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2014 DIGILAW 176 (CHH)

NANDKISHORE SAHU v. PRITAM

2014-04-25

PRITINKER DIWAKER

body2014
ORDER 1. This appeal arises out of the award dated 25.11.2011 passed by Additional Motor Accident Claims Tribunal (for short the "Tribunal") Durg, in Claim Case No. 93/2011 awarding a compensation of Rs. 3,26,500/- in favour of the claimants. 2. Facts of the case in brief are that on 3.3.2010 when deceased S. Sugthan was walking on the road, he was dashed by a Hero Honda motorcycle bearing registration No. CG-07-LL/0484 owned by appellant No.2 and driven by appellant No.1 in a rash and negligent manner resulting in number of injuries to which he succumbed on 16.03.2010 during treatment in the hospital. 3. Claim case was filed by the claimants who are major son, mother, daughter-in-law and two grand children of the deceased claiming compensation of Rs. 76, 20,920/- inter alia pleading that the deceased was a civil contractor having monthly income Rs. 18,000/-, he was aged about 55 years, he died on account of rash and negligent driving of the offending vehicle by appellant No.1 herein and the vehicle was duly insured with respondent No.6/insurance company, suitable compensation may be awarded to them. 4. Appellants who are driver and owner have contested the claim on the general grounds. They have however admitted the fact that the vehicle in question was duly insured with the insurance company. 5. Insurance company contested the claim on all the grounds and denied its liability to satisfy the claim. It has taken the stand that as on the date of accident the driver of the offending vehicle was not having valid and effective driving licence, no liability can be fastened on the Insurance Company. However, assessing the monthly income of the deceased as Rs. 3,000/-, the Tribunal has awarded a compensation of Rs. 3,26,500/- on the following heads: (i) Loss of dependency - Rs. 2,97,000/- (ii) Love and affection - Rs. 25,000/- (5,000 each) (iii) Funeral expenses - Rs. 2,000/- (iv) Loss of assets - Rs. 2,500/- Total - Rs. 3,26,500/- Tribunal has further held that as on the date of accident the driver was minor and he was not having valid driving licence, liability cannot be fastened on the insurance company and thus it has completely exonerated the insurance company of its liability. 2,000/- (iv) Loss of assets - Rs. 2,500/- Total - Rs. 3,26,500/- Tribunal has further held that as on the date of accident the driver was minor and he was not having valid driving licence, liability cannot be fastened on the insurance company and thus it has completely exonerated the insurance company of its liability. It is this award which has been challenged by driver and owner of the vehicle in question on the following grounds : (i) That the finding of the Tribunal exonerating the insurance company of its liability on the ground that on the date of incident driver of the offending vehicle was not having valid and effective driving licence is not correct because the licence was duly issued by the competent authority and unless it is cancelled by the competent authority, it would remain valid. (ii) That before the Tribunal the owner had filed an application under Order XI Rule 14 CPC along with original birth certificate of appellant No.1 Nandkishore wherein his date of birth has been recorded as 18.8.1991 which is contrary to the date of birth recorded in the licence as 18.8.1992. (iii) That the Tribunal has erred in law in rejecting the application filed by the appellants under Order XI Rule 14 CPC. 6. On behalf of the claimants it has been argued as under : (i) That the compensation awarded by the Tribunal is just and proper and calls for no interference in this appeal. (ii) That the Tribunal has erred in law in exonerating the insurance company from its liability. (iii) That the breach of terms and conditions of the policy has not been proved by the insurance company. (iv) That the insurance company has not examined any person from the RTO nor established the fact that date of birth of the driver was 18.8.1992 and the same was correctly recorded in the documents of RTO. (v) That there is admission on the part of appellant No.2 Jodharam Sahu that in the driving licence date of birth of appellant No.1 Nandkishore has been recorded as 18.8.1992 but this itself is not a proof of his correct date of birth especially when his original birth certificate was produced by Jodharam Sahu before the Tribunal along with application filed under Order XI Rule 14 CPC which was erroneously rejected by the Tribunal. He submits that the original birth certificate of Nandkishore is on record which has not been disputed by the insurance company till date and therefore the same can be considered by this Court in the larger interest of justice. (vi) Placing reliance on the decision of Apex Court in the matter of United India Insurance Co. Ltd. Vs. Swaran Singh and others, (2004) 3 SCC 297 it has been argued that the breach of policy condition i.e. disqualification of the driver or invalid driving licence of the driver as contained in sub section (2)(a)(ii) of Section 149, has 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. He submits that in order to avoid its liability towards the insured, the insurer has to prove that the insured was guilty of negligence and failed to exercise reasonable care in the matter of fulilling the condition of the policy regarding use of vehicles by a duly licensed driver or one who was not disqualified to drive at the relevant time. He further submits that 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 the insured unless the said breach or breaches on the condition of driving licence is/or so fundamental as are found to have contributed to the cause of the accident. According to the counsel for the claimants, 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 insurer under Section 149(2) of the Act. 7. Counsel for the insurance company submits as under : (i) That as per Ex. D-3 - the letter issued by the RTO to the investigator, date of birth of appellant No.1 namely Nandkishore has been mentioned as 18.8.1992. 