Jammu & Kashmir High Court
National Insurance Co. Ltd. vs Phuntsog Deldan And Ors. on 22 March, 2005
Equivalent citations: III(2005)ACC460, 2006ACJ2059, 2005(2)JKJ486, 2005 A I H C 3920, (2006) 1 TAC 280, (2006) 3 ACJ 2059, (2005) 3 ACC 460
Author: Mansoor Ahmad Mir
Bench: Mansoor Ahmad Mir
JUDGMENT Mansoor Ahmad Mir, J.
1. By the medium of this appeal, appellant has assailed the award dated 31st October, 2003 passed by the learned Presiding Officer, Motor Accident Claims Tribunal, Leh in the claim petition titled as Phuntsog Deldan v. Rinchen Namgial and Ors. on the grounds taken in the memo of appeal.
2. In order to appreciate the grounds taken in the memo of appeal it is profitable to give the flash back of the claim petition, the womb of which has given birth to the present appeal.
3. The claimant/respondent No. 1 filed an claim petition before the Motor Accident Claims Tribunal, Leh on 28th December, 2002 with the averments that on 20-07-2002 near Stakna Power House, Leh, the petitioner while travelling in a bus as passenger sustained grievous injuries in a road accident which resulted in amputation of his right arm. The said accident was out come of rash and negligent driving of respondent No. 1.
4. The claimant/respondent No. 1 has claimed compensation to the tune of Rs. 40,40,000/- as per the details given in the claim petition and in the awards also.
5. The respondents 2 & 3 herein (owner and driver) have filed objections and have admitted date, time and place of accident and the factum that the injured/claimant was travelling in the said vehicle, but have denied the factum of rashness and negligence. They have also pleaded that the driver was having valid licence and the vehicle was insured with insurer i.e. appellant herein.
6. The insurer appellant has filed objections and admitted that the vehicle was insured denied the liability on the count that driver was not holding valid and effective driving licence at the time of accident. The owner was in know of the fact that driver was not having the valid licence and despite of that owner allowed driver to ply the vehicle. The owner violated the terms and conditions of the insurance policy and he committed willful breach.
7. The tribunal framed issues and the parties i.e. claimant/respondent No. 1 and the appellant/insured-examined witnesses. The driver and owner have not examined any witness.
8. After, hearing the arguments and, examination of the record, the Presiding Officer, motor Accident Claims Tribunal, Leh passed the award in favour of the respondent No. 1 and against the driver, owner/insured and insurer to the tune of Rs 2.85 lacs and saddled the appellant/insurer with the liability.
9. Aggrieved by the said award (hereinafter referred to as impugned award), the insured appellant preferred the appeal in hand. The appellant has assailed the impugned award on the following grounds:-
That the driver was not holding a valid licence at the time of accident. Thus the appellant/insurer was not liable to indemnify because of the fact that owner has violated the terms and conditions of the policy; the impugned award which is illegal, erroneous and perverse; the learned presiding officer has wrongly interpreted the judgements discussed in the impugned award; even the finding of the tribunal commanding the appellant to file a separate suit in order to recover the awarded amount is against the mandate of law and the Apex Court judgements and that the compensation amount is excessive, thus is not 'just'.
10. Considered.
11. The following questions need adjudication;-
1. Whether the driver was not holding a valid and effective driving licence?
2. Whether the finding of the tribunal that appellant has to satisfy the award and has been given liberty to file a separate suit in order to recover the awarded amount is correct or otherwise?
3. Whether the awarded amount is excessive and is not just?
12. The following points are admitted;-
That insured was travelling in the vehicle bearing registration No. JK10-0305; the injured sustained injuries, amputation of right arm of the injured; the rash and negligent driving of the driver; factum of insurance; the driver and owner respondents 2 and 3 herein have not assailed the award.
13. Now coming to the said questions 1 & 2, it is profitable to reproduce issue No. 4 herein;-
"Whether the driver of vehicle was not holding a valid driving licence at the time of the accident, if so whether it violates the terms and conditions of the Insurance policy and entitles the Insurance Company to recover the amount of the award from the owner/insured? OPR3"
14. The onus of this issue was on respondent No. 3 i.e. appellant. The appellant has examined two witnesses, namely, Sh. Kewal Krishan Assistant Regional Transport Officer, Leh and Rattan Lal Asstt. Branch Manager, National Insurance Company Branch Leh. Both the said witnesses have stated that driver respondent No. 2 herein was having the licence to ply light motor vehicle and the said licence was not for plying a bus. It was the duty of the appellant/insurer to plead and prove that the driver was not having the driving licence to ply a particularly kind of vehicle and that is the cause of accident.
