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2023 DIGILAW 2330 (ALL)

New India Assurance Company Ltd. v. Arjun Gaur

2023-10-10

SARAL SRIVASTAVA

body2023
JUDGMENT : Saral Srivastava, J. Heard learned counsel for the appellant and learned counsel for the respondents. 2. The present appeal has been preferred by the appellant-insurance company challenging the award dated 6.1.2006 passed by the Motor Accident Claims Tribunal/Special Judge (SC/ST Act), Court No. 3, Deoria (hereinafter referred to as 'Tribunal') in M.A.C.P. No. 224 of 2004 whereby Tribunal has awarded Rs. 7,25,404/- alongwith 7.5% interest as compensation to the claimants/respondents. 3. The claimants/respondent Nos. 1 to 4 instituted the claim petition for the death of one Indravati Devi who died in an accident on 28.6.2004. According to claimants/respondent Nos. 1 to 4, deceased-Indravati Devi was traveling on Tempo No. U.P.-52-F-0451 and when the said tempo reached near Khukhund crossing, it met with an accident with delivery Tempo No. U.P.-56-T-0054. Indravati Devi suffered injuries in the said accident and died. 4. The Tribunal framed as many as four issues. The appeal has been filed challenging the finding of the Tribunal on the issue Nos. 1 & 2. 5. On the issue No. 1 with regard to occurrence of the accident and negligence of the driver of tempo, the Tribunal considered necessary evidence and material on record and found that deceased died in the accident due to rash and negligent driving of driver of Tempo No. U.P.-52-F-0451. 6. On the issue No. 2 in respect of driving licence of driver of Tempo No. U.P.-52-F-0451, Tribunal held that no driving licence was filed on record, and burden was upon the appellant-insurance company to prove that driver of the Tempo No. U.P.-52-F-0451 was not holding a valid driving licence, and since insurance company failed to prove that driver of the Tempo No. U.P.-52-F-0451 was not holding a valid driving licence, therefore, the said tempo was being driven by the driver holding a valid driving licence. 7. Challenging the aforesaid award, learned counsel for the appellant has contended that the F.I.R. has been lodged by Arjun Gaur husband of the deceased in respect to the alleged accident wherein it is stated that the accident had taken place due to rash and negligent driving of driver of Tempo No. U.P.-56-T-0054, therefore, Tribunal has erred in law in holding that the accident had taken place due to rash and negligent driving of driver of Tempo No. U.P.-52-F-0451. It is contended that P.W.2-Jai Prakash Mishra was a planted witness and there is nothing on record clarifying under which circumstances the husband of the deceased in F.I.R. stated that the accident had taken place due to rash and negligent driving of driver of Tempo No. U.P.-56-T-0054. It is further contended that admittedly, both the vehicles involved in the accident were coming from opposite direction and it was a case of head on collision between two vehicles, therefore, drivers of both the vehicles were negligent in driving the vehicles. Consequently, it is submitted that Tribunal should have apportioned the negligence of both the drivers equally in the accident and should have accordingly, fixed the liability upon the owner of both the vehicles. 8. It is further contended that the Tribunal has erred in law in holding that burden is upon the insurance company to prove that Tempo No. U.P.-52-F-0451 was being driven by a person not holding a valid driving licence. It is submitted that no driving licence was filed on record and in such an event, it was not possible for the insurance company to verify the driving licence of the driver of Tempo No. U.P.-52-F-0451. Therefore, it is submitted that the burden was upon the owner of Tempo No. U.P.-52-F-0451 to prove that the Tempo No. U.P.-52-F-0451 was being driven by a person having a valid driving licence, and after the owner of the Tempo No. U.P.-52-F-0451 has discharged its burden, the burden would shift upon the insurance company to prove that the Tempo No. U.P.-52-F-0451 was being driven by a person not holding a valid driving licence. 9. In support of the case, learned counsel for the appellant has placed reliance upon the judgement of Apex Court in the case of Pappu and others v. Vinod Kumar Lamba and another, 2018(1) TAC 360 (SC) and judgement of this Court in the case of United India Insurance Company Ltd. v. Rajesh Kumar Tripathi and another, 2023(3) TAC 32 (All). 10. Accordingly, it is submitted that the appellant is entitled to right of recovery. It is also urged that insurance company in paragraph 14 of the written statement has categorically stated that owner of the Tempo No. U.P.