Research › Search › Judgment

Himachal Pradesh High Court · body

2017 DIGILAW 894 (HP)

Munish Jain v. Sunita Devi

2017-08-02

AJAY MOHAN GOEL

body2017
JUDGMENT : Ajay Mohan Goel, J. By way of this appeal, the appellants/respondents have challenged the award passed by the learned Motor Accident Claims Tribunal-II, Kangra at Dharamshala, dated 12.01.2011, vide which, learned Tribunal allowed the claim petition so filed before it by claimants Sunita Devi and Kultar Singh in the following terms: “30. As a result of my findings on all the Issues above, the petition is allowed and an amount of Rs.2,00,000/- (Rs. Two lac) is hereby awarded as compensation in favour of petitioners, which is liable to be paid by the respondents No. 1 and 2 jointly and severally. However, it is made clear that out of the awarded amount, an amount of Rs.50,000/- as interim compensation has already been paid by the respondent No. 3, Insurance Company, to the petitioners. As such, the respondent No. 3 is at liberty to get this amount recovered from the respondents No. 1 and 2 by filing execution against them. The petitioners are also held entitled to interest at the rate of 7.5% per annum from the date of petition till the payment of the compensation amount by the respondents No. 1 and 2. The amount of compensation awarded in favour of the petitioners shall be apportioned in equal shares between the petitioners. Memo of costs be drawn. The file after due completion be consigned to the record room.” 2. Appellants before this Court were respondents No. 1 and 2 before the learned Tribunal. Appellant No.1 Munish Jain is the owner of motorcycle, which was involved in the accident, whereas appellant No. 2 Saurav Kumar was driving the said vehicle when the accident took place. Learned Tribunal while awarding compensation in favour of the claimants before it, in the course of deciding Issue No. 2 held that liability to compensate the claimants was upon respondents No. 1 and 2 therein, i.e. the present appellants. Appeal before this Court stands filed by the appellants primarily challenging the award on the ground that the learned Tribunal erred in holding that the liability to compensate the claimants was upon them and not the Insurance Company. 3. Appeal before this Court stands filed by the appellants primarily challenging the award on the ground that the learned Tribunal erred in holding that the liability to compensate the claimants was upon them and not the Insurance Company. 3. Brief facts necessary for the adjudication of this appeal are that a claim petition was filed praying for compensation by the claimants therein, i.e. present respondents No. 1 and 2 on account of the death of their daughter Kumari Sapna, who on 08.03.2004, at around 1:45 p.m. while crossing Amb Pathiar road, after purchasing toffees from a shop on her way to her house, was hit by a motorcycle bearing registration No. HP-55-4093 and that too on the left side of the road, which motorcycle was being driven from Jawalamukhi side to Nadaun side. According to the claimants, the accident took place on account of rash and negligent driving of Saurav Kumar (present appellant No. 2), who struck the deceased on the wrong side of the road and had dragged her up to a distance of 10-15 meters. Though immediately after the accident Kumari Sapna was rushed to CHC Jawalamukhi, however, there she was declared dead. Her age at the relevant time was 9 ½ years. She was a student of 4th Class. 4. In their reply filed to the claim petition, stand taken by the present appellants was that the accident had not occurred on account of the rash and negligent driving of appellant No. 2, but the accident took place as child came on the road all of a sudden and when she saw the motorcycle, she got perplexed and fell on the road and in fact the motorcycle never struck her, as alleged. 5. Insurance Company filed a separate reply, in which it took preliminary objections that the motorcycle was not insured and the driver of the vehicle involved in the accident was not holding a valid and effective driving licence and further that the vehicle was being plied without registration certificate. 6. On the basis of pleadings of the parties, the learned Tribunal framed the following issues: “1. Whether deceased Kumari Sapna died in an accident with the offending vehicle motorcycle bearing registration No. HP-55-4093 on 8.3.2004 at village Amb Doli Police Station Jawalamukhi, as a result of rash and negligent manner of the respondent No. 2, as alleged? OPP 2. 6. On the basis of pleadings of the parties, the learned Tribunal framed the following issues: “1. Whether deceased Kumari Sapna died in an accident with the offending vehicle motorcycle bearing registration No. HP-55-4093 on 8.3.2004 at village Amb Doli Police Station Jawalamukhi, as a result of rash and negligent manner of the respondent No. 2, as alleged? OPP 2. Whether the petitioners are entitled for compensation being dependents of deceased from the respondents, if so, its extent and liability thereof? OPP 3. Whether the offending vehicle was not insured with the insurer of the offending vehicle at the time of accident, as alleged? OPR-3. 4. Whether the driver of the offending vehicle was not holding a valid and effective driving licence at the time of accident, as alleged OPR 3 5. Whether the offending vehicle was not being driven under valid and effective certificate of registration, as alleged? OPR. 6. Relief. 7. On the basis of evidence adduced by the respective parties in support of their respective claims, the following findings were returned by learned Tribunal to the issues so framed: “Issue No. 1: Yes. Issue No. 2: Yes. Issue No. 3: No. Issue No. 4: Yes. Issue No. 5: Yes. Relief: The petition is allowed as per operative part of the award. 