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2014 DIGILAW 1017 (HP)

Oriental Insurance Company Ltd v. Karam Singh

2014-08-01

MANSOOR AHMAD MIR

body2014
JUDGMENT Mansoor Ahmad Mir, Chief Justice (oral) FAO No. 77 of 2012 is against the judgment and award dated 21st November, 2011, made by the Motor Accident Claims Tribunal-II, Mandi, District Mandi in Claim Petition No.38 of 2004, titled Sh. Karam Singh vs. M/s the Kangra Ex-Serviceman TPT, Kangra & others, whereby a sum of Rs.40,290/- alongwith interest at the rate of 7.5% per annum came to be awarded as compensation in favour of the claimant, for short the “impugned award”. 2. FAO No. 75 of 2012 is against the judgment and award dated 21st November, 2011, made by the Motor Accident Claims Tribunal-II, Mandi, District Mandi in Claim Petition No.26 of 2004, titled Nirmala Devi & others vs. M/s the Kangra Ex-Serviceman TPT, Kangra & others, whereby a sum of Rs.8,83,460/- alongwith interest at the rate of 7.5% per annum came to be awarded as compensation in favour of the claimant, for short the “impugned award”. 2. 3. FAO No. 78 of 2012 is against the judgment and award dated 21st November, 2011, made by the Motor Accident Claims Tribunal-II, Mandi, District Mandi in Claim Petition No.48 of 2004, titled Gangvir Singh vs. M/s the Kangra Ex-Serviceman TPT, Kangra & others, whereby a sum of Rs.2,90,000/- alongwith interest at the rate of 7.5% per annum came to be awarded as compensation in favour of the claimant, for short the “impugned award”. 4. All these three appeals are outcome of a motor vehicle accident, allegedly caused by Satish Kumar driver while driving the offending vehicle bearing registration No.HP-40-5537 rashly and negligently on 28.1.2004. The claimants in all the three appeals have filed the claim petitions for grant of compensation as per the break-ups given in the claim petitions. 5. The following issues came to be framed in all the claim petitions though separately:- 1. Whether the petitioner sustained injuries due to rash and negligent driving of bus No.HP-40-5537 on 28.1.2004 at about 2.30 PM at place Lakhwan being driven by respondent No.2 as alleged, OPP 2. If issue No.1 is proved in affirmative, to what amount of compensation, the petitioner is entitled and from whom? OPP 3. Whether respondent No.2 was not having valid and effective driving license at the time of accident? OPR-3 4. Whether the offending vehicle was being driven in violation of the terms and conditions of the Insurance Policy? OPR-3 5. Relief. 6. OPP 3. Whether respondent No.2 was not having valid and effective driving license at the time of accident? OPR-3 4. Whether the offending vehicle was being driven in violation of the terms and conditions of the Insurance Policy? OPR-3 5. Relief. 6. The parties have led evidence in all the three claim petitions and separate awards have been passed. The claimants, driver and owner have not questioned the impugned awards and only the insurer questioned the same on the ground that the insurer was not liable to pay the compensation because the owner has committed the breach of the Insurance Policy. The insurer has examined only one witness, namely, Chandu Lal, Licensing Clerk, RLA Kangra as RW-1, who has deposed that driver Satish Kumar was having the licence which was numbered as S/33710. He has also admitted that the licence was bearing the endorsement for driving the heavy motor vehicle. Thus, the insurer has admitted that the driver was having the valid driving licence. The other issues are not disputed so, I deem it proper to decide issues No. 3 and 4. 7. As discussed hereinabove, it was for the insurer to prove that the insured-owner has committed the breach of the insurance policy and the driver was not having the valid and effective driving licence. The witness produced by the insurer has not supported its case but virtually supported the case of the owner and driver. 8. In terms of the Apex Court judgment in National Insurance Co. Ltd. versus Swaran Singh & others, reported in AIR 2004 Supreme Court 1531, it is for the insurer to prove and plead that the insured-owner has committed the breach of the insurance policy and driver was not having the valid and effective driving licence. It is apt to reproduce relevant portion of para 105(iii) of the judgment hereinbelow: “105. (iii) The breach of policy condition e.g. disqualification of driver or invalid driving licence of the driver, as contained in sub-section (2) (a) (ii) of Section 149, have 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. 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 licensed driver or one who was not disqualified to drive at the relevant time”. 9. I am also supported by the latest judgment of the Apex Court in the case of Pepsu Road Transport Corporation versus National Insurance Company, reported in (2013) 10 Supreme Court Cases 217, that the insurer has to prove that the insured has committed willful breach of the insurance policy and it is not for the insured to move here and there. It is apt to reproduce para 10 of the judgment: “10. In a claim for compensation, it is certainly open to the insurer under Section 149(2)(a)(ii) to take a defence that the driver of the vehicle involved in the accident was not duly licensed. Once such a defence is taken, the onus is on the insurer. But even after it is proved that the licence possessed by the driver was a fake one, whether there is liability on the insurer is the moot question. As far as the owner of the vehicle is concerned, when he hires a driver, he has to check whether the driver has a valid driving licence. Thereafter he has to satisfy himself as to the competence of the driver. If satisfied in that regard also, it can be said that the owner had taken reasonable care in employing a person who is qualified and competent to drive the vehicle. The owner cannot be expected to go beyond that, to the extent of verifying the genuineness of the driving licence with the licensing authority before hiring the services of the driver. The owner cannot be expected to go beyond that, to the extent of verifying the genuineness of the driving licence with the licensing authority before hiring the services of the driver. However, the situation would be different if at the time of insurance of the vehicle or thereafter the insurance company requires the owner of the vehicle to have the licence duly verified from the licensing authority or if the attention of the owner of the vehicle is otherwise invited to the allegation that the licence issued to the driver employed by him is a fake one and yet the owner does not take appropriate action for verification of the matter regarding the genuineness of the licence from the licensing authority. That is what is explained in Swaran Singh case. If despite such information with the owner that the licence possessed by his driver is fake, no action is taken by the insured for appropriate verification, then the insured will be at fault and, in such circumstances, the Insurance Company is not liable for the compensation.” 10. Having said so, the insurer has failed to prove that the owner has committed breach of the Insurance Policy and I am of the considered view that the Tribunal has rightly saddled the insurer with the liability. The claimants have not questioned the impugned awards and the same are accordingly upheld. All the three appeals are dismissed. 11. The Registry is directed to release the awarded amount in favour of the claimants, strictly as per the terms and conditions contained in the impugned awards. 12. Send down the records after placing copy of the judgment on record of each file. 13. The impugned awards are upheld and the appeals are accordingly dismissed.