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2014 DIGILAW 1961 (HP)

Anuj Sirkek v. Neelma Devi

2014-12-19

MANSOOR AHMAD MIR

body2014
JUDGMENT : MANSOOR AHMAD MIR, J. 1. Challenge in this appeal is to the award, dated 21st October, 2013, passed by Motor Accident Claims Tribunal, Kinnaur at Rampur Bushahr, District Shimla, H.P. (for short, the Tribunal), in MAC Petition No.0100061 of 2011, titled Neelma Devi and others vs. Anuj Sirkek and another, whereby compensation to the tune of Rs.8,25,600/-, with costs quantified at Rs.3,000/- and interest at the rate of 6% per annum from the date of filing of the petition till its realization, was awarded in favour of the claimants No.1 to 6, (respondents No.1 to 6 herein), and the insured/driver/appellant came to be saddled with the liability, (for short, the impugned award). 2. The claimants and the insurer have not questioned the impugned award. Therefore, the only question needs to be determined in this appeal is – Whether the Tribunal was right in discharging the insurer and saddling the appellant/owner/driver with the liability? 3. In order to determine the controversy in hand, it is necessary to have a glance of the facts of the case, the womb of which has given birth to the present appeal. 4. Claimants, seven in number, invoked the jurisdiction of the Tribunal under Section 166 of the Motor Vehicles Act, (for short, the Act), for grant of compensation to the tune of Rs.20.00 lacs, as per the break-ups given in the Claim Petition, on the ground that on 7th May, 2011, at about 9.30 a.m., the driver, namely, Anuj Sirkek (appellant herein), had driven the offending vehicle i.e. Pick Up, bearing registration number HP-63B-0553, rashly and negligently and hit the deceased Budhi Singh at Nogli, District Rampur, H.P., who sustained injuries resulting, lateron, into his death. 5. The Claim Petition was resisted by the insured/driver and the insurer on various grounds, by filing replies. 6. On the pleadings of the parties, the following issues came to be framed: 4. Whether late Sh.Budhi Singh had died on account of injuries sustained by him due to the rash and negligent driving of vehicle No.HP-63B-0553, being driven by respondent No.1, as alleged? OPP 5. If issue No.1 is proved, to what amount of compensation the petitioners are entitled to and from whom? OPP 6. Whether at the relevant time, respondent No.1 was not possessed of a valid and effective driving licence? OPR-2 7. OPP 5. If issue No.1 is proved, to what amount of compensation the petitioners are entitled to and from whom? OPP 6. Whether at the relevant time, respondent No.1 was not possessed of a valid and effective driving licence? OPR-2 7. Whether at the relevant time, the offending vehicle was being plied without fitness certificate? OPR-2 8. Relief. 7. Claimants, in order to prove their claim, have examined one Sagar Dass as PW-2 and one of the claimants i.e. Smt.Neelma Devi also stepped into the witness box as PW-1. The driver has examined one Dinesh Chauhan as RW-1, while the insurer examined Sangat Ram Negi as RW-2. 8. The Tribunal, after scanning the pleadings and the evidence led by the parties, decided issue No.1 in favour of the claimants, against the driver/owner/insured. Theses findings of the Tribunal are not in dispute, therefore, the same are upheld. 9. Onus to prove issue No.4 was upon the insurer, in which it has failed to discharge. Moreover, the findings on this issue are also not in dispute and, therefore, the same are liable to be upheld and are upheld accordingly. 10. Now, coming to issues No.2 and 3, the Tribunal, after making assessment, held the claimants entitled to compensation to the tune of Rs.8,25,600/-, with costs and interest, as detailed above. Neither the claimants nor the insurer has questioned the adequacy of compensation. Thus, it is held that the amount of compensation awarded by the Tribunal is just and appropriate. 11. During the course of hearing, the learned counsel for the appellant/owner/driver strenuously argued that the Tribunal has fallen in error in saddling the appellant with the liability. The learned counsel laid emphasis on the statement of RW-1 Dinesh Chauhan, who has stated that, at the relevant point of time, he was sitting beside the appellant and was having a valid and effective driving licence. 12. I have gone through the entire record of the case. The Tribunal has saddled the appellant/insured with the liability on the ground that the appellant/driver/insured was not having a valid driving licence for the reason that he, at the relevant point of time, was having a learner's licence and was not accompanied by any instructor having valid and effective driving licence to drive the offending vehicle in terms of the insurance policy. Copy of the learner's licence has been proved on record as Ext.RW-1/B. It is not the case, either of the claimants or of the insurer, that the appellant/driver/insured was not having a learner's licence. 13. Dinesh Chauhan RW-1 has deposed before the Tribunal that on the fateful day, he was accompanying the appellant/driver/owner as instructor and was sitting beside him in the offending vehicle. 14. The insurer has not led any evidence to disprove the said fact and has not been able to shatter the evidence of RW-1 Dinesh Chauhan during the cross examination. 