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2012 DIGILAW 1898 (RAJ)

United India Insurance Co. Ltd. v. Vinod Kumar

2012-09-06

NISHA GUPTA

body2012
JUDGMENT 1. - This appeal under Section 173 of the Motor Vehicles Act has been filed against the judgment and award 29.6.2010 passed by the Judge, Motor Accident Claims Tribunal, Pali in MACT Case No. 12/2007. 2. The short facts of the case are that the accident has occurred on 4.2.2004 at 3.30 p.m. when the injured claimant were going from Pali to Sumerpur and reached village Mandali Bus Stand. A taxi driven rashly and negligently by respondent no.2, hit the motor cycle of the deceased. Ravindra Kumar was driving the motor cycle and the present appellant was sitting behind. Due to accident, the present appellant has received serious injuries. FIR has been lodged for the offences under Sections 279, 337, 338 IPC and Section 3/181 of the Motor Vehicles Act against the driver of the taxi Puran Singh. A claim petition was filed by the claimant and the liability has been fixed against the Insurance Company whereas the registered owner respondent no.3 has been exonerated. Hence this appeal. 3. The contention of the present appellant is that the driver of the vehicle was not having any licence at the time of accident and the owner of the vehicle handed over the vehicle to unlicensed person. Hence this is fundamental and wilful breach of policy as the respondent no.3 was the registered owner and respondent no.2 who is son of respondent no.3 was driving the vehicle and the Insurance Company should be exonerated from the liability. 4. Per contra, the contention of the claimant is that no fault could be found in the award and the counsel for respondent no.4 has stated that the liability has been fastened on him wrongly but no appeal has been filed by respondent no.4 to assail the award. 5. Heard learned counsel for the parties and perused the impugned award. 6. The contention of the Insurance Company is that respondent no.2 was not having any licence to drive any vehicle and after investigation, the charge-sheet under Section 3/181 of the Motor Vehicle Act has also been filed against respondent no.2 and nothing has been produced before the learned Tribunal by the driver and owner of the vehicle to prove the fact that respondent no.2 was having any licence to drive the vehicle. The learned Tribunal has wrongly placed burden on Insurance Company to prove the fact negatively. The learned Tribunal has wrongly placed burden on Insurance Company to prove the fact negatively. The licence could be issued from any transport office throughout the India and hence it was not possible for the Insurance Company to prove that respondent no.2 is not having any licence. It was the duty of respondent no.2 to prove that he has a driving licence. A fact can be proved positively. No negative burden could be imposed to prove any fact. 7. A specific contention of the Insurance Company before the learned Tribunal was that the driver of the vehicle is not having any licence. This fact has not been rebutted by the driver and owner of the vehicle. They remained absent from the proceedings before the learned Tribunal and further Ex.11 and Ex.12 which have been produced and proved by the claimant himself amply proved this fact that respondent no.2 was driving the vehicle. Respondent no.3 is the owner of the vehicle and at the time of accident, respondent no.2 was not having any licence. All these facts have been admitted by respondent nos. 2 and 3 in reply to the notice under Sections 133 and 134 of the Motor Vehicles Act. It is amply proved before the learned Tribunal that respondent no.2 was driving the vehicle. He was not having any licence at the time of accident and respondent no.3 is the owner of the vehicle and the learned Tribunal has erred in deciding issue no.3 against respondent no. 3 and issue no.3 is decided in favour of the Insurance Company. 8. The contention of the claimant is that in spite of the fact that respondent no.2 was not having any licence at the time of the accident, still the primary duty is casted upon the Insurance Company to pay the amount and then they are free to recover it from the owner and driver of the vehicle and reliance has been placed on National Insurance Co. Ltd. v. Swaran Singh & others (2004 ACJ 1). It is true that matter regarding fake driving licence, no driving licence or defective driving licence, all situations have been dealt with by the Hon'ble Apex Court in supra. Ltd. v. Swaran Singh & others (2004 ACJ 1). It is true that matter regarding fake driving licence, no driving licence or defective driving licence, all situations have been dealt with by the Hon'ble Apex Court in supra. But it has been held by the Hon'ble Apex Court as under:- "In each case on evidence led before the Claims 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 failures 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." 9. A bare reading of above goes to show that the the insurer will not be allowed to avoid its liability merely on technical grounds, but here in the present case, the breach of liability has not been asserted on technical grounds but the facts clearly suggest that respondent no.3 was the registered owner and respondent no.2 who is son of respondent no.3 is driving the vehicle, not having any driving licence. Hence the breach of policy is fundamental as well as wilful and the Insurance Company could not be held liable to pay the amount and reliance has been placed on Prem Kumari & others v. Prahalad dev and ors. ( 2008 ACJ 776 ) , Sardari & ors. v. Sushil Kumar & ors. ( 2008 ACJ 1307 ) , National Insurance Co. Ltd. v. Vidhyadhar Mahariwala and others ( 2008 ACJ 2860 ) and Bhuwan Singh v. Oriental Insurance Co. Ltd. and anr. ( 2009 ACJ 1426 ) wherein it has been categorically held that when the driver of the vehicle did not possess a valid driving licence, the Insurance Company has been rightly exonerated from the liability. Here the special fact remains that driver of the vehicle is son of the owner and the owner has wilfully caused the breach of the conditions of the policy. 10. Per contra, the claimant has relied on Kusum Lata & ors. Here the special fact remains that driver of the vehicle is son of the owner and the owner has wilfully caused the breach of the conditions of the policy. 10. Per contra, the claimant has relied on Kusum Lata & ors. v. Satbir and others ( 2011 ACJ 926 ) wherein pay and recover order has been given as the driver was not having effective driving licence. Here in the present case, the driver was not having any driving licence and as indicated above, the breach is also intentional. 11. Further reliance has been placed by the claimant on National Insurance Co. Ltd. v. Geeta Bhat & ors. ( 2008 ACJ 1498 ) and National Insurance Co. Ltd. v. Laxmi Narain Dhut ( 2007 ACJ 721 ) which are cases of fake licences which is not the case here and in cases of fake licences there is every possibility that the owner could not know about the forgery of the licence but here in the present case, the respondent no.3 was knowingly well that respondent no.2 was not having a licence, allowed him to drive the vehicle. These facts have been admitted by them in Ex. 11 and 12. 12. It is true that legislation is beneficial but beneficial for claimant only not for the owner or driver specially who are disobedient to the law. 13. Hence looking at the above, it can safely be concluded that issue no.3 has been wrongly decided against the Insurance Company. It stands decided in favour of the Insurance Company and the Insurance Company is exonerated from the liability. If any amount has been paid by the Insurance Company, it is free to recover it from the owner of the vehicle-respondent no.3 and 4. 14. The contention of respondent no. 4 is that he is not owner of the vehicle but no appeal has been filed by respondent no.4 and hence this issue could not be taken.In view of the above, this appeal is hereby allowed as indicated above.Appeal Allowed. *******