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2008 DIGILAW 885 (DEL)

New India Assurance Co. Ltd. v. Ansuiya Devi Negi

2008-09-15

VIDYA BHUSHAN GUPTA

body2008
JUDGMENT : V.B. GUPTA, J. 1. The present appeal u/s 173 of the Motor Vehicles Act, 1988 (for short as 'Act') has been filed by the Insurance Company against the impugned award dated 7th May, 2008 passed by Sh. J.P.S. Malik, Judge, MACT (for short as 'Tribunal'), New Delhi. 2. Brief facts of this case are that on 25th March, 1998, deceased Gobind Singh Negi was travelling in bus No. DL-IP-6046 from Minto Road to Safdarjung Airport bus stand for going to Prem Nagar there from. 3. It is alleged that the bus was not stopped at Safdarjung Airport bus stand by the driver and when deceased requested for stopping the bus, the driver applied brakes at some distance after crossing the bus stand. Due to the sudden jerk, the deceased who was standing nearby the front gate to get down of the bus, fell down from the bus and was run over and crushed under the wheels of the bus. It is further alleged that on falling down of the deceased, the bus driver instead of stopping the bus, speeded up the bus and took away the bus without caring for the safety of the deceased. The bus was driven by respondent No. 7/Tejveer Singh and thus the accident was caused due to rash, negligent and careless driving of this respondent. 4. Respondent No. 5/Dhani Ram was the registered owner of the bus at the time of the accident, whereas respondent No. 6/Harender Singh was having a Power of Attorney of the registered owner and the bus was insured with the appellant/Insurance Company. 5. Respondent No. 5/Dhani Ram could not be served by ordinary process and was ordered to be served by publication. Publication was effected but none appeared on his behalf and as such he was proceeded ex-parte by the trial court. 6. Appearance was given on behalf of respondents No. 6 and 7 on 24th October, 2005 before the trial court and time was sought for filing of the written statement. Later on, they did not appear nor did they file the written statement and they were also proceeded ex-parte. 7. The appellant/Insurance Company however has filed its written statement in which it has admitted that the vehicle in question was insured with it. Later on, they did not appear nor did they file the written statement and they were also proceeded ex-parte. 7. The appellant/Insurance Company however has filed its written statement in which it has admitted that the vehicle in question was insured with it. However, it has been pleaded that the driver of the offending bus was not having a valid driving licence on the date of accident and as such the Insurance Company is not liable to pay any compensation. 8. Vide impugned judgment, an award for a sum of Rs. 4,61,370/- along with simple interest @ 9% p.a. from the date of filing of the petition till realization was passed in favour of the claimants and against all the respondents. It was further held, that the appellant being the insurer of the offending vehicle, is liable to discharge the liability. 9. Aggrieved with the impugned judgment passed by the Tribunal, the Insurance Company has filed the present appeal. 10. It has been contended by counsel for the appellant that the Tribunal has completely failed to take into consideration that the driver and owner of the offending vehicle did not appear to contest the petition before the Tribunal and were proceeded ex parte and therefore, the stand taken by the appellant in its written statement that the driver at the time of accident was not holding a valid driving licence is deemed to be admitted by the owner of the vehicle and therefore, the appellant was not required to produce any evidence to prove that the licence held by the driver at the time of accident was fake. 11. Further, the Tribunal has also ignored the material fact available on record that the appellant had summoned the concerned RTO a number of times as a witness but they failed to turn up and therefore, the appellant made efforts to produce the witness from the concerned Licencing Authority to prove that the licence held by the driver at the time of accident was fake. 12. 12. Thus in the facts of the present case, the Tribunal has erred in law and facts in holding that no value can be attached to the testimony of R4W1 in the absence of any witness from the Transport Authority that the licence held by the respondent No. 7 at the time of accident was fake and therefore, the appellant/Insurance Company being the insurer of the offending vehicle to pay the entire amount of compensation without giving the appellant recovery rights. 