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2014 DIGILAW 1455 (HP)

Vipan Kumar v. Devki Devi

2014-10-17

MANSOOR AHMAD MIR

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JUDGMENT : Mansoor Ahmad Mir, J. The insured-owner has called in question award dated 21st August, 2009, made by the Motor Accident Claims Tribunal, Fast Track Court, Una, District Una, H.P., (hereinafter referred to as =the Tribunal') in M.A.C. Petition No. 9/2004 RBT 25/05/04, titled as Devki Devi & another versus Vipan Kumar & others, whereby compensation to the tune of Rs.3,30,000/- with interest @ 7.5% per annum from the date of filing of the claim petition till its realization, came to be awarded in favour of the claimants-respondents No. 1 & 2, herein, for short, =the impugned award'. 2. The insured-owner has questioned the impugned award on the ground that he has committed no willful breach, as he had employed the driver, after taking all precautions. Thus, the Tribunal has fallen in error in granting right of recovery to the insurer-respondent No. 4, herein. 3. The claimants, the driver and the insurer have not questioned the impugned award, on any count, thus, it has attained finality so far as it relates to them. 4. The only question to be determined in this appeal is whether the Tribunal has rightly granted right of recovery to the insurer respondent No. 4, herein. The answer is in negative for the following reasons:- 5. The claimants had filed claim petition before the Tribunal for grant of compensation to tune of Rs.8,00,000/-, as per the break-ups given in the claim petition. 6. The owner and the driver, i.e. Vipan Kumar and Ranjeet Singh, resisted the claim petition on the grounds taken in their memo of objections. According to them, the driver was having a valid driving licence at the time of accident and the vehicle was duly insured with the insurer-Insurance Company. 7. The insurer has also resisted the claim petition on the ground that the owner has committed willful breach by engaging a driver, who was not having a valid driving licence. 8. Following issues came to be framed by the Tribunal:- ?1. Whether deceased Dharam Pal had died because of rash and negligent driving of truck No. HP-20A-3465 by respondent No. 2 Ranjit Singh on 19.9.2003 at about 8 a.m., at village Galog, Tehsil and District Solan, as alleged? …OPP 2. If issue No. 1 is proved in the affirmative, whether the petitioners are entitled to compensation, if so, how much and from whom? …OPP 3. …OPP 2. If issue No. 1 is proved in the affirmative, whether the petitioners are entitled to compensation, if so, how much and from whom? …OPP 3. Whether the claim petition is incomplete, vogue and does not disclose any cause of action as alleged, if so its effect? …OPR-3. 4. Whether the driver of offending vehicle was not holding any valid and effective driving licence at the time of accident in question as alleged, if so, its effect? ..OPR-3 5. Whether the vehicle in question was not having valid route permit and fitness certificate, as alleged, if so, its effect? …OPR-3 6. Whether the petition is bad for non-joinder of necessary parties, as alleged? …OPR-3 7. Whether the deceased was a gratuitous passenger in the vehicle in question at the time of accident as alleged, if so, its effect? ….OPR-3 8. Relief. ? 9. The claimants examined Head Constable Sunil Kumar, (PW-1), Smt. Urmila Nadda (PW-2) and Shri Pritam Kumar (PW- 4). One of the claimants, namely, Smt. Devki Devi also appeared in the witness box as PW-2. The insurer examined officers of the Licensing Authority, i.e. RW-1 Sampuran Singh and RW-3 Smt. Amarjit Kaur. The owner examined his Attorney Holder Shri Ram Pal as RW-2. 10. There is no dispute regarding issues No. 1 to 3 & 5 to 7. Accordingly, the findings returned by the Tribunal on these issues are upheld. 11. The dispute is qua issue No. 4 to the extent-from whom the compensation amount is to be recovered? 12. The insurer-Insurance Company has examined its witnesses, i.e. RW-1 Sampuran Singh and RW-3 Smt. Amarjit Kaur, who have stated that the driving licence was renewed in the name of driver Ranjeet Singh and stands exhibited as RW-2/B. 13. RW-2 Ram Pal, the General Power of Attorney of the owner, has deposed that they had examined the driving licence of Ranjeet Singh, had taken all steps to ensure whether he was competent for driving and whether he was having a valid licence and after making satisfaction, on all counts, engaged Ranjeet Singh as driver. Unfortunately, the Tribunal has not discussed this fact. Thus, the impugned award suffers from infirmity and is illegal one. 14. Unfortunately, the Tribunal has not discussed this fact. Thus, the impugned award suffers from infirmity and is illegal one. 14. While going through para-7 of the reply filed by the owner and the driver, one comes to an inescapable conclusion that the owner and his attorney holder had taken all steps, which they were supposed to do, while engaging a driver. 