At, High Court of Judicature at Madras
By, THE HONOURABLE CHIEF JUSTICE MR. MANSOOR AHMAD MIR
For the Appellant: B.M. Chauhan, Advocate. For the Respondents: R1 to R3, Nemo, R4, Dheeraj K. Vashisth, Advocate
1. Subject matter of this appeal is award, dated 24th March, 2012, made by the Motor Accident Claims Tribunal-cum-Presiding Officer, Fast Track Court, Mandi, District Mandi, H.P. (for short “the Tribunal”) in Claim Petition No. 06/2005 (79/2002), titled as Smt. Resha Devi and others versus Vijay Kumar and others, whereby compensation to the tune of Rs. 3,27,000/with interest @ 7.5% per annum from the date of the petition till its realization came to be awarded in favour of the claimants and the insurer was saddled with liability (for short “the impugned award”).
2. The claimants, owner-insured and driver of the offending vehicle have not questioned the impugned award on any count, thus, has attained finality so far it relates to them.
3. Appellant-insurer has called in question the impugned award on the grounds taken in the memo of the appeal.
4. Learned counsel appearing on behalf of the appellant-insurer argued that the Tribunal has fallen in an error in saddling it with liability on the following two counts:
(i) That the driver of the offending vehicle was not having a valid and effective driving
Please Login To View The Full Judgment!
icence at the time of the accident; and(ii) That the risk of the deceased was not covered.5. The arguments advanced by the learned counsel appearing on behalf of the appellant-insurer are not legally tenable for the reasons to be recorded hereinafter.6. In order to determine this appeal, it is necessary to give a brief resume of the facts of the case, which have given birth to the appeal in hand.7. The claimants invoked the jurisdiction of the Tribunal under Section 166 of the Motor Vehicles Act, 1988 (for short “MV Act”) for grant of compensation to the tune of Rs. 15 lacs, as per the breakups given in the claim petition, on the ground that they became the victims of the vehicular accident, which was caused by the driver, namely Shri Balbir Singh, while driving tanker, bearing registration No. HP208293, rashly and negligently on 13th June, 2002, near Village Karsal, in which Shri Bal Ram sustained injuries and succumbed to the said injuries.8. The claim petition was resisted by the respondents by the medium of the replies and following issues came to be framed:(i) Whether deceased Bal Ram died on 13-06-2002 near Karsal in motor accident due to rash and negligent driving of driver of vehicle No. HP208293 as alleged? OPP(ii) If issue No. 1 is proved in affirmative, as to whether the petitioners are entitled for compensation, if so, to what amount and from whom? OPP(iii)Whether respondent No. 2 was not having valid and effective driving licence at the time of accident and vehicle was driven in contravention of the policy as alleged?(iv) Relief.9. The claimants led evidence, examined Shri Pyar Chand as PW2, Dr. Nirdosh as PW3 and one of the claimants, namely Smt. Resha Devi, herself stepped into the witness box as PW1.10. The Tribunal, after scanning the evidence, oral as well as documentary, awarded compensation in favour of the claimants in terms of the impugned award and saddled the insurer with liability. Hence, the appeal.11. It is apt to record herein that the respondents in the claim petition, i.e. appellant-insurer, owner-insured and driver of the offending vehicle have not led any evidence. Thus, the entire evidence led by the claimants have remained unrebutted.12. It was for the insurer to plead and prove that the owner-insured of the offending vehicle has committed willful breach as per the mandate of Sections 147 and 149 of the MV Act read with the terms and conditions of the insurance policy, has not led any evidence, thus, has failed to do so.13. My this view is fortified by the judgment rendered by the Apex Court in the case titled as National Insurance Co. Ltd. versus Swaran Singh & others, reported in AIR 2004 Supreme Court 1531. It is apt to reproduce relevant portion of para 105 of the judgment herein:“105. .....................(i) .........................(ii) ........................(iii) The breach of policy condition e.g. disqualification of driver or invalid driving licence of the driver, as contained in subsection (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 wherefore would be on them.(v).........................