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2014 DIGILAW 3761 (ALL)

New India Assurance Company Ltd. v. Shashi Shukla

2014-12-16

ANIL KUMAR

body2014
JUDGMENT Anil Kumar, J. Matter is taken in the revised cause list. 2. None present on behalf of the respondents. 3. Heard Sri Rajesh Nath, learned counsel for appellant and perused the record. 4. Aggrieved by the judgment and award dated 30.11.2002 passed by Motor Accident Claim Tribunal/VI Additional District Judge, Pratapgarh, in M.A.C.P. No. 51 of 1997 (Smt. Shashi Shukla and others Vs. Devendra Pratap Singh and another), present appeal has been filed by the New India Assurance company Limited. 5. Facts in brief of the present case are that in an accident which took place on 19.04.1997 at about 5.30 p.m. on Lucknow Varanasi Road at Rajapur within the Police Station Raniganj, District Pratapgarh, Sri Subhash Chandra @ Subhash Kumar Shukla has died. In view of the said facts, a claim petition has been filed by the claimants inter alia stating therein that Sri Subhash Chandra @ Subhash Kumar Shukia (deceased) who was young man of 25 years of age doing business of supplying pump parts and pumping sets in several stores at District Pratapgarh and Sultanpur, earning Rs. 3500/- per month. 6. It is further pleaded in the claim petition that the deceased was a brilliant scholar and passed his High School Examination in 1st Division and Intermediate in good 2nd Division and I.T.I. Course also completed, while he was going to Patti to receive prices of spare parts delivered by him to different stores of Patti and thereafter he came to Raniganj from Patti and at Raniganj he was sitting in the Jeep No. M.P. 19 A 5002 for Prithviganj. The vehicle in question was in excessive speed and was being driven by its driver rashly and negligently, when the Jeep was beyond its control turned to turtle on road at Rajapur, as a result the deceased sustained grievous injury resulted into his death on the spot. The said accident has took place due to rash and negligent driving of the vehicle. 7. In the said claim petition, the New India Assurance Company Limited who was impleaded as respondent has filed its written statement taking the plea that the accident has not so been caused as alleged in the petition. The said accident has took place due to rash and negligent driving of the vehicle. 7. In the said claim petition, the New India Assurance Company Limited who was impleaded as respondent has filed its written statement taking the plea that the accident has not so been caused as alleged in the petition. The FIR, Chargesheet, site plan file from T.E. Report, post mortem report and other relevant documents pertaining to the alleged accident has not been filed at the time of preferring the claim petition and in absence of these documents the petition is liable to be dismissed. The Insurance Company further denied the insurance of the alleged vehicle which’ is involved in the accident, however, the Insurance Company reserves right to verify the policy in compliance of Section 64 V.B. of the Insurance Act and the liability can be justified under the terms and conditions of the policy contract. The Tribunal on the basis of the material facts and evidence on record allowed the claim petition thereby awarding a compensation of Rs. 2,53,000/- with 9% interest per annum to be realized from Insurance Company from the date of filing of the petition and shall be distributed in the manner as mentioned therein. 8. Sri Rajesh Nath, learned counsel appearing on behalf of New India Assurance Company Ltd. while challenging the impugned judgment submits that the Motor Accident Claim Tribunal has not considered that the vehicle was used as professional and commercial purposes, so there is a breach of the conditions of the terms of the insurance policy, so the Insurance Company is not liable to pay any compensation. 9. It is further submitted by Sri Rajesh Nath, learned counsel appearing on behalf of New India Assurance Company Ltd. that Motor Accident Claim Tribunal has committed manifest error in law in not considering statement of D.W.1/Devenra Pratap Singh, the owner of the vehicle in question who has categorically admitted in cross examination specifically stated that he is having P.C.O. and not having the property and part he has got financed the Jeep in question and he used to managed the expenditure of the Jeep from the said jeep in question itself, so, impugned judgment and award passed by the Tribunal is contrary to the facts and circumstances of the case , liable to be set aside. 10. I have heard learned counsel for parties and gone through the record. 10. I have heard learned counsel for parties and gone through the record. 11. The Tribunal in order to decide the controversy involved in the present case, as framed four issues, which are as under: - 1. Whether the accident due to which the deceased lost his life, took place due to rash and negligent driving of vehicle No. M.P. 19A/5002 as alleged in the claim petition ? 2. Whether the vehicle No. M.P. 19A/5002 was not insured with O.P. No. 2 on the alleged date of accident ? 3. Whether the jeep driver was not holding a valid driving license, on the alleged date of accident ? 4. To what amount of compensation, if an, the claimants entitled to receive and from which of the opposite parties ? 