7. Counsel for the insurance company submits as under : (i) That as per Ex. D-3 - the letter issued by the RTO to the investigator, date of birth of appellant No.1 namely Nandkishore has been mentioned as 18.8.1992. (ii) That as per section 4 of the Motor Vehicle Act unless a person completes the age of 18 years he/she cannot drive the vehicle and as per section 5 it is for the owner not to allow the person to drive the vehicle who has not completed the age of 18 years. 8. Heard counsel for the parties and perused the documents on record. 9. The main point for consideration before this Court is whether the Tribunal was justified in exonerating the insurance company from its liability on the ground that on the date of accident the driver of the vehicle was minor and was not having valid and effective licence to drive the vehicle. Photocopy of the licence issued in favour of appellant No.1 Nandkishore is on record which was valid from 31.12.2009 to 30.12.2029. Furthermore, as per Ex. D-3 which is letter dated 2.5.2011 issued from the office of the RIO also demonstrates that validity of the licence was from 31.12.2009 to 30.12.2029. Thus it is apparent that on the date of accident the driver was having the licence in his possession and it is not a case of no licence. In the licence and in the document of Ex. D-3 date of birth of appellant No.1 has been recorded as 18.8.1992 and the factum of recording of this date of birth has been admitted by father of appellant No.1, However, father of the appellant No.1 has not stated anywhere that date of birth of appellant No.1 is 18.8.1992. On the contrary, he has stated in his court statement that date of birth of appellant No.1 is 18.8.1991. Again he has stated that in the driving licence date of birth of his son is mentioned as 18.8.1992. In the record copy of the application filed by appellants 1 and 2 under order XI Rule 14 CPC is there whereby a request was made that birth certificate of appellant No.1 Nandkishore be taken on record. Original birth certificate is also available on record showing date of birth of appellant No.1 as 18.8.1991. In the record copy of the application filed by appellants 1 and 2 under order XI Rule 14 CPC is there whereby a request was made that birth certificate of appellant No.1 Nandkishore be taken on record. Original birth certificate is also available on record showing date of birth of appellant No.1 as 18.8.1991. This unexhibited document attached to the file further goes to show that date of registration of birth of appellant No.1 in the office is 18.8.1992 as mentioned in the driving licence. In these circumstances, possibility of mentioning wrong date of birth in the licence as 18.8.1992 cannot be ruled out. 10. After going through the record, this Court is of the considered view that the Tribunal has erred in law in rejecting the application filed by the appellants under Order XI Rule 14 CPC vide order dated 19.10.2011 especially when the original birth certificate produced by the appellants before the Tribunal clearly indicating the date of birth of appellant No.1 as 18.8.1991 and date of its registration as 18.8.1992. As the application filed under Order XI Rule 14 CPC was erroneously rejected by the Tribunal vide order dated 19.10.2011, it cannot be allowed to stand and the same is accordingly set aside. Application is allowed and the birth certificate of appellant No.1 is taken on record. 11. This apart, the licence issued in favour of appellant No.1 was never cancelled by the competent authority and therefore the said licence would always be treated as valid till it is cancelled by the competent authority. On the date of accident, appellant No.1 was driving the vehicle believing that he had valid driving licence in his favour and therefore he cannot be blamed for driving the vehicle on the basis of said licence, 12. It is a settled legal position that breach of policy condition i.e. disqualification of the driver or invalid driving licence of the driver as contained under sub section (2)(a)(ii) of Section 149, has to be proved to have been committed by the insured for avoiding liability by the insurer. In the present case no such evidence has been adduced by the insurance company as required under the law. Even the insurance company has not bothered to prove the policy conditions. In the present case no such evidence has been adduced by the insurance company as required under the law. Even the insurance company has not bothered to prove the policy conditions. 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. If the insurance company takes the defence that the appellant No.1 was not having valid and effective driving licence, burden lies on it to prove this fact in order to avoid its liability towards the insured. 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 the insured unless the said breach or breaches of the condition of driving licence is/or so fundamental as are found to have contributed to the cause of, the accident. 13. In the peculiar facts and circumstances of the case, this Court is of the considered opinion that finding recorded by the Tribunal that the driver was not having valid and effective driving licence as he was below 18 years of age, cannot be allowed to stand and the same is accordingly set aside. It is held that it is the insurance company which has to satisfy the claim awarded by the Tribunal. 14. Appeal is accordingly allowed. Insurance company is directed to immediately deposit the entire amount awarded by the Tribunal and after doing so the amount deposited by the appellants shall be refunded to them. Appeal Allowed.