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2009 DIGILAW 11 (JK)

National Insurance Co. Ltd. v. Karan Singh

2009-01-03

VINOD KUMAR GUPTA

body2009
1. This appeal under section 173 of Motor Vehicles Act, 1988 is directed against the award dated 09.04.2008 passed by Motor Accidents Claims, Tribunal Udhampur (hereinafter referred to as the Tribunal in short) in claim petition No. 45/MACT of 2002 entitled Karan Singh and another vs. Dev Dutt and others whereby an amount of Rs.5,45,000/-along with interest @7.5 per cent per annum has been awarded as compensation in favour of the claimants-respondents No. 1 and 2. 2. The brief facts material for disposal of this appeal are that on 11.03.2001 the deceased Dheeraj Singh, son of respondents No. 1 and 2 herein, died in a motor vehicle accident while he was driving his motor cycle and hit by Tata Mobile bearing registration No. JK02M-4417 which was driven in rash or negligent manner by respondent No. 3 herein, owned by respondent No. 4 herein and was insured with appellant herein, National Insurance Company. The respondents No. 1 and 2 herein, filed a claim petition before the learned Tribunal and according to them the deceased was a student of eleventh class and was aged about 17-18 years at the time of accident. The learned Tribunal passed an award on 09.04.2008 whereby a compensation of Rs. 5,45,000/-was awarded in favour of the claimants-respondents No. 1 and 2 and directed the appellant-insurance company to satisfy the award. 3. Being aggrieved by the said award of the Tribunal, the appellant-insur- ance company has preferred this appeal on the ground that the driver of the offending vehicle namely Dev Dutt respondent No. 3 was not holding valid and effective driving licence at the time of accident and the amount of compensation awarded by the Tribunal is excessive and not under the norms. 4. I have heard the learned counsel for the parties and have perused the record on the file. 5. Mr. Sunil Malhotra, Advocate for the appellant-insurance company has submitted that the driver of the offending vehicle was not holding a valid and effective driving licence at the time of accident as such the insurance company is not liable to pay the amount of compensation awarded. He has further submitted that the quantum of compensation has not been properly assessed but the same is assessed on imaginary grounds. Mr. He has further submitted that the quantum of compensation has not been properly assessed but the same is assessed on imaginary grounds. Mr. Raghu Mehta learned counsel for the claimants-respondents No. 1 and 2, on the other hand, has submitted that the insurance company has not obtained the requisite permis- sion under Section 170 of the Motor Vehicles Act, 1988 from the Tribunal and as such he cannot question the amount of compensation awarded by the Tribunal and this defence is not available to the insurance company under statue. He has further submitted that the appellant-insurance company is liable to pay the amount of compensation and if the driver is not holding a valid and effective driving licence, the insurance company can recover that amount from the driver and owner afterwards. Mr. K.K. Pangotra, Advocate appearing for the driver has submitted that insurance company is liable to pay the compen- sation. 6. In its objections to the claim petition, the insurance company raised a specific plea that the driver of the offending vehicle did not hold a valid and effective driving licence at the time of accident as such insurance company is not liable. The learned Tribunal framed a specific issue in this respect as issue No. 3. The learned Tribunal after relying upon number of authorities and the materials on record came to the conclusion that the driver of the offending vehicle had a valid driving licence at the time of accident. It was held that the driver was authorized to drive light motor vehicle and motor cycle with gear only at the time of accident. He was driving offending Tata Mobile (goods carrier) having unladen weight of 1560 kilogram and as such the offending vehicle was light motor vehicle and the driver was competent to drive the same. The learned Tribunal thus decided the issue against the appellant-insurance company. 7. The reasons given by the learned Tribunal in deciding the said issue are proper. This issue has been decided on the basis of judgments of Hon™ble Apex Court. Even otherwise the appellant-insurance company cannot avoid its liabil- ity to indemnify the insured for payment of compensation on the ground that there is no evidence on the record to show that the owner of the offending vehicle-insured had knowledge that the driver of the vehicle was not holding a valid and effective driving licence. Even otherwise the appellant-insurance company cannot avoid its liabil- ity to indemnify the insured for payment of compensation on the ground that there is no evidence on the record to show that the owner of the offending vehicle-insured had knowledge that the driver of the vehicle was not holding a valid and effective driving licence. The insurance company is bound to prove that the insured committed the breach of terms and conditions of the insurance policy by handing over the vehicle to drive to a person having invalid, ineffec- tive or fake driving licence. 