Rajasthan High Court - Jodhpur
National Insurance Company Limited vs Smt. Kuldeep Kaur & Ors on 26 February, 2013
Author: Arun Bhansali
Bench: Arun Bhansali
1
IN THE HIGH COURT OF JUDICATURE FOR RAJASTHAN
AT JODHPUR
:JUDGMENT:
S.B. CIVIL MISC. APPEAL NO.464/1999
National Insurance Company Limited
Vs.
Kuldeep Kaur and Ors.
Date of Judgment :: 26.02.2013
PRESENT
HON'BLE MR. JUSTICE ARUN BHANSALI
Mr. Sanjeev Johari, for the appellant.
Mr. B.S. Sandhu, for the respondents-claimants.
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BY THE COURT:
This appeal under Section 173 of the Motor Vehicles Act, 1988 ('the Act') has been filed by the appellant-insurance company aggrieved by the judgment and award dated 11.3.1999 passed by the Motor Accidents Claims Tribunal, Sriganganagar ('Claims Tribunal'), whereby the claimants have been awarded a sum of Rs.1 lac as compensation.
Brief facts of the case are that the claimants Smt. Kuldeep Kaur and Nanak Singh filed an application for compensation before the Tribunal with the averment that on 20.10.1996 at around 7:00 a.m. their daughter Harjinder Kaur was struck by a Truck No.RJ-13G-1171, which was driven rashly and negligently by Mangal Singh. The said collusion resulted in death of said Harjinder Kaur. The claimants claimed compensation to the tune of Rs.1,30,000/-. The application for compensation was replied by the respondents No.3 & 4 and the averments made in the 2 application were disputed. It was also disputed that the vehicle was being driven rashly and negligently.
On behalf of the insurance company also, a reply to the application was filed and inter-alia it was submitted that the driver of the vehicle was not having a valid and effective driving licence and no information of accident was given to the insurance company and the vehicle was not being driven in the employment of the insured. The Tribunal framed four issues.
On behalf of the claimants AW-1 Smt. Kuldeep Kaur and AW-2 Balkar Singh were examined and four documents were exhibited. On behalf of the insurance company NAW-3/1 Suresh Kumar Goyal entered the witness-box and insurance policy Exhibit-A/1 was exhibited. The Tribunal after hearing the parties came to the conclusion that the accident occurred on account of rash and negligent driving of the driver, the claimants were entitled to compensation to the tune of Rs. 1 lac. and further the insurance company failed to prove that the driver was not having a valid and effective driving licence and, therefore, it was liable for payment of compensation.
It is contended by learned counsel for the appellant- insurance company that the findings recorded by the learned Tribunal on issue No.3 is perverse as it was apparent that the driver was not in possession of valid and effective driving licence, therefore, the insurance company was not liable.
It was submitted that two applications were moved by the insurance company in an effort to prove that the driver was not in possession of valid and effective driving licence, however, the 3 said applications were rejected by the Tribunal. The first application was filed for taking on record two documents, which was rejected by the Tribunal by its order dated 24.2.1999, inter- alia, on the ground that looking at the nature of documents annexed with the application, the same cannot be treated as documents and as such, they cannot be taken on record. Another application was rejected by order dated 6.3.1999, which was filed under Order XI, Rule 14 CPC for seeking direction for production of documents to the owner and driver.
It was submitted that both the applications were wrongly rejected, which has hampered the defence of the insurance company. Ultimately, it was prayed that the award impugned be set-aside to the extent it holds the insurance company liable.
On the other hand, on behalf of the claimants it was submitted that in pursuance to the award, which was stayed by the Court and thereafter stay was vacated, the amount of compensation has been paid to them and the award impugned does not require any interference.
I have considered the rival submissions made at the Bar. The Tribunal while deciding issue No.3 has recorded a categoric finding that the insurance company has failed to produce any evidence regarding the driving licence of driver Mangal Singh being fake. The Tribunal has thoroughly considered the evidence of NAW-3/1 Suresh Kumar Goyal, who in his statement stated that they had got the driving licence checked from the RTO, Hameerpur and the driving licence was found fake. The inquiry was made by the counsel, however, no 4 documents in this regard were produced by the insurance company. Therefore, the finding recorded by the Tribunal does not call for any interference.
So far as the rejection of the two applications filed by the appellant-insurance company is concerned, the applications were filed at the fag end of the trial, when the owner and driver had already closed their evidence and who would have no opportunity to meet the said documents. Even filing of said application under Order XI, Rule 14 CPC was much delayed and same was made after the evidence was closed by the owner and driver, therefore, the said application was rightly rejected by the Tribunal.
The law regarding the liability of insurance company and the onus to prove the violation of policy condition is settled by pronouncement of Hon'ble Supreme Court in the case of National Insurance Company Limited Vs. Swaran Singh & Ors. : (2004)3 SCC 297 thus :-
"69. 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. (See Sohan Lal Passi)
70. Apart from the above, we do not intend to lay down anything further i.e. degree of proof which would satisfy the aforementioned requirement inasmuch as the same would indisputably depend upon the facts and circumstances of each case. It will also depend upon the terms of contract of insurance. Each case may pose a different problem which must be resolved having to a large number of factors governing the case including conduct of parties as regard duty to inform, correct disclosure, suppression, fraud on the insurer etc. It will also depend upon the fact as to who is the owner of the vehicle and the circumstances in which the vehicle was being driven by a person having no valid and effective licence. No hard-and-fast rule can, therefor, be laid down. If in a given case there exists sufficient material to 5 draw an adverse inference against either the insurer or the insured, the Tribunal may do so. The parties alleging breach must be held to have succeeded in establishing the breach of conditions of the contract of insurance, on the part of the insurer by discharging its burden of proof. The Tribunal, there cannot be any doubt, must arrive at a finding on the basis of the materials available on records.
110. The summary of our findings to the various issues as raised in these petitions are as follows:
(iii) The breach of policy condition e.g. disqualification of the 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."
In view of the law laid down by the Hon'ble Supreme Court, the appellant-insurance company has miserably failed to discharge its burden to prove the violation of policy condition and as such, the award impugned does not call for any interference and the appeal being without any substance is dismissed.
No costs.
(ARUN BHANSALI), J.
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