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2020 DIGILAW 89 (HP)

Oriental Insurance Company Ltd v. Rita Sharma

2020-01-07

SURESHWAR THAKUR

body2020
JUDGMENT Sureshwar Thakur, J. - The instant appeal stands directed by the aggrieved respondent/appellant herein, against the award pronounced, upon, Claim Petition No. 38-S/2 of 2010, (i) whereunder, vis-a-vis, the compensation amount, as stood determined qua the claimants/respondents No.1 and 2 herein, the, apt indemnificatory liability thereof, hence stood fastened, upon, it, (ii) whereas the claimants/respondents No.1 and 2 herein/cross-objectors, also prefer cross-objections, vis-a-vis, the impugned award, whereunder, they seek enhancement, of, compensation amount. 2. The liability, for, liquidating the compensation amount, as, assessed under the impugned award, stands fastened, upon, the insurer of the offending vehicle. The learned counsel appearing for the insurer/appellate herein has contended with much vigour, before, this Court that (i) with the apposite driving licence borne in Mark-C, being testified, by the clerk concerned, of, the licencing authority located at Agra, while his rendering his deposition, in, Workmen Compensation petition bearing Case No.RBT 14/2 of 11/2010, qua the afore driving licence not standing issued, from, the afore licencing authority concerned, (ii) thereupon, the fastening of the apposite indemnificatory liability, upon, the insurer rather being both infirm, and, frail. He strengthens his afore submission, by contending with vigour, (iii) that, with RW-2, while proving the abstract of pariwar register, embodied in Ex.RW2/A, (iv) and, with the latter exhibit hence making clear voicings qua at the time of issuance, of, the afore licence, the driver concerned being aged lesser, than, the age whereat he could be validly issued hence any driving licence, (v) thereupon, Mark-C, being wholly ridden with falsity, and, the further concomitant effect thereof being qua the owner of the offending vehicle, who, executed a contract of insurance, vis-a-vis, the insurer, per se hence not exercising reasonable care, and, diligence, dehors, the fakeness, and, unauthenticity of the driving licence, of the driver concerned, (vi) and, its, further, apt effect thereof being qua the owner of the offending vehicle, not, standing entitled to derive any benefit from decisions, of, the Hon'ble Apex Court, rendered in a case titled as National Insurance Company Ltd. v. Swaran Singh, (2004) 3 SCC 297 , and, from a verdict rendered in a case titled as PEPSU Road Transport Corporation vs. National Insurance Company, (2013) 10 SCC 217 . In nutshell, he contends that the apposite indemnificatory liability, vis-a-vis, the apt compensation amount, being enjoined to be fastened, upon, the owner of the offending vehicle. 3. In nutshell, he contends that the apposite indemnificatory liability, vis-a-vis, the apt compensation amount, being enjoined to be fastened, upon, the owner of the offending vehicle. 3. Apparently, there is no wrangle, qua, Mark-C, being unauthentic or fake. However, the effect, of, its unauthenticity, and, fakeness, rather stands propounded in Swaran Singhs case, (2004) 3 SCC 297 (supra) in para 110 thereof, para whereof stands extracted hereinafter:- "110. The summary of our findings to the various issues as raised in these petitions are as follows: (i) Chapter XI of the Motor Vehicles Act, 1988 providing compulsory insurance of vehicles against third party risks is a social welfare legislation to extend relief by compensation to victims of accidents caused by use of motor vehicles. The provisions of compulsory insurance coverage of all vehicles are with this paramount object and the provisions of the Act have to be so interpreted as toeffectuate the said object. (ii) Insurer is entitled to raise a defence in a claim petition filed under Section 163 A or Section 166 of the Motor Vehicles Act, 1988 inter alia in terms of Section 149(2)(a)(ii) of the said Act. (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' onthe part of the owner of the vehicle; the burden of proof wherefor 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. (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. (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 the Act. (vii) The question as to whether the owner has taken reasonable care to find out as to whether the driving licence produced by the driver, (a fake one or otherwise), does not fulfil the requirements of law or not will have to be determined