15. In order to avoid liability, it is the duty of the insurer to plead and prove that the driver was not duly licenced and was empowered to drive one type of vehicle but has driven another type of vehicle and that is the cause of accident. If the insurer fails to prove these facts, he cannot claim that owner has committed willful breach. If the insurer fails to prove the said facts, the insurer cannot claim that owner/insured has committed breach and is not thereby liable to satisfy the award. My this view is fortified by the Apex Court Judgement , National Insurance Co. Ltd. Petitioner v. Swaran Singh and Ors. It is profitable to reproduce para 83, 84 and 85 of the said judgement herein, which reads as under;-
"83. Section 10 of the Act provides for form and contents of licences to drive. The licence has to be granted in the prescribed form. Thus, a licence to drive a light motor vehicle would entitle the holder there to drive the vehicle falling within that class or description.
84. Section 3 of the Act casts an obligation on a driver to hold an effective licence for the type of vehicle which he intends to drive. Section 10 of the Act enables Central Government to prescribe forms of driving licences for various categories of vehicles mentioned in Sub-section (2) of said section. The various types of vehicles described for which a driver may obtain a licence for one or more of them are: (a) Motorcycle without gear; (b) motorcycle with gear, (c) invalid carriage, (d) light motor vehicle, (e) transport vehicle, (f) road roller, and (g) motor vehicle of other specified description. The definition clause in Section 2 of the Act defines various categories of vehicles which are covered in broad types mentioned in Sub-section (2) of Section 10. They are 'goods carriage', 'heavy goods vehicle', 'heavy passenger motor vehicle, 'invalid carriage', 'light motor vehicle', 'maxi cab', 'medium goods vehicle', 'medium passenger motor vehicle', 'motor cab', motor cycle', 'omnibus', 'private service vehicle', 'semi trailer', 'tourist vehicle', 'tractor', 'trailer', and transport vehicle. In claims for compensation for accidents, various kinds of breaches with regard to the conditions of driving licences arise for consideration before the Tribunal. A person possessing a driving licence for 'motorcycle without gear', for which he has no licence. Cases may also arise where a holder of driving licence for 'light motor vehicles' is found to be driving a 'maxi cab', 'motor cab' or 'omnibus' for which he had no licence. IN each case on evidence led before the Tribunal, a decision has to be taken whether the fact of the driver possessing licence for one type of vehicle but found driving another type of vehicle, was the main or contributory cause of accident. If on facts, it is found that accident was caused solely because of some other unforeseen or intervening causes like mechanical failure and similar other causes having no nexus with driver not possessing requisite type of licence, the insurer will not be allowed to avoid its liability merely for technical breach of conditions concerning driving licence.
85. We have construed and determined the scope of Sub-clause (ii) of Sub-section (2) of Section 149 of the Act. Minor breaches of licence conditions, such as want of medical fitness certificate, requirement about age of the driver and the like not found to have been the direct cause of the accident, would be treated as minor breaches of inconsequential deviation in the matter of use of vehicles. Such minor and inconsequential deviations with regard to licensing conditions would not constitute sufficient ground to deny the benefit of coverage of insurance to the third parties.
16. Thus the appellant has failed to prove that the driver was empowered to drive one type of vehicle but was found driving another type of vehicle and that was the cause of accident. The evidence on record discloses that driver was driving vehicle at excessive speed.
17. The learned presiding officer has also not held in the impugned award that driver was not having the valid licence. It is profitable to reproduce the finding returned by the presiding officer in the award herein;-
"The finding on the issue in view of the legal position enumerated in the above stated authority need hot be given at this stage. The legal position is that the Insurance Company has to be given liberty to bring a separate suit against the insured owner, if it is of the view that it has no liability to indemnify the insured and pay compensation to the petitioner, as the terms and conditions of the insurance policy had been violated and the offending vehicle had been piled by a person who had no valid driving licence to ply the same. The issue will come up for consideration in a separate action which the Insurance Company has the right to launch against the owner after making the payment of compensation to the petitioner in the present case."
18. The learned Presiding Officer has held that the Insurance Company can bring a suit against the insured (owner), if the insurer is of the view that insurer has no liability to indemnify the insured as per the terms and conditions of the insurance policy because driver who was driving the offending vehicle was not having valid licence. It is not the finding of the tribunal that the driver was not having valid driving licence and owner has committed willful breach.
19. Keeping in view the said facts, the argument of Mr. Kawoosa fails and accordingly, it is hereby held that insurer has failed to prove that the owner has committed willful breach as discussed above. Thus the question 1 & 2 are replied accordingly.
20. Now dwelling upon third question, the Apex Court has held in adjustment and that insurer cannot challenge the quantum of compensation. Thus Insurance Company cannot plead that the compensation is not just.
21. Viewed thus, appeal is dismissed. Impugned award is upheld with the command to insurer to satisfy the award. Appeal is disposed of accordingly.