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Himachal Pradesh High Court · body

2016 DIGILAW 2435 (HP)

United India Insurance Co. v. Lokeshawar Narah

2016-11-18

MANSOOR AHMAD MIR

body2016
JUDGMENT : Mansoor Ahmad Mir, J. This appeal is directed against the award, dated 14th December, 2011, passed by the Motor Accident Claims Tribunal-II, Solan, H.P., (for short, “the Tribunal”) in Claim Petition No.9-S/2 of 2010, titled Lokeshawar Narah and others vs. Surinder Kumar Bansal and others, whereby the claim petition was allowed and compensation to the tune of Rs.11,64,670/-, with interest at the rate of 9% per annum, came to be awarded in favour of the claimants and the insurer/appellant was saddled with the liability, (for short the “impugned award”). 2. The claimants, the owner and the driver have not questioned the impugned award on any ground, thus, the same has attained finality so far as it relates to them. Feeling aggrieved, the insurer has challenged the impugned award on the grounds taken in the memo of appeal. 3. Facts of the case, in brief, are that the claimants invoked the jurisdiction of the Tribunal under Section 166 of the Motor Vehicles Act, 1988, (for short, the Act), on the ground that on 31st December, 2009, at about 9.30 p.m., the deceased was walking on left side of the road at Purolator Chowk, NH-22, Parwanoo, suddenly scooter bearing registration No.HP-15- 4795, being driven rashly and negligently by Atinder Pal Singh (original respondent No.2), hit the deceased resulting into fatal injuries to the deceased and ultimately, he succumbed to the injuries. Claimants, being the parents, brother and sister of the deceased, filed the claim petition for compensation to the tune of Rs.15.00 lacs as per the break-ups given therein. 4. The claim petition was resisted by the respondent by filing reply and following issues came to be framed: ‘1. Whether deceased Dipen Narah died in an accident on account of rash and negligent driving of respondent No.2? OPP 2. If issue No.1 is proved in affirmative, to what amount and from whom, the petitioners are entitled for compensation? OPP 3. Whether the petition is not maintainable? OPR 4. Whether the vehicle in question was driven in breach of terms and conditions of policy? OPR-3 5. Relief.” 5. Parties have led evidence. 6. During the course of hearing, the learned counsel for the appellant/insurer has made threefold submissions. OPP 3. Whether the petition is not maintainable? OPR 4. Whether the vehicle in question was driven in breach of terms and conditions of policy? OPR-3 5. Relief.” 5. Parties have led evidence. 6. During the course of hearing, the learned counsel for the appellant/insurer has made threefold submissions. Firstly, it was submitted that the driver of the offending vehicle was not having a valid and effective driving licence at the time of accident; secondly, the owner had committed willful breach of the terms and conditions and; thirdly, the Tribunal has wrongly assessed the compensation while making discussion in paragraphs 23 to 25 of the impugned award. 7. Heard learned counsel for the parties and gone through the record. Issue No.1. 8. The Tribunal, after scanning the evidence, held that the driver had driven the offending scooter rashly and negligently on the appointed day and had caused the accident, in which the deceased sustained injuries and lost his life. There is no challenge to the said findings recorded by the Tribunal on issue No.1, accordingly the same are upheld. 9. Before Issue No.2 is dealt with, I deem it proper to determine issues No.3 and 4. Issue No.3 10. It was for the insurer to plead and prove how the claim petition was not maintainable, has not led any evidence. In accident claim cases, the Court has to grant compensation while keeping in view the aim and object of granting compensation, which is social and beneficial one. 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. Accordingly, it is held that the Tribunal has rightly decided this issue against the insurer. Issue No.4: 11. 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. Accordingly, it is held that the Tribunal has rightly decided this issue against the insurer. Issue No.4: 11. 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. According to the learned counsel for the appellant/insurer, the driver, at the time of accident, was having two licences, but it is not the case that the driver was not having a valid and effective driving licence at the time of accident. The Tribunal has made detailed discussion in paragraphs No.13 to 16 of the impugned award. Having said so, it is held that the Tribunal has rightly held that the driver of the offending vehicle was having a valid and effective driving licence at the time of accident. 12. The insurer has also not led any evidence to prove that the owner had committed willful breach of the terms and conditions contained in the insurance policy. It is settled proposition of law that it is the duty of the insurer to plead and prove that the insured had committed willful breach of the terms and conditions of the insurance policy read with the mandate of Sections 147 to 149 of the Act, has not led any evidence and has failed to discharge the onus. 13. 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 SC 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. 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.” 14. 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 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.” 15. Having said so, the findings returned by the Tribunal on issue No.4 are also upheld. Issue No.2 16. It has been claimed that the deceased was a qualified electric engineer and was working in M/s Federal Mogul Bearing India Limited, Parwanoo. Salary certificate of the deceased has been proved on record as Ext.PW-2/A, which shows that he was drawing salary to the tune of Rs.10,050/- per month. Thus, the monthly income of the deceased can be said to be Rs.10,000/-. The deceased was bachelor at the time of accident, therefore, 50% was to be deducted towards his personal expenses, in view of the judgment of the Apex Court in Sarla Verma (Smt.) and others vs. Delhi Transport Corporation and another, (2009) 6 SCC 121 , which decision was also upheld by the larger Bench of the Apex Court in Reshma Kumari and others vs. Madan Mohan and another, 2013 AIR (SCW) 3120. Therefore, after deducting 50%, monthly loss of source of dependency can be said to be Rs.5,000/-. 17. The deceased was 26 years of age at the time of death. The Tribunal has fallen into an error in applying the multiplier of 14, instead, in view of the law expounded by the Apex Court in Sarla Verma’s case (supra) and the 2nd Schedule attached with the Motor Vehicles Act, 1988, multiplier of 16 was just and appropriate and is applied accordingly. 18. In view of the above discussion, the claimants are held entitled to compensation to the tune of Rs.5,000/- x 12 x 16 = Rs.9,60,000/- under the head loss of source of dependency. In addition, the claimants are also held entitled to Rs.10,000/- each, i.e. Rs.30,000/- in all, under the heads ‘loss of love and affection’, ‘loss of estate’ and ‘funeral expenses’. 19. Thus, the claimants are held entitled to Rs.9,60,000/- + Rs.30,000/- = Rs.9,90,000/-. 20. The Tribunal has also wrongly awarded interest at the rate of 9%, which is on the higher side. It is 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 ; Santosh 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 & Ors. 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. 21. Accordingly, it is held that the amount of compensation shall carry interest at the rate of 7.5% per annum from the date of filing of the claim petition till deposit. 22. 21. Accordingly, it is held that the amount of compensation shall carry interest at the rate of 7.5% per annum from the date of filing of the claim petition till deposit. 22. In view of the above discussion, the impugned award is modified, as indicated above. The Registry is directed to release the amount, alongwith interest, strictly in terms of the impugned award, in favour of the claimants, through their bank accounts after proper verification, and the excess amount, if any, be released in favour of the insurer through payee’s account cheque. 23. The impugned award is modified, as indicated above and the appeal stands disposed of accordingly.