in each case. (viii) If a vehicle at the time of accident was driven by a person having a learner's licence, the insurance companies would be liable to satisfy the decree. (ix) The claims tribunal constituted under Section 165 read with Section 168 is empowered to adjudicate all claims in respect of the accidents involving death or of bodily injury or damage to property of third party arising in use of motor vehicle. The said power of the tribunal is not restricted to decide the claims inter se between claimant or claimants on one side and insured, insurer and driver on the other. In the course of adjudicating the claim for compensation and to decide the availability of defence or defences to the insurer, the Tribunal has necessarily the power and jurisdiction to decide disputes inter se between insurer and the insured. The decision rendered on the claims and disputes inter se between the insurer and insured in the course of adjudication of claim for compensation by the claimants and the award made thereon is enforceable and executable in the same manner as provided in Section 174 of the Act for enforcement and execution of the award in favour of the claimants. The decision rendered on the claims and disputes inter se between the insurer and insured in the course of adjudication of claim for compensation by the claimants and the award made thereon is enforceable and executable in the same manner as provided in Section 174 of the Act for enforcement and execution of the award in favour of the claimants. (x) Where on adjudication of the claim under the Act the tribunal arrives at a conclusion that the insurer has satisfactorily proved its defence in accordance with the provisions of section 149(2) read with sub-section (7), as interpreted by this Court above, the Tribunal can direct that the insurer is liable to be reimbursed by the insured for the compensation and other amounts which it has been compelled to pay to the third party under the award of the tribunal. Such determination of claim by the Tribunal will be enforceable and the money found due to the insurer from the insured will be recoverable on a certificate issued by the tribunal to the Collector in the same manner under Section 174 of the Act as arrears of land revenue. The certificate will be issued for the recovery as arrears of land revenue only if, as required by sub-section (3) of Section 168 of the Act the insured fails to deposit the amount awarded in favour of the insurer within thirty days from the date of announcement of the award by the tribunal. The certificate will be issued for the recovery as arrears of land revenue only if, as required by sub-section (3) of Section 168 of the Act the insured fails to deposit the amount awarded in favour of the insurer within thirty days from the date of announcement of the award by the tribunal. (xi) The provisions contained in sub-section (4) with proviso thereunder and sub-section (5) which are intended to cover specified contingencies mentioned therein to enable the insurer to recover amount paid under the contract of insurance on behalf of the insured can be taken recourse of by the Tribunal and be extended to claims and defences of insurer against insured by relegating them to the remedy before regular court in cases where on given facts and circumstances adjudication of their claims inter se might delay the adjudication of the claims of the victims." Conspicuously, in clauses (i), (iii), (iv), (v), (vi), (vii), and, in clause (x) thereof, (a) to not constitute any valid ground for the insurer, to hence exculpate its liability rather it being permissible, for the MACT concerned, to initially direct the insurer, to deposit the compensation amount, and, thereafter liberty being reserved, vis-a-vis, the insurer to recover it, under, the statutory contemplated mode enshrined in Section 174, of, the Motor Vehicles Act. 4. Nowat, the learned counsel appearing, for the insurer, depends upon the testification of RW-2, who, has proven the abstract of pariwar register embodied, in Ex.RW2/A. On a perusal thereof, it is apparent, that, the driver concerned was at the time of issuance of Mark-C, merely 14 years old, and, when, his apparent minority was exfacie discoverable by the owner, who employed him, as, a driver upon the offending vehicle, (i) thereupon, per se, there being apparent lack of exercise, of due care and diligence by the owner, of, the offending vehicle, in engaging him as a driver thereon, (ii) hence, the apposite indemnificatory liability