Research › Search › Judgment

Himachal Pradesh High Court · body

2014 DIGILAW 348 (HP)

NATIONAL INSURANCE COMPANY v. GOPAL SAHI

2014-04-04

MANSOOR AHMAD MIR

body2014
JUDGMENT : MANSOOR AHMAD MIR, J. 1. By the medium of the present appeal, 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 17th August, 2006, passed by Motor Accident Claims Tribunal (III), Shimla, (hereinafter referred to as the 'Tribunal'), in MAC Petition No. 83-S/2 of 2005/04, titled Gopal Sahi and Others v. Ram Singh and Others, (for short the 'impugned award'), whereby a sum of Rs. 3,00,000, with interest at the rate of 7.5% per annum from the date of the Claim Petition till realization, stands awarded in favour of the claimants (respondent Nos. 1 to 6 herein) and the appellant-insurer was directed to satisfy the impugned award. Brief facts of the case, as pleaded in the Claim Petition, are that on 22nd September, 2004, at a place known as Akantwari, Smt. Kalpana, aged 40 years, was hit by a vehicle Mahindra Pickup bearing No. HP-25-0619, being driven rashly and negligently by its driver, namely, Sanjay Kumar (Respondent No. 8 herein). Resultantly, said Smt. Kalpana sustained injuries, was taken to Primary Health Centre, Narkanda, fromwhere was referred to Indira Gandhi Medical College, Shimla and subsequently succumbed to the same. It has been claimed that the deceased was earning Rs. 6,000 per month, (Rs. 3,000 by way of employment and Rs. 3,000 being contribution towards family). Thus, the claimants, being the husband, sons and daughters of the deceased, filed the Claim Petition before the Tribunal for grant of compensation to the tune of Rs. 7.00 lacs, as per the break-ups given in the Claim Petition. 2. Only the insurer resisted the claim petition by filing reply, while the driver and the owner opted not to file any reply. After examining the pleadings, the Tribunal framed the following issues: "1. Whether Smt. Kalpana died in the Motor Vehicle accident of vehicle No. HP-25-0619 on 22nd September, 2004 which was being driven in rash and negligent manner by respondent No. 2? --OPP 2. Whether the vehicle in question was being driven in contravention of the provisions of Motor Vehicles Act and the terms and conditions of the Insurance Policy, as alleged? --OPR-3 3. Whether the vehicle in question was being driven by respondent No. 2 without valid and effective driving licence? --OPR-3. 4. --OPP 2. Whether the vehicle in question was being driven in contravention of the provisions of Motor Vehicles Act and the terms and conditions of the Insurance Policy, as alleged? --OPR-3 3. Whether the vehicle in question was being driven by respondent No. 2 without valid and effective driving licence? --OPR-3. 4. If the above issues are decided in favour of the petitioners, to what amount of compensation and from whom they are entitled? --OPR 5. Relief." 3. Claimants, in support of their claim, examined as many as four witnesses. The insurer also examined its official Tulsi Ram as RW-1. 4. The Tribunal, after scanning the entire evidence, passed the impugned award and the claimants were held entitled to the compensation to the tune of Rs. 3,00,000, with 7.5% interest per annum from the date of Claim Petition till the final realization of the award amount. 5. 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, feeling aggrieved and dissatisfied, the insurer-appellant has questioned the same by way of filing the present appeal, on the ground that the liability to indemnify the impugned award has wrongly been fastened on the insurer-appellant. 6. Thus, the only question, which arises for determination in this appeal is--whether the insurer was rightly saddled with the liability? 7. I have heard the learned Counsel for the parties and have scanned the evidence available on the record. 8. The findings recorded by the Tribunal under issue Nos. 1 and 4 are not in dispute. Claimants have proved by leading evidence that the offending vehicle, which hit Smt. Kalpna, was being driven rashly and negligently, as a result of which she suffered injuries and lateron succumbed to them. The compensation awarded is also just and proper and cannot be said to be inadequate or excessive in any way. Thus, the findings recorded under Issue Nos. 1 and 4 are upheld. 9. Now, coming to Issue Nos. 2 and 3, the insurer-appellant (original respondent No. 3) had not led any evidence to prove these issues. Accordingly, the Tribunal decided the said issues against the Insurer. A perusal of the record shows that the driver of the offending vehicle was having a valid driving licence to drive a light motor vehicle. 10. 9. Now, coming to Issue Nos. 2 and 3, the insurer-appellant (original respondent No. 3) had not led any evidence to prove these issues. Accordingly, the Tribunal decided the said issues against the Insurer. A perusal of the record shows that the driver of the offending vehicle was having a valid driving licence to drive a light motor vehicle. 10. During the course of hearing, a very strange argument advanced by the learned Counsel for the appellant-insurer was that the offending vehicle was a light commercial vehicle and the driver of the offending vehicle was not competent to drive such category of vehicle. Before the argument raised by the learned Counsel is dealt with, it is apt to reproduce Section 2(21) of the Motor Vehicles Act hereunder: "2............................. (21) 'light motor vehicle' means a transport vehicle or omnibus the gross vehicle weight of either of which or a motor car or tractor or road-roller the unladen weight of any of which, does not exceed 7,500 kilograms." 11. Thus, from a reading of the above provision, it is crystal clear that any transport vehicle or omnibus, a tractor or road roller, the gross unladen weight of which is below 7,500 kilograms, falls under the definition of "light motor vehicle". It is also clear that the classification provided in the Motor Vehicles Act is "light motor vehicle" and not light commercial vehicle, as argued by the learned Counsel for the appellant. Therefore, the argument urged by the learned Counsel is liable to be rejected being vague and without any force. Moreover, in the instant case, the insurer-appellant has failed to show from the records of the case that the offending vehicle did not fall under the definition of "light motor vehicle". Also, the onus to prove that the owner of the offending vehicle committed any willful breach or the vehicle was being plied in contravention to the terms and conditions contained in the insurance policy was on the insurer-appellant, in which it has miserably failed. 12. 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. 13. My this view is fortified by the Apex Court judgment in the case of National Insurance Co. Ltd. Vs. 13. My this view is fortified by the Apex Court judgment in the case of National Insurance Co. Ltd. Vs. Swaran Singh and Others, AIR 2004 SC 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) ......................... (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." 14. It is also profitable to reproduce para 10 of the latest judgment of the Apex Court in the case of Pepsu Road Transport Corporation Vs. National Insurance Company, (2013) 10 SCC 217 , hereinbelow: "10. It is also profitable to reproduce para 10 of the latest judgment of the Apex Court in the case of Pepsu Road Transport Corporation Vs. National Insurance Company, (2013) 10 SCC 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. 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 a 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." 15. That is what is explained in Swaran Singh case. If despite such information with the owner that the licence possessed by his driver is a 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." 15. In view of the above discussion, the only conclusion which can be drawn is that the insurer-appellant has failed to discharge the onus and prove that the offending vehicle was being plied in breach of the terms and conditions contained in the insurance policy or that the driver of the offending vehicle was not having a valid and effective licence to drive the vehicle in question. Therefore, the findings returned by the Tribunal against the appellant-insurer under these issues are liable to be upheld. Accordingly, the appeal merits dismissal and the same is dismissed as such. The Registry is directed to release the award amount in favour of the claimants strictly as per the impugned award. Record of the Tribunal be sent back along with a copy of this judgment.