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2009 DIGILAW 482 (JK)

Oriental Insurance Co. Ltd. v. Darshna Devi

2009-10-08

MUZAFFAR HUSSAIN ATTAR

body2009
1. Raj Kumar a painter by profession, died in vehicular accident, on 11th Nov. 2001. He was 30 years of age. A claim petition was filed, wherein an amount of Rs.30 lacs was claimed as compensation, besides present appellant, driver and owner were impleaded as respondents in the claim petition. It was alleged that one Kaka Ram driver was driving bus bearing registration No.7637/JKS negligently, which resulted in death of Raj Kamar. The appellant-Insurance company filed objections to the claim petition, wherein it took a specific plea that as the driver was not holding the valid and effective driving license, there being in breach of insurance policy, the insurance company was not liable to indemnify insured, in the event it was held that Raj Kumar died because of negligent driving of driver. 2. Three issues were framed which are reproduced as under: "1. Whether an accident took place on 11.11.2001 at Saroot, Jammu due to rash and negligent driving of the offending vehicle No.JKS 7637 by its driver/respondent No.3 in which deceased namely; Raj Kumar has died? OPP 2. If issue No.1 is proved in affirmative whether petitioners are entitled to the compensation; if so of what amount and from whom ? OPP 3. Whether the driver of offending vehicle at the time of accident was not holding a valid driving license ? OPR-1" 3. Issue No.3 provided that as to whether the driver of offending vehicle at the time of accident was not holding valid driving license. 4. After the conclusion of the enquiry the ld. Motor Accident Claims Tribunal (MACT) Jammu, on 06.12.2003, passed an award of Rs.5,45,336/-which amount is stated to have been already paid to the claimants. The MACT directed the Insurance company to satisfy the award. 5. The Insurance company being aggrieved of the said award filed the present appeal before this Court. The court vide its order dated 1.4.2004 ordered for admitting the appeal against owner and driver of the offending vehicle. The appeal against the claimants respondent No. 1 to 4 was, dismissed. 6. The respondents 5 and 6 have been served but despite service they have chosen not to appear. They are proceeded ex-parte. 7. Heard leaned counsel for appellant. Considered the matter. 8. The appeal against the claimants respondent No. 1 to 4 was, dismissed. 6. The respondents 5 and 6 have been served but despite service they have chosen not to appear. They are proceeded ex-parte. 7. Heard leaned counsel for appellant. Considered the matter. 8. The learned counsel for appellant has raised two contentions in support of his appeal viz, that the driver Kaka Ram, was driving bus which according to ld counsel is heavy transport vehicle (HTV), whereas he was authorized to drive light transport vehicle (LTV). He further submitted that the driving license was renewed only up to year 1998, whileas accident has taken place on 11th Nov. 2001. The ld counsel would thus submit, that company in this backdrop was not liable to indemnify the insured and it is on these grounds this appeal deserves to be allowed. 9. In support of the issue No.3, the Insurance company has examined Jaswant Singh clerk RTO office Jammu and Arun Kumar an employee of the appellant-Insurance company. 10. Mr. Jaswant Singh, whose statement has been recorded on 27th Oct. 2003, deposed before the MACT Jammu, that he has brought the original record of driving license No. 17280. He has further deposed that the driving license was issued on 13th March 1995 in favour of Kaka Ram. He has further deposed that the driving license was issued to drive LTV. It is specifically stated by the said witness that the driving license was not issued for any other kind of vehicle. The driving license was said to be valid up to March 12th 1998. A photo copy of driving license placed on the record of MACT Jammu, along with the claim petition, was shown to him, which was found to be correct by the said witness on the basis of original record and was marked as exhibit "EXRWJS". It was further deposed that the license was not renewed after 12th March 1998. The said witness has further stated that for driving a bus one must have a license having endorsement of HTV. No question was asked in cross-examination. 11. Mr. Arun Kumar, an employee of the Insurance company, in his statement recorded on 11th Nov. 2003 by the MACT Jammu, has deposed that bus bearing No. JKS 7637, was insured with the appellant Insurance company from 9th May 2001 up to 8th May 2002. No question was asked in cross-examination. 11. Mr. Arun Kumar, an employee of the Insurance company, in his statement recorded on 11th Nov. 2003 by the MACT Jammu, has deposed that bus bearing No. JKS 7637, was insured with the appellant Insurance company from 9th May 2001 up to 8th May 2002. He further deposed that the original Insurance documents were sent to the owner of the vehicle. He had brought with him copy thereof, which according to record, was declared by him to be correct and was marked as exhibit "EXRWAK". The witness has further deposed that the company was not liable to pay the compensation as the driver of the offending vehicle was not holding valid and effective driving license. The witness has further stated that when the accident occurred a copy of driving license was obtained from the Police Station Gharota, which was produced by him before the tribunal. The witness on the basis of copy of driving license, stated that the driver Kara Ram, was authorized to driver LTV and the said license was valid up to 12th March 1998.The said witness was not cross examined. 12. Section 2(10) of the M.V Act 1988 (hereinafter referred to as Act of 1988) defines "Driving License" to mean license issued by a competent authority under Chapter II authorizing the person specified therein to drive, otherwise than as a learner, a motor vehicle of any specified class or description. 13. The ld counsel for the appellant referred to Section 3 of the Act of 1988 which provides that no person shall drive motor vehicle in any public place unless he holds an effective driving license issued to him authorizing him to drive particular type of vehicle; and no person shall so drive a transport vehicle other than a motor cab or motor cycle hired for his own use unless driving license specifically entitles him so to do. 14. The ld counsel also referred to Section 5 of the Act of 1988, which provides that, no owner or person in charge of a motor vehicle, shall cause or permit any person, who does not satisfy the provisions of Sec.3 or Sec. 4 to drive the vehicle. 15. 