Research › Search › Judgment

Himachal Pradesh High Court · body

2016 DIGILAW 1395 (HP)

National Insurance Company Ltd. v. Jagat Singh

2016-07-15

MANSOOR AHMAD MIR

body2016
JUDGMENT : Mansoor Ahmad Mir, J. Subject matter of this appeal is judgment and award, dated 6th June, 2011, made by the Motor Accident Claims TribunalI, Sirmaur District at Nahan, H.P. (for short “the Tribunal”) in MAC Petition No. 36MAC/2 of 2008, titled as Shri Jagat Singh and others versus Shri Chet Ram through his LRs and another, whereby compensation to the tune of Rs.2,62,000/- with interest @ 7.5% per annum from the date of the petition till its realization came to be awarded in favour of the claimants and the insurer was saddled with liability (for short “the impugned award”). 2. The legal representatives of the ownerinsured of the offending vehicle and the claimants have not questioned the impugned award on any count, thus, has attained finality so far it relates to them. 3. The insurer has called in question the impugned award on the following two grounds: (i) That the driver of the offending vehicle was not having a valid and effective driving licence at the time of the accident; and (ii) That the deceased was an unauthorized occupant. 4. In order to determine this appeal, it is necessary to give a brief resume of the case, the womb of which has given birth to the appeal in hand. 5. The claimants have specifically pleaded in the claim petition that deceased, namely Shri Vinod Kumar, was a bachelor, conductor by profession and was also doing the job of labourer in the offending vehicle, i.e. Pickup Van, bearing registration No. HP-710777. 6. The positive case set up by the claimants before the Tribunal was that the driver, namely Shri Balwant Singh, while driving the offending vehicle rashly and negligently on 8th April, 2007, at about 2.00 A.M. near Village Sainj, Tehsil Renuka Ji, District Sirmaur, caused the accident, in which deceased Vinod Kumar, who was travelling in the offending vehicle as a conductor/labourer, sustained injuries and succumbed to the injuries. The driver of the offending vehicle also died in the said accident. 7. The claimants claimed compensation, as per the breakups given in the claim petition, on the grounds taken in the memo of the claim petition. 8. The respondents in the claim petition resisted the same on the grounds taken in the respective memo of objections. 9. Following issues came to be framed by the Tribunal on 30th April, 2009: “1. 7. The claimants claimed compensation, as per the breakups given in the claim petition, on the grounds taken in the memo of the claim petition. 8. The respondents in the claim petition resisted the same on the grounds taken in the respective memo of objections. 9. Following issues came to be framed by the Tribunal on 30th April, 2009: “1. Whether Vinod Kumar had died on account of rash and negligent driving of pickup No. HP710777 driven by its driver Balwant Singh deceased on 842007 near village Sainj at about 2.00 A.M., as alleged? OPP 2. In case issue No. 1 is proved in affirmative, whether the petitioners are entitled to receive compensation, if so, to what amount and from whom? OPP 3. Whether the deceased was an unauthorized person in the goods vehicle and as such his risk was not covered under the insurance policy, as alleged? OPR2 4. Whether the driver of the vehicle in question did not possess a valid and effective driving licence at the time of accident, as alleged? OPR2 5. Whether the vehicle in question was being plied in violation of the terms and conditions of the insurance policy, as alleged? OPR2 6. Whether the petition has been filed in collusion with respondent No. 1, as alleged? OPR2 7. Relief.” 10. The claimants have examined HC Dharam Mohan as PW1, Smt. Champa Devi as PW2, Dr. Suman Lata as PW3, Shri Gopal Singh as PW5, Shri Jagat Singh, s/o late Shri Kanshi Ram as PW6 and one of the claimants, namely Shri Jagat Singh, appeared in the witness box as PW4. The insurer has examined Shri Updeshmanj Khola as RW1 and SI Chet Ram as RW3. One of the legal representatives of owner-insured, namely Shri Rajesh Kumar, himself appeared in the witness box as RW2. Issue No. 1: 11. The Tribunal, while determining issue No. 1, has held that the claimants have proved by leading evidence that the driver, namely Shri Balwant Singh, had driven the offending vehicle rashly and negligently on 8th April, 2007, at about 2.00 A.M. near Village Sainj and caused the accident, in which deceased Vinod Kumar sustained injuries and succumbed to the injuries. There is no dispute viz-a-viz the said findings. Accordingly, the findings returned by the Tribunal on issue No. 1 are upheld. 12. There is no dispute viz-a-viz the said findings. Accordingly, the findings returned by the Tribunal on issue No. 1 are upheld. 