15. The insurer has not led any evidence to the effect that the owner has committed any willful breach in terms of the mandate of Section 149 of the Motor Vehicles Act, 1988. 16. It was for the insurer to plead and prove that the driver was not competent to drive the offending vehicle. Even otherwise, had the insurer discharged the onus, it had further to prove that the owner has committed willful breach, as held by the Apex Court in National Insurance Co. Ltd. versus Swaran Singh & others, reported in AIR 2004 SC 1531 . It is apt to reproduce relevant portion of para 105 of the judgment herein below: ?105. ..................... (i) ......................... (ii) ........................ (iii) The breach of policy condition e.g. disqualification of driver or invalid driving licence of the driver, as contained in subsection (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. 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. (iv) The insurance companies are, however, with a view to avoid their liability, must not only establish the available defences raised in the said proceedings but must also establish 'breach' on the part of the owner of the vehicle; the burden of proof wherefore would be on them. (v)......................... (iv) The insurance companies are, however, with a view to avoid their liability, must not only establish the available defences raised in the said proceedings but must also establish 'breach' on the part of the owner of the vehicle; the burden of proof wherefore would be on them. (v)......................... (vi) Even where 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 on the condition of driving licence is/are so fundamental as are found to have contributed to the cause of the accident. The Tribunals in interpreting the policy conditions would apply ?the rule of main purpose? and the concept of ?fundamental breach? to allow defences available to the insured under Section 149 (2) of available the Act.? 17. It is also profitable to reproduce para 10 of the latest judgment of the Apex Court in the case of Pepsu Road Transport Corporation versus National Insurance Company, reported in (2013) 10 SCC 217 , hereinbelow: ?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.? 18. This Court has also delivered so many judgments on the same principle. 19. Learned Counsel for the insurer has argued that Ram Pal was attorney holder of the owner, therefore, his statement cannot be taken into consideration. 20. The argument of the learned Counsel is devoid of any force for the reason that Tribunals have to decide a claim petition summarily as early as possible and procedural wrangle and tangles and mystic maybees have no role to play. It is also the duty of the Tribunals to provide relief to the claimants in order to save them from social evils i.e. destitution and other evils, who are rendered hapless and helpless because of the accident. 21. However, I have gone through the General Power of Attorney, Ext. RW-2/A, at page 119 of the claim petition, which do disclose that attorney holder Shri Ram Pal was authorized for doing all acts and duties on behalf of the owner, which as per the law he is supposed to do. 22. Having said so, the Tribunal has fallen in error in granting right of recovery to the insurer-Insurance Company. Accordingly, it is held that the insurer has to indemnify. 23. At this stage, Mr. 22. Having said so, the Tribunal has fallen in error in granting right of recovery to the insurer-Insurance Company. Accordingly, it is held that the insurer has to indemnify. 23. At this stage, Mr. Pawan Gautam, Advocate stated that the claimants have passed away during the pendency of the appeal and the amount stands deposited in favour of the claimants. It is for the legal representatives/legal heirs of the claimants to seek appropriate remedy. 24. Having said so, the impugned award is modified, as indicated above. The appeal is disposed of. 25. Send down the records after placing copy of the judgment on record.