Allahabad High Court
National Insurance Co. Ltd. Thru ... vs Mohd. Anees And 5 Ors on 29 January, 2013
Author: Devi Prasad Singh
Bench: Devi Prasad Singh
HIGH COURT OF JUDICATURE AT ALLAHABAD, LUCKNOW BENCH A.F.R. Reserved on 18.12.2012 Court No. 27 Case :- FIRST APPEAL FROM ORDER No. - 466 of 2004 Petitioner :- National Insurance Co. Ltd. Thru Regional Manager Respondent :- Mohd. Anees And 5 Ors Petitioner Counsel :- Alka Verma Respondent Counsel :- Prabhat Kumar,M.C.Shukla Hon'ble Devi Prasad Singh, J.
Hon'ble Arvind Kumar Tripathi-II, J.
(Delivered by Hon'ble Arvind Kumar Tripathi-II, J.) (1) Heard Alka Verma, learned counsel for the appellant and Shri M.C.Shukla, learned counsel for the respondents.
(2) The present first appeal from order has been filed by National Insurance Company Ltd, against the award dated 11.5.2004 passed in Claim Petition No. 193 of 2001 by Motor Accident Claims Tribunal/Additional District Judge, Court No.2 Sultanpur, by which learned claims tribunal has awarded compensation of Rs. 1,85,000/-(one lakh eighty five lakh) as compensation for the injuries received by Smt. Sahidul Nisha in a Motor Accident.
(3) The claim petition was filed on the ground that claimant had gone to Ajmersharif along with his wife Smt. Nazima Begam on Bus No.UHU 9172. When the bus reached in District-Alwar (Rajsthan) near Hotel Shiva Overseas Dakhim Kejil in Bahroad on 1.10.2000 at about 4.30 a.m. truck No. H.R.38/A-8565 which was being driven rashly and negligently by its driver hit the bus from the rear side and due to which the bus turned turtle and several passengers in the bus including the wife of claimant received serious injuries and died on spot. First Information Report was lodged by owner of the bus Sri Ramraj Verma on 1.10.2000 at about 5.00 a.m. in Police Station-Bahroad, District-Alwar which was registered as Crime No. 460 of 2000.
(4) The opposite party nos. 1, 2, 4 and 5, owner of Truck No. HR 38/A8565 driver of the truck, owner of Bus No. UHU-9172 and the driver of the bus UHU-9172 have not filed their written statement so the claim petition proceeded ex parte against them.
(5) Opposite Part No.3 has mentioned in its written statement that they have no information regarding the accident since registration certificate of the vehicle, insurance & fitness, permit and driving licence of the driver has not been filed. Hence, they are unable to say as to whether Truck No.HR 38/A8565 was insured with them or not, whenever the papers will be filed, they may file additional written statement. Since, the matter is of collision of two vehicles and the proper and necessary parties have not been impleaded, the claim petition is bad for non-joinder of parties. It was also mentioned in the written statement that they are entitled to get benefit of Section 64 BB Insurance Act, 1939 and Section 149 and 170 Motor Vehicle Act.
(6) Opposite party no.6 has filed its written statement alleging that the bus no. UHU 9172 was not insured by their company, the insurance papers are forged and registration certificate is also forged.
(7) On the basis of pleading of the parties following issues were framed by the Motor Claims Tribunal:
(i)Whether Smt. Nazima Begum received injuries and she died on spot due to rash and negligent driving of vehicle No.HR 38/8565 on 1.10.2000 at about 4.30 a.m. in place Bahroad, P.S. Bahroad, District-Alwar(Rajsthan) ? If so its effect?
(ii)Whether the vehicle No.HR38/8565 was insured with National Insurance Company Ltd.? If so its effect ?
(iii)Whether, the vehicle in question was not being driven as per Insurance Policy ? If so its effect?
(iv)Whether there was contributory negligence on the part of the vehicle UHU 9172 ? If, so its effect?
