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2013 DIGILAW 374 (UTT)

GUMAN DAS v. SUNITA

2013-06-25

Prafulla C.Pant

body2013
JUDGMENT Hon’ble Prafulla C. Pant, J. All these five appeals have arisen out of same accident, and same question of law is involved in these appeals. 2. Heard learned counsel for the appellant (owner of the vehicle), and learned counsel for the respondent Insurance Company (United India Insurance Company) and perused the record of the tribunal. 3. Brief facts, of the case, are that on 23.09.2005, at about 8:30 p.m., on Chakrata Lakha Mandal Road near Kadawa (Indroli), respondent Dhani Ram was driving utility vehicle bearing registration no. UA07E 4724 rashly and negligently, and consequently vehicle fell in a gorge. In the accident five persons namely Dinesh, Gyaru Das, Daulat Ram, Raniya and Fulma lost their lives. The first information report of the accident was lodged by one Pooran Chand. Dead bodies of five deceased were taken by the police in their custody, and after preparing inquest report their post mortem examinations were conducted. Dependants of Dinesh filed Claim Petition No. 289 of 2005, dependants of Gyaru Das filed Claim Petition No. 286 of 2005, dependants of Daulat Ram filed Claim Petition no. 285 of 2005, dependants of Raniya filed Claim Petition No. 293 of 2005, and dependants of Fulma filed Claim Petition no. 294 of 2005. In all those claim petitions Dhani Ram, driver of the vehicle, Guman Das, owner of the vehicle (present appellant) and United India Insurance Company Ltd. with whom the vehicle was insured were impleaded as respondents. 4. The Motor Accident Claims Tribunal, Dehradun, before whom claim petitions were filed, issued notices to the respondents. Driver and owner of the vehicle filed their joint written statements, separately in each claim petition, and took a plea that accident had occurred on account of technical defect in the vehicle. It is further pleaded that vehicle was being driven with a valid license. They also pleaded that vehicle was insured with United India Insurance Company Ltd. Dehradun. 5. Respondent no. 3 before the tribunal i.e. United India Insurance Company filed its separate written statement in each claim petition, and denied that the driver was holding valid license. It is further pleaded that vehicle was being driven in violation of the conditions mentioned in the permit, registration certificate and fitness certificate. 6. On the basis of the pleadings of the parties following issues were framed separately on each claim petition. (i) Whether vehicle utility no. It is further pleaded that vehicle was being driven in violation of the conditions mentioned in the permit, registration certificate and fitness certificate. 6. On the basis of the pleadings of the parties following issues were framed separately on each claim petition. (i) Whether vehicle utility no. UA07E 4724 was being driven rashly and negligently by opposite party no. 1 (Dhani Ram) on 23.09.2005 at about 8:30 p.m on Chakrata Lakha Mandal Road and due to said act, vehicle fell in the gorge causing death (of five persons including the deceased) mentioned in the claim petition? (ii) Whether the driver of the vehicle utility no. UA07 E 4724 did not possess the valid driving license? (iii) To what amount of compensation the claimants are entitled, and from whom? (iv) Whether the vehicle was being plied in violation of conditions and policy of permit as alleged in the written statements? 7. In all the five cases evidence was recorded separately by the tribunal, and in each case it was held that the driver of the vehicle was driving it with a valid license. However, the tribunal held that one of the conditions mentioned in permit issued for the vehicle was valid as the driving license was more than five years old. Considering the income of the deceased in each case, and further considering the dependency etc, of the claimants the tribunal awarded Rs. 3,67,000/- to claimants in MAC no. 289 of 2005, Rs. 2,47,000/- in MAC no. 286 of 2005, Rs. 3,19,000/- in MAC no. 285 of 2005, Rs. 2,90,000/- in MAC no. 293 of 2005 and Rs. 2,90,000/- in MAC no. 294 of 2005. In all the cases the Motor Accident Claims Tribunal/ Additional District Judge/I Fast Track Court, Dehradun, directed that the respondent United India Insurance Company shall pay the amount of compensation but the same can be recovered from owner of the vehicle Guman Das (appellant). Aggrieved by said award dated 19.11.2008 passed by Motor Accident Claims Tribunal/I Fast Track Court, Dehradun, owner of the vehicle filed Appeal from Order No. 85 of 2009 in connection with award in MAC No. 289 of 2005, Appeal from Order no. 86 of 2009 against award dated 19.11.2008 passed by said tribunal in MAC no. 286 of 2005, Appeal from Order No. 220 of 2009 against the award dated 01.04.2009 passed in MAC no. 86 of 2009 against award dated 19.11.2008 passed by said tribunal in MAC no. 286 of 2005, Appeal from Order No. 220 of 2009 against the award dated 01.04.2009 passed in MAC no. 285 of 2005, Appeal from Order No. 222 of 2009 against the award dated 01.04.2009 passed in MAC no. 294 of 2005, Appeal from Order no. 221 of 2009 against award dated 21.03.2009 passed in MAC No. 293 of 2005, before this Court. 8. The only point on which the appeal is argued on behalf of the appellant (owner of the vehicle), and the Insurance Company with whom vehicle was insured on the day of the accident is that as to whether the tribunal has erred in law in holding that the owner of the vehicle was liable to pay compensation for violation of one of the conditions of permit under which the vehicle was plying. 9. Shri Anil Kumar Joshi, learned counsel for the appellant drew attention of this Court to the law laid down by the Apex Court in National Insurance Company Ltd. vs. Swaran Singh and others (2004) 3 SCC 297 , and it is contended that the tribunal has erred in law in discharging the Insurance Company from its liability due to the petty violation mentioned in the permit of the vehicle. It is further argued that it is not each and every violation of condition for which the Insurance Company can get freed from its liability to pay compensation on behalf of the insured. Sub Para (vi) of paragraph 110 of aforesaid case delivered by three Hon’ble Judges of the Apex Court reads as under: “Even where the insurer is able to prove breach on the part of the insured concerning the policy condition regarding holding of a valid license 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 driving license is/are so fundamental as are found to have contributed to the cause of the accident. The Tribunal 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.” 10. The Tribunal 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.” 10. In the present appeals before this Court which have arisen out of the same accident, the tribunal has found that the driver was driving a vehicle with a valid license. In all the five cases it is also held that the vehicle was being rashly and negligently driven by the driver. It is also not disputed that the Utility vehicle bearing registration no. UA07 E 4724 (which was involved in the accident) was insured with United India Insurance Company, Dehradun, on the date of the accident. The only ground on which the tribunal has exempted the insurance company with whom the vehicle was insured is that the vehicle was being plied by the owner under the permit in which there was a term mentioning that the driving license should not be more than five years old. Said condition did not find place anywhere in the terms of the policy. It is also relevant to mention here that Annex. 2 filed with the AO No. 86 of 2009 shows that the owner’s claim for damage to the vehicle was cleared by the insurance company without raising objection as to its liability. 11. In the above facts and circumstances of the case, this Court is of the view that the breach of condition mentioned by the tribunal cannot be said to be fundamental in nature which entitles the insurance company exempted from the liability to pay the compensation. Therefore, this Court is of the opinion that in the facts and circumstances of these appeals, the tribunal has erred in law in holding that the insurance company can recover the amount awarded by the tribunal from the owner of the vehicle. 12. For the reasons as discussed above, all these five appeals are allowed, and the observations made by the tribunal that the insurance company can recover the amount of compensation from the owner of the vehicle in the impugned awards, is hereby set aside. It is clarified that the impugned five awards are not interfered with in respect of the other findings, and directions, given by the tribunal. The records of the five cases be sent back to the tribunal concerned.