-52-F-0451 intentionally and deliberately entrusted the vehicle to a driver not having a valid driving licence. 10. Accordingly, it is submitted that the appellant is entitled to right of recovery. It is also urged that insurance company in paragraph 14 of the written statement has categorically stated that owner of the Tempo No. U.P.-52-F-0451 intentionally and deliberately entrusted the vehicle to a driver not having a valid driving licence. Thus, it is contended that in the instant case, twin condition that driver of the Tempo No. U.P.-52-F-0451 was not holding a valid driving licence at the time of the accident, and breach of policy was committed by the owner deliberately which are necessary for the insurance company to establish in order to avoid its liability on the ground of breach of policy are fulfilled, therefore, Tribunal has erred in law in fixing the liability upon the appellant-insurance company to pay compensation and not giving right of recovery to it. 11. Per contra, learned counsel for the respondents would contend that admittedly, in the instant case, the deceased was travelling in Tempo No. U.P.-52-F-0451. It is submitted that the Tribunal has placed reliance upon the testimony of P.W.2, who was the eye-witness of the accident and who categorically stated that the accident had taken place due to rash and negligent driving of driver of Tempo No. U.P.-52-F-0451, and there is no evidence in rebuttal to the testimony of P.W.2, therefore, Tribunal has rightly held that the accident was the result of sole negligence of driver of Tempo No. U.P.-52-F-0451 as record of criminal cases cannot be given precedence over the testimony of an eye-witness. He further contends that in the instant case, deceased was traveling in Tempo No. U.P.-52-F-0451, therefore, it was a case of composite negligence qua deceased, and it is the choice of the claimants/respondents to claim compensation from either of the tortfeasors, and if insurance company is of the view that there was negligence of driver of other vehicle i.e. Tempo No. U.P.-56-T-0054, the insurance company may lay separate claim against the owner of Tempo No. U.P.-56-T-0054 and recover the awarded amount paid by it to the extent of negligence of driver of Tempo No. U.P.-56-T-0054. 12. 12. So far as the issue of driving licence is concerned, it is submitted that the law is settled that since the plea of breach of insurance policy is set up by the insurance company, therefore, burden is upon the insurance company to prove that the driver of Tempo No. U.P.-52-F-0451 was not holding a valid driving licence. Thus, it is submitted that appeal is devoid of merit and is liable to be dismissed. 13. I have considered the rival submissions of the parties and perused the record. 14. So far as the question of negligence of driver of other Tempo No. U.P.-56-T-0054 is concerned, this Court may note that claim petition has been instituted by the claimants/respondents alleging that the accident had taken place due to rash and negligent driving of driver of Tempo No. U.P.-52-F-0451. The claimants/respondents also produced P.W.2, who was the eye-witness of the accident and who categorically stated that the driver of Tempo No. U.P.-52-F-0451 was driving the tempo rashly and negligently due to which, the accident had taken place. There is no evidence in rebuttal to the testimony of eye-witness P.W.2. Though, learned counsel for the appellant has placed heavy reliance upon the allegations made in the F.I.R. wherein it is stated that the accident had taken place due to rash and negligent driving of driver of Tempo No. U.P.-56-T-0054 and charge-sheet has also been filed by the police against the driver of Tempo No. U.P.-56-T-0054, but it is settled in law that contents of F.I.R. and charge-sheet cannot be given precedence over the testimony of P.W.2, who was the eye-witness of the accident. 15. In such view of the fact, this Court does not find any illegality committed by the Tribunal in holding that the accident had occurred due to rash and negligent driving of driver of Tempo No. U.P.-52-F-0451. Even otherwise, it is a case of composite negligence, the Apex Court in the case of Khenyei v. New India Assurance Company Limited and others, (2015) 9 SCC 273 , has held that in a case of composite negligence, it is the choice of the claimant to claim compensation from either of the tortfeasors. 16. Even otherwise, it is a case of composite negligence, the Apex Court in the case of Khenyei v. New India Assurance Company Limited and others, (2015) 9 SCC 273 , has held that in a case of composite negligence, it is the choice of the claimant to claim compensation from either of the tortfeasors. 