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2016 DIGILAW 2332 (HP)

New India Assurance Company v. Urmila Devi

2016-11-04

MANSOOR AHMAD MIR

body2016
JUDGMENT : Mansoor Ahmad Mir, J. This appeal is directed against the judgment and award dated 7.2.2011, passed by the Motor Accident Claims Tribunal-II, Una, H.P. hereinafter referred to as “the Tribunal”, for short, in MACP No.2 of 2009, titled Smt. Urmila Devi and another versus Sh. Hem Raj and others, whereby compensation to the tune of Rs.2,87,000/- alongwith interest @ 9% per annum with counsel fee assessed at Rs.1,000/- came to be awarded in favour of the claimants and insurer was saddled with the liability, for short “the impugned award”, on the grounds taken in the memo of appeal. 2. Claimants, owner and driver have not questioned the impugned award on any ground, thus it has attained the finality, so far as it relates to them. 3. The insurer has questioned the impugned award on the grounds taken in the memo of appeal. 4. Learned counsel for the appellant argued that the driver was not having a valid and effective driving licence at the time of the accident. Thus, the only question to be determined in this appeal is whether the driver was having a valid and effective driving licence and the owner has committed willful breach? 5. The insurer has examined only one witness, i.e., Kamlesh Kumar RW1, who is licence Clerk, from the office of S.D.M. Sarkaghat. The insurer has not led any evidence to the effect that the driver was not having a valid and effective driving licence and the owner has committed willful breach. 6. It was for the insurer to plead and prove that the owner has committed any willful breach in terms of Sections 147 and 149 of the Motor Vehicles Act read with the judgment rendered by the apex Court in case titled National Insurance Co. Ltd. versus Swaran Singh and others, reported in AIR 2004 SC 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 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. ..................... (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. 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 would also be profitable to reproduce para 10 of the judgment rendered by the Apex Court in Pepsu Road Transport Corporation versus National Insurance Company, reported in (2013) 10 SCC 217 , 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. 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. 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. RW-1 Kamlesh Kumar has deposed that the driver was having driving licence No. 151/1999 dated 10.2.1999, issued by the R & LA, Bilaspur and it was renewed vide renewal No. 991/2010 dated 16.12.2010 by R& LA, Sarkaghat after getting confirmation from the R& LA Bilaspur that the driving licence was genuine and valid. 9. Having said so, the insurer has failed to prove that the driver was not having a valid and effective driving licence at the time of accident. 9. Having said so, the insurer has failed to prove that the driver was not having a valid and effective driving licence at the time of accident. The Tribunal has made discussion in para 23 of the impugned award, needs no interference. 10. The Tribunal has awarded interest @ 9% per annum. However, interest was to be awarded at the rate of 7.5% per annum, for the following reasons. 11. It is a beaten law of the land that the rate of interest should be awarded as per the prevailing rates, in view of the judgments rendered by the Apex Court in cases titled as United India Insurance Co. Ltd. and others versus Patricia Jean Mahajan and others, reported in (2002) 6 SCC 281 ; Satosh Devi versus National Insurance Company Ltd. and others, reported in 2012 AIR SCW 2892; Amrit Bhanu Shali and others versus National Insurance Company Limited and others reported in (2012) 11 SCC 738 ; Smt. Savita versus Binder Singh & others, reported in 2014, AIR SCW 2053; Kalpanaraj & others versus Tamil Nadu State Transport Corpn., reported in 2014 AIR SCW 2982; Amresh Kumari versus Niranjan Lal Jagdish Pd. Jain and others, reported in (2015) 4 SCC 433 , and Mohinder Kaur and others versus Hira Nand Sindhi (Ghoriwala) and another, reported in (2015) 4 SCC 434 , and discussed by this Court in a batch of FAOs, FAO No. 256 of 2010, titled as Oriental Insurance Company versus Smt. Indiro and others, being the lead case, decided on 19.06.2015. 12. Accordingly, interest @7.5% per annum is awarded from the date of claim petition till realization of the amount. 13. The insurer is directed to deposit the amount alongwith interest @ 7.5% per annum, within eight weeks from today in the Registry. The Registry, on deposit, is directed to release the amount in favour of the claimants, strictly in terms of the conditions contained in the impugned award, through payees’ cheque account, or by depositing the same in their bank accounts, after proper verification and excess amount, if any, be refunded to the insurer/appellant through payees’ cheque account. 14. Viewed thus, the impugned award is modified as indicated hereinabove and appeal is disposed of alongwith pending applications. 15. Send down the record forthwith, after placing a copy of this judgment.