cannot be accepted. Accordingly, finding no merit in the present appeal, the same is dismissed. Consequently, the civil revision is also dismissed. No order as to costs.