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2016 DIGILAW 2341 (HP)

Oriental Insurance Company Ltd. v. Jai Kumar

2016-11-04

MANSOOR AHMAD MIR

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JUDGMENT : Mansoor Ahmad Mir, J. This appeal is directed against award, dated 1st October, 2011, made by the Motor Accident Claims Tribunal, Ghumarwin, District Bilaspur, Himachal Pradesh (for short ?the Tribunal?) in M.A.C. No. 44 of 2006, titled as Jai Kumar versus Smt. Sunita Devi and others, whereby compensation to the tune of ? 2,85,000/- with interest @ 7.5% per annum from the date of the petition till its realization came to be awarded in favour of the claimant-injured and the insurer was saddled with liability (for short ?the impugned award?). 2. The claimant-injured, owner-insured and driver of the offending vehicle have not questioned the impugned award on any count, thus, has attained finality so far it relates to them. 3. Appellant-insurer has called in question the impugned award on the ground that the Tribunal has fallen in an error in saddling it with liability. 4. Learned Senior Counsel appearing on behalf of the appellant-insurer argued that the owner-insured of the offending vehicle has committed a willful breach as there was no fitness certificate of the offending vehicle at the time of the accident and that the driver was not having a valid and effective driving licence to drive the same at the relevant point of time. 5. The claimant-injured had claimed compensation to the tune of ? five lacs, as per the break-ups given in the claim petition, on the ground that he became the victim of the vehicular accident, which was caused by the driver, namely Shri Vijay Kumar, while driving tractor, bearing registration No. HP-69-0314, rashly and negligently, on 4th August, 2006, at about 11.00 A.M., at Village Padyalag, Tehsil Ghumarwin, in which he sustained multiple injuries. 6. The respondents in the claim petition resisted the same on the grounds taken in the respective memo of objections. 7. On the pleadings of the parties, following issues came to be framed by the Tribunal on 28th May, 2009: ?1. Whether the petitioner suffered injuries due to rash and negligent driving on account of accident which took place on 4.8.2006 as alleged? OPP 2. If issue No. 1 is proved in affirmative, whether the petitioner is entitled for compensation and if so from whom and to what extent? OPP 3. Whether the petition is bad for non-joinder of necessary parties? OPR 4. Whether the petition is not maintainable? OPR-3 5. OPP 2. If issue No. 1 is proved in affirmative, whether the petitioner is entitled for compensation and if so from whom and to what extent? OPP 3. Whether the petition is bad for non-joinder of necessary parties? OPR 4. Whether the petition is not maintainable? OPR-3 5. Whether the petition is bad for mis-joinder of necessary parties? OPR-3 6. Whether the vehicle in question was being driven without R.C., insurance and valid route permit? OPR-3 7. Whether the vehicle was being driven without any effective driving licence? OPR-3 8. Whether the vehicle was being run in contravention of the terms of the Motor Vehicles Act? OPR-3 9. Whether there was contributory/ composite negligence of the driver of vehicle HP-23B-1052 and HP-69- 0314? OPR-3 10. Relief.? 8. Parties have led evidence. 9. The Tribunal, after scanning the evidence, oral as well as documentary, awarded compensation in terms of the impugned award. Hence, the instant appeal. Issue No. 1: 10. The Tribunal has held that the claimant-injured has proved that he sustained injuries due to the rash and negligent driving of the offending vehicle by its driver on 4th August, 2006 and decided issue No. 1 in favour of the claimant-injured. The said findings are not in dispute in this appeal. Accordingly, the findings returned by the Tribunal on issue No. 1 are upheld. 11. Before dealing with issues No. 2 and 6 to 8, I deem it proper to determine issues No. 3 to 5 and 9. Issues No. 3 to 5 and 9: 12. It was for the insurer to prove issues No. 3 to 5 and 9, has not led any evidence to this effect, thus, has failed to discharge the onus. The Tribunal has made discussion that the insurer has not led any evidence and failed to discharge the onus. Accordingly, the findings returned by the Tribunal on issues No. 3 to 5 and 9 are upheld. Issues No. 6 to 8: 13. The insurer has not led any evidence to the effect that the driver of the offending vehicle was not having a valid and effective driving licence, the offending vehicle was being driven without valid documents and in contravention of the Motor Vehicles Act, 1988 (for short ?MV Act?), and the owner-insured has committed a willful breach, thus, has failed to prove issues No. 6 to 8. The Tribunal has rightly decided the said issues while making discussion in paras 25 to 27 of the impugned award. 14. Even otherwise, it was for the insurer to plead and prove that the owner-insured of the offending vehicle has committed willful breach as per the mandate of Sections 147 and 149 of the MV Act read with the terms and conditions of the insurance policy. 15. 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: 363 ?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. 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 defence (s) 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? 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.? 16. 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. 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.? 17. 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.? 17. Viewed thus, the findings returned by the Tribunal on issues No. 6 to 8 are upheld. Issue No. 2: 18. 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 or meagre in any way. Thus, it is held that the Tribunal has rightly awarded ? 2,85,000/- to the claimant-injured and saddled the insurer with liability. Accordingly, the findings returned by the Tribunal on issue No. 2 are also upheld. 19. Viewed thus, the impugned award is well reasoned and legal one, needs no interference. 20. Having glance of the above discussions, the impugned award is upheld and the appeal is dismissed. 21. Registry is directed to release the awarded amount in favour of the claimant-injured strictly as per the terms and conditions contained in the impugned award through payee's account cheque or by depositing the same in his bank account. 22. Send down the record after placing copy of the judgment on the Tribunal's file.