14. The ld counsel also referred to Section 5 of the Act of 1988, which provides that, no owner or person in charge of a motor vehicle, shall cause or permit any person, who does not satisfy the provisions of Sec.3 or Sec. 4 to drive the vehicle. 15. So far as the objection about the renewing of the driving license is concerned, the witness produced by Insurance company before tribunal has admitted that the photo copy of driving license which is available on the record is correct. The photo copy of the driving license available on the record of the tribunal reveals that same has been renewed beyond March 1998 as well, but the date is not legible and it appears that the driving license was renewed for the year 2001 as well. 16. Since the witness produced by the Insurance company has admitted, the said certificate is to be correct, it cannot be said that the driving license was not renewed beyond year 1998. The ld counsel for the appellant has fairly submitted that one cannot in view of the evidence and material available on record with certainty say that the license is not renewed beyond year 1998. The evidence so produced, does lead to the conclusion that the license of the driver who was driving the offending vehicle was renewed and was in force on the date when the accident took place. 17. The question now arises as to whether driver of the offending vehicle was holding effective and valid driving license. 18. The appellant-Insurance company has examined two witnesses, Jaswan Singh and Arun Kumar; both the witnesses have stated that the license issued in favour of Kaka Ram, driver of the offending vehicle, was for plying LTV. It has also come on record through these witnesses that the driver Kaka Ram was driving bus which is a heavy transport vehicle (HTV). The evidence so brought on record does show that the diver was holding license only to drive LTV and not HTV. 19. Section 2(10) of the Act of 1988 provides that driving license means license issued by a competent authority under Chapter II authorizing the person specified therein to drive, otherwise than as a learner, a motor vehicle or a motor vehicle of any specified class or description. 19. Section 2(10) of the Act of 1988 provides that driving license means license issued by a competent authority under Chapter II authorizing the person specified therein to drive, otherwise than as a learner, a motor vehicle or a motor vehicle of any specified class or description. When once a driving license is issued to drive motor vehicle of specified class or description, the driver would be said to possess the driving license only to drive the vehicle of that specified class or description. It has come on record in this case in the evidence that the driver was issued license to drive LTV whereas at the time of accident he was driving HTV. 20. The Insurance company in such eventuality could avoid liability of indemnifying the insured if it would have satisfied the tribunal that the accident was caused solely because of the reason of driving a vehicle for which the driver was not holding the driving license. The reference in this behalf can be made to judgment of Hon’ble Supreme court in case titled "National Insurance company ltd, appellant v. Kusum Rai and ors, respondents reported in 2006 4 SCC 250 wherein judgment reported in (2004) 3 SCC 297 has been relied upon. In order to absolve the Insurance company from liability of indemnifying the insured it is to be found on facts that the accident was caused solely because of some other unforeseen or intervening causes like mechanical failures and similar other causes having no nexus with the driver not possessing requisite type of license, the insurer will not be allowed to avoid its liability merely for technical beach of conditions concerning the driving license. Relevant part of paragraph is reproduced as under:- "...Cases may also arise where a holder of driving licence for `light motor vehicle’ is found to be driving a `maxi-cab’, `motor-cab’ or `omnibus’ for which he has no licence. In each case, on evidence led before the Tribunal, was the main or contributory cause of accident. If on facts, it is found that the accident was caused solely because of some other unforeseen or intervening cause like mechanical failures and similar other causes having no nexus with the 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." 21. If on facts, it is found that the accident was caused solely because of some other unforeseen or intervening cause like mechanical failures and similar other causes having no nexus with the 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." 21. This case on facts projects a hazy scenario, as neither there is pleading nor evidence has been lead to show that the accident was caused, solely for the reason, of driver possessing license of one type when he was driving the vehicle of another type. A situation can be assumed that a person holding driving license for specific type of vehicle is competent and capable to drive another type of vehicle though, he is not possessing the driving license for driving such type of vehicle. 22. A marked distinction is to be drawn, in a case in which the driver is not holding the driving license at all, and in case in which the driver is holding driving license for driving a particular type of vehicle but is driving another type of vehicle. In the case of driver having no license, the insurance company cannot held to be liable to indemnify the insured. In second type of case it has to be shown and proved by leading evidence that the accident is the direct result of the driver driving another type of vehicle for which he was not holding driving license and it is the main cause of accident, then alone insurance company may avoid its liability. 23. In such type of cases where the person is holding license the insurance company in order to avoid liability to indemnify the insured has further to prove that the owner of vehicle has committed willful breach of the terms and conditions of the insurance policy. In this case, neither there is pleading nor any evidence is lead to show and prove that the owner of the vehicle has committed any willful breach in engaging the person who was not holding the driving license of the type of vehicle he was allowed to drive. 24. In this case, neither there is pleading nor any evidence is lead to show and prove that the owner of the vehicle has committed any willful breach in engaging the person who was not holding the driving license of the type of vehicle he was allowed to drive. 24. Though the insurance company has succeeded in proving that the driver was holding license to drive LTV while as at the time of accident he was driving HTV, but for the above stated reasons this appeal cannot succeed, which is accordingly dismissed.