Rajasthan High Court - Jodhpur
National Insurance Company Limited vs Yogesh & Ors on 22 February, 2010
Equivalent citations: AIR 2010 (NOC) 1029 (RAJ.), 2011 AAC 404 (RAJ), (2012) ACJ 107, (2010) 2 RAJ LW 1884, (2011) 1 ACC 607, (2010) 4 TAC 227, (2010) 4 CIVLJ 758
Author: Gopal Krishan Vyas
Bench: Gopal Krishan Vyas
1
IN THE HIGH COURT OF JUDICATURE FOR RAJASTHAN
AT JODHPUR
:JUDGMENT:
D.B. Civil Special Appeal No.10/2003.
(National Insurance Co. Ltd. Vs. Yogesh & Others)
DATE OF JUDGMENT : February 22, 2010
PRESENT
HON'BLE MR. JUSTICE A.M. KAPADIA
HON'BLE MR. JUSTICE GOPAL KRISHAN VYAS
_________________________________________
Mr. Sanjeev Johari for the appellant.
Mr. Dilip Kawadia for the respondent(s).
Reportable
BY THE COURT : (Per Hon'ble Mr. Vyas, J.)
In this special appeal filed under Section 18 of the Rajasthan High Court Ordinance, 1949, appellant National Insurance Company is challenging the judgment dated 14.05.2002 passed by learned Single Judge in S.B. Civil Misc. Appeal No.851/2001, whereby, the learned Single Judge allowed the appeal and set aside the finding of the learned Tribunal upon issues No.3 and 4 in the judgment and award dated 26.05.2001, and, modified the award while holding the appellant insurance company liable jointly and severally to pay the amount of compensation in terms of the insurance policy Ex.-NA/1 along with other non- claimant-respondents.
2The main contention of learned counsel for the appellant is that the learned Tribunal exonerated the appellant insurance company from the liability of compensation while deciding issues No.3 and 4 in favour of the insurance company, in which, the learned Tribunal held that there is gross violation of the policy conditions because the owner as well as driver both, despite issuing notice by the insurance company, did not like to produce the driving licence before the Tribunal and, thus, the burden of proving any licence to be fake and/or invalid which was to be proved by the insurance company was proved sufficiently by detailed oral evidence of two witnesses.
As per the appellant insurance company, the investigator specifically said in his oral evidence about the investigation in the criminal proceedings at the Sharda court that there was no copy of licence, either original or xerox, produced by the driver or owner. In this case also, details were not given about the licence by the driver or owner, therefore, in the circumstances, best possible efforts were made by the appellant insurance company in order to discharge the burden to prove under Section 149 that the driver was not holding any valid driving licence.
3
In the appeal, it is submitted that the learned Single Judge while reversing the finding on issues No.3 and 4, in this regard, has committed an illegality, therefore, the judgment rendered by the learned Single Judge dated 24.0-5.2002 in the miscellaneous appeal deserves to be quashed and judgment rendered by the learned Tribunal may be restored.
On the other hand, learned counsel appearing on behalf of the claimants submits that no error has been committed by the learned Single Judge while passing the judgment impugned in this special appeal. The learned Single Judge has followed the earlier judgment, reported in (1985) 2 SCC 574, in which, the Hon'ble Supreme Court has held that the insured is under no obligation to furnish evidence so as to enable the insurance company to wriggle out of its liability under the contract of insurance. The burden is not discharged on mere failure on the part of the partner of the firm who was driving the vehicle to produce the driving licence when called upon to do so in the cross- examination. Thereby one cannot draw an adverse inference that he did not have a valid licence. The insurance company should have got evidence to substantiate its allegation. Applying the test who would 4 fail if no evidence is led, the obvious answer is the insurance company. Therefore, the learned Single Judge has rightly reversed the finding of the learned Tribunal on issues No.3 and 4 and has rightly held the insurance company liable for making the payment.
We have considered the rival submissions and perused the impugned judgment, so also, judgment and award passed by the Tribunal.
According to facts of the case, the Motor Accident Claims Tribunal, Bali passed judgment dated 26.05.2001 for award of compensation in the sum of Rs.1,63,000/- payable to claimant-respondents No.2 to 7 on the death of deceased Chhatar Singh, aged about 35 years, in the accident. The appellant insurance company is insurer of the truck involved in the accident. Learned Tribunal, in the claim petition filed by the claimants, framed the following issues :
"1- आय द न क 19.3.96 क व पक स-1 क च लक हन फ ख द र हन स-आर.ज.डब य-672 क गफलत ल पर ह! स चल न क क रण चतरससह र $ ट & न गसत ह$आ और उसक शर!र पर स ध रण गभ र च ट/ आई, जजसस उसक2 मत4 य$ ह$ई ?
2- आय प र8 कलम म/ बत ई गई र सश 6,93,072/- य अनय क ई र सश पततकर म/ व पक गण स प न क अधधक र! ह?, यद ह त ककतन ककस ककस स ?
3- आय ब म कपन क द र ज ब म/ उठ ई गई आपवBयC क आध र पर ब म कपन क क ई तयत नह! ह? ?
4- आय र
$ ट
& न द न क 19.3.96 क व पक स-1 क च लक हन फ
5
ख क पस ?द च लन अनज
$ प नह! र ?
5- रस ?"
While deciding issues No.3 and 4, the Tribunal exonerated the appellant insurance company on the ground that the driver was not having valid driving licence and he did not even furnish either original or xerox copy of the licence. Further, it has been held that appellant insurance company has proved the violation of policy condition so as to get exoneration from the liability.