being fastenable, upon, the owner concerned. Since, the afore espousal, is, wholly anchored upon the afore exhibit, borne in Ex.RW2/A, thereupon, sanctity thereof, is to be gauged. However, a reading of the deposition of RW-2, comprised in his cross-examination unfolds qua the entries in the abstract, of Pariwar Register, being made in consonance, with, the apt reflections, occurring in the birth register. Since, the afore espousal, is, wholly anchored upon the afore exhibit, borne in Ex.RW2/A, thereupon, sanctity thereof, is to be gauged. However, a reading of the deposition of RW-2, comprised in his cross-examination unfolds qua the entries in the abstract, of Pariwar Register, being made in consonance, with, the apt reflections, occurring in the birth register. He has also further echoed in his cross-examination, that, at the time of recording of his deposition, his, not carrying with him the apposite birth register, given it not standing summoned. Despite RW-2, making the afore echoings, in his crossexamination, yet, the counsel for the insurer rather omitted to summon the birth register, for, ensuring qua the reflection(s) occurring in Ex.RW2/A, standing sequeled, by deference being meted, to the apposite birth register, (ii) and, wherefrom rather it was garnerable, whether the reflections, occurring in the pariwar register, stood hence borrowed therefrom, and, concomitantly, theirs hence acquiring sanctity, (iii) omission whereof, contrarily erodes, the efficacy of the submission, of the learned counsel for the insurer, that, the owner of the offending vehicle, at the time of his engaging the driver concerned, upon, the offending vehicle, his despite noticing the ex-facie minority, of, his employee, his yet engaging him thereon, (iv) and hence, his breaching the standards of due care, and, caution nor hence he can contend that the benefits, of the judgment rendered by the Hon'ble Apex Court in Swaran Singh's case (supra), being not recourseable by him or meted qua him. 5. 5. Further more, the expostulation of law occurring, in a judgment rendered by the Hon'ble Apex Court in PEPSU Road Transport Corporation vs. National Insurance Company, (2013) 10 SCC 217 (i) qua it being sufficient, dehors, fakeness of the driving licence, qua, the owner per se hence being inferable, to, evidently exercise reasonable care and diligence, in engaging a person as a driver, upon the offending vehicle, inference, of, exercise, of, diligence by him being firmly drawable, upon, mere engagement thereon, as obviously he would not beget endanger to his life, upon, engaging an improficient driver, unless contra therewith best evidence, stands adduced, (ii) and, hence it not being incumbent upon the owner concerned, to, verify the genuineness, of, the afore driving licence, issued from the licencing authority concerned, (iii) unless, at the time of execution of contract of insurance, the insurer insists, upon, the owner to verify, the, genuineness of the apposite driving licence, issued from the licencing authority concerned. Since, the insurer has not adduced evidence, that, at the time of execution of contract of insurance, it hence insisting, upon, the owner of the offending vehicle, to verify the genuineness of the Mark-C, (iv) thereupon, when apt evidence also remains unadduced, that, at the time of engagement, by the owner of the offending vehicle, of deceased, as, a driver thereon, he was unskilled or improficient, in, driving the category of the vehicle, whereon he was engaged as driver, hence, it is aptly concludable, that, the fastening of the indemnificatory liability, vis-a-vis, compensation amount, by the MACT concerned, upon, the insurer of the offending vehicle, is, neither erroneous nor is ingrained with any legal fallacy, rather falls within the ambit, of, verdicts supra. 6. The claimants/respondents No.1 and 2, through, cross-objections bearing No. 15 of 2014, strived, to seek enhancement of compensation, as, assessed qua them. However, a perusal of the award impugned before this Court, as, also, the, records unfolds qua the learned Tribunal concerned rather not committing any gross error, or perversity, while assessing the compensation determined, vis-a-vis, the claimants concerned. 7. For the foregoing reasons, the appeal filed by the insurer is dismissed, and, the cross-objections instituted by the cross-objectors/claimants are also dismissed. The impugned award is maintained and affirmed. All pending applications also stand disposed of. Records be sent back forthwith.