12. Before dealing with issue No. 2, I deem it proper to determine issues No. 3 to 6. Issue No. 3: 13. It was for the insurer to plead and prove that deceased Vinod Kumar was an unauthorized occupant in the offending vehicle at the time of the accident, has not led any evidence to this effect. However, it has examined the Investigating Officer, namely SI Chet Ram, as RW3, who has specifically stated that he had investigated the case relating to the commission of crime, presented the final report in terms of Section 173 of the Code of Criminal Procedure (for short “CrPC”) under Sections 279 and 304A of the Indian Penal Code (for short “IPC”) before the Court of competent jurisdiction and had not investigated the case with respect to the fact as to in which capacity the deceased was travelling in the offending vehicle. Thus, he has not stated anything about the issue in dispute. 14. The claimants have specifically pleaded that the deceased was travelling in the offending vehicle as conductor and was also doing the job of loading and unloading the material in the said vehicle. Father of deceased Vinod Kumar, namely Shri Jagat Singh, stepped into the witness box as PW4 and has proved the contents of FIR about the said factum. The said factum has also been proved by one Shri Jagat Singh, s/o late Shri Kanshi Ram, who stepped into the witness box as PW6 and stated that deceased Vinod Kumar had worked as a conductor/labourer with his vehicle with effect from 10th June, 2006 to 31st December, 2006, thereafter, the owner-insured of the offending vehicle, late Shri Chet Ram, had asked him to send deceased Vinod Kumar to work as conductor/labourer with the offending vehicle. There is no rebuttal by the insurer to this effect, thus, the said factum has remained unrebutted. Viewed thus, the Tribunal has rightly decided issue No. 3 against the insurer, is, accordingly, upheld. Issue No. 4: 15. There is no rebuttal by the insurer to this effect, thus, the said factum has remained unrebutted. Viewed thus, the Tribunal has rightly decided issue No. 3 against the insurer, is, accordingly, upheld. Issue No. 4: 15. It was for the insurer to discharge the onus to prove that the driver of the offending vehicle was not having a valid and effective driving licence at the time of the accident, has not led any evidence, except examining one Shri Updeshmanj Khola as RW1, but he has not given any details as to on what basis he has come to the conclusion that the driving licence was fake. 16. Though, there is not even a single iota of evidence on the file to hold or presume that the driving licence of the driver of the offending vehicle was fake, even that cannot be made a ground for exonerating the insurer from its liability unless the insurer pleads and proves that the owner-insured has committed willful breach and has not taken all precautions while engaging the driver. 17. My this view is fortified by the judgment rendered by the Apex Court in the case titled as 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 herein: “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. 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.” 18. The Apex Court in another case titled as Pepsu Road Transport Corporation versus National Insurance Company, reported in 2013 AIR SCW 6505, has laid down the same principle. It is profitable to reproduce para 10 of the judgment herein: “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's case (supra). 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.” 19. Viewed thus, the findings returned by the Tribunal on issue No. 4 are upheld. Issue No. 5: 20. In view of the findings returned on issues No. 3 and 4 hereinabove, the findings returned by the Tribunal on issue No. 5 are also upheld. Issue No. 6: 21. It was for the insurer to prove that the claimants have filed the claim petition in collusion with the owner-insured, has not led any evidence to this effect, thus, has failed to do so. Accordingly, the findings returned by the Tribunal on issue No. 6 are upheld. Issue No. 2: 22. The quantum of compensation is not in dispute. However, I have gone through the record and the impugned award, the awarded amount cannot be said to be excessive in any way. Thus, it is held that the Tribunal has rightly awarded 2,62,000/- to the claimants and saddled the insurer with liability. Accordingly, the findings returned by the Tribunal on issue No. 2 are also upheld. 23. However, I have gone through the record and the impugned award, the awarded amount cannot be said to be excessive in any way. Thus, it is held that the Tribunal has rightly awarded 2,62,000/- to the claimants and saddled the insurer with liability. Accordingly, the findings returned by the Tribunal on issue No. 2 are also upheld. 23. Having glance of the above discussions, the impugned award is upheld and the appeal is dismissed. 24. Registry is directed to release the awarded amount in favour of the claimants strictly as per the terms and conditions contained in the impugned award through payee's account cheques or by depositing the same in their respective bank accounts. 25. Send down the record after placing copy of the judgment on the Tribunal's file.