13. Ld. Counsel for the appellant has relied upon the decision of the Apex Court in National Insurance Co. Ltd. v. Geeta Bhat and Ors. 2008 (4) SCALE 757 in support of its contentions. 14. Appellant in its written statement has taken certain preliminary objections. In objection No. 2 it is stated; That the driver Sh. Tejveer Singh was holding D/L No T-4084/BSR/96 issued from RTO Bulandshahr. As per the report of Ms Vidula Sharma dated 28-4-2005 no such licence was issued by RTO Bulandshahr and since the driver of the offending vehicle was not having a valid driving licence on the date of accident as such the answering respondent is not liable to pay any compensation to the petitioner. 15. Section 149 of the Act provides as follows; 149. Duty of insurers to satisfy judgments and awards against persons insured in respect of third party risks.- (1) x x x x (2) No sum shall be payable by an insurer under Sub-section (1)in respect of any judgment or award unless, before the commencement of the proceedings in which the judgment or award is given the insurer had notice through the Court, or as the case may be, the Claims Tribunal of the bringing of the proceedings, or in respect of such judgment or award so long as execution is stayed thereon pending an appeal; and an insurer to whom notice of the bringing of any such proceedings is so given shall be entitled to be made a party thereto and to defend the action on any of the following grounds, namely: (a) x x x x (i) x x x x (ii) a condition excluding driving by a named person or persons or by any person who is not duly licensed, or by any person who has been disqualified for holding or obtaining a driving licence during the period of disqualifications; 16. In a plethora of cases, the Apex Court and various High Courts have held that if there is a condition in the insurance policy that only a licensed driver is to drive the vehicle, the insurance company would not be liable in case there is a breach. 17. There could be no doubt that in order to escape liability, not only it should be proved that the driver of the vehicle was not having a licence at the time of the accident, but also the insurance company should prove that the driver was disqualified from holding or obtaining a licence or never had any licence at all. Merely proving that on the date of the accident, the driver did not have a licence, is not enough to hold that the insurance company is not liable for claim. The onus of proving that the driver of the vehicle never had a licence or was disqualified from holding a licence is on the insurance company. 18. The Apex Court in Narcinva V. Kamat and Another Vs. Alfredo Antonio Doe Martins and Others, (1985) 2 SCC 574 observed; When the Insurance Company complains of a breach of the term of contract, which would permit it to disown its liability under the contract of insurance, the burden is squarely on the Insurance Company to prove that the breach has been committed by the other party to the contract. The test in such a situation would be 'who would fail, if no such evidence is led'. With this principle of law in view, the evidence has to be judged. Merely non-production of licence or non-examination of the driver of the vehicle is not enough nor any adverse inference can be drawn against the person holding that because of non-examination of the driver or non-production of the licence, the burden is discharged by a mere question in cross examination nor the owner is under any obligation to furnish the evidence so as to enable the Insurance Company not to wriggle out its liability under the contract of insurance. 19. In National Insurance Co. Ltd. v. Geeta Bhat and Ors. 19. In National Insurance Co. Ltd. v. Geeta Bhat and Ors. (supra), cited by the counsel for appellant, the Apex Court has observed as under; The question in regard to the statutory obligation on the part of an owner of a vehicle to obtain an insurance policy to cover a third party risk, vis-a-vis possession of a fake licence by a driver who had been employed bona fide by the owner thereof had come up for consideration before this Court United India Insurance Company Ltd. Vs. Lehru and Others, (2003) 3 SCC 338 Lehru's case was noticed in great details by a Three Judge Bench of this Court in National Insurance Co. Ltd. Vs. Swaran Singh and Others, (2004) 3 SCC 297 holding: 92. It may be true as has been contended on behalf of the petitioner that a fake or forged licence is as good as no licence but the question herein, as noticed hereinbefore, is whether the insurer must prove that the owner was guilty of the wilful breach of the conditions of the insurance policy or the contract of insurance. In Lehru case the matter has been considered in some detail. We are in general agreement with the approach of the Bench but we intend to point out that the observations made therein must be understood to have been made in the light of the requirements of the law in terms whereof the insurer is to establish wilful breach on the part of the insured and not for the purpose of its disentitlement from raising any defence or for the owners to be absolved from any liability whatsoever. 