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2016 DIGILAW 1396 (HP)

Oriental Insurance Company Ltd. v. Maya Devi

2016-07-15

MANSOOR AHMAD MIR

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JUDGMENT : Mansoor Ahmad Mir, J. This appeal is directed against the award, dated 19th March, 2011, passed by the Motor Accident Claims Tribunal, Ghumarwin, District Bilaspur, Himachal Pradesh (Camp at Bilaspur), (for short, “the Tribunal”) in M.A.C. No.84 of 2005, titled Maya Devi vs. Smt. Shakuntla Devi & others, whereby a sum of Rs.2,50,000/- alongwith interest at the rate of 7.5% per annum came to be awarded as compensation in favour of the claimant and the insurer was saddled with the liability (for short the “impugned award”). 2. The claimant, the owner-insured and the driver have not questioned the impugned award on any count. Thus, the same has attained finality so far it relates to them. 3. Feeling aggrieved, the appellant-insurer has questioned the impugned award on the grounds taken in the memo of appeal. 4. Learned counsel for the appellant argued that the Tribunal has fallen into an error in saddling the insurer with the liability since the driver of the offending vehicle was not having a valid and effective driving licence at the time of accident. The second ground of attack was that the amount awarded by the Tribunal was excessive. The argument of learned counsel for the appellant, though attractive, is devoid of any force, for the following reasons. 5. The claimant filed the claim petition for grant of compensation to the tune of Rs.5,10,000/- as per the break-ups given in the claim petition, was resisted by the respondents and following issues came to be framed:- “1. Whether Jatin Kumar died due to rash and negligent driving of resident No.2, driver of bus No.HP- 23A-1021, as alleged? OPP 2. If issue No.1 is proved in affirmative, whether the petition is entitled for compensation and if so, to what amount and from whom? OPP. 3. Whether the petition is not maintainable? OPR-3 4. Whether bus NO.HP-23A-1021 was being plied without valid registration, fitness certificate and route permit as alleged, if so to what effect? OPR-3 5. Whether the driver of bus No.HP-23A-1021 was not having a valid and effective driving licence? OPR-3. 6. Whether the petition is barred by limitation? OPR-1 7. Whether the petitioner has no locus standi to file the petition? OPR-1. 8. Relief.” 6. OPR-3 5. Whether the driver of bus No.HP-23A-1021 was not having a valid and effective driving licence? OPR-3. 6. Whether the petition is barred by limitation? OPR-1 7. Whether the petitioner has no locus standi to file the petition? OPR-1. 8. Relief.” 6. The Tribunal, after scanning the evidence, oral as well as documentary, held that the claimant has proved that the driver, namely, Prakash Chand was driving the offending vehicle rashly and negligently and caused the accident. There is also no dispute about the findings recorded by the Tribunal on issue No.1, which are accordingly upheld. 7. Before I deal with issue No.2, I deem it proper to deal with issues No.3 to 7. Issue No.3 8. Onus to prove this issue was on the insurer, has not led any evidence. I wonder why this issue was framed by the Tribunal. The Tribunal has lost sight of the fact that the Motor Vehicles Act, 1988 (for short, the Act) has gone through a sea change and sub section (6) to Section 158 and sub section (4) to Section 166 have been added. Section 158(6) provides that the Incharge of the Police Station concerned has to submit a report about the traffic accident to the Tribunal having the jurisdiction and that report has to be treated as Claim Petition by the Tribunal in terms of Section 166(4) of the Act. Thus, even filing of claim petition is not mandatory for grant of compensation in terms of the said amendment. Therefore, it does not lie in the mouth of the insurer to urge on flimsy grounds that the claim petition was not maintainable. Accordingly, the findings returned by the Tribunal on issue No.3 are upheld. Issue No.4 9. It was for the insurer to plead and prove that the offending vehicle was being plied without valid documents, has not led any evidence. Notwithstanding that, this issue was not pressed by the learned counsel for the appellant during the course of hearing. Accordingly, the findings returned by the Tribunal this issue are upheld. Issue No.5 10. It was for the insurer to plead and prove that the driver of the offending vehicle was not having a valid and effective driving licence at the time of accident, has not led any evidence. Accordingly, the findings returned by the Tribunal this issue are upheld. Issue No.5 10. It was for the insurer to plead and prove that the driver of the offending vehicle was not having a valid and effective driving licence at the time of accident, has not led any evidence. 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. 11. 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 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)......................... (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.” 12. 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 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. 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 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.” 13. Learned counsel for the insurer argued that the insurer has filed an application, being CMP No. 657 of 2011, under Section 41 Rule 27 read with Section 151 of the Code of Civil Procedure for examining the witness from the office of District Transport Officer, Ranchi, in order to prove that the driver of the offending vehicle, at the time of accident, was not having a valid and effective driving licence. 14. The said application (CMP No.657 of 2011) deserves to be dismissed for the simple reason that the insurer cannot be permitted to defeat the right of the claimants at this belated stage. Moreover, it was for the insurer to plead and prove, by leading evidence, before the Tribunal that the driver of the offending vehicle was not having valid and effective driving licence at the time of accident, which it has not done despite affording sufficient opportunities. Therefore, once the insurer has failed to prove before the Tribunal that the driver was not having a valid and effective driving licence at the time of accident, it does not lie in the mouth of the insurer to argue at this stage that the driver was not having a valid and effective driving licence. Therefore, once the insurer has failed to prove before the Tribunal that the driver was not having a valid and effective driving licence at the time of accident, it does not lie in the mouth of the insurer to argue at this stage that the driver was not having a valid and effective driving licence. In case the application is allowed, the parties and the proceedings would be relegated back to the sage as was in the year 2004, when the accident had taken place, which would be against the aim and object of granting compensation. It is beaten law of the land that while deciding claim petitions, summary procedure is to be adopted and the claim petitions are to be concluded as early as possible, and if such procedure, as is sought by the learned counsel for the appellant, is adopted, that would be against the mandate of legislation. Accordingly, the application (CMP No.657 of 2011) is dismissed and the findings returned by the Tribunal on issue No.5 are upheld. Issue No.6 15. As has been observe above, the Act has gone a sea change and the rigours of Limitation Act for filing Claim Petitions under the Act have been taken away. Accordingly, the findings returned by the Tribunal on this issue are upheld. Issue No.7 16. The petitioner is a victim of a vehicular accident, therefore, by no stretch of imagination it can be said that the claim had no locus standi to file the claim petition. Accordingly, the findings returned by the Tribunal on this issue are also upheld. 17. As far as issue No.2 is concerned, the learned counsel for the appellant argued that the deceased was only 3½ years of age at the time of accident and therefore, only Rs.1.00 lac was to be awarded. It was further submitted that the Tribunal has assessed the compensation which is highly excessive and deserves to be reduced accordingly. 18. The argument is beyond comprehension for the reason that the claimant is a mother, who lost her son in the vehicular accident, who was only 3½ years of age at the time of accident. The Apex Court in its pronouncements has held that in such cases compensation can be awarded upto Rs.5.00 lacs. Therefore, there is no merit in the argument advanced by the learned counsel for the appellant and the same is repelled being without any force. The Apex Court in its pronouncements has held that in such cases compensation can be awarded upto Rs.5.00 lacs. Therefore, there is no merit in the argument advanced by the learned counsel for the appellant and the same is repelled being without any force. 19. Having said so, there is no merit in the appeal filed by the appellant and the same is dismissed. Consequently, the impugned award is upheld. The Registry is directed to release the amount, alongwith up-to-date interest, in favour of the claimant forthwith through her bank account.