8. As I have already mentioned above, an amount of Rs.2,00,000/- was awarded as compensation in favour of the claimants alongwith interest. Though Issue No. 5 was decided against the present appellants by the learned Tribunal, however, during the pendency of this appeal, by way of an application so filed under Order 41 Rule 27 of the Code of Civil Procedure read with Section 151 thereof, appellants placed on record copies of Registration Certificate of the motorcycle in issue, from which it is evident that motorcycle was duly registered with the Registering and Licencing Authority, Nadaun, District Hamirpur on the date when the accident took place. This aspect of the matter, during the course of arguments has also not been agitated by the learned counsel for the respondents/Insurance Company in this Court. 9. Issue No. 4 framed by the learned Tribunal was whether the driver of the offending vehicle was not holding a valid and effective driving licence at the time of accident, as alleged? This issue stands decided by the learned Tribunal against the appellants. 9. Issue No. 4 framed by the learned Tribunal was whether the driver of the offending vehicle was not holding a valid and effective driving licence at the time of accident, as alleged? This issue stands decided by the learned Tribunal against the appellants. It was held by the learned Tribunal that driving licence Ex. RW1/A was stated to be issued at Hoshiarpur and Insurance Company had examined RW 2 Beant Singh, Clerk from DTO office Hoshiarpur, who had stated that licence No. 909 REP dated 11.05.2001 in favour of Saurav Kumar, son of Sh. Ramesh Kumar was not issued from their office and as per office record, extract of which was placed on record as Ex. RW2/A, Sr. No. 909 was blank. On these basis, it was concluded by the learned Tribunal that the motorcycle in question was being driven by respondent No. 2 therein, i.e. present appellant No. 2, who was not possessed of a valid licence to drive the vehicle. 10. Learned counsel for the appellants has argued that the findings so returned by the learned Tribunal are perverse and not sustainable in the eyes of law, as while coming to the said conclusion, learned Tribunal erred in not taking into consideration the law laid down by the Hon’ble Supreme Court in National Insurance Co. Ltd. Vs. Swaran Singh and others (2004) 3 SCC 297 . He has drawn the attention of this Court to para 110 of the said judgment and argued that merely because the licence of the driver was a fake licence, the same did not absolve the Insurance Company from its liability to indemnify the insured. He has further submitted that in the present case, the vehicle in question was a motorcycle, which was being driven at the unfortunate time when the accident took place by a person who was in possession of a licence to drive the same and Insurance Company has not led any evidence from which it could be inferred that the insurer was guilty of negligence and had failed to exercise reasonable care in the matter of fulfilling the condition of policy. 11. 11. On the other hand, learned counsel for the respondent- Insurance Company has submitted that there was no infirmity with the findings returned by the learned Tribunal, because when it was discovered subsequently that the licence being possessed by appellant No. 2 was in fact a fake licence, Insurance Company could not have been called upon to indemnify the insured by paying compensation to the claimants. 12. I have heard the learned counsel for the parties and have also gone through the records as well as the award passed by the learned Tribunal. 13. A three Judge Bench of the Hon’ble Supreme Court in National Insurance Co. Ltd. Vs. Swaran Singh and others (2004) 3 SCC 297 , inter alia held in Clause (iii) of para 110 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 defences 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.” 14. The Hon’ble Supreme Court has thus held that mere absence, fake or invalid driving licence are in themselves no defences available to the insurer against either the insured or the third party. 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. 15. In the present case, the vehicle involved in the accident is a motorcycle. It is no one’s case that either the motorcycle was a commercial vehicle or that appellant No. 2 was engaged by appellant No. 1 as a driver to ply the said motorcycle on his behalf. 15. In the present case, the vehicle involved in the accident is a motorcycle. It is no one’s case that either the motorcycle was a commercial vehicle or that appellant No. 2 was engaged by appellant No. 1 as a driver to ply the said motorcycle on his behalf. Thus, here is a case where appellant No. 1 owner of the motorcycle had handed over the said motorcycle for driving the same to appellant No. 2 when the unfortunate accident took place. There is no relationship of employer and employee between appellants No. 1 and 2. 