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Himachal Pradesh High Court · body

2014 DIGILAW 226 (HP)

National Insurance Company Ltd. v. Meena Kumari

2014-03-21

MANSOOR AHMAD MIR

body2014
JUDGMENT Mansoor Ahmad Mir, A.C.J. FAO No. 183 of 2006 is directed against the judgment and award dated 3.3.2007, made by the Motor Accidents Claims Tribunal (I) Kangra at Dharamshala in Claim Petition No.2-P/II/2004, titled Meena Kumari versus Raksha Devi and others, whereby a sum of Rs.1,50,000/- came to be awarded as compensation in favour of the claimant, for short the “impugned award”. 2. In FAO No. 184 of 2006, the appeal is directed against the same award dated 3.7.2007, made by the same Tribunal in Claim Petition No. 1-P/II/2004, titled Meena Kumari and others versus Raksha Devi and others, whereby a sum of Rs.13,27,255/- came to be awarded as compensation in favour of the claimants and insurer came to be saddled with the liability, for short the “impugned award”. 3. In FAO No. 546 of 2008, appellant/owner/insured has questioned the award dated 1st August, 2008, made by the Motor Accidents Claims Tribunal (I), Kangra at Dharamshala in Claim Petition No. 86-P/II-2004 titled Sonu Kumar versus Raksha Kumari and others whereby a sum of Rs.7, 75,000/- with interest @ 8% from the date of institution till its realization, with costs of Rs.2000/-, came to be awarded in favour of the claimant and against the respondents, for short the “impugned award”. 4. All the three appeals are outcome of a vehicular accident, allegedly caused by Sunil Kumar driver of the offending tractor bearing registration No. HP37A-0248, rashly and negligently on 2.8.2003 at about 11.15 a.m. at “Bon” and hit pedestrians, namely Neha @ Raksha, Kuldip Chand and Sonu Kumar, who died (Sonu Kumar) during the pendency of the appeal and his legal representatives have been brought on record vide order dated 10.10.2012 and are respondents No. 2(a) to 2 (d) in FAO No. 546 of 2008. The other injured, namely, Nehar @ Raksha and Kuldip Chand succumbed to the injuries on the spot and their representatives and dependants, filed claim petitions for grant of compensation, as per breakups given in the claim petitions. 5. The Tribunal in both the awards, which is subject matter of FAOs No. 183 and 184 of 2007, held that the insurer is liable and saddled the insurance with the liability. The insurer has questioned the same by the medium of these two appeals. The driver of the offending vehicle and owner/insured have not questioned the awards, thus the awards attained finality qua them. The insurer has questioned the same by the medium of these two appeals. The driver of the offending vehicle and owner/insured have not questioned the awards, thus the awards attained finality qua them. The only question to be determined in these two appeals is whether the appellant/insurer has been rightly saddled with the liability?. 6. In FAO No. 546 of 2008, the claimant, driver and insurer have not questioned the findings recorded by the tribunal below. Only the owner-insured has questioned the findings, so far as it relate to saddling the owner-insured with the liability and discharging the insurer-insurance company from its liability. 7. I deem it proper to dispose of these three appeals by this common judgment. 8. In Claim Petition titled Meena Kumari and others versus Smt. Raksha Devi and others, the claimants have specifically averred that deceased was along with her father Kuldip Chand standing at a place known as “Bon” on the road side. The offending tractor, which was attached with a trailer, came from Garh side towards Bon, being driven by Sunil Kumar @ Sammi in a high speed, rashly and negligently. The driver lost his control over the vehicle, as a result of which, said tractor turned turtle and hit Neha and Kuldip Chand, who were crushed under the tractor and died on the spot. 9. Claimants have led evidence, oral as well as documentary, and proved the factum of accident which is not questioned by the driver or the owner. Thus, evidence led by the claimants has remained un-rebutted. 10. Insurer examined two witnesses, namely, Sudarshan Kumar, Senior Assistant, Legal Department and Ajay Awasthi, Advocate. Both of them have proved the factum of insurance policy and have not stated anything about the defence taken by the insurer that the injured and deceased were travelling in the offending tractor. 11. It is apt to mention here that driver and owner have led evidence and admitted that both Neha and Kuldip Chand died on the spot, and Sonu Kumar sustained injuries, but has taken a defence that driver has not driven the offending vehicle rashly and negligently. 12. 11. It is apt to mention here that driver and owner have led evidence and admitted that both Neha and Kuldip Chand died on the spot, and Sonu Kumar sustained injuries, but has taken a defence that driver has not driven the offending vehicle rashly and negligently. 12. The learned counsel for the insurer while cross-examining the witnesses, led by the claimants, owner and driver, has asked straight questions to the effect that all said three persons, i.e., Neha, Kuldip Chand and Sonu Kumar were not on road side but were travelling in the tractor, which were specifically denied by the witnesses. 13. Having said so, the insurer has failed to prove that injured and deceased were traveling in the offending vehicle, i.e., tractor. Thus, there is ample evidence on the record that the driver has driven the offending vehicle rashly and negligently and they were not traveling in the said tractor but were on the road side when they became the victims of the said vehicular accident. 14. The factum of insurance policy is not in dispute. Even otherwise, it is proved and also admitted by the witnesses, examined by the insurer/appellant, that vehicle was insured, thus, insurer came to be rightly saddled with the liability. 