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Himachal Pradesh High Court · body

2016 DIGILAW 4 (HP)

Ram Lal v. Sameer

2016-01-01

MANSOOR AHMAD MIR

body2016
JUDGMENT : Mansoor Ahmad Mir Mir, Chief Justice (oral) Subject matter of this appeal is the award, dated 18th February, 2015, made by the Motor Accident Claims Tribunal, Bilaspur, Himachal Pradesh (hereinafter referred to as “the Tribunal”) in M.A.C. Petition No. 17/2 of 2013, titled Sameer versus Ram Lal Thakur & others, whereby compensation to the tune of 2,22,864/- alongwith interest at the rate of 9% per annum from the date of filing of the claim petition till its realization was awarded in favour of the claimant and insured-owner and driver-appellants herein, came to be saddled with liability (hereinafter referred to as the “impugned award”). 2. The claimant and insurer have not questioned the impugned award, on any count. Thus, it has attained finality so far it relates to them. 3. The insured-owner and driver have questioned the impugned award on the ground that the Tribunal has fallen in an error in saddling them with liability and discharging the insurer from the liability. 4. The claimant had invoked the jurisdiction of the Tribunal in terms of Section 166 of the Motor Vehicles Act, 1988, for short ‘the Act’, for granting compensation to the tune of Rs,10,00,000/-, as per the break-ups given in the claim petition. 5. The respondents contested the claim petition by the medium of the replies. 6. Following issues came to be framed by the Tribunal: “(1) Whether on 16.02.2012 at about 3.10 p.m. at Swarghat the petitioner sustained injuries on account of the rash and negligent driving of the offending truck bearing No. HP- 64-3946 by the respondent No. 2 as alleged? ….OPP 2. If issue No. 1 is proved in affirmative, to what amount of compensation and from whom the petitioner is entitled to? …OPP 3. Whether the petition is not maintainable, as alleged? …OPR-3 4. Whether the offending vehicle was being driven without valid documents as alleged, if so, its effect? ….OPR-3 5. Whether the offending vehicle was being driven by an un-authorized person who was not having valid and effective driving licence at the relevant time, as alleged. 6. Relief.” 7. The claimant has examined Shri Ashok Kumar (PW-2). The guardian of the claimant, i.e. Shri Madan Lal also appeared in the witness box as PW-1. The driver and owner have examined Veena Thakur (RW-1) and Kehar Singh (RW-2). The insurer has not led any evidence. Issues No. 1 to 3 8. 6. Relief.” 7. The claimant has examined Shri Ashok Kumar (PW-2). The guardian of the claimant, i.e. Shri Madan Lal also appeared in the witness box as PW-1. The driver and owner have examined Veena Thakur (RW-1) and Kehar Singh (RW-2). The insurer has not led any evidence. Issues No. 1 to 3 8. There is no dispute regarding issues No. 1 to 3. Accordingly, the findings returned by the Tribunal on issues No. 1 to 3 are upheld. Issue No. 4. 9. The onus to prove issue No. 4 was upon the insurer, has not led any evidence. Thus, it has failed to discharge the onus. This issue was to be decided against the insurer, but the Tribunal has fallen in an error in deciding it in favour of the insurer. Accordingly, issue No. 4 is decided against the insurer and in favour of the owner and driver. Issue No. 5. 10. The Tribunal has held that the driver was not having a valid and effective driving licence to drive the offending vehicle, which was a ‘heavy transport vehicle’, thus, was not competent to drive the same. I have gone through the record. Both the driving licences were issued in favour of the driver by the competent authority and their genuineness is not in dispute. Perusal of the driving licences does disclose that the driver was competent to drive the offending vehicle. 11. In the given circumstances, it was for the insurer to plead and prove that the owner has committed willful breach in terms of the mandate of Sections 147, 148 & 149 of the Act read with the terms and conditions contained in the insurance policy, as held by the Apex Court in 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 subsection (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 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. 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 available the Act.” 12. 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 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. 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.” 13. This Court in FAO No. 322 of 2011, titled as IFFCO IFFCO-TOKIO Gen. Insurance Company Limited versus Smt. Joginder Kaur and others others, decided on 29.08.2014 and FAO No. 523 of 2007, titled as Oriental Insurance Company Ltd. versus Smt. Rikta alias Kritka & others, decided on 19.12.2014, has laid down the same principle. 14. The factum of the insurance is not in dispute. 15. Insurance Company Limited versus Smt. Joginder Kaur and others others, decided on 29.08.2014 and FAO No. 523 of 2007, titled as Oriental Insurance Company Ltd. versus Smt. Rikta alias Kritka & others, decided on 19.12.2014, has laid down the same principle. 14. The factum of the insurance is not in dispute. 15. Having said so, it is held that the Tribunal has fallen in an error in discharging the insurer from liability. Accordingly, issue No. 5 is decided against the insurer and in favour of the owner-insured and driver. 16. The insurer is directed to deposit the award amount before the Registry, within eight weeks from today. On deposit, the Registry is directed to release the entire amount in favour of the claimant, strictly in terms of conditions contained in the impugned award, through payees account cheque or by depositing in the account. 17. The statutory amount to the tune of Rs, 25,000/-, deposited by the appellants, is awarded as costs in favour of the claimant. The Registry also to release the same in favour of the claimant. 18. Accordingly, the impugned award is modified, as indicated above and the appeal is disposed of. 19. Send down the records after placing a copy of the judgment on record.