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Himachal Pradesh High Court · body

2016 DIGILAW 2634 (HP)

Navdeep Singh v. Inder Singh

2016-12-09

MANSOOR AHMAD MIR

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JUDGMENT : Mansoor Ahmad Mir, J. These appeals are directed against the judgment and award dated 28.5.2012, passed by the Motor Accident Claims Tribunal-II, Shimla H.P. hereinafter referred to as “the Tribunal”, for short, in MAC No. 53-S/2 of 2008, titled Inder Singh versus Sh. Navdeep Singh and others, whereby compensation to the tune of Rs.53000/- alongwith interest @ 7.5% per annum with cost assessed at Rs.5000/- came to be awarded in favour of the claimant and owner and driver were saddled with the liability, for short “the impugned award”, on the grounds taken in the memo of appeal. 2. Both these appeals are outcome of a common award thus, I deem it proper to determine both these appeals by this common judgment. 3. Owner Navdeep Singh and driver Jagdish Kumar, by the medium of FAO No. 459 of 2012 has questioned the impugned award on the ground that the Tribunal has fallen in an error in saddling him with the liability and exonerating the insurer and claimant Inder Singh, by the medium of FAO No. 127 of 2013, has questioned the impugned award on the ground of adequacy of compensation, on the grounds taken in their memo of appeals. 4. The factum of accident, rashness and negligence is not in dispute. Thus two points arise for determination in these appeals. (i) Whether the Tribunal has rightly discharged the insurer from the liability? (ii) Whether the amount awarded is adequate? 5. Both these points are to be answered against the insurer for the following reasons. 6. The driver of the offending vehicle was having a valid and effective driving licence which was also renewed. The Tribunal has fallen in an error in making discussion in paras 25 and 26 of the impugned award. This Court has already determined the issue in FAO No.172 of 2006 decided on 7.3.2014 titled Oriental Insurance Company versus Smt. Shakuntla Devi and others. 7. Ext. RW1/A is driving licence, perusal of which does disclose that it was renewed on 13.6.2006 up to 11.6.2009 thus, was valid one. 8. Even otherwise, if a licence was not valid or was otherwise not effective, it was for the appellant-insurer to plead and prove that the driver was not having a valid licence and the owner has committed willful breach. 9. My this view is fortified by the Apex Court judgment in the case of National Insurance Co. 8. Even otherwise, if a licence was not valid or was otherwise not effective, it was for the appellant-insurer to plead and prove that the driver was not having a valid licence and the owner has committed willful breach. 9. 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 Supreme Court 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 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.” 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 is also profitable to reproduce para 10 of the judgment of the Apex Court in the case of Pepsu Road Transport Corporation versus National Insurance Company, reported in (2013) 10 Supreme Court Cases 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. 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. Having said so, the driver was having a valid and effective driving licence at the time of accident. 12. The factum of insurance is admitted. Thus, the insurer has to satisfy the award. 13. Accordingly, the appeal filed by the owner and driver being FAO No. 459 of 2012 is allowed and the impugned award is modified as indicated hereinabove. FAO No. 127 of 2013. 14. Adverting to the appeal filed by the claimant, the amount though appears to be adequate and just but the Tribunal has fallen in an error in not awarding compensation for three months during which the claimant remained for bed rest. The income of the claimant has been assessed at Rs.3000/- per month by the Tribunal and thus is entitled to Rs.9000/- in addition to the amount already awarded. Thus, the claimant in all is held entitled to compensation to the tune of Rs.53,000/- + Rs.9,000/- = Rs.62000/- alongwith costs of Rs.5000/- as awarded by the Tribunal. 15. Accordingly, the appeals are allowed, compensation is enhanced and impugned award is modified, as indicated hereinabove. 16. The insurer is directed to deposit the amount within eight weeks from today in the Registry alongwith interest as awarded by the Tribunal. The Registry, on deposit, is directed to release the amount in favour of the claimant, strictly in terms of the conditions contained in the impugned award, through payees’ cheque account, or by depositing the same in his bank account, after proper verification. 17. The statutory amount of Rs.25,000/- stands deposited by the appellant-owner in the Registry. Out of Rs.25,000/- a sum of Rs.10,000/- is also awarded as costs in favour of the claimant, be released to the claimant as and rest of the amount be refunded to the appellant/owner. 18. Send down the record forthwith, after placing a copy of this judgment.