15. Having glance of the above discussion, the question which emerges is – Whether a driver, having a learner's licence and accompanied by a person having valid and effective driving licence to drive the vehicle in question, can be said to be competent to drive the vehicle and whether it can be termed as breach of the insurance policy, read with the mandate of the Act. 16. To answer the above contentious issue, a reference may be made to the decision of the Apex Court in National Insurance Co. Ltd. vs. Swaran Singh and others, AIR 2004 SC 1531 . It is apt to reproduce paragraphs No.88, 89 & 105 (i), (iii), (iv), (vi) and (viii), hereunder: “88. Motor Vehicles Act, 1988 provides for grant of learner's licence. [See Section 4 (3), Section 7 (2), Section 10 (3) and Section 14]. A learner's licence is, thus, also a licence within the meaning of the provisions of the said Act. It cannot, therefore, be said that a vehicle when being driven by a learner subject to the conditions mentioned in the licence, he would not be a person who is not duly licensed resulting in conferring a right on the insurer to avoid the claim of the third party. It cannot be said that a person holding a learner's licence is not entitled to drive the vehicle. Even if there exists a condition in the contract of insurance that the vehicle cannot be driven by a person holding a learner's licence, the same would run counter to the provision of Section 149 (2) of the said Act. 89. The provisions contained in the said Act provide also for grant of driving licence which is otherwise a learner's licence. 89. The provisions contained in the said Act provide also for grant of driving licence which is otherwise a learner's licence. Sections 3 (2) and 6 of the Act provide for the restriction in the matter of grant of driving licence, Section 7 deals with such restrictions on granting of learner's licence. Sections 8 and 9 provide for the manner and conditions for grant of driving licence. Section 15 provides for renewal of driving licence. Learner's licences are granted under the rules farmed by the Central Government or the State Governments in exercise of their rule making power. Conditions are attached to the learner's licences granted in terms of the statute. A person holding learner's licence would, thus, also come within the purview of "duly licensed" as such a licence is also granted in terms of the provisions of the Act and the rules farmed thereunder. It is now a well-settled principle of law that rules validly framed become part of the statute. Such rules are, therefore, required to be read as a part of main enactment. It is also well-settled principle of law that for the interpretation of statute an attempt must be made to give effect to all provisions under the rule. No provision should be considered as surplusage. Xxxxxxxxxxxxxxx xxxxxxxxxxxxxxx xxxxxxxxxxxx 105. The summary of our findings to the various issues as raised in these petitions are as follows : (i) Chapter XI of the Motor Vehicles Act, 1988 providing compulsory insurance of vehicles against third party risks is a social welfare legislation to extend relief by compensation to victims of accidents caused by use of motor vehicles. The provisions of compulsory insurance coverage of all vehicles are with this paramount object and the provisions of the Act have to be so interpreted as to effectuate the said object. Xxxxxxxxxxxxxxx xxxxxxxxxxxxxxx xxxxxxxxxxxx (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 toward insured, the insurer has to prove that the insurer was guilty of negligence and failed to exercise reasonable care in the matter of fulfilling the conditions 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 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 wherefor would be on them. Xxxxxxxxxxxxxxx xxxxxxxxxxxxxxx xxxxxxxxxxxx (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 defence available to the insured under section 149 (2) of the Act. Xxxxxxxxxxxxxxx xxxxxxxxxxxxxxx xxxxxxxxxxxx (viii) If a vehicle at the time of accident was driven by a person having a learner's licence, the insurance companies would be liable to satisfy the decree. 17. Coming to the facts of the instant case, admittedly, the driver of the offending vehicle was having a learner's licence at the relevant point of time. A driver who is having a learner's licence can be said to be competent to drive a vehicle, provided such a person is accompanied by an instructor holding a valid and effective driving licence to drive the vehicle in question. 18. In the present case, the driver/insured, in order to satisfy the mandate of the Act, has examined Dinesh Chauhan as RW-1, who has stated that he was sitting with the driver of the offending vehicle, i.e. the appellant, at the relevant point of time. 18. In the present case, the driver/insured, in order to satisfy the mandate of the Act, has examined Dinesh Chauhan as RW-1, who has stated that he was sitting with the driver of the offending vehicle, i.e. the appellant, at the relevant point of time. Therefore, by no stretch of imagination, it can be said that the appellant/insured/driver was not competent to drive the vehicle in question. 19. It was for the insurer to plead and prove that the insured has committed any willful breach, has failed to do so. 20. Viewed thus, the Tribunal has fallen in error in coming to the conclusion that the insured has committed the breach. 21. In view of the above discussion, the appeal is allowed, the impugned award is modified by providing that the owner/driver has not committed any willful breach and the insurer has to satisfy the impugned award. Accordingly, the insurer is directed to deposit the entire award amount within a period of 8 weeks from today in the Registry of this Court and on deposit, the Registry is directed to release the same in favour of the claimants strictly in terms of the impugned award. Thereafter, the amount deposited by the appellant/driver, if any, be released in his favour through payee's account cheque. 22. The appeal stands disposed of accordingly, alongwith pending CMPs, if any.