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2008 DIGILAW 232 (JK)

Bharat Transport Co. v. Kartar Chand

2008-06-03

MANSOOR AHMAD MIR

body2008
1. The short controversy involved in this appeal is whether the Tribunal has rightly granted right of recovery to respondent No.3 to recover the amount from the insured-appellant? 2. In order to determine this issue, the relevant facts are to be noticed. Respondent No.1, Kartar Chand, has driven the vehicle (Bus) bearing registration No.4803/JKC rashly and negligently and has caused the accident. The respondent No.2 being victim of the said vehicular accident filed a claim petition before the Motor Accident Claims Tribunal, Srinagar, on 21st of July, 1998 and claimed compensation on the ground of permanent disability. 3. After framing issues and recording evidence, the Tribunal passed an award dated 14th of February, 2005 in favour of the claimant-respondent No.2 and saddled the respondent No.2-- insurer with the liability with a right of recovery. 4. Owner-insured-appellant feeling aggrieved preferred this appeal. Appellant has stated in the memo of appeal that Tribunal has wrongly granted right of recovery to the insured-respondent No.3. The Tribunal has held that driver, namely, Kartar Chand was having driving licence to drive vehicles of the type of LMV (Light Motor Vehicles), HGV (Heavy Goods Vehicle) and HTV (Heavy Transport Vehicle) without having PSV endorsement. It also held that driver was not having valid licence. It is nowhere held in the impugned award that owner has committed any willful breach. 5. In order to avoid liability, it was the duty of the insurer-respondent No.3 to plead and prove that owner has committed willful breach in terms of Section 149 of the Motor Vehicles Act. There is not an iota of evidence on file suggesting the fact that owner has committed willful breach not to speak of proof. Apex Court in case titled National Insurance Co. Vs. Swaran Singh, AIR 2004 SC 1531 has held that in order to avoid liability, the insurer has to prove that driver was not having effective/valid driving licence and owner was conscious of the said fact and despite of that allowed the driver to drive the offending vehicle. 6. Apex Court in case titled as National Insurance Co. Ltd. v. Swaran Singh, reported in AIR 2004 SC 1531, held as under:- "105......................... 6. 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. 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 where 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 durling 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." 7. The Division Bench of this court has also taken the same view in case titled National Insurance Co. Ltd. Vs. Muhammad Sidiq Kuchey & Ors., 2008 (1) JKJ HC-422 LPA No. 180/2002 decided on 27.09.2007. It has held that where driving licence authorizes a person to drive LMV, there is no need to have authorization or endorsement in terms of Rule 4(1)(a) of State Rules. The state rules are to be read as compliment to the Act and not in derogation of it. It has held that where driving licence authorizes a person to drive LMV, there is no need to have authorization or endorsement in terms of Rule 4(1)(a) of State Rules. The state rules are to be read as compliment to the Act and not in derogation of it. Rule 4(1)(a) of the State Rules is to be read with Section 235 of Central Act. 8. The Apex Court also in a case National Insurance Company Ltd. V. Annappa Irappa Nesaria, 2008 AIR SCW 906 held that a driver having licence of light motor vehicle can drive "light passenger carriage vehicle" and "light goods carriage vehicle". 9. Thus, driver cannot be said to be not possessing effective driving licence to drive a Matador. 10. The driver was competent to drive passenger vehicle as held by the Apex Court and even the endorsement of PSV was not required as held by this Court in case titled National Insurance Co. Ltd. Vs. Irfan Sidiq Bhat, reported as 2005 (1) JKJ HC-42 : 2004(11) SLJ 623. It is profitable to reproduce paras 13 and 17 of the judgment herein: "13. A combined reading of the above provisions leaves no room for doubt that by virtue of licence, about which there is no dispute, both Showkat Ahmad and Zahoor Ahmad were competent in terms of section 3 of the Motor Vehicles Act to drive a public service vehicle without any PSV endorsement and express authorization in terms of rule 4(1)(a) of the State Rules. In other words, the requirement of the State Rules stood satisfied................................... 17. In the case of Mohammad Aslam Khan (CIMA No.87 of 2002) Peerzada Noor-ud-Din appearing as witness on behalf of Regional Transport Officer did say on recall for further examination that PSV endorsement on the licence of Zahoor Ahmad was fake. In our opinion, the fact that the PSV endorsement on the licence was fake is not at all material, for, even if the claim is considered on the premise that there was no PSV endorsement on the licence, for the reasons stated above, it would not materially affect the claim. By virtue of "C to E" licence Showkat Ahmad was competent to drive a passenger vehicle. Infact, there is no separate definition of passenger vehicle or passenger service vehicle in the Motor Vehicles Act. They come within the ambit of public service vehicle under section 2(35). By virtue of "C to E" licence Showkat Ahmad was competent to drive a passenger vehicle. Infact, there is no separate definition of passenger vehicle or passenger service vehicle in the Motor Vehicles Act. They come within the ambit of public service vehicle under section 2(35). A holder of driving licence with respect to "light motor vehicle" is thus competent to drive any motor vehicle used or adapted to be used for carriage of passengers i.e. a public service vehicle." 11. In the given circumstances of the case, I am of the considered view that insurer has failed to prove that the owner has committed any willful breach. Further the Tribunal has also fallen in error while holding that driver was not holding effective driving licence and was not competent to drive LMV, LGV, LTV. 12. In the given circumstances of the case, the appeal is allowed and impugned award to the extent it is questioned is set-aside and the insurer is saddled with the entire liability. Registry to send down the record along with a copy of this judgment.