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2014 DIGILAW 1540 (HP)

Oriental Insurance Company v. Prabha Devi

2014-10-31

MANSOOR AHMAD MIR

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JUDGMENT : Mansoor Ahmad Mir, J. Challenge in this appeal is to the award, dated 4th August, 2007, made by the Motor Accident Claims Tribunal (II), Shimla, H.P. (hereinafter referred to as ?the Tribunal?) in M.A.C. Petition No. 14-S/2 of 2003, titled as Smt. Prabha Devi and another versus Smt. Krishna Shail and another, whereby compensation to the tune of Rs. 3,00,000/- with interest @ 7.5% per annum from the date of the petition came to be awarded in favour of the claimants (hereinafter referred to as ?the impugned award), on the grounds taken in the memo of appeal. Brief Facts: 2. The claimants have sought compensation to the tune of Rs. eleven lacs, as per the break-ups given in the claim petition, on the ground that deceased, Shri Sanjeev, became victim of motor vehicular accident caused by the driver, namely Shri Ajeet Pundeer, on 24th January, 2003, at Jhal-Nullah, while driving the truck, bearing registration No. HP-51-1556, rashly and negligently. 3. The owner and the insurer have resisted the claim petition on the grounds taken in the respective memo of objections. 4. Following issues came to be framed by the Tribunal on 7th March, 2006: ?1. Whether on 24.1.2003 at 10 PM at Tihana, the driver of truck No. HP-51-1556 rashly and negligently and as such caused death of Sh. Sanjeev? OPP 2. If issue No. 1 is proved in affirmative, to what amount of compensation the petitioners are entitled and from whom? OPP 3. Whether the driver of truck No. HP-51-1556 was not holding a valid and effective driving licence? OPR 4. Whether the deceased was an unauthorized passenger in the truck? OPR 5. Whether the vehicle was being driven without fitness certificate and route permit? OPR 6. Relief.? 5. The claimants examined Dr. Ashok Chauhan as PW-2, Shri Sumesh Thakur as PW-3, Shri Rajinder Singh as PW-4, HC Vijay Kumar as PW-5 and one of the claimants, namely Smt. Prabha Devi, appeared in the witness box as PW-1. The owner-insured, namely Smt. Krishana Shail, herself appeared in the witness box as RW-1. The insurer has examined Shri Vikas Wig as RW-2 and Shri Naresh Kumar as RW-3. 6. The owner-insured, namely Smt. Krishana Shail, herself appeared in the witness box as RW-1. The insurer has examined Shri Vikas Wig as RW-2 and Shri Naresh Kumar as RW-3. 6. The Tribunal, after scanning the evidence, oral as well as documentary, held that the driver had driven the offending vehicle rashly and negligently on 23rd January, 2004, and had caused the accident, in which Shri Sanjeev, son of the claimants, died. The findings returned by the Tribunal on issue No. 1 are not in dispute, thus, are accordingly upheld. 7. Before I deal with issue No. 2, I deem it proper to determine issues No. 3 to 5. Issue No. 3: 8. The appellant-insurer had to discharge the onus to prove this issue, had led evidence to the effect that the driving licence of the driver was fake. 9. Learned counsel for the appellant-insurer argued that the driver of the offending vehicle was not having a valid and effective driving licence, thus, the appellant-insurer was not liable to pay the compensation. 10. The appellant-insurer has not proved that the owner insured had committed any willful breach in terms of the mandate of Section 149 of the Motor Vehicles Act, 1988 (hereinafter referred to as ?the MV Act?) read with the terms and conditions of the insurance policy. In fact, it has not led any evidence to the effect that the owner-insured has not discharged her duty. 11. The owner-insured, namely Smt. Krishna Shail, while appearing as RW-1, has specifically stated that she has examined the driving licence before engaging Shri Ajeet Pundeer as driver. In her cross-examination, she has refuted the suggestion that she had not verified that Ajeet Pundeer was having driving licence or not. It is apt to reproduce relevant portion of the cross-examination of the owner-insured herein: ?...........It is incorrect that I did not see and verify whether Ajeet Pundeer was having driving licence or not. It is incorrect that I did not see his driving licence. It is incorrect that I have made a wrong statement in this context.? 12. The Apex Court in a case titled as National Insurance Co. Ltd. versus Swaran Singh and others, reported in AIR 2004 Supreme Court 1531, has laid down principles, how insurer can avoid its liability. It is apt to reproduce relevant portion of para 105 of the judgment in Swaran Singh's case (supra): ?105. ..................... (i) ......................... 12. The Apex Court in a case titled as National Insurance Co. Ltd. versus Swaran Singh and others, reported in AIR 2004 Supreme Court 1531, has laid down principles, how insurer can avoid its liability. It is apt to reproduce relevant portion of para 105 of the judgment in Swaran Singh's case (supra): ?105. ..................... (i) ......................... (ii) ........................ (iii) ….................. (iv) The insurance companies are, however, with a view to avoid their liability, must not only establish the available defence(s) 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 1137 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 the Act.? 13. It would also be profitable to reproduce para 10 of the judgment rendered by the Apex Court in Pepsu Road Transport Corporation versus National Insurance Company, reported in (2013) 10 Supreme Court Cases 217, herein below: ?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. 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. 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.? 14. Having said so, I am of the considered view that the insurer has failed to prove that the owner-insured has committed any willful breach. The owner-insured has discharged her duty by examining the driving licence before employing the driver. Thus, the Tribunal has rightly recorded the findings on issue No. 3 and has not committed any error in saddling the appellant-insurer with liability. Accordingly, findings returned on issue No. 3 are upheld. Issue No. 4: 15. Learned counsel for the appellant-insurer argued that the deceased was travelling as a gratuitous passenger in the offending vehicle. The appellant-insurer has not led any evidence to this effect, thus, has failed to discharge the onus. 16. The claimants have examined Shri Sumesh Thakur as PW- 3 to prove that the deceased had purchased steel, cement and binding wires from his shop and was travelling in the offending vehicle as owner of the said goods. The appellant-insurer has not led any evidence to this effect, thus, has failed to discharge the onus. 16. The claimants have examined Shri Sumesh Thakur as PW- 3 to prove that the deceased had purchased steel, cement and binding wires from his shop and was travelling in the offending vehicle as owner of the said goods. Thus, issue No. 4 came to be rightly decided in favour of the claimants and against the appellant-insurer and the findings are accordingly upheld. Issue No. 5: 17. The appellant-insurer has not led any evidence to prove that the offending vehicle was being driven without fitness certificate and route permit. The Tribunal has rightly decided this issue against the appellant-insurer and is accordingly upheld. Issue No. 2: 18. The adequacy of compensation is not in dispute. The findings returned on issue No. 2 are upheld. 19. Having said so, the appeal merits to be dismissed. Accordingly, the appeal is dismissed and the impugned award is upheld. 20. Registry is directed to release the awarded amount in favour of the claimants strictly as per the terms and conditions contained in the impugned award through payee's account cheque. 21. Send down the records after placing copy of the judgment on Tribunal's file.