20. On this issue, the findings of the Tribunal are as under; As regard the liability, R4/Insurance company had taken the stand that driving licence of R3 was found to be fake on verification. However, no witness from transport authority has been summoned by R4/Insurance company and there is no report on record having been given by the transport authority from where driving licence was issued to R3. Only the report of the investigator has been placed on record by the Insurance company through witness R4W1/Harendar Sharma, assistant and even the Investigator has not been examined. In the circumstances, no value can be attached to the testimony of R4W1, Sh. Harender Sharma, which is rejected. 21. Only the report of the investigator has been placed on record by the Insurance company through witness R4W1/Harendar Sharma, assistant and even the Investigator has not been examined. In the circumstances, no value can be attached to the testimony of R4W1, Sh. Harender Sharma, which is rejected. 21. Before the Trial Court, for the first time the matter was listed for respondents' evidence for 21st August, 2007. 22. On 21st August, 2007, Sh. Harender Sharma, Assistant from the appellant-Insurance Company was examined as R4W1. No other witness was present and the matter was adjourned to 17th October, 2007 for remaining evidence. 23. On 17th October, 2007 no witness of appellant-Insurance Company was present nor any witness was summoned. More time was sought for producing the witnesses. Last opportunity was given for producing the evidence. 24. On 14th January, 2008, again no witness of the appellant was present. More time was sought. Last and final opportunity was granted subject to costs of Rs. 1,000/-. 25. Again on 11th February, 2008, no witness was present and the process issued was not received back and matter was adjourned for 4th April, 2008. 26. On that day, no witness of appellant-Insurance Company was present nor any witness had been summoned. The Trial Court held that sufficient opportunity has already been given to the Insurance Company but honest efforts are not being made by Insurance Company to summon or examine witnesses and as such evidence of the appellant in the circumstances was closed. 27. Thus, the trial court record clearly shows that despite, various opportunities granted to the appellant/Insurance Company, it did not produce sufficient evidence. 28. As stated above, appellant in its written statement has taken the plea that as per report of their investigator, Ms. Vidula Sharma, no such license was issued by RTO, Bulandshahr. 29. Though R4W1 in his statement has stated that the driving licence was got verified through their investigator, Ms. Vidula Sharma, Advocate and her report is Mark B. However, for reasons best known to appellant, it has not examined investigator, Ms. Vidula Sharma nor has proved her report, in accordance with law. 30. Apart from the plea taken in the written statement that driver of the offending vehicle was not holding a valid and effective driving licence, the appellant did nothing to substantiate that the driver at the pertinent time, was not having a valid driving licence. Vidula Sharma nor has proved her report, in accordance with law. 30. Apart from the plea taken in the written statement that driver of the offending vehicle was not holding a valid and effective driving licence, the appellant did nothing to substantiate that the driver at the pertinent time, was not having a valid driving licence. The Insurance Company has not examined any witness from the concerned Transport Authority to prove the same. 31. Thus, the contentions regarding the fake driving licence made by the appellant counsel are rejected. 32. In view of the above discussion, I do not find any infirmity or illegality in the impugned judgment passed by the Tribunal. The compensation awarded by the Tribunal is just, fair and equitable. 33. Accordingly, the present appeal filed by the appellant is hereby dismissed with the costs of Rs. 5,000/-. 34. Appellant is directed to deposit the costs of Rs. 5,000/- by way of cross-cheque in the name of Registrar General of this Court within four weeks. 35. List on 24th October, 2008 for compliance. 36. Trial Court record be sent back.