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2012 DIGILAW 34 (CHH)

Oriental Insurance Co. Ltd. v. Bhuri Bai

2012-01-24

GULAM MINHAJUDDIN, I.M.QUDDUSI

body2012
ORDER : I.M. QUDDUSI, J. 1. This appeal has been filed by the appellant/Insurance Company against the impugned award dated 10.5.2007, passed by the First Additional M.A.C.T. Bilaspur in Claim Case No. 147/2006, awarding a sum of Rs. 3,74,500/- as compensation along with interest at the rate of 6% per annum from the date of the application, holding the non-applicants, including the appellant/Insurance Company, as jointly and severally liable to pay the amount of compensation. Brief facts of the case are that on 8.3.2006 deceased Bahoranlal Suryavanshi along with two other persons was going by bullock cart to Ara-mill. At that time the Hywa-Truck, bearing registration No. C.G. 10-A/9938, which was being driven in a rash and negligent manner by the non-applicant No. 1, dashed the bullock cart. As a result of this accident Bahoranlal Suryavanshi sustained grievous injuries and during the treatment on 9.3.2006 at about 10.00 p.m. he succumbed to the injuries. 2. The claimants/dependents of the deceased filed a claim case u/s 166 of the Motor Vehicles Act, 1988 claiming total compensation of Rs. 4,66,000/-. 3. Learned Claims Tribunal having regard to the facts situation and the evidence on record awarded the total sum of Rs. 3,74,500/- as compensation to the claimants along with interest @ 6% per annum from the date of the application, holding the non-applicants jointly and severally liable to pay the amount of compensation. Being aggrieved the appellant/Insurance Company has filed the instant appeal. 4. We have heard learned counsel appearing for the parties and perused the record. 5. Learned counsel appearing for the appellant submits that although there was an insurance policy issued by the appellant (put since the driver of the offending vehicle was not having a valid and effective driving licence to drive the offending vehicle, therefore, the insurance company is not liable to pay the amount of compensation. 6. On perusal of the papers on record, it is evident that the owner of the vehicle (Murari Lai Gupta) has appeared in the witness box as A.W. 12, who had certified (Ex.P/10) that the non-applicant No. 1 (Shankar Lai Raj) was driving the offending vehicle since last three months from the date of the accident i.e. 8.3.2006. 6. On perusal of the papers on record, it is evident that the owner of the vehicle (Murari Lai Gupta) has appeared in the witness box as A.W. 12, who had certified (Ex.P/10) that the non-applicant No. 1 (Shankar Lai Raj) was driving the offending vehicle since last three months from the date of the accident i.e. 8.3.2006. In his affidavit the owner has stated that after making enquiry about the experience, work and conduct of the driver and having satisfied with his driving, the owner had engaged the driver to drive the offending vehicle. In his cross examination the owner has admitted that although he had seen the driving licence but did not get it verified. The driver of the offending vehicle was having the licence since 25.5.1989, which was being renewed from time to time and according to the last entry it is apparent that the licence was renewed for the period from 6.7.2000 to 5.7.2003 to drive HMV. 7. Shri Umesh Tripathi, Assistant Grade-Ill from the office of the R.T.O. Bilaspur had appeared in the witness box and admitted that he had not brought the original register relating to the relevant date i.e. 25.5.1989 and he was not sure about the issue of driving licence to the driver of the offending vehicle. However, Anil Sao, Administrative Officer of the Insurance Company has deposed that he had obtained a report (Ex. D/2) from the R.T.O. Bilaspur about the Driving Licence No. S-3117/SP/89, issued on 25.5.1989, wherein it was reported that such a licence was not issued from the R.T.O. Bilaspur. 8. In the case of National Insurance Co. Ltd. Vs. Swaran Singh and Others, (2004) 3 SCC 297 the principles laid down in United India Insurance Company Ltd. Vs. Lehru and Others, (2003) 3 SCC 338 that the insurer is to establish willful 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. In para 92 of the decision in Swarn Singh (supra) Hon'ble Supreme Court held as under: 92. "Where the driver's licence is found to be fake. 92. In para 92 of the decision in Swarn Singh (supra) Hon'ble Supreme Court held as under: 92. "Where the driver's licence is found to be fake. 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 willful 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. We would be dealing in some detail with this aspect of the matter a little later. 9. Summary of the findings given in clause (iii) in para 110 of the decision in Swam Singh (supra) is also relevant which is quoted below: (iii) The breach of policy condition 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. 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. 10. In the case of Lal Chand Vs. Oriental Insurance Co. Ltd., (2006) 7 SCC 318 the principles laid down in the cases of Lehru and Swarn Singh (supra) have been followed. Paragraphs 8, 9, and 11 of the judgment are relevant, which are quoted below: 8. 10. In the case of Lal Chand Vs. Oriental Insurance Co. Ltd., (2006) 7 SCC 318 the principles laid down in the cases of Lehru and Swarn Singh (supra) have been followed. Paragraphs 8, 9, and 11 of the judgment are relevant, which are quoted below: 8. We have perused the pleadings and the orders passed by the Tribunal and also of the High Court and the annexures filed along with the appeal. This Court in United India Insurance Co. Ltd. v. Lehru in SCC para 20 has observed that where the owner has satisfied himself that the driver has a licence and is driving competently there would be no breach of Section 149(2)(a)(ii). He will, therefore, have to check whether the driver has a driving licence and if the driver produces a driving licence, which on the face of it looks genuine, the owner is not expected to find out whether the licence has in fact been issued by a competent authority or not. The owner would then take test of the driver, and if he finds that the driver is competent to drive the vehicle, he will hire the driver. 9. In the instant case, the owner has not only seen and examined the driving licence produced by the driver but also took the test of the driving of the driver and found that the driver was competent to drive the vehicle and thereafter appointed him as driver of the vehicle in question. Thus, the owner having satisfied himself that the driver had a licence and was driving competently, there would be no breach of Section 149(2)(a)(ii) and the Insurance Company would not then be absolved of its liability. 10. Another decision rendered by a three-Judge Bench of this Court in National Insurance Co. Ltd. v. Swarn Singh can also be usefully referred to in the present context. This Court in para 110 of this judgment gave the summary of their findings to the various issues as raised in those petitions. We are concerned only with sub-para (iii) of para 110. The said sub-para (iii) reads thus: (SCC p. 341) (iii) The breach of policy condition 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. The said sub-para (iii) reads thus: (SCC p. 341) (iii) The breach of policy condition 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. 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. 11. As observed in the above paragraph, the insurer, namely, the insurance Company, has to prove that the insured, namely, the owner of the vehicle, 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 point of time. 11. In view of the above ratio laid down by Hon'ble Apex Court in the cases of Lahru, Swarn Singh and Lai Chand (supra) and the statement of the owner that he had seen the driving licence produced by the driver, his past experience of driving vehicle with the other transporters was taken into account and his driving test was taken before giving him appointment, go to show that the owner had taken precaution before giving employment to the driver and was satisfied that the driver was having a valid driving licence and was perfect in driving and then the employment was given. Therefore, there is no scope for the insurer to raise the plea that there was breach of the conditions of the insurance policy that the driver was not having a valid and effective driving licence. In view of the foregoing, the appeal fails and is dismissed. No order as to costs.