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Himachal Pradesh High Court · body

2015 DIGILAW 1109 (HP)

Oriental Insurance Company Limited v. Ujalu Devi

2015-08-14

MANSOOR AHMAD MIR

body2015
JUDGMENT Mansoor Ahmad Mir, J. 1. FAO Nos. 549 and 550 of 2008 are directed against the two separate awards, dated 17th July, 2008, passed by the Motor Accident Claims Tribunal (II), Shimla Camp at Rohru, for short, the Tribunal), in Claim Petition Nos. 15-R/2 of 2005 and 11-R/2 of 07/05, respectively. Vide award, impugned in FAO No. 549 of 2008, the Tribunal awarded compensation to the tune of Rs. 4,61,200/- with interest at the rate of 7.5% in favour of the claimants, while through the award impugned in FAO No. 550 of 2008, the claimants were held entitled to compensation to the tune of Rs. 3,96,400/- with interest at the rate of 7.5% and the insurer was saddled with the liability. 2. Subject matter of FAO No. 38 of 2007, filed by the insurer, is the award passed by the Commissioner, Workmen’s Compensation Act, Anni, District Kullu, whereby compensation to the tune of Rs. 4,48,000/- with simple interest at the rate of 12% from the date of the accident till deposit, was awarded in favour of the claimants and the insurer was saddled with the liability. 3. Since all the three appeals are the outcome of one accident, therefore, they are taken up together for final disposal. 4. Facts of the case, in brief, are that on 4th September, 2004, the deceased in both the claim petitions, were traveling in a vehicle bearing No. HP-01A-3236, which was being driven by the driver, namely, Ashok Verma rashly and negligently. The offending vehicle met with an accident as a result of which the occupants of the vehicle and the driver of the vehicle sustained injuries and succumbed to the same, constraining the claimants of the occupants of the vehicle to file two separate Claim Petitions under the Motor Vehicles Act, 1988, (for short, the Act), while the dependants of the driver of the offending vehicle invoked the jurisdiction under the Workmen’s Compensation Act, 1923, (for short, the WC Act). 5. The Tribunal as well as the Commissioner under the WC Act allowed the Claim Petitions and awarded compensation as detailed above. Feeling aggrieved, the insurer has challenged the said awards by the medium of present appeals. 6. During the course of hearing, the learned counsel for the appellant-insurer in FAO Nos. 549 and 550 of 2008 argued that the driver of the offending vehicle was not having valid driving licence. Feeling aggrieved, the insurer has challenged the said awards by the medium of present appeals. 6. During the course of hearing, the learned counsel for the appellant-insurer in FAO Nos. 549 and 550 of 2008 argued that the driver of the offending vehicle was not having valid driving licence. It was further submitted that at the time of issuance of driving licence, the driver was minor. The date of birth of the driver, as recorded in Matriculation certificate, is 7.7.1984 and the driving licence was issued in favour of the driver on 31st December, 2001. Thereafter, the driving licence was renewed/issued for driving the Light Motor Vehicles, including other kind of vehicles, on 30th January, 2003. The offending vehicle involved in the accident was Tempo Trax, which, admittedly, was a Light Motor Vehicle as defined in Section 2(21) of the Motor Vehicles Act. The accident had taken place on 4th September, 2004. Thus, on 30th January, 2003, when driving licence was renewed/issued to the driver and on 4th September, 2004, when the accident took place, the driver of the offending vehicle had already attained the age of majority and cannot be said to be minor. 7. This ground is also not available to the insurer since it was for the insurer to plead and prove that the owner has committed willful breach in which it has failed. 8. The Apex Court in the case of National Insurance Co. Ltd. vs. Swaran Singh & Others, AIR 2004 SC 1531 , has held that for avoiding liability, the insurer has to prove the breach committed by the insured. It is apt to reproduce relevant portion of para 105 of the judgment herein-below: “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. 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 defences 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.” 9. It is also profitable to reproduce paragraph 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 herein-below: “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. 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 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.” 10. The insurer has failed to prove that the insured has not exercised due care and caution while employing the driver. 11. Having regard to the above discussion, it is held that the driver was major at the time of accident, was competent to drive the vehicle and was having a valid and effective driving licence at the time of accident. Thus, by no stretch of imagination, it can be said that the owner had committed willful breach, as sought to have been argued by the learned counsel for the appellant-insurer. Accordingly, the argument canvassed by the learned counsel for the insurer-appellant is repelled being without any force. 12. Another ground urged by the learned counsel for the appellant-insurer is that the amount awarded by the Tribunal is excessive. However, in the facts of the case, it would be travesty of justice in case the compensation is reduced at this stage. Accordingly, the argument canvassed by the learned counsel for the insurer-appellant is repelled being without any force. 12. Another ground urged by the learned counsel for the appellant-insurer is that the amount awarded by the Tribunal is excessive. However, in the facts of the case, it would be travesty of justice in case the compensation is reduced at this stage. Accordingly, the impugned awards are upheld and the appeals, being FAO Nos. 549 and 550 of 2008, are dismissed. 13. In view of the findings returned hereinabove, no question, what to speak of substantial question, is involved in FAO No. 38 of 2007 and the same is also dismissed. 14. Pending CMPs, if any, in all the appeals, also stands disposed of accordingly. The Registry is directed to release the amount in favour of the claimants strictly in terms of the impugned awards.