(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.”14. The Apex Court in another case titled as Pepsu Road Transport Corporation versus National Insurance Company, reported in 2013 AIR SCW 6505, has laid down the same principle. It is profitable to reproduce para 10 of the judgment herein:“10. In a claim for compensation, it is certainly open to the insurer under Section 149(2)(a)(ii) to take a defence that the driver of the vehicle involved in the accident was not duly licensed. Once such a defence is taken, the onus is on the insurer. But even after it is proved that the licence possessed by the driver was a fake one, whether there is liability on the insurer is the moot question. As far as the owner of the vehicle is concerned, when he hires a driver, he has to check whether the driver has a valid driving licence. Thereafter he has to satisfy himself as to the competence of the driver. If satisfied in that regard also, it can be said that the owner had taken reasonable care in employing a person who is qualified and competent to drive the vehicle. The owner cannot be expected to go beyond that, to the extent of verifying the genuineness of the driving licence with the licensing authority before hiring the services of the driver. However, the situation would be different if at the time of insurance of the vehicle or thereafter the insurance company requires the owner of the vehicle to have the licence duly verified from the licensing authority or if the attention of the owner of the vehicle is otherwise invited to the allegation that the licence issued to the driver employed by him is a fake one and yet the owner does not take appropriate action for verification of the matter regarding the genuineness of the licence from the licensing authority. That is what is explained in Swaran Singh's case (supra). If despite such information with the owner that the licence possessed by his driver is fake, no action is taken by the insured for appropriate verification, then the insured will be at fault and, in such circumstances, the insurance company is not liable for the compensation.”15. So far as the question of valid and effective driving licence is concerned, the driving licence of the driver of the offending vehicle has been exhibited as Ext. R2. The Appellant-insurer has not raised any objection at the time when the same was exhibited, thus, is precluded from raising the same at this stage.16. My this view finds support from the judgment rendered by the Apex Court in the case titled as Rakesh Kumar & Etc. Etc. versus United India Insurance Company Ltd. & Ors. Etc. Etc., reported in JT 2016 (6) SC 504, wherein it has been held that once the license was proved and marked in evidence without any objection by the Insurance Company, it has no right to raise any objection about its admissibility at a later stage. It is apt to reproduce paras 19 to 22 of the said judgment herein:“19. In our considered opinion, the Tribunal was right in holding that the driver of the offending vehicle possessed a valid driving license at the time of accident and that the Insurance Company failed to adduce any evidence to prove otherwise. This finding of the Tribunal, in our view, should not have been set aside by the High Court for the following reasons:20. First, the driver of the offending vehicle (N.A.2) proved his driving license (ExhibitR1) in his evidence. Second, when the license was proved, the Insurance Company did not raise any objection about its admissibility or manner of proving. Third, even if any objection had been raised, it would have had no merit because it has come on record that the original driving license was filed by the driver in the Court of Judicial Magistrate First class, Naraingarh in a criminal case arising out of the same accident. Fourth, in any event, once the license was proved by the driver and marked in evidence and without there being any objection by the Insurance Company, the Insurance Company had no right to raise any objection about the admissibility and manner of proving of the license at a later stage (See Oriental Insurance Company Ltd. Vs. Premlata Shukla & Ors. [JT 2007 (8) SC 575 : 2007 (13) SCC 476] and lastly, the Insurance Company failed to adduce any evidence to prove that the driving license (Ex.R1) was either fake or invalid for some reason.21. In the light of foregoing reasons, we are of the considered opinion that the High court was not right in reversing the finding of the Tribunal. Indeed, the High Court should have taken note of these reasons which, in our view, were germane for deciding the issue of liability of the Insurance Company arising out of the accident.22. We, therefore, find no good ground to concur with the finding of the High Court. Thus while reversing the finding, we hold that the driver of the offending vehicle was holding a valid driving license (ExhibitR1) at the time of accident and since the Insurance Company failed to prove otherwise, it was liable to pay the compensation awarded by the Tribunal and enhanced by the High Court.” (emphasis added)17. Viewed thus, the Tribunal has rightly decided all the issues against the appellant-insurer. The impugned award is well reasoned and legal one, needs no interference.18. Having said so, the impugned award is upheld and the appeal is dismissed.19. Registry is directed to release the awarded amount in favour of the claimants strictly as per the terms and conditions contained in the impugned award through payee's account cheque or by depositing the same in their respective bank accounts.20. Send down the record after placing copy of the judgment on the Tribunal's file.
"2017 (1) ACC 78" == "2017 AAC 207,"