(v)To what compensation if any claimant is entitled to ? If so its effect and from whom ?
(8) Claimant's has examined Mohd. Anees as P.W.1 Sri Mahmood Khan as P.W.2 and opposite party has examined Sri A.K. Nirman as D.W. No.1. Apart from that several papers have been filed which shall be discussed later on as and when necessary.
(9) Learned Claims Tribunal after going through the record and hearing the arguments held that the claimant is entitled to Rs.1,85,000/-(Rupees one lakh eighty five thousand) from National Insurance Company Ltd. along with 8% simple interest per annum from the date of presentation of the claim petition.
(10) Feeling aggrieved this claim petition has been filed by National Insurance Company.
(11) It was argued that the offending vehicle was being driven in violation of Motor Vehicle Rules and in contravention of policy. Truck bearing no. HR38/A8565 was not being driven by the driver having valid and effective driving licence. In the event of breach of policy conditions by the owner of the Truck, appellant is not liable to indemnify the claimant and Claim Tribunal has also not properly appreciated the record/documents/evidence adduced by the appellant and has awarded excessive amount which is not supported by the evidence.
(12) From the argument advanced by learned counsel for the appellant it transpires that the main thrust of the argument is that truck no.HR-38 A8565 was not being driven by a driver having valid and effective driving licence and also that there was breach of conditions of the Insurance Policy. Hence, the liability should not have been fastened on the insurer instead of owner.
(13) From the above, it is clear that the appellant has not challenged the factum of accident. A counter affidavit was also filed from the side of the claimant and along with counter affidavit, medical report and the statement of the witnesses as Annexures 2, 3 and 4 of the affidavit was also filed.
(14) While deciding issue no.1 Learned Claims Tribunal has on the basis of evidence of the claimants P.W.1 Mohd Annes, Sri Mahmood Khan P.W.2 has held that Bus was parked on the correct side of the road and the truck hit from the rear side due to which the accident occurred, while deciding issue no.2 the Tribunal has held that photo copy of insurance papers have been filed in the claim petition, the Insurance Company has not adduced any evidence to rebut it so it is clear that the truck was insured by National Insurance Company.
(15) So far as, argument of the Insurance Company is that the truck was not being driven by a driver having valid and effective driving licence and also the truck was not being plied with valid papers, the Tribunal has dealt with this, in issue no.3 Learned Tribunal below relied upon the case of National Insurance Company Ltd. Vs. Swaran Singh and Ors. reported in 2004(3) Supreme Court Cases page 297; and held that if the owner of the vehicle knowingly permits any driver of its vehicle who has no valid driving licence then the Insurance Company is not liable, but if he was under impression that the driver was having valid and effective driving licence then the Insurance Company will be liable to pay. Learned Tribunal has held that there is no evidence on record to show that the owner had knowledge that driver was not having valid and effective driving licence. In view of this, despite the vehicle been driven by the driver who has no valid driving licence then too Insurance Company will be liable to pay compensation and indemnify the owner.
(16) We have carefully gone through the decision relied upon by the Tribunal.
(17) The Apex Court has while summarizing the various decisions and provisions regarding licence as held that;
"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 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, 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 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.
(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.
(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 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."
(18) From the above, it is clear that insurer has to prove its defence 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. 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 wherefor would be on them.
(19) The Learned Tribunal has held that Insurance Company has not given any evidence to show that truck owner was having knowledge that the driver was not having a valid and effective driving licence. In view of this, the Tribunal has rightly held that the compensation amount is to be paid by the opposite party no.3, National Insurance Company(appellant).
(20) In view of above, the present first appeal from order is liable to be dismissed and is hereby dismissed.
(21) The statutory deposit or any other deposit in this court shall be sent back by the registry of this court to the tribunal expeditiously.
[Devi Prasad Singh, J.] [Arvind Kumar Tripathi-II, J.] Order Dated: 29 January, 2013 Subodh/-