12. On the basis of the material on record, the Tribunal has decided the Issue No. 1 taking into consideration that the submission of D.W.2/Ram Asrey who is the eye witness that the accident has took place on 19.04.1997 due to rash and negligence driving of the driver of the vehicle/jeep. 13. Moreover, the Tribunal on the basis of the material on record as well as taking into consideration the evidence/testimony of D.W.1/Devendra Pratap Singh, the owner of the jeep had held that at the time of accident, the vehicle was insured with the New India Assurance Company Ltd. and its driver possess valid driving licence as as well as requisite documents of the jeep i.e. Registration certificate, D.L. etc. are valid and decided Issue Nos. 2 and 3 which has been quoted hereinabove that the accident took place due to rash and negligence driving of the vehicle in question by its driver and at the time of the accident, the driver possess valid driving licence, therefore, both the issues are decided against the Insurance Company. 14. are valid and decided Issue Nos. 2 and 3 which has been quoted hereinabove that the accident took place due to rash and negligence driving of the vehicle in question by its driver and at the time of the accident, the driver possess valid driving licence, therefore, both the issues are decided against the Insurance Company. 14. So far as the argument advanced by learned counsel for the appellant in the present case that the statement given by D. W. 1 /Devendra Pratap Singh, it is established that the vehicle in question has been used for commercial purpose is totally incorrect and wrong as per the perusal of the statement of D.W. 1/Devendra Pratap Singh it transpires that he has stated that the vehicle in question was used for personal purpose and not used for any commercial purpose and at the time of accident, the vehicle has gone to drop his relative and while returning back, the accident took place, thus, the argument in question advanced by learned counsel for appellant that the vehicle in question has been used in contravention to the terms of the insurance policy has got no force, because from as per the perusal of the statement of D.W. 1/Devendra Pratap Singh , in no manner it established that the vehicle in question has been used for commercial purpose, further, in the present case, the Insurance Company by way of any cogent evidence as failed to established and prove that the vehicle in question has been used for commercial purpose rather has not absolved its liability to prove the said fact in order take a defence that the vehicle in question has been used in contravention to the terms of the policy, so keeping in view the said facts as well as defence which can be taken by the insurance Company in an accident arising out of use of motor vehicle to absolve from its liability to pay compensation as laid down by Hon’ble the Apex Court in the case of National Insurance Co. Ltd, v. Swaran Singh and others, AIR 2004 SC 1531 as well as in the case of New India Assurance Co. Ltd, v. Turubilli Bharathi and others, 2014 (3) TAC 741 (A.P.), summarized as under: - “In that above case, the Honble Apex Court was dealing with wide spectrum of defence pleas of Insurance Companies basing on the deficiencies in driving licenses. Ltd, v. Turubilli Bharathi and others, 2014 (3) TAC 741 (A.P.), summarized as under: - “In that above case, the Honble Apex Court was dealing with wide spectrum of defence pleas of Insurance Companies basing on the deficiencies in driving licenses. Such deficiencies are: (a) Fake driving licenses of the driver. (b) Driver not having licence whatsoever. (c) No renewal of driving licence as on the date of accident. (d) License granted for one class or description of vehicle but vehicle involved in accident was of different class or description. (e) Driver holding only a learners license. The Apex Court after discussing various issues involved in this regard, summarized its findings thus: (i) 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. (ii) 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. (iii) Even where the insurer is able to prove breach on the part of the insured concerning the policy condition regarding holding of a valid license 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. 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. (iv) The question as to whether the owner has taken reasonable care to find out as to whether the driving licence produced by the driver, (a fake one or otherwise), does not fulfill the requirements of law or not will have to be determined in each case. (v) Where on adjudication of the claim under the Act the tribunal arrives at a conclusion that the insurer has satisfactorily proved its defence in accordance with the provisions of section 149(2) read with sub-section (7), as interpreted by this Court above, the Tribunal can direct that the insurer is liable to be reimbursed by the insured for the compensation and other amounts which it has been compelled to pay to the third party under the award of the tribunal. (10) From the above summarization, it is clear that an Insurance Company in order to succeed in its defence pleas touching the driving licence issues must: (a) Firstly establish 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 vehicle by a duly licensed driver or one who was not disqualified to driving at the relevant lime. (b) Secondly, the breach which was committed by the insured was so fundamental as is found to have contributed to the cause of the accident." 15. Accordingly, in the instant matter as stated hereinabove, the Insurance Company has failed to prove by way of any cogent evidence that the vehicle in question has been used in contravention to the terms of the insurance policy, so I do not find any illegality or infirmity in the impugned judgment given by the Tribunal in the present case. 16. For the foregoing reasons, the appeal lacks merit and is dismissed.