15. Adverting now to FAO No. 546 of 2008, which is also outcome of the same accident, by the same offending tractor, it is astonishing to note that same Tribunal in two other cases, arising out of the same accident, saddled the insurer/insurance company with the liability and in this case, in terms of the impugned award, subject matter of this appeal, discharged the insurance with the liability. It is how the tribunal has discharged its duty, that too, against the concept of grant of compensation and has virtually thrown the claimants on the road side. It is very difficult to recover the money from the insured. However, finding recorded to that effect is perverse and runs contrary to the findings recorded by the same tribunal in other two claim petitions which are subject matter of FAOs 183 and 184 of 2007, referred to supra. 16. In appeal, being FAO No. 546 of 2008, facts are similar and permit brevity. The claimant Sonu Kumar was one of the victims of the accident which was caused by the driver, namely, Sunil Kumar @ Sammi while driving the offending tractor. 16. In appeal, being FAO No. 546 of 2008, facts are similar and permit brevity. The claimant Sonu Kumar was one of the victims of the accident which was caused by the driver, namely, Sunil Kumar @ Sammi while driving the offending tractor. He became permanent disabled and filed claim petition for the grant of compensation and the Tribunal after examining the case, granted Rs.7,75,000/-with 8% interest, exonerated the insurer, as referred to supra. It was specifically pleaded by the petitioner Sonu Kumar that he was walking on a highway in the area of Garh and at the relevant point of time tractor bearing No.HP37A-0248 came from Garh side, which was being driven by the driver rashly and negligently, who lost control over it, as a consequence, tractor turned turtle due to which lower portion of the body of the petitioner, who was on the road side, was crushed. 17. The owner in this appeal has only questioned whether the insurer has rightly been exonerated? 18. Claimant has examined as many as seven witnesses, including himself. All the witnesses have deposed that he was on road side along with other two persons. He was hit by the tractor and his lower portion of the body was crushed, sustained injuries and rendered him permanently disabled. He is not in a position to sit and stand. Prem Chand HHC stated that the accident was outcome of the rash and negligent driving of the driver and FIR No. 263/2003 Ext. PW1/A under Sections 279, 337 and 304-A IPC was registered in police station Palampur, and challan stands presented against the accused in the Court. 19. Respondent-driver and owner has examined Janaka Raj, who has stated that tractor met with an accident and ran-over four pedestrians, out of whom two died on the spot and two suffered injuries. Thus, the evidence led by the claimants is supported by the Investigating Officer who has investigated the case and also by the witnesses of owner and driver. 20. In the given circumstances, how can it lie in the mouth of the insurer that injured claimant was traveling in the tractor. The defence which he has taken in other two claim petitions was not proved and believed. Even insurer has not proved the said fact in this case also. 20. In the given circumstances, how can it lie in the mouth of the insurer that injured claimant was traveling in the tractor. The defence which he has taken in other two claim petitions was not proved and believed. Even insurer has not proved the said fact in this case also. I wonder how the Tribunal has believed the said version in this case while passing this award, is an eye opener for the said Tribunal. 21. Insurer has nowhere proved that the claimant was travelling in the tractor. Even otherwise, it was for the insurer to plead and prove that the insured owner has committed willful breach in terms of the policy which would have been the ground for discharging the insurer from the liability which is not the case here. My this view is fortified by the Apex Court judgment in the case of National Insurance Co. Ltd. versus Swaran Singh & others, reported in AIR 2004 Supreme Court 1531. It is apt to reproduce relevant portion of para 105 of the judgment hereinbelow: “105. ..................... (i) ......................... (ii) ........................ (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. 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 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)......................... (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 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 Section149 (2) of the Act.” 22. On this point, 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. 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.” 23. Having said so, insurer has also failed to prove that owner, present appellant has committed any breach. Thus, the tribunal below has fallen in an error by granting right of recovery to the insurer. The insurer was to saddle with the liability. 24. Keeping in view the aforesaid discussion coupled with the law on the point, the appeal filed by the owner/insured deserves to be granted and insurer/insurance company is liable to be saddled with the liability. Ordered accordingly. 25. The insurer is directed to deposit the award amount within two months from today in the Registry of this Court, if not already satisfied. Accordingly the impugned award is modified and appeal (FAO No. 546/2008) is allowed. 26. As a corollary to aforesaid discussion and observations, FAOs No. 183 and 184 of 2007 are dismissed and FAO No. 546 of 2008 is allowed, as indicated above. 27. All the appeals stand disposed of accordingly.