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2009 DIGILAW 1656 (RAJ)

National Insurance Company Ltd. v. Lebho Mahanand

2009-07-21

RAJEEV GUPTA, SUNIL KUMAR SINHA

body2009
Hon'ble SINHA, J.—These appeals have been filed against the awards dated 06.03.1999 passed in Claim Case Nos.30/1994 and 31/1994 by the Motor Accident Claims Tribunal, Kanker, Distt. Kanker. M.A.No.988/1999 has been filed by the Insurance Company for setting aside the award of Claim Case No.30/1994 whereas M.A.No.1428/1999 has been filed by the claimant for enhancement of amount of compensation awarded in the said claim case. Likewise, M.A.No.1018/1999 has been filed by the Insurance Company for setting aside the award passed in Claim Case No.31/1994 whereas M.A.No.1417/1999 has been filed by the claimant for enhancement of amount of compensation awarded in that case. 2. The facts briefly stated are as under: Lebho Mahanand (Claimant in Claim Case No.30/1994) and Abdul Samad (Claimant in Claim Case o.31/1994) filed respective claim petitions u/s 166 of the Motor Vehicles Act for the personal injuries sustained by them in the motor accident which took place on 05.01.1994 when the truck bearing Regn.No.23-B/0145, in which they were traveling as Labourers (Koolies) dashed against a stationary truck on account of rash and negligent driving of their truck by its driver. Lebho Mahanand, claimed compensation of Rs.10,10,000/- whereas Abdul Samad claimed compensation of Rs.10,15,000/-. The owner and driver of the offending truck remained ex-parte whereas the insurer of the truck contested the claim on the ground that the offending truck was being plied in breach of policy conditions as the driver of the truck was having no valid licence to drive the said vehicle. The learned Claims Tribunal recorded findings that the accident occurred on account of rash and negligent driving of the offending truck by its driver and the Insurance Company was liable to pay compensation, though it was established on record that the licence produced before the Company was a fake licence but it could not be established that the insured was guilty of negligence and he failed to exercise reasonable care regarding use of vehicle by a duly licensed driver. The Claims Tribunal awarded a sum of Rs.25,000/- to claimant Lebho Mahanand and it awarded a sum of rs.15,000/-to claimant Abdul Samad in their respective claim cases. 3. Mr. H.S. Patel, learned counsel appearing on behalf of the claimants, in both the appeals argued that the Tribunal erred in awarding a low compensation to the Claimants whereas the Claimants sustained multiple serious injuries in the motor accident. 4. Mr. 3. Mr. H.S. Patel, learned counsel appearing on behalf of the claimants, in both the appeals argued that the Tribunal erred in awarding a low compensation to the Claimants whereas the Claimants sustained multiple serious injuries in the motor accident. 4. Mr. Shrikumar Agrawal, learned senior counsel appearing on behalf of the Insurance Company, opposed these arguments. He further argued that the Insurance Company was not liable to pay compensation as it was established on record by the evidence of Mr. A. Kujur (N.A.W.1), an officer of the Insurance Company, that the driver of the truck was having a fake driving licence; therefore, the offending vehicle was being plied in breach of policy conditions and the learned Claims Tribunal ought to have exonerated the Insurance Company on this count. 5. We have heard learned counsel for the parties at length and have also perused the records of the respective claim cases. 6. For the reasons best known to the appellants/claimants; no Doctor was examined before the Tribunal to establish the nature of injuries said to have been sustained by the appellants/claimants in the motor accident and the fact that those injuries resulted in any permanent disability. 7. The question whether the medical certificate produced by the claimant before the Tribunal without examining the Doctor who issued the certificate can be relied upon as substantive evidence for the assessment of the compensation came up for consideration before the Apex Court in the case of A.P.S. R.T.C. vs. P. Thirupal Reddy, reported in (2005) 12 SCC 189 wherein it was observed in para 6 as under: "6. After hearing learned counsel for the respondent-claimant who made an attempt to support the order of the High Court, we find that there was no justification for the High Court to rely on the disability certificate issued by Dr. Sudhakar Reddy and enhance the compensation by treating the injury as permanent disability to be 45 per cent. The High Court committed gross error in overlooking the fact that Dr. Sudhakar Reddy's medical certificate was rejected by the Tribunal for non-examination of that doctor. The Tribunal has determined the physical disability at 15 per cent on the basis of the deposition of Dr. K. M. Mitra and awarded as just and fair compensation. The High Court erred in disturbing the same and enhancing the compensation. Sudhakar Reddy's medical certificate was rejected by the Tribunal for non-examination of that doctor. The Tribunal has determined the physical disability at 15 per cent on the basis of the deposition of Dr. K. M. Mitra and awarded as just and fair compensation. The High Court erred in disturbing the same and enhancing the compensation. Consequently, we allow this appeal, set aside the impugned order and restore the award of the Claims Tribunal. The respondent- claimant is allowed to withdraw the amount of compensation awarded by the Tribunal, if it has not already been withdrawn." 