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2008 DIGILAW 280 (JK)

National Insurance Co. Ltd. v. Nizam-ud-Din

2008-07-04

MANSOOR AHMAD MIR

body2008
1. Appellant has challenged the award/ judgment dated 30th of June, 2007 passed by Motor Accident Claims Tribunal, Budgam, in claim petition titled Nizam-ud-Din & Ors. Vs. National Insurance Company & Ors, for short the impugned award. 2. Learned counsel for the appellant while addressing arguments only contested the appeal and questioned the impugned award on two counts i.e. driver was not having effective and valid driving licence and the amount awarded is on higher side. 3. In order to determine both these questions, it is necessary to notice the brief facts of the case. 4. One Gulzar Ahmad Masoodi, was driving his maruti car on 23th of June, 2001 from Pampore to Anantnag and met a fatal/ vehicular accident at Halmullah, Sangam Jammu Srinagar National Highway caused by respondent Manzoor Ahmad Sheikh, driver, while driving bus bearing registration No.5136/JKC rashly and negligently. 5. Claimants filed a claim petition and prayed for awarding of compensation. Respondents filed reply and following issues came to be framed: "1. Whether the deceased namely Gulzar Ahmad Masoodi the son of the petitioner No. l & 2, husband of petitioner No.3 and father of petitioner No. 4 to 6 died in a vehicular accident on 23.06.2001 at Haimullah Sangam? OPP 2. Whether the vehicle No.JKC/5136 was involved in the said accident? 3. Whether the said vehicle was being driven rashly/ negligently by respondent No.3 at the time of accident? OPP 4. Whether respondent No.2 is the owner of the said vehicle? OPP 5. Whether the above said vehicle or any item is insured with respondent No. l/ insurance company? OPP 6. In case foregoing issues are answered in affirmative whether the respondents are jointly/ severally liable to pay compensation, to the petitioners, in lieu of the deceaseds death? OPP 7. In case foregoing issues are answered in affirmative, what is the quantum of compensation payable and respective liability of the respondents? OPP 8. Whether the petition is not maintainable? OPP 9. Whether the driver of the above said vehicle or any of the respondents were not having valid driving licence, if so, what is its effect on the petition claims? OPP 10. Relief? 6. Claimants--respondents examined, Ghulam Rasool Mir, Mukhtar Ahmad, Tufail Rashid, Farooq Ahmad Mir, Mohammad Irfan, Aijaz Ahmad Kuchay besides examining claimant Padshah Banco. 7. Insurer--appellant examined only one witness, namely, Mushtaq Ahmad, Legal Assistant, and other respondents have not led any evidence. OPP 10. Relief? 6. Claimants--respondents examined, Ghulam Rasool Mir, Mukhtar Ahmad, Tufail Rashid, Farooq Ahmad Mir, Mohammad Irfan, Aijaz Ahmad Kuchay besides examining claimant Padshah Banco. 7. Insurer--appellant examined only one witness, namely, Mushtaq Ahmad, Legal Assistant, and other respondents have not led any evidence. Virtually evidence of the claimants has remained un-rebutted. 8. The witnesses examined by the claimants have stated that driver Manzoor Ahmad Sheikh had driven the offending vehicle bus bearing registration No.5136-JKC rashly and negligently on 23rd of June, 2001 and hit the maruti car and the deceased sustained injuries and succumbed to injuries. The said evidence has remained unrebutted. FIR No. 154/01 came to be lodged. The certified copies of the FIR and other documents also prove the said factum. Further they have deposed that deceased was earning Rs.10000/- to Rs.15000/- per month. The evidence of the claimants has remained unrebutted. 9. The witnesses examined by the insurer--appellant has deposed that offending vehicle was insured with it but the driver was not competent to drive passenger vehicle--bus though he was having valid driving licence. Issue Nos. 1 to 3: 10. The evidence of the claimants has remained un-rebutted. 11. Claimants have proved all the three issues and it is accordingly held that Tribunal has rightly decided the said issues in favour of the claimants and against the respondents including appellant. Issue Nos.4 and 5: 12. Virtually the respondents have admitted that respondent No.2 was the owner of the offending vehicle and was insured with the appellant/ insurer. Finding of the Tribunal is legally and factually correct. Issue Nos. 6, 7 & 9: 13. These issues are inter-linked, so I deem it proper to decide all these issues by a common finding. 14. There is cogent evidence on file that deceased was earning Rs.10000/- per month but the tribunal has taken the income of the deceased at Rs.8214/- per month while keeping in view the circumstances of the case. After deducting one third held that claimants have lost source of dependency to the tune of Rs.5476/-per month. Admittedly the age of the deceased was 40/43 years and multiplier 15 came to be rightly applied. 15. It was for the insurer to plead and prove that driver was not having effective and valid driving. After deducting one third held that claimants have lost source of dependency to the tune of Rs.5476/-per month. Admittedly the age of the deceased was 40/43 years and multiplier 15 came to be rightly applied. 15. It was for the insurer to plead and prove that driver was not having effective and valid driving. The only witness examined by the appellant/ insurer stated that driver was having valid and effective driving licence but was not competent to drive bus. It was for the appellant to plead and prove that driver was competent to drive one type of vehicle but was driving another type of vehicle. 16. The apex court also in a leading case titled National Insurance Co. Vs. Swaran Singh, AIR 2004 SC 1531 held that if driver is competent to drive one type of vehicle and was driving another type of vehicle at the time of accident, the insurer has to prove by leading evidence before the court that, it was the main or contributory cause of accident. It is profitable to reproduce a portion of para 84 of the said judgment, so far it is relevant for the present, hereunder:- ".....In each case on evidence led before the Tribunal, a decision has to be taken whether the fact of the driver possessing licence for one type of vehicle but found driving another type of vehicle, was the main or contributory cause of accident. If on facts, it is found that accident was caused solely because of some other unforeseen or intervening causes like mechanical failure and similar other causes having no nexus with driver not possessing requisite type of licence, the insurer will not be allowed to avoid its liability merely for technical breach of conditions concerning driving licence." 17. In Swaran Singhs case (supra), the apex court has laid down test when and how insurer can avoid liability. It is profitable to reproduce para 105 (iii)(iv) and (vi) herein:- "(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 defenses 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 defenses 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 insurer 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 accident. 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." 18. As discussed above, there is nothing on the file to show that the insurer has pleaded and proved before the Tribunal that the insured was guilty of negligence and has committed any willful breach. Applying the test laid down by the apex court in the judgment supra, the appellant cannot avoid its liability. 19. Accordingly, the finding returned on these issues by the learned tribunal is legally correct and need no interference. Issue No.8: 20. Learned counsel for the appellant has not pressed this issue. However, even otherwise the claim petition was maintainable and issue has been rightly decided in favour of the claimants. 21. The tribunal has fallen in error while awarding interest and Rs.10,000/- each under the heads funeral expenses and loss of consortium while as the claimants are entitled to Rs.5000/- under the head funeral expenses, Rs.2500/- under the head loss of consortium. 21. The tribunal has fallen in error while awarding interest and Rs.10,000/- each under the heads funeral expenses and loss of consortium while as the claimants are entitled to Rs.5000/- under the head funeral expenses, Rs.2500/- under the head loss of consortium. Keeping in view the recent apex court judgments, the claimants are entitled to interest at the rate of 6% only. 22. Thus claimants are entitled to Rs.5476 x 12 x 15=9,67,680+ Rs.5000 + Rs.2500=Rs.975180 with 6% interest from the date of claim petition till final realization. Accordingly, the appeal is disposed of and impugned award is modified to the extent indicated above.