Upon appeal filed by the claimants, while relying upon the judgment of the Supreme Court in the case of Narcinva V. Kamat & Another Vs. Alfredo Antonio Doe Martins & Others, reported in (1985) 2 SCC 574, learned Single Judge of this Court held that insurance company has not established by legal evidence that the driver of the offending vehicle was not holding valid driving licence on the relevant date of the accident. Learned Single Judge has observed in the judgment that the learned Tribunal has committed error in arriving at the finding that the insurance company has sufficiently discharged its onus to prove that the driver Hanif Khan was not having a valid driving licence at the time of the accident; but, this finding is based upon 6 wrong appreciation of material on record and deserves to be set aside. The issuance of notices to the owner and driver of the offending vehicle by the insurance company to produce the driving licence would neither enable the insurance company to prove its objections nor any adverse inference can be drawn against the insured. The driving licence is issued by the State authority i.e., the concerning Transport authority and it is the onus of the insurance company to prove its case of the insured committing breach of the terms and conditions of the insurance policy by allowing the vehicle to be driven by a person not having a valid driving licence by leading relevant evidence by way of production of authoritative documents duly testified by examination of some official of the department. But, these facts are not in existence in the present case.
In our opinion, also, the learned Single Judge has rightly followed the verdict of the Hon'ble Supreme Court, reported in (1985) 2 SCC 574, in which, in para 12 and 14, following proposition has been laid down :
"12. It is contended on behalf of the insurance company that the second appellant did not have a valid driving licence. It is the insurance company which complains that there has been a breach of one of the important terms of the contract of insurance as evidenced 7 by the policy of insurance (the whole of which was not shown to us) and that the second appellant who was shown to be driving the vehicle at the relevant time, did not have a valid driving licence to drive the pick-up van. The insurance company complains of breach of a term of contract which would permit it to disown its liability under the contract of insurance. If a breach of a term of contract permits a party to the contract to not to perform the contract, the burden is squarely on that party which complains of breach to prove that the breach has been committed by the other party to the contract. The test in such a situation would be who would fail if no evidence is led. The language and the format in which issues Nos. 7 and 8 have been cast by the Tribunal clearly casts the burden of proof on the insurance company. Not an iota of evidence has been led by the insurance company to show that the second appellant did not have a valid driving licence to drive the vehicle. Mr. J. Sharma, learned counsel who appeared for the appellant urged that a question was asked in the cross- examination of the second appellant whether he would produce his driving licence, and that as he failed to produce the same, an adverse inference must be drawn against him that he did not have a valid driving licence. The High Court has recorded a finding in this behalf which may first be extracted in its own words :
Mr Cardoso's contention proceeds on a misreading of clause (b) indented above, which brings to the forefront that the person driving the vehicle must be 'in the insurer's employ' and further, being in such employment was driving the vehicle on the order 8 of the insurer or with his permission. In this case, the very first premise is missing for the simple reason it is not even the second appellant's case that he was ever in the employment of the first appellant firm but was at all material times a partner thereof. Even if the first appellant held a valid driving licence, clause (b) wouldf not absolve him from liability for payment, if the van had been driven by him at the relevant time.
The High Court took no notice of the fact that the van belonged to the firm and every partner for that reason would be the owner of the property of the firm because the firm is not a legal entity in the sense in which the company under the Companies Act has a juristic personality. Firm is a compendious name for the partners. And the High Court limited its enquiry to ascertain whether the first part of the condition is satisfied viz. Whether the driver was in the employ of the insured. It completely overlooked the second clause that the driver, appellant 2 was driving with the permission of the insured, the firm in this case. Two clauses are disjointed by a disjunctive 'or'. On a proper analysis and interpretation of the term of contract of insurance, the insurance company cannot escape the liability if (a) the insured himself was driving the vehicle or (b) the driver is insured or (c) he is driving with his permission. The words 'with his permission' does not qualify the expression 'is in the insured's employ'. The clause can be properly read thus :
'any other person with insured's
permission'. This ought to be so
9
because a friend can always be
permitted if he has a valid driving licence to drive a friend's car. If in every such situation where the person driving the vehicle is not shown to be the insured himself or someone in his employment, the contract of insurance would afford no protection and the insurance company having collected the premium would wriggle out of a loophole. Therefore, the proper construction of this condition must be to read it as stated hereinbefore.
................. ............. ................ ................. ............. ................
14. The last question is whether he had a valid driving licence. The High Court has not recorded a clear cut finding on this point. The finding of the Tribunal is more evasive than the one by the High Court. Mr. Sharma did not dispute that the second appellant had a driving licence. His grievance is that he having failed to produce the same when called upon to do so in the cross-examination, an adverse inference be drawn against him that he did not have a valid licence to drive a pick-up van. The submission fails to carry conviction with us. The burden to prove that there was breach of the contract of insurance was squarely placed on the shoulders of the insurance company. It could not be said to have been discharged by it by a mere question in cross-examination. The second appellant was under no obligation to furnish evidence so as to enable the insurance company to wriggle out its liability under the contract of insurance. Further the R.T.A. Which issues the driving licence keeps a record of the licences issued and renewed by it. The insurance company could have got the evidence produced to substantiate its allegation. Applying the test who would 10 fail if no evidence is led, the obvious answer is the insurance company."
In this view of the matter, we find that there is no substance in the argument of the learned counsel appearing on behalf of the appellant insurance company that the learned Single Judge has committed any error while reversing the finding of the learned Tribunal on issues No.3 and 4.
This appeal is, therefore, accordingly dismissed. (Gopal Krishan Vyas) J. (A.M. Kapadia) J. Ojha, a.