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2008 DIGILAW 147 (JK)

National Insurance Co. Ltd. v. Amina

2008-04-24

MANSOOR AHMAD MIR

body2008
1. Respondents 1 to 4 filed a claim petition before Motor Accident Claims, Tribunal. Anantnag, for grant of compensation on the grounds that respondent No. 5, namely, Mohammad Yaqoob Ganai - driver has driven bus bearing registration No. 2419/JK01C rashly and negligently on 5th June, 1997 at about 9.45 A.M. and hit the deceased who sustained injuries and succumbed to injuries. Deceased was 40 years of age and was employee of the Jammu & Kashmir Forest Department drawing Rs.5314/- as salary and was also earning Rs. 2000/- and Rs. 1500/- from agricultural vocation and floriculture per month. It was expected that he would have been shortly promoted as Range Officer. 2. Owner and driver have failed to filed reply before the tribunal. Appellant - insurer filed written statement and contested the petition and the tribunal after going through the pleadings framed the following issues: "1. Whether the death of Mohd. Hussain Chatoo was caused on 5th of June 1997 due to rash and negligent driving of respondent No. 1 while driving vehicle No. 2419-JK01C? O.P.P. 2. Whether respondent No. 2 was the owner of vehicle JK01-2419 and the same was insured with respondent No.3 vide policy No. 487338?.... OPP 3. Whether the respondent No.1 Mohd. Yaqoob Ganie did not possess proper driving licence in his name, if so what is its effect on the claim ..... OPD-3 4. Relief. 3. Petitioners - claimants examined witness. Insurer examined only two witnesses, namely, Peerzada Noor-ud-Din Clerk RTO Office, Srinagar, and Imtiyaz Ahmad Shah. 4. After hearing learned counsel for the parties the impugned order came to be passed. The tribunal vide impugned award has held that driver was having fake licence and has given the right of recovery to the appellant insurer provided it proves before the tribunal that owner/ insurer has committed breach of the policy conditions and engaged a driver who was having fake licence. 5. The short grievance projected by the learned counsel for the appellant is that the tribunal has committed error while asking the insurer-appellant to prove that owner has committed breach of the policy conditions. Insurer-appellant was to be given right of recovery without asking it to initiate further proceedings in order to prove that owner has committed breach of the policy conditions. Virtually, the appellant has not questioned the award on any other grounds. 6. Insurer-appellant was to be given right of recovery without asking it to initiate further proceedings in order to prove that owner has committed breach of the policy conditions. Virtually, the appellant has not questioned the award on any other grounds. 6. Learned counsel appearing for respondents 5 and 6 i.e. owner and driver argued that the impugned award is well reasoned needs no interference. 7. There is evidence on the file that the driver has driven the offending vehicle rashly and negligently and has caused the accident resulting into the death of the deceased, namely, Mohammad Hussain Chattoo. In terms of mandate of Section 149 of the Motor Vehicles Act, insurer cannot question the quantum of compensation. Even otherwise the learned counsel for the appellant has not questioned the same. However, I have gone through the record and I am of the considered view that tribunal has awarded, just and reasonable compensation. 8. Now, the question is whether the impugned award needs to be modified in so far it relates to asking the appellant to initiate recovery proceedings before it and to prove that insured-owner has committed willful breach? 9. It is not the case of the parties that driver has not produced any licence. Admittedly, the driver has produced licence which proved to be fake. In order to claim right of recovery the insurer had to prove by leading evidence that owner has committed willful breach by engaging a driver who was not having a valid and effective driving licence. 10. Section 149 (a) mandates that insurer in terms of Section 149 of the Motor Vehicles Act has limited defence. In order to avoid liability, the insurer has to prove that owner has committed willful breach and not mere breach. Willful breach means that if a licence is not valid or is ineffective or is fake the duty of the insurer is to prove that owner was aware that licence was fake, invalid, in-effective. 11. Apex Court in case titled as National Insurance Co. Ltd. v. Swaran Singh, reported in AIR 2004 SC 1531, held as under: - 105........... (iii) The breach of policy condition e.g. disqualification of driver or invalid driving licence of the driver, as contained in sub section (2) (a) (ii) of Section 149, have to be proved to have been committed by the insured for avoiding liability by the insurer. Ltd. v. Swaran Singh, reported in AIR 2004 SC 1531, held as under: - 105........... (iii) The breach of policy condition e.g. disqualification of driver or invalid driving licence of the driver, as contained in sub section (2) (a) (ii) of Section 149, have 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 defences available to the insurer against either the insured or the third parties. 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. (iv) The insurance companies are, 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 wherefore would be on them. (vi) Even when the insured 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 on the condition of driving licence is/are so fundamental as are found to have contributed to the cause of the incident. The Tribunals in interpreting the policy conditions would apply "the rule of main purpose" and the concept of "fundamental breach" to allow defences available to the insured under Section 149 (2) of the Act." 12. I have also laid my hands on a recent judgment titled Premkumari & Ors. Vs. Prahlad Dev & Ors, reported as 2008 AIR SCW 682, wherein their lordships have laid down that by proving that driver was having fake licence would not absolve the insurer. It was to be proved that owner was having the knowledge that driver is holding a fake licence but still permitted him to drive the vehicle. It is apt to reproduce relevant portion of para-6 of the said judgment herein: "........ It was to be proved that owner was having the knowledge that driver is holding a fake licence but still permitted him to drive the vehicle. It is apt to reproduce relevant portion of para-6 of the said judgment herein: "........ It is clear from the above decision when the owner after verification satisfied himself that driver has a valid licence and driving the vehicle in question competently at the time of the accident there would be no breach of Section 149(2)(a)(ii), in that event, the Insurance Company would not then be absolved of liability. It is also clear that even in the case that the licence was fake, the Insurance Company would continue to remain liable unless they prove that the owner was aware or noticed that the licence was fake and still permitted him to drive." 13. Applying the test to the instant case, insurer - appellant has not lead an iota of evidence in order to prove that owner was aware or noticed that licence was fake and still then permitted the driver to drive the vehicle. 14. In the given circumstances of the case, I do not find any error in the impugned award Accordingly, the appeal is dismissed. 15. Registry to send down the record along with a copy of this judgment.