8. The Apex Court in a recent dictum in the case of Rajesh Kumar alias Raju vs. Yudhvir Sigh and another, reported in (2008) 7 SCC 305 , reiterated the same view with the following observations in para 11 : "11. The certificate in question in this case was obtained after two years. It is not known as to whether the Civil Surgeon of the hospital treated the appellant. On what basis, such a certificate was issued two years after the accident took place is not known. The author of the said certificate had not been examined. Unless the author of the certificate examined himself, it was not admissible in evidence. Whether the disability at 60% was calculated on the basis of the provisions of the Workmen's Compensation Act or otherwise is not known. It is also not known as to whether he was competent to issue such a certificate. It even does not appear that the contentions raised before us had either been raised before the Tribunal or the High Court. The Tribual as also the High Court, therefore, proceeded on the materials brought on record by the parties. In absence of any contention having been raised in regard to the applicability of the Workmen's Compensation Act which, in our opinion, ex-facie has no application, the same, in our opinion, cannot be permitted to be raised for the first time." 9. In view of the above quoted dicta of the Apex Court in the cases of A.P.S.R.T.C vs. P. Thirupal Reddy (supra) and Rajesh Kumar alias Raju vs. Yudhvir Singh and another (supra), the Certificates produced before the Tribunal in the absence of examination of the Doctors issuing the certificates were neither admissible in evidence nor can be taken into consideration as substantive evidence for assessment of the compensation in the case. Therefore, the arguments advanced by Shri H.S. Patel cannot be accepted. 10. For the foregoing reasons, we do not find any scope for enhancement of the compensation awarded by the Claims Tribunal in these claim cases. 11. So far as the question of fake licence is concerned, that itself would not be a ground for exonerating the Insurance Company in absence of proof that the insured was guilty of negligence and he failed to exercise reasonable care in the matter of fulfilling the condition of the policy regarding the use of vehicle by a duly licensed driver or one who was not disqualified to drive at the relevant time. The burden of proving such fact lies on the Insurance Company. Mere absence, fake or invalid driving licence or any disqualification of the driver are not in themselves the defences available to the insurer either against the insured or the third parties. This has been laid down in the matter of National Insurance Company Ltd. -vs-Swaran Singh and others, (2004) 3 SCC 297 in which the Supreme Court recorded the following findings vide Para 110. "The summary of our findings to the various issues as raised in these petitions is as follows: (i) Chapter XI of the Motor Vehicles Act, 1988 providing compulsory insurance of vehicles against third party risks is a social welfare legislation to extend relief by compensation to victims of accidents caused by use of motor vehicles. The provisions of compulsory insurance coverage of all vehicles are with this paramount object and the provisions of the Act have to be so interpreted as to effectuate the said object. (ii) An insurer is entitled to raise defence in a claim petition filed under section 163-A, or Section 166 of the Motor Vehicles Act, 1988, inter alia, in terms of Section 149(2)(a)(ii) of the said Act. (iii) The breach of policy conditions e.g. disqualification of the driver or invalid driving licence of the driver, as contained in sub-section 2(a)(ii) of section 149, has 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. 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 the 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 a duly licensed driver or one who was not disqualified to drive at the relevant time. (iv) Insurance companies, 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 wherefor would be on them. (v) The court cannot lay down any criteria as to how the said burden would be discharged, inasmuch as the same would depend upon the facts and circumstances of each case. (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 the insured unless the said breach or breaches on the condition of deriving 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 insurer under Section 149(2) of the Act. (vii) The question, as to whether the owner has taken reasonable care to find out as to whether the driving licence produced by the driver (a fake one or otherwise), does not fulfil the requirements of law or not will have to be determined in each case. (viii) If a vehicle at the time of accident was driven by a person having a learner's licence, the Insurance Companies would be liable to satisfy the decree. (ix) The Claims Tribunal constituted under Section 165 read with Section 168 is empowered to adjudicate all claims in respect of the accidents involving death or of bodily injury or damage to property of third party arising in use of motor vehicle. (ix) The Claims Tribunal constituted under Section 165 read with Section 168 is empowered to adjudicate all claims in respect of the accidents involving death or of bodily injury or damage to property of third party arising in use of motor vehicle. The said power of the Tribunal is not restricted to decide the claims inter se between claimant or claimants on one side and insured, insurer and driver on the other. In the course of adjudicating the claim for compensation