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2018 DIGILAW 268 (ALL)

ANAS AHMAD v. NEW INDIA ASSURANCE COMPANY LIMITED

2018-02-01

SHASHI KANT, SUDHIR AGARWAL

body2018
JUDGMENT : 1. Heard Sri Suyash Agarwal, Advocate, for appellant and perused the record. 2. This appeal under Section 173 of Motor Vehicles Act, 1988 (hereinafter referred to as "Act, 1988") has arisen from judgment and award dated 21.11.2015 passed by Sri Narendra Kumar Johri, Motor Accident Claims Tribunal/Additional District Judge, Court No. 1, Bulandshahar (hereinafter referred to as "Tribunal") in Motor Accident Claim Petition No. 226 of 2013. The appeal has been filed by Owner of tort feasor Vehicle. Since Tribunal has found that vehicle was being driven by a person who did not possess a valid driving licence, therefore, Insurance Company was not found liable for payment of compensation and owner has been held responsible. 3. Learned counsel for appellant contended that even if driving licence is not found to be genuine, still finding has to be recorded by Tribunal that conduct of owner was negligent and unless such finding is recorded, owner cannot be held responsible. Reliance is placed on National Insurance Co. Ltd. Vs. Swaran Singh and others (2004) 3 SCC 297 . 4. We find no substance in the submission advanced by learned counsel for appellant, and, in our view, the decision cited at bar by learned counsel appellant in fact has settled a law against him. It is not in dispute that appellant is owner of tort feasor vehicle and driver employed by appellant, who was driving vehicle, did not possess a valid driving licence. Section 2(10) of Act, 1988 defines 'driving licence' and reads as under: "driving licence means the licence issued by a competent authority under Chapter II authorizing the person specified therein to drive, otherwise than as a learner, a motor vehicle or a motor vehicle of any specified class or description." 5. Section 3 provides for necessity of driving licence and reads as under: Section 3-. Necessity for driving licence:-(1) No person shall drive a motor vehicle in any public place unless he holds an effective driving licence issued to him authorising him to drive the vehicle; and no person shall so drive a transport vehicle other than a motor cab or motor cycle hired for his own use or rented under any scheme made under sub-section (2) of section 75 unless his driving licence specifically entitles him so to do. (2) The conditions subject to which sub-section (1) shall not apply to a person receiving instructions in driving a motor vehicle shall be such as may be prescribed by the Central Government. 6. Section 5 specifically places responsibility upon owner not to allow a vehicle to be driven by a person who does not satisfy requirement of Section 3 or Section 4 of Act, 1988. Section 5 reads as under: "5. Responsibility of owners of motor vehicles for contravention of sections 3 and 4.- No owner or person in charge of a motor vehicle shall cause or permit any person who does not satisfy the provisions of section 3 or section 4 to drive the vehicle." 7. Therefore there is a complete bar vide Section-5 that owner will have to ensure that vehicle is not driven by a person who does not satisfy requirement of Section -3 of Act, 1988. In the present case, appellant failed to satisfy the aforesaid condition. When a tort feasor vehicle is insured by virtue of Section 149(1) of Act, 1988 liability is fasten upon insurer to pay to the person entitled to the benefit of the decree any sum not exceeding the sum assured payable thereunder, as if he were the judgment debtor. However, certain defence are available to insurer so as not to be held liable as provided in Section 149(2) of Act, 1988. This includes one of defence as a breach of specific condition of Policy as agreed. One of such defence is when person, who was driving vehicle, did not have a duly granted licence or otherwise disqualified for holding or obtaining a driving licence. Court then in para-84 of judgment in National Insurnace Co. Ltd. Vs. Swaran Singh (supra) said: "The owner of a motor vehicle in terms of Section 5 of the Act has a responsibility to see that no vehicle is driven except by a person who does not satisfy the provisions of Section 3 or 4 of the Act. In a case, therefore, where the driver of the vehicle admittedly did not hold any licence and the same was allowed consciously to be driven by the owner of the vehicle by such person, the insurer is entitled to succeed in its defence and avoid liability." 8. In a case, therefore, where the driver of the vehicle admittedly did not hold any licence and the same was allowed consciously to be driven by the owner of the vehicle by such person, the insurer is entitled to succeed in its defence and avoid liability." 8. In case of a fake licence also, owner has to show that it has taken due precaution and verification of genuineness of licence. Onus that owner exercised due caution and precaution for verification of licence has to be discharged by owner so as to absolve from its liability. 9. Learned counsel for appellant contended that this burden has to be discharged by Insurance Company but we find that in the conclusion in para 110 (iii), (iv) and (v), Court in National Insurnace Co. Ltd. Vs. Swaran Singh (supra) said as under: (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 where for would be on them. (v) The court cannot lay down any criteria as to how said burden would be discharged, inasmuch as the same would depend upon the facts and circumstance of each case." 10. The aforesaid observations go against the contention advanced by learned counsel for appellant and therefore same is rejected. We, therefore, find no merit in the appeal. Dismissed at the stage of hearing under Order 41 Rule 11 C.P.C.