16. The Hon’ble Supreme Court in United India Insurance Co. Ltd. Vs. Lehru and others (2003) SCC 338 has held as under: “20. When an owner is hiring a driver he will therefore have to check whether the driver has a driving licence. If the driver produces a driving licence which on the face of it looks genuine, the owner is not expected to find out whether the licence has in fact been issued by a competent authority or not. The owner would then take the test of the driver. If he finds that the driver is competent to drive the vehicle, he will hire the driver. We find it rather strange that Insurance Companies expect owners to make enquiries with RTO's, which are spread all over the country, whether the driving licence shown to them is valid or not. Thus where the owner has satisfied himself that the driver has a licence and is driving competently there would be no breach of Section 149(2)(a)(ii). The Insurance Company would not then be absolved of liability. If it ultimately turns out that the licence was fake the Insurance Company would continue to remain liable unless they prove that the owner/insured was aware or had noticed that the licence was fake and still permitted that person to drive. More importantly even in such a case the Insurance Company would remain liable to the innocent third party, but it may be able to recover from the insured. This is the law which has been laid down in Skandia 's Sohan Lal Passi 's and Kamla 's case. We are in full agreement with the views expressed therein and see no reason to take a different view.” 17. This judgment is referred to in National Insurance Co. Ltd. Vs. This is the law which has been laid down in Skandia 's Sohan Lal Passi 's and Kamla 's case. We are in full agreement with the views expressed therein and see no reason to take a different view.” 17. This judgment is referred to in National Insurance Co. Ltd. Vs. Swaran Singh and others (supra), wherein the Hon’ble Supreme Court in reference to the said judgment ( i.e. United India Insurance Co. Ltd. Vs. Lehru and others) in paras 99 and 100 thereof has held as under: “99. So far as the purported conflict in the judgments of Kamla (supra) and Lehru (supra) is concerned, we may wish to point out that the defence to the effect that the licence held by the person driving the vehicle was a fake one, would be available to the insurance companies, but whether despite the same, the plea of default on the part of the owner has been established or not would be a question which will have to be determined in each case. 100. The court, however, in Lehru (supra) must not read that an owner of a vehicle can under no circumstances has any duty to make any enquiry in this respect. The same, however, would again be a question which would arise for consideration in each individual case. 18. Now, coming again to the facts of this case, herein there was a motorcycle which on the unfortunate day was being driven by a person whose licence was subsequently found to be fake. In other words, as on the date when the accident took place, it is not as if the driver was not having any licence to drive the motorcycle. However, the same was fake, as was later on discovered by the Insurance Company. It is a matter of record that Insurance Company has not placed any material on record from which it can be gathered that the owner of motorcycle as on the date when the accident took place, was aware of the fact that the licence being possessed by appellant No. 2 was a fake licence. It is a matter of record that Insurance Company has not placed any material on record from which it can be gathered that the owner of motorcycle as on the date when the accident took place, was aware of the fact that the licence being possessed by appellant No. 2 was a fake licence. In view of the fact that there is no relationship of employer and employee between the owner of the vehicle and the person who was driving the same at the time when the accident took place, prudently all that could be expected from the owner of the motorcycle was that he handed over the motorcycle to be driven to a person who was possessing a licence to drive the same. In my considered view, appellant No. 1 before permitting appellant No. 2 to drive the motorcycle was not supposed to approach the licence issuing authority concerned to satisfy himself as to whether the licence so possessed by appellant No. 2 to drive the motorcycle was a valid driving licence or not. The fact that the driver of the motorcycle was possessing a licence at the time when the owner of the motorcycle permitted him to drive the said motorcycle, in my considered view, satisfies the condition as is contemplated in para 100 (iii) of the judgment of the Hon’ble Supreme Court in National Insurance Co. Ltd. Vs. Swaran Singh and others (supra), because in such like situation, it cannot be held that the owner of the vehicle was either guilty of negligence or he failed to exercise reasonable care regarding use of vehicle by a duly licensed driver. A perusal of the judgment so passed by the Hon’ble Supreme Court (supra) demonstrates that onus to prove violation of the condition of policy is upon the insurer and not the insured. In other words, onus was upon the insurer to prove that when insured handed over the vehicle to the person who was possessing a fake licence for the purpose of driving the same, he was aware of this fact on account of his either having acted in negligence or on account of his having failed to exercise reasonable care in this regard. Both these facts, in my considered view, have not been proved on record by the insurer. This very important aspect of the matter has been completely ignored by the learned Tribunal. 19. Both these facts, in my considered view, have not been proved on record by the insurer. This very important aspect of the matter has been completely ignored by the learned Tribunal. 19. Therefore, in view of the above discussion, this appeal is allowed and the findings returned by the learned Motor Accident Claims Tribunal-II, Kangra at Dharamshala in M.A.C.P. No. 35-G/2004 qua issues No. 4 and 5 are reversed and the award passed by the learned Tribunal is modified to the extent that liability to compensate the claimants stands fastened upon the Insurance Company and not the present appellants. Miscellaneous applications, if any, also stand disposed of.