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Himachal Pradesh High Court · body

2016 DIGILAW 2237 (HP)

New India Assurance Co. Ltd. v. Rajshwari

2016-10-21

MANSOOR AHMAD MIR

body2016
JUDGMENT : Mansoor Ahmad Mir, J. This appeal is directed against the award, dated 31st December, 2011, passed by Motor Accident Claims Tribunal, Mandi, District Mandi, H.P., (for short, the Tribunal), whereby compensation to the tune of Rs.1,72,000/-, with interest at the rate of 7.5% per annum from the date of filing of the petition till deposit, came to be awarded in favour of the claimant, and the insurer was saddled with the liability, (for short, the impugned award). 2. The claimant, the owner and the driver have not challenged the impugned award on any count, thus, the same has attained finality so far as it relates to them. 3. Feeling aggrieved, the insurer has challenged the impugned award by way of instant appeal, on the grounds taken in the memo of appeal. 4. During the course of hearing, learned counsel for the appellant/insurer submitted that at the time of accident, the offending vehicle was being driven without fitness certificate. Thus, it is submitted that the Tribunal has fallen in an error in saddling the appellant/insurer with the liability. The learned counsel for the appellant/insurer frankly conceded that the insurer has no other ground available in order to seek exoneration. 5. 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 and conditions contained in the policy and mere plea here and there cannot be a ground for seeking exoneration. 6. The Apex Court in case titled as National Insurance Co. Ltd. versus Swaran Singh & others, reported in AIR 2004 SC 1531 , has taken the similar view. 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. 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.” 7. 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. 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 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.” 8. Thus, it was for the insurer to plead and prove that the offending vehicle was being driven in violation of the terms and conditions contained in the insurance policy, has not led any evidence, has failed to discharge the onus. 9. Having said so, no case is made out for interference. Accordingly, the impugned award is upheld and the appeal is dismissed. 10. Learned counsel for respondent No.1/claimant stated that part amount stands already released in favour of the claimant. The Registry is, therefore, directed to release the rest of the amount, alongwith interest, in favour of the claimant through her bank account, after proper identification.