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2014 DIGILAW 342 (HP)

Oriental Insurance Company v. Sudesh Kumari

2014-04-04

MANSOOR AHMAD MIR

body2014
JUDGMENT Mansoor Ahmad Mir, A.C.J. (Oral) Appellant-Insurance Company has invoked the jurisdiction of this Court in terms of Section 173 of the Motor Vehicles Act (for short ‘the Act’) and questioned the award, dated 30.6.2006, passed by Motor Accident Claims Tribunal, Una, (hereinafter referred to as the ‘Tribunal’), in MAC Petition No.38 of 2003, titled Sudesh Kumari and others versus Ramesh Chand and others, (for short the ‘impugned award’), whereby a sum of Rs.8,71,551/- stands awarded in favour of the claimants (respondents No.1 to 4 herein) and the appellant was directed to satisfy the impugned award. 2. It is necessary to give a flash back of the case, the womb of which has given birth to the present appeal. One Parveen Kumar, husband of claimant No.1, father of claimants No.2 and 3 and son of claimant No.4, on 25th June, 2003, was traveling on a scooter bearing No.HP-19A­7675 and was on the way to his office. When he reached near Mubarakpur, a tractor, bearing registration No.HP-19A­0432, being driven by the driver, namely, Ramesh Chand, rashly and negligently, hit the scooter. As a result, Parveen Kumar sustained injuries, was taken to Primary Health Centre, Amb, fromwhere he was referred to PGI, Chandigarh and on the way to the PGI, he succumbed to the injuries. It was pleaded by the Claimants that the deceased was drawing Rs.9,000/- per month as salary and was of the age of 39 years. Thus, the Claimants, having lost source of dependency, claimed compensation to the tune of Rs.30.00 lacs, as per the break-ups given in the Claim Petition. 3.Respondents i.e. driver, owner and insurer resisted the Claim Petition. 4.On the pleadings of the parties, the Tribunal framed the following issues: “1. Whether respondent No.1 was driving Tractor No.HP-1 9A-0432 on 25.6.2003 at Mubarakpur in a rash and negligent manner resulting in death of Parveen Kumar as alleged? OPP2. If issue No.1 is proved, whether the petitioners are entitled for compensation, if so, as to what amount and from whom? OPP 3. Whether respondent No.1 was not holding a valid and effective driving license to drive the tractor which was being driven in violation of the terms and conditions of the Insurance Policy and without any valid RC and route permit as alleged? OPR 4. Whether the respondent No.3 is not liable to indemnify the compensation as alleged? OPR.3. OPP 3. Whether respondent No.1 was not holding a valid and effective driving license to drive the tractor which was being driven in violation of the terms and conditions of the Insurance Policy and without any valid RC and route permit as alleged? OPR 4. Whether the respondent No.3 is not liable to indemnify the compensation as alleged? OPR.3. 4-A Whether the insurance cover note dated June 25, 2003 is a fraudulent document. If so, to what effect? OPR.3 5.Relief.” 5.Claimants examined as many as five witnesses, including claimant Sudesh Kumari, in support of their case, while Ramesh Chand, driver of the offending tractor, stepped into the witness box as RW-1 and Seema Pathak, official of the Insurance Company, was examined as RW-2. 6.The Tribunal, after scanning the entire evidence, decided all the issues in favour of the claimants and against the respondents and the claimants were held entitled to the compensation to the tune of Rs.8,71,551/-, with 7.5% interest per annum from the date of Claim Petition till the final realization of the award amount. 7.The findings, recorded by the Tribunal, have attained finality insofar as the insured/owner and the driver are concerned, since they have opted not to question the same. However, the insurer-appellant has questioned the same by way of filing the present appeal. 8. I have heard the learned counsel for the parties and have scanned the evidence available on the record. I deem it proper to discuss the findings, returned by the Tribunal, issue-wise. Issue No.1: 9.The claimants have proved, by leading oral as well as documentary evidence, that the deceased, who was a government employee, on the fateful day i.e. on 25th June, 2003, was on the way to his office on the scooter, was hit by the offending tractor at Mubarakpur, which was being driven by its driver rashly and negligently, sustained injuries and succumbed to the same while being taken to PGI, Chandigarh. There is no evidence to the contrary led by the respondents i.e. the owner/insured, driver and insurer. Thus, the evidence led by the claimants, to prove this issue, remained un-rebutted and accordingly, the learned Tribunal recorded findings, and rightly so, in favour of the claimants, which findings deserve to be upheld and are upheld accordingly. 10. There is no evidence to the contrary led by the respondents i.e. the owner/insured, driver and insurer. Thus, the evidence led by the claimants, to prove this issue, remained un-rebutted and accordingly, the learned Tribunal recorded findings, and rightly so, in favour of the claimants, which findings deserve to be upheld and are upheld accordingly. 