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Himachal Pradesh High Court · body

2016 DIGILAW 2443 (HP)

Oriental Insurance Co. Ltd. v. Savitra Devi

2016-11-18

MANSOOR AHMAD MIR

body2016
JUDGMENT : Mansoor Ahmad Mir, J. Both these appeals are outcome of one accident, hence are taken up together for disposal by this common judgment. 2. FAO No. 320 of 2012 is directed against the judgment and award dated 28.4.2012, in Claim Petition No. 101 of 2007 titled Smt. Savitra and others versus Partap Singh and others and FAO No. 321 of 2012, is directed against the award dated 28.4.2012, in claim petition No. 35 of 2008, titled Smt. Maina Devi and others versus Partap Singh and others, for short “the impugned awards”, passed by the Motor Accident Claims Tribunal (II), Mandi, H.P. hereinafter referred to as “the Tribunal”, for short. 3. Claimants being the victims of a vehicular accident invoked the jurisdiction of the Tribunal for the grant of compensation as per the break-ups given in their respective claim petitions, on account of death of deceased Daya Ram and Naresh Kumar in a motor vehicle accident, involving truck bearing registration No. HP-32-1054 on 1.10.2007 at 5 p.m. at Dohra Nala near Magru Gala on Janjehali road. 4. Parties have led evidence and two separate awards, as referred to above, came to be passed by the Tribunal. 5. Claimants and driver have not questioned the impugned awards on any ground, thus the same have attained the finality, so far as the same relate to them. 6. In both these appeals the insurer has questioned the impugned awards on the grounds taken in the memo of appeals. 7. Learned counsel for the appellant argued that the seating capacity of the vehicle is only 1+3, hence, the liability be restricted only in terms of the seating capacity of the vehicle and risk covered, in terms of the insurance policy. His statement is taken on record. 8. I have gone through the evidence as well as the pleadings. The claimants have proved that the accident was outcome of rash and negligent driving by the driver of the offending vehicle. Accordingly, the findings returned by the Tribunal on issue No. 1 are upheld. 9. It was for the insurer to plead and prove that the driver was not having a valid and effective driving licence at the time of accident and owner has committed willful breach, has failed to discharge the onus in terms of National Insurance Co. Ltd. versus Swaran Singh and others, reported in AIR 2004 SC 1531 . 9. It was for the insurer to plead and prove that the driver was not having a valid and effective driving licence at the time of accident and owner has committed willful breach, has failed to discharge the onus in terms of 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. 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” and the concept of “fundamental breach” to allow defences available to the insured under Section 149 (2) of the Act.” 10. 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.” 10. 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. 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.” 11. 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.” 11. At this stage, the learned counsel for the appellant argued that the deceased were gratuitous passengers has not led any evidence before the Tribunal to prove this fact. The Tribunal has rightly made discussion in the impugned awards. Accordingly, the findings returned by the Tribunal on this issue are upheld. 12. I have gone through the impugned awards. The Tribunal has rightly held that the vehicle was insured and the insurer has to satisfy the awards. The learned counsel for the appellant was not in a position to show that the Tribunal has wrongly saddled the insurer with the liability. 13. Having said so, the insurer is held liable to pay compensation as per the terms and conditions contained in the insurance policy. 14. The insurer is directed to deposit the amount alongwith interest as awarded by the Tribunal in both the appeals, within eight weeks from today in the Registry, if not already deposited. 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 awards, through payees’ cheque account, or by depositing the same in their bank accounts, after proper verification. 15. Accordingly, the impugned awards are upheld and the appeals are dismissed. 16. Send down the record forthwith, after placing a copy of this judgment.