8. The Insurance Company has its statutory liability under section 149 of the Motor Vehicles Act 1988 to indemnify third party and thus the appellant- Insurance Company cannot escape from its liability and is bound to discharge this liability by payment of compensation amount awarded by the Tribunal to the third party. This statutory liability has to be discharged irrespective of other factors. In latest judgment of Hon™ble Supreme Court of India entitled Prem Kumari and others Vs. Prahlad Dev and others reported in 2008 (3) SCC 193 wherein it was held that:- In order to avoid liability under section 149(2)(a)(ii) it is not sufficient to show that the person driving at the time of accident was not duly licensed. The insurance company must establish that the breach was on the part of the insured, the burden of proof being on the insurance company to establish the breach. When an owner after verification has satisfied himself that the driver has a valid licence and was 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 com- pany would not then be absolved of liability. Mere absence of, 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. Even in the case that the licence was fake, the insurance company would continue to remain liable unless it proves that the owner was aware or noticed that the license was fake and still permitted him to drive. The concept of pur- posive interpretation has no application to cases relatable to Section 149 of the Act.� 9. Even in the case that the licence was fake, the insurance company would continue to remain liable unless it proves that the owner was aware or noticed that the license was fake and still permitted him to drive. The concept of pur- posive interpretation has no application to cases relatable to Section 149 of the Act.� 9. The learned counsel for the appellant has further urged that the compen- sation amount has not been properly assessed by the learned Tribunal. On the other hand, the learned counsel for the respondents have questioned the main- tainability of the appeal challenging the quantum of compensation on the ground that no permission has been obtained by the appellant-insurance com- pany under section 170 of the Motor Vehicles Act, 1988. It is admitted by the learned counsel for the appellant-insurance company that no such permission had been obtained by the insurance company from the Tribunal to contest the claim on the grounds other than those available to an insurer under section 149(2) of the Act. However, he has disputed that the amount of loss of future income of the claimants on account of death of deceased is not properly assessed. The issue as to whether the insurance company has a right to challenge the amount of compensation awarded by the Tribunal in an appeal before this court without obtaining permission under section 170 Motor Vehicles Act, 1988 has been finally settled by the Hon™ble Supreme Court of India in case Shankarayya and another Vs. United India Insurance Company limited, 1998 ACJ 513 in para 4 the Hon™ble Apex Court has observed as under:- 4. It clearly shows that the insurance company when impleaded as a party by the court can be permitted to contest the proceedings on merits only if the conditions precedent mentioned in the section are found to be satisfied and for that purpose the insurance company has to obtain order in writing from the Tribunal and which should be a reasoned order by the Tribunal. Unless that procedure is followed, the insurance company cannot have a wider defence on merits than what is available to it by way of statutory defence.� 10. Further in case National Insurance Company Vs. Nicolletta Rohtagi and others, 2002 ACJ 1950, the same view was taken. Our own High Court in case National Insurance Company Limited Vs. Unless that procedure is followed, the insurance company cannot have a wider defence on merits than what is available to it by way of statutory defence.� 10. Further in case National Insurance Company Vs. Nicolletta Rohtagi and others, 2002 ACJ 1950, the same view was taken. Our own High Court in case National Insurance Company Limited Vs. Tarsem Lal and others re- ported in 2008(1) JKJ 432 (HC) after relying upon the Supreme Court judgment reported in 2002 ACJ 1950, has held in para six as under:- In view of the above settled position of law, plea of Mr. Malhotra who had placed reliance on Oriental Insurance Co. Ltd. versus Kishore Chandra Sahu and another, reported as 1999 ACJ 122, that the award of the Tribunal could be questioned by the Insurance Company regard-less of its having obtained permission under Section 170 of the Motor Vehicles Act, therefore, fails and is, accordingly, rejected.� 11. In view of the law settled by the Hon™ble Apex Court as stated above, the appellant-insurance company in this case cannot challenge the quantum of award by way of appeal because no requisite permission has been obtained by the appellant-insurance company from the Tribunal under Section 170 of the Motor Vehicles Act, 1988. 12. Even otherwise I have gone through the award of the Tribunal and feels that the learned Tribunal has awarded the amount of compensation properly in the case. For the foregoing reasons, there is no merits in this appeal which is, accordingly, dismissed.