10. Before taking up issue No.2, I deem it proper to discuss issues No.3, 4 and 4-A. Issue No.3: 11.It was for the insurer to prove that the driver of the offending tractor was not having effective driving license and owner/insured has committed breach. The star argument advanced by Mr.G.C. Gupta, learned Senior Counsel for the appellant-insurer, was that the offending Tractor was not being plied as per the terms and conditions provided in the Insurance Policy, since the driver of the said Tractor was having driving license to drive light motor vehicles, and that, a tractor with trolley does not fall within the definition of light motor vehicles. Thus, Mr.Gupta argued that the owner/insured has acted in breach of the terms and conditions contained in the Insurance Policy. The argument canvassed by the learned Senior Counsel for the appellant is devoid of any force for the reason that Ext.RW­1/A, Photocopy of the driving license on the trial Court file, would show that the driver was competent to drive a light motor vehicle and the said license was valid at the time of accident. Insurance policy Ext.RB also discloses that the vehicle insured was Swaraj tractor. The insurer has not pleaded in reply filed before the Tribunal that the tractor was being driven alongwith trolley and that the weight of the tractor was more than the weight of a light motor vehicle prescribed in the Motor Vehicles Act, (for short the Act). 12.It is apt to reproduce Section 2(21) of the Act: “2. (21) “light motor vehicle” means a transport vehicle or omnibus the gross vehicle weight of either or which or a motor car or tractor or road- roller the unladen weight of any of which, does not exceed 7,500 kilograms.” 13.Thus, the above provision clearly shows that a tractor, with unladen weight not exceeding 7,500 kilograms, would fall within the definition of “light motor vehicle”. Whether the tractor was with goods or otherwise does not change the nature of the vehicle. Whether the tractor was with goods or otherwise does not change the nature of the vehicle. The Model of the vehicle, as has been given in the insurance policy and other documents, is tractor, which, according to the above definition, is a light motor vehicle. Admittedly, the driver of the offending tractor was having driving license to drive vehicles falling within the definition of “light motor vehicle”. The Tribunal has also discussed exhaustively that the tractor falls within the definition of “light motor vehicles” and accordingly, held that the driver of the offending vehicle was having a valid and effective driving license. Thus, the argument advanced by Mr.Gupta is not tenable and accordingly the findings returned by the Tribunal on this issue are upheld. Issue No.4: 14. It is beaten law of the land that the insurer has to plead and prove that the owner of the offending vehicle has committed willful breach of the terms contained in the policy and mere plea here and there cannot be a ground for seeking exoneration. 15. 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 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 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. (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 Section 149 (2) of the Act.” 16.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 Supreme Court Cases 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 ingh case. If despite such information with the owner that the licence possessed by his driver is 8 :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.” 17.Accordingly, it can safely be concluded that the insurer-appellant has failed to discharge the onus and, therefore, the findings returned by the tribunal against the appellant-insurer under this issue are liable to be upheld. Issue No.4-A 18.The insurer has pleaded that the insurance cover note was a fraudulent document having been prepared on the day of the accident itself. The insurer has not led any evidence to that effect, has failed to discharge the onus. Thus, the findings recorded by the Tribunal under this issue are also upheld. Issue No.2: 19. Now, coming to issue No.2, the positive case of the claimants before the Tribunal was that the deceased was a Government employee. The claimants have placed on record the salary certificate of the deceased, which discloses that the gross salary of the deceased was Rs.8,218/-. After deducting 1/3rd from the salary of the deceased, it was held by the Tribunal that the claimants lost source of dependency to the tune of Rs.5,458.66 per month. The claimants in paragraph 3 of the Claim Petition have pleaded that the age of the deceased was 39 years, but as per the postmortem report, the age of the deceased was 40 years. The claimants in paragraph 3 of the Claim Petition have pleaded that the age of the deceased was 39 years, but as per the postmortem report, the age of the deceased was 40 years. In view of this, the Tribunal took the age of the deceased as 40 years and applied multiplier 13, which is just and appropriate multiplier applicable, as has been held by the Apex Court in Sarla Verma (Smt.) and others vs. Delhi Transport Corporation and another, (2009) 6 SCC 121 , which decision was also upheld by the larger Bench of the Apex Court in Ramesh Kumari and others vs. Madan Mohan and another, 2013 AIR (SCW) 3120. adverse possession 20.The Tribunal has rightly saddled the Insurer with the liability for the reasons given hereinabove. 21.Accordingly, this appeal merits dismissal and the same is dismissed as such. The Registry is directed to release the award amount in favour of the claimants as ordered by the Tribunal. Record of the Tribunal be sent back alongwith a copy of this judgment.