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2020 DIGILAW 284 (JK)

National Insurance Company Ltd. v. Shamima

2020-06-30

SANJEEV KUMAR

body2020
JUDGMENT National Insurance Company Ltd., (hereinafter referred to as the “insurer”) is in appeal against the award of Motor Accident Claims Tribunal, Udhampur (“Tribunal” for short) dated 20.05.2011 passed in a claim petition titled “Mst. Shamima and others vs. Ravinder Singh and others”. 2. The impugned award has been assailed by the insurer primarily on the ground that issue No.3 framed by the Tribunal has not been correctly decided. It is urged that as per the evidence on record, the driving licence possessed by the driver of the offending vehicle at the time of accident was fake and, therefore, the insurer was absolved of its liability to indemnify the owner. 3. Having heard learned counsel for the insurer and perused the record, it is necessary to first set out issue No.3 as framed by the Tribunal. Issue No.3: Whether the driver of the offending vehicle was not holding a valid and effective driving licence at the time of accident, as such, insurer is not liable to indemnify the owner ? OPR-3. 4. The onus to prove the issue was on the appellant-insurer. 5. Admittedly, the insurer has not led any evidence to discharge the burden. 6. Mr. Rajesh Kumar, learned counsel appearing for the insurer, however, submits that since the claim petition was contested by the owner and the driver of the offending vehicle, as such, it was incumbent upon them to demonstrate clearly that the driver of the offending vehicle was possessing a valid and effective driving licence. 7. It may be noted that the insurer in its pleadings has taken a general objection that the driver of the offending vehicle was not holding a valid and effective driving licence, but there is no specific plea raised by the insurer that the driving licence possessed by the driver was fake. Otherwise also, the owner of the offending vehicle, namely Kaushalaya Devi, in her statement has categorically stated that she had engaged the services of one Ravinder Singh, respondent No.4 herein as driver of her Bus after checking his driving licence and had found the same valid and effective. She has further stated before the Tribunal that the offending vehicle had all the valid documents and the vehicle was duly insured with the insurer. 8. Nothing adverse has been brought out by the insurer in cross- examination. 9. She has further stated before the Tribunal that the offending vehicle had all the valid documents and the vehicle was duly insured with the insurer. 8. Nothing adverse has been brought out by the insurer in cross- examination. 9. In view of the statement of owner of the offending vehicle that she had taken due care to ascertain that respondent No.4 was possessing a valid and effective driving licence, it cannot be said that the insured had failed to demonstrate with certainty that she had taken due care and caution while engaging the services of respondent No. 4. 10. The legal position in this regard is firmly settled. The insurer cannot be absolved of its liability to indemnify the insured on the ground that the driving licence of the driver of the offending vehicle was found to possess a fake licence, particularly when the insured has come in the witness box and stated on oath that she had taken due care and caution to examine the licence of the driver of the offending vehicle while engaging his services. 11. Learned counsel for the insurer, however, could not point out any material to presume that the insured had engaged the services of driver of the offending vehicle despite being aware that he was possessing a fake licence. 12. Reference in this regard is invited to the judgment of Hon’ble the Supreme Court rendered in the case of National Insurance Company Ltd. vs. Swaran Singh and others, (2004) 3 SCC 297 2004 wherein the Hon’ble Supreme Court, after placing reliance on the judgment rendered in the case of Skandia Insurance Company vs. Kokila Ben, 1987 (2) SCC 654 , concluded as under: “The proposition of law is no longer res integra that the person who alleges breach must prove the same. The insurance company is, thus, required to establish the said breach by cogent evidence. In the event, the insurance company fails to prove that there has been breach of conditions of policy on the part of the insured, the insurance company cannot be absolved of its liability”. 13. The insurance company is, thus, required to establish the said breach by cogent evidence. In the event, the insurance company fails to prove that there has been breach of conditions of policy on the part of the insured, the insurance company cannot be absolved of its liability”. 13. In view of the settled legal position of law adumbrated hereinabove, I am of the considered view that the insurer has miserably failed to discharge the burden of issue No.3 and, at the same time, the insured by entering into the witness box and deposing before the Tribunal that she had taken due care and caution to examine the licence of the driver of the offending vehicle at the time she engaged his services to drive the offending vehicle has shown that there was no intentional and deliberate breach of condition of the policy. The insurer, who is seeking to absolve itself of the liability to indemnify the insured, is under obligation to prove that there is a willful violation of the fundamental terms and conditions of the insurance policy. 14. In the instant case, nothing of this sort has been proved by the insurer. 15. For the foregoing reasons, I find no merit in this appeal. The same is, accordingly, dismissed. Let the amount of compensation, if deposited in the Registry of this Court, be released in favour of the claimants in terms of the impugned award.