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2017 DIGILAW 1977 (JHR)

Oriental Insurance Company Limited v. Munwa Devi

2017-11-17

AMITAV K.GUPTA

body2017
ORDER : AMITAV KUMAR GUPTA, J. 1. This appeal is directed against the award passed by the Additional District Judge, F.T.C.-cum-Motor Vehicle Accident Claims, Tribunal, Koderma, in Claim Case No. 11/2006, whereby appellant Oriental Insurance Company Limited has been directed to pay the awarded amount of Rs. 3,91,000/- with interest at the rate of 6% per annum from the date of filing of the claim case. The brief facts of the case is that Ram Prasad Kushwaha @ Ram Parwesh Koiri was hit by truck bearing No. BR-21G-9161. He. succumbed to the multiple injuries suffered by him on account of the said accident. 2. Learned counsel for the appellant-Insurance Company has submitted that as per para 17 of the impugned judgment, it is evident that the Tribunal has considered Ext.-A and Ext.-B, pertaining to driving licence and recorded a finding that it was valid upto 3.6.2004. That the accident occurred in the year 2006. Therefore, it is amply clear that the driver of the offending vehicle did not have a valid driving licence on the date of accident. It is argued that in such circumstances, the Tribunal has erred in fastening the liability on the insurance company, and failed to appreciate the fact that the driving licence was valid only till 2004 and no steps were taken by the driver or owner of the vehicle for renewal of the licence. It is submitted that the finding of the Tribunal that the appellant-insurance company (opposite party No. 3 in the court below) could not produce any material to show that the owner of the vehicle had full knowledge that the driver (opposite party No. 2) did not have a valid driving licence and permitted him to drive the offending vehicle is perverse and not tenable. 3. It is contended that the Tribunal has failed to appreciate that the owner of the vehicle was negligent for not verifying whether the driver of the offending vehicle had a valid driving licence. The Tribunal has committed manifest error in not appreciating the material fact that there was breach of the terms and conditions of the insurance policy by the owner therefore, the liability should have been fastened on the owner and not the insurer. The Tribunal has committed manifest error in not appreciating the material fact that there was breach of the terms and conditions of the insurance policy by the owner therefore, the liability should have been fastened on the owner and not the insurer. On the above grounds, learned counsel submitted that the impugned award is fit to be set aside, and the liability to pay the compensation should be fixed upon the owner of the vehicle. 4. Mr. Rajesh Lala, learned counsel appearing for the claimants, has submitted that the trial court has considered this aspect and has rightly held that appellant-insurance company is liable to pay compensation amount in terms of Section 149 of the M.V. Act. It is submitted that the Tribunal has referred to and relied on the decision of this Court reported in 2007 (2) M.A.C. 1093 for fastening the liability to pay the compensation on the Insurer. It is argued that learned Single Judge of Andhra Pradesh High Court in the case of United India Insurance Co. Ltd., Gajuwaka vs. Nekkalla Ammathalli & Ors., 2010 (1) T.A.C. 196 (A.P.), has cited the decision of the Supreme Court and held that onus to prove that the driver was not having a valid and effective driving licence on the date of the accident is upon the insurer. It is argued by learned counsel that the trial court has elaborately discussed the material fact and the settled legal proposition on the question raised by the appellant. It is argued that the impugned award does not require any interference by this Court. 5. Heard. Section 147 of the M.V. Act, 1988 mandates that the vehicle should be insured against the third party risk. The question raised by the learned counsel that the driver did not have the valid driving licence at the time of accident has been dealt with and discussed by the Hon'ble Supreme Court in National Insurance Company Limited vs. Swaran Singh & Ors. [ (2004) 3 SCC 297 ) and held in para 110 sub-clauses-iii and iv as under:-- "110(iii) The breach of policy condition e.g. disqualification of the driver or invalid driving licence of the driver, as contained in sub-section (2)(a)(ii) of Section 149, has to be proved to have been committed by the insured for avoiding liability by the insurer. [ (2004) 3 SCC 297 ) and held in para 110 sub-clauses-iii and iv as under:-- "110(iii) The breach of policy condition e.g. disqualification of the driver or invalid driving licence of the driver, as contained in sub-section (2)(a)(ii) of Section 149, has 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 defence available to the insurer against either the insured or the third parties. To avoid its liability towards the 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 a duly licensed driver or one who was not disqualified to drive at the relevant time. (iv) Insurance companies, 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." The settled proposition is that if the insurer fails to discharge the burden of proving the fact that owner had acted negligently and carelessly, then he cannot take the plea that there has been breach of terms and conditions of the policy in terms of Section 149(2) of the M.V. Act. 6. It also transpires that the court below has given right of recovery to the Insurer against the owner of the vehicle in respect to the compensation amount to be paid by the Insurer. Thus, in view of the discussions made hereinabove and the settled proposition, this court is of the considered opinion that the impugned judgment/award does not warrant any interference by this Court. The appellant-insurance company shall pay the awarded amount in terms of the judgment of the learned Tribunal within three months from the date of receipt or production of this order. With the said direction, the appeal stands dismissed.