16. Now, so far as the issue of driving licence is concerned, the law on the point that in order to avoid its liability on the ground of breach of policy, the burden is upon the insurance company to prove the breach of policy. The insurance company further has to prove that breach of policy committed by the owner was deliberate. 17. In the present case, the insurance company had set up a plea that liability of the insurance company is subject to condition that driver of the offending vehicle i.e. Tempo No. U.P.-52-F-0451 was holding a valid driving licence at the time of the accident. In other words, the plea that insurance company is liable to pay compensation only if offending vehicle was being driven by a person holding a valid driving licence has been set by the insurance company. 18. In the case of National Insurance Company Ltd. v. Swaran Singh and others, (2004) 3 SCC 297 , several awards were assailed by the insurance company denying its liability on the ground of breach of policy by the owner wherein it was contended that burden is upon the owner to prove that offending vehicle was being driven by a person having a valid driving licence, and thereafter, burden would shift upon the insurance company to prove that the driver of the offending vehicle was not holding a valid driving licence. In other words, it was contended that in case owner has failed to discharge its burden to prove that driver of offending vehicle was holding a valid driving licence, the owner of the offending vehicle has committed breach of policy and insurance company cannot be held liable to pay compensation. The Apex Court has summarized the finding in paragraph 110 of the judgement after considering the defence provided to the insurer under Section 149(2)(a)(ii) of the Motor Vehicles Act. Paragraph 110 of the judgement is reproduced herein below : ''110. The Apex Court has summarized the finding in paragraph 110 of the judgement after considering the defence provided to the insurer under Section 149(2)(a)(ii) of the Motor Vehicles Act. Paragraph 110 of the judgement is reproduced herein below : ''110. The summary of our findings to the various issues as raised in these petitions is 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 to effectuate the said object. (ii) An 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, 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. (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 wherefor would be on them. (v) The Court cannot lay down any criteria as to how the 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 the 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 the 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 insurer 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 dispute inter se between the insurer and the insured. The decision rendered on the claims and dispute 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 dispute 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. (xi) The provisions contained in sub-section (4) with the proviso thereunder and sub-section (5) which are intended to cover specified contingencies mentioned therein to enable the insurer to recover the amount paid under the contract of insurance on behalf of the insured can be taken recourse to 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.'' 19. In the case of Pappu (supra) the Apex Court has also considered the judgement of Swaran Singh (supra) in paragraph 14 of the judgement and has reproduced paragraph 110 of the judgement of Swaran Singh (supra) in the said case. 20. In the case of Pappu (supra) the Apex Court has also considered the judgement of Swaran Singh (supra) in paragraph 14 of the judgement and has reproduced paragraph 110 of the judgement of Swaran Singh (supra) in the said case. 20. Now, perusal of the paragraphs 110 (iii) & (iv) of the judgement in the case of Swaran Singh (supra), extracted above, reveals that the insurance company in order to avoid its liability must not only establish the available defence raised in the said proceedings, but also must establish 'breach' on the part of the owner of the vehicle was deliberate, and the burden of proof was upon the insurance company. 21. In the case of Pappu (supra), the Apex Court has considered a case where the Tribunal after recording a finding that the owner has committed breach of insurance policy absolved the insurance company and directed the owner to pay the compensation. The appellant-Pappu who was claimant preferred an appeal before the High Court seeking modification of the award in view of the law laid down in the case of Swaran Singh (supra). Accordingly, he prayed that the award may be modified and the insurance company may be directed to pay the award and thereafter, recover it from the owner which prayer was allowed by the Apex Court. In the said case, there was no direct issue on whom the burden to prove that that the offending vehicle was being driven by a person not holding a valid driving license would lie was involved. 