and to decide the availability of defence or defences to the insurer, the Tribunal has necessarily the power and jurisdiction to decide disputes inter se between the insurer and the insured. The decision rendered on the claims and disputes inter se between the insurer and insured in the course of adjudication of claim for compensation by the claimants and the award made thereon is enforceable and executable in the same manner as provided in Section 174 of the Act for enforcement and execution of the award in favour of the claimants. (x) Where on adjudication of the claim under the Act the Tribunal arrives at a conclusion that the insurer has satisfactorily proved its defence in accordance with the provisions of Section 149(2) read with sub-section (7), as interpreted by this Court above, the Tribunal can direct that the insurer is liable to be reimbursed by the insured for the compensation and other amounts which it has been compelled to pay to the third party under the award of the Tribunal. Such determination of claim by the Tribunal will be enforceable and the money found due to the insurer from the insured will be recoverable on a certificate issued by the Tribunal to the Collector in the same manner under Section 174 of the Act as arrears of land revenue. The certificate will be issued for the recovery as arrears of land revenue only if, as required by sub-section (3) of Section 168 of the Act the insured fails to deposit the amount awarded in favour of the insurer within thirty days from the date of announcement of the award by the Tribunal. The certificate will be issued for the recovery as arrears of land revenue only if, as required by sub-section (3) of Section 168 of the Act the insured fails to deposit the amount awarded in favour of the insurer within thirty days from the date of announcement of the award by the Tribunal. (xi) The provisions contained in sub-section (4) with the proviso thereunder and sub-section (5) which are intended to cover specified contingencies mentioned therein to enable the insurer to recover the amount paid under the contract of insurance on behalf of the insured can be taken recourse to by the Tribunal and be extended to claims and defences of the insurer against the insured by relegating them to the remedy before regular Court in cases where on given facts and circumstances adjudication of their claims inter se might delay the adjudication of the claims of the victims." 12. In the present cases, the Insurance Company, by way of evidence of N.A.W.1, has brought on record that the licence said to be held by the driver of the Truck was a fake licence as on their enquiry it was found that the said licence was never issued from the concerned licensing authority, Kanpur (U.P.). We have seen the photocopy of the licence. The licence has been shown to be issued in Form-6 under the concerned Rule 16(1). It also bears the photograph of the driver at the appropriate place and illegible signatures with dates shown to be that of the licensing authority. This licence was shown to be issued for driving light motor vehicle, medium goods vehicle and heavy goods vehicle and it was further shown to be lastly renewed upto 16.11.1994. Even assuming that it was a fake licence, but the insurance company did not discharge its burden by proving that the insured was guilty of negligence and he failed to exercise reasonable care in the matter of fulfilling the conditions of the policy regarding use of vehicle by duly licensed driver. We presume that the said licence must have been produced before the owner and by exercising reasonable care, the owner must have handed over the vehicle to the driver taking into consideration that he was having a valid driving licence. We presume that the said licence must have been produced before the owner and by exercising reasonable care, the owner must have handed over the vehicle to the driver taking into consideration that he was having a valid driving licence. If the alleged licence would not have been in statutory proforma or it would be showing some irregularity on the face of it, or there would have been some indication of the fake character of the licence in its appearance which a normal man must notice after seeing the licence in first sight or by applying his common sense with due diligence, then only it would be said that the insured was guilty of negligence and he failed to exercise reasonable care in the matter of fulfilling the condition of the Policy regarding use of vehicle by a duly licensed driver. But nothing as above could be brought on record. Even the witness of the Insurance Company A. Kujur (N.A.W.1) categorically admitted vide Para 4 of his evidence (on a question by the Presiding Officer of the Tribunal) that "before receiving the letters Ex.D-2 & Ex.D-3, which relate to the verification regarding validity of the driving licence, it was not possible to say that the licence was a fake driving licence". This shows that even the Insurance people could not say that it was a fake licence on the face of it. It is for all these reasons, the Tribunal held that the Insurance Company was liable to pay compensation in the matters and the same cannot be exonerated. In the facts and circumstances of the case, we do not find any fault in such approach of the Tribunal. The arguments advanced by the learned counsel for the appellants/Insurance Company, therefore, cannot be sustained. 13. For the foregoing reasons, we do not find any force in these appeals. The appeals are liable to be dismissed and are accordingly dismissed. 14. No order as to cost(s).