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2012 DIGILAW 689 (KER)

Oriental Insurance Co. Ltd. v. Jayan

2012-07-20

HARUN-UL-RASHID

body2012
JUDGMENT : The 3rd respondent in O.P.(MV).No.430/2006 on the file of the M.A.C.T, Kollam is the appellant. The appeal is directed against the award in the said O.P. The Tribunal awarded Rs.56,052/- with interest @ 7.5% and costs to the claimant as compensation for the injuries sustained in the accident. Parties hereinafter are referred to as the claimant and respondents as arrayed in the claim petition. 2. The claimant sustained injuries when motor cycle KL-04-T-2930 ridden by the 1st respondent came from behind and dashed on the rear of the claimant. The accident occurred on 25.12.2005. Respondents 1 & 2 who are the driver and owner respectively, did not contest the case. The 3rd respondent insurer admitted that there is a valid insurance policy. It is contended that the insurance company is not liable to indemnify the respondents, since at the material time of the accident, the 1st respondent did not possess a valid driving licence to drive a motor cycle, that there were two persons on the pillion of the motor cycle and that the claimant was crossing the road after consuming alcohol. 3. The claimant was examined as PW1. Exts.A1 to A10 series were marked on his side. No evidence was adduced by the 3rd respondent who is the appellant. 4. The claimant was treated as an inpatient for 20 days out of which 14 days treatment was in ICU and he was discharged on 13.1.2006. On an evaluation of the evidence on record, the Tribunal found that the petitioner is entitled to get compensation and awarded Rs.56,052/- as compensation. 5. The learned counsel for the insurance company contended that the driver of the offending vehicle did not have a valid and effective driving licence to drive the vehicle at the material time of the accident. The learned counsel also relied on the decisions reported in Sardari and others v. Sushil Kumar and others ( 2008 ACJ 1307 ), National Insurance Company v. Vidyadhar Mahariwala and others ( AIR 2009 SC 208 ), New India Assurance Co. Ltd. v. Suresh Chandra Aggarwal ( (2009) 15 SCC 761 ), Ishwar Chandra and others v. Oriental Insurance Co.Ltd and others ( 2007 ACJ 1067 ), Ram Babu Tiwari v. United India Insurance Company Ltd. and others ( 2008 (8) SCC 165 ) and National Insurance Co. Ltd. v. Suresh Chandra Aggarwal ( (2009) 15 SCC 761 ), Ishwar Chandra and others v. Oriental Insurance Co.Ltd and others ( 2007 ACJ 1067 ), Ram Babu Tiwari v. United India Insurance Company Ltd. and others ( 2008 (8) SCC 165 ) and National Insurance Co. Ltd. v. Kusum Rai ( 2006 (2) KLT 300 (SC)) and canvassed the position therein that the insurance company is not liable to compensate the claimant as an insurer. 6. The Tribunal held that there is no evidence in the police records in the connected criminal case to believe the defence of the insurance company that the 1st respondent is not having a valid driving licence. 7. The Apex Court in National Insurance Company v. Swaran Singh ( 2004 (1) KLT 781 (SC)) held as follows: "The person who alleges breach must prove the same. The insurance company is, thus, required to establish the said breach by cogent evidence. In the event the insurance company fails to prove that there has been breach of conditions of policy on the part of the insured, the insurance company cannot be absolved of its liability." It was also held that, "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 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 duly licenced driver or one who was not disqualified to drive at the relevant time". Clause (6) in the summary of findings in paragraph 102 in the above referred decision it was held that unless 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 insured unless the said breach or breaches of the conditions of driving licence is/are so fundamental as are found to have contributed to the cause of the accident. From the above said dictum it is clear that not only fake or invalid driving licences or disqualification of the driver for driving at the relevant time are not themselves available to the insurer against the insured or third parties, the absence of licence is also, it is stated, is not by themselves a defence available to the insurer in a case where a person drove the vehicle without a licence. To avoid its liability towards 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 duly licenced driver or one who was disqualified to drive at the relevant time. Therefore, it is clear that the absence of driving licence by itself is not a defence available to the insurer. The Apex Court in paragraph 77 of the Swaran Singh's case (supra) considered the specific question as to the liability of the insurer, when admittedly no licence was obtained by a driver. The Apex Court held as follows: Where the driver of the vehicle admittedly did not hold any licence and the same was allowed consciously to be driven by the owner of the vehicle by such person, the insurer is entitled to succeed in its defence and avoid liability". 8. The insurer in order to succeed in its defence and to avoid its liability in a case like this, mere absence of the driving licence by the person who drove the vehicle at the time of accident is not enough, the insurance company has to prove that the vehicle was allowed consciously to be driven by the owner of the vehicle by a person who is not holding a valid licence. So, there should be evidence to show that the owner after full knowledge about the fact that the person who drove the vehicle * has no licence allowed consciously to drive the vehicle. The insurer also has to prove that the owner was guilty of negligence and failed to exercise reasonable care in the matter of fulfilling the conditions of the policy. ln this case, the insurance company did not adduce any evidence to show that the owner of the vehicle consciously allowed the second respondent to drive the vehicle. The insurer also has to prove that the owner was guilty of negligence and failed to exercise reasonable care in the matter of fulfilling the conditions of the policy. ln this case, the insurance company did not adduce any evidence to show that the owner of the vehicle consciously allowed the second respondent to drive the vehicle. The insurance company also did not give any evidence to prove that the owner of the vehicle was guilty of negligence and the owner failed to exercise reasonable care in the matter of fulfilling the conditions of policy. In the result, the appeal fails and accordingly dismissed. No order as to costs.