22. This Court is of the view that the Apex Court in the case of Pappu (supra) in altogether different factual backdrop made an observation that the burden is upon the owner to prove that the driver of offending vehicle was having a valid driving licence at the time of accident, the law laid down by the Apex Court in the case of Swaran Singh (supra) is still a good law and is binding precedent which is also evident from the fact that the Apex Court has also considered the judgement in the case of Swaran Singh (supra) and placing reliance upon the same, it modified the award in the case of Pappu (supra). 23. Now, coming to the judgement of this Court in the case of Rajesh Kumar Tripathi (supra) wherein this Court in paragraph 10 has held as under : ''10. 23. Now, coming to the judgement of this Court in the case of Rajesh Kumar Tripathi (supra) wherein this Court in paragraph 10 has held as under : ''10. This takes this Court to this issue of driving license of the driver being not valid and electricity company being not made party. Here the decision in Pappu and others (Supra) will come to aid of the appellant as it was for the owner and driver to prove that the vehicle was being plied by the driver having valid driving license and only after the driving license is filed, the Insurance Company would be under an obligation to prove otherwise.'' 24. This Court in deciding the case of Rajesh Kumar Tripathi (supra) did not consider the law laid down by the Apex Court in the case of Swaran Singh (supra) in paragraph 110 (iii) & (iv) of the judgement, extracted above. 25. As per paragraph 110 (iii) & (iv) of the judgement of Apex Court in the case of Swaran Singh (supra), the insurance company has to establish the twin condition in order to avoid its liability to pay compensation. 26. It is also pertinent to note that a judgement can be said to be per incuriam when it has been delivered by the Court in ignorance of the relevant statutory provisions and or the binding decision of a Court of co-ordinate jurisdiction or that of a higher Court. In this connection the Full Bench of this Court in Rana Pratap Singh v. State of Uttar Pradesh, (1995) 1 All CJ 200: (1996 All LJ 301) has laid down as under (at p. 308 of All LJ) : ''This is what now brings us to what constitute the parameters of the per incuriam rule. As the Supreme Court in Punjab Land and Recreation Corporator Ltd. v. Presiding Officer Labour Court, (1990) 3 SCC 682 , explained, ''the Latin expression per incuriam means through inadvertance. A decision can be said generally to be given per incuriam when this Court has acted in ignorance of a precious decision of this Court''. As the Supreme Court in Punjab Land and Recreation Corporator Ltd. v. Presiding Officer Labour Court, (1990) 3 SCC 682 , explained, ''the Latin expression per incuriam means through inadvertance. A decision can be said generally to be given per incuriam when this Court has acted in ignorance of a precious decision of this Court''. Further ''in England a decision is said to be given per incuriam when the Court has acted in ignorance of a previous decision of its own or of a Court of co-ordinate jurisdiction which covered the case before it, or when it has acted in ignorance of a decision of the House of Lords.'' 27. In the instant case, the law postulated by the Apex Court in the case of Swaran Singh (supra) has not been considered by the Co-ordinate Bench of this Court in the case of Rakesh Kumar Tripathi (supra) and thus, it is not a binding precedent on this Court. 28. It is also urged by the learned counsel for the appellant that appellant has proved that owner deliberately committed breach of policy, this Court may note that though, insurance company in paragraph 14 of the written statement has stated that owner deliberately handed over the offending vehicle to a driver who did not have a valid driving licence, but the insurance company did not get any issue framed on the said point nor led any evidence on record to prove the averments made in paragraph 14 of the written statement. Mere assertion is not sufficient unless the assertions made in the written statement are proved by leading cogent evidence. In such view of the fact, the aforesaid submission of learned counsel for the appellant is also misconceived and is hereby rejected. 29. Thus, for the reasons given above, the appeal lacks merit and is hereby dismissed with no order as to costs.