Himachal Pradesh High Court
New India Assurance Company Limited vs Sushma Rani And Others on 1 January, 2016
Author: Mansoor Ahmad Mir
Bench: Mansoor Ahmad Mir
IN THE HIGH COURT OF HIMACHAL PRADESH, SHIMLA FAO No. 214 of 2009 Decided on: 01.01.2016 .
New India Assurance Company Limited ...Appellant.
Versus Sushma Rani and others ...Respondents.
of Coram rt The Hon'ble Mr. Justice Mansoor Ahmad Mir, Chief Justice.
Whether approved for reporting? Yes.
For the appellant: Mr. B.M. Chauhan, Advocate.
For the respondents: Mr. N.K. Thakur, Senior Advocate, with Mr. Rahul Verma, Advocate, for respondents No. 1 to 5.
Nemo for respondents No. 6 and 7.
Mansoor Ahmad Mir, Chief Justice.
Challenge in this appeal is to the judgment and award, dated 23.01.2009, made by the Motor Accident Claims Tribunal, Una, Himachal Pradesh (for short "the Tribunal") in M.A.C. Petition No. 33 of 2006, titled as Sushma Rani and others versus Swarn Singh and others, whereby compensation ::: Downloaded on - 15/04/2017 19:38:19 :::HCHP 2 to the tune of ` 6,45,636/ with interest @ 7% per annum from the date of the petition till its realization came to be awarded .
in favour of the claimants and against the insurer (for short "the impugned award").
2. The ownerinsured, driver and claimants have not of questioned the impugned award on any count, thus, has attained finality so far it relates to them.
3. rt Appellantinsurer has questioned the impugned award on three counts:
(i) That the driver of the offending vehicle was not having a valid and effective driving licence;
(ii) That the ownerinsured of the offending vehicle has committed willful breach; and
(iii) That the amount awarded is excessive.
4. All the three grounds are not tenable and are rejected for the following reasons:
::: Downloaded on - 15/04/2017 19:38:19 :::HCHP 35. Admittedly, the driver of the offending vehicle was having driving licence to drive a light motor vehicle. The .
offending vehicle is Mahindra Pickup, which is a light motor vehicle, was also matter of discussion before this Court in a series of cases, including FAO No. 135 of 2009, titled as The of New India Assurance Company versus Bihari Lal & others, decided on 28.08.2015.
6. rt Having said so, the Tribunal has rightly held that the driver of the offending vehicle was having a valid and effective driving licence to drive the offending vehicle.
7. It was for the insurer to plead and prove that the ownerinsured has committed a willful breach, has failed to do so. Even otherwise, the insurer has not proved that the ownerinsured has committed breach of the provisions of Section 147 and 149 of the Motor Vehicles Act, 1988 (for short "the MV Act") read with the terms and conditions contained in the insurance policy, not to speak of willful breach.
8. The Tribunal has rightly made the impugned award, needs no interference in view of the law laid down by ::: Downloaded on - 15/04/2017 19:38:19 :::HCHP 4 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. .....................
of
(i) .........................
(ii) ........................
rt (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 ::: Downloaded on - 15/04/2017 19:38:19 :::HCHP 5 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 of condition regarding holding of a valid licence by the driver or his qualification to drive during rt 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."
9. The Apex Court in another case titled as Pepsu Road Transport Corporation versus National Insurance Company, reported in 2013 AIR SCW 6505, held that the ownerinsured is not supposed to go beyond verification to the effect that the driver was having a valid driving ::: Downloaded on - 15/04/2017 19:38:19 :::HCHP 6 licence and the competence of the driver. 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 of 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 rt 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 ::: Downloaded on - 15/04/2017 19:38:19 :::HCHP 7 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 of is not liable for the compensation."
10. The amount of compensation awarded by the rt Tribunal is too meager. I wonder why the claimants have not questioned the quantum of compensation. Accordingly, the amount of compensation is reluctantly upheld.
11. Having said so, the impugned award merits to be upheld and the appeal is to be dismissed. Accordingly, the impugned award is upheld and the appeal is dismissed.
12. At this stage, learned counsel for the claimants stated at the Bar that respondents No. 2 and 3, i.e. Aman Deep and Gagan Deep, respectively, have attained majority during the pendency of the appeal, respondent No. 4, i.e. Navdeep, is still minor, and prayed that the shares of the major respondents No. 2 and 3 be ordered to be released in their favour.
::: Downloaded on - 15/04/2017 19:38:19 :::HCHP 813. In view of the above, Registry is directed to release the awarded amount in favour of the claimants in the .
following manner:
(i) All the claimants are held entitled to the awarded amount in equal shares;
of
(ii) The entire shares of the mother rt and widow of the deceased be released in their favour through payee's account cheque or by depositing the same in their respective accounts;
(iii) 50% of the shares of two sons, who have attained majority during the pendency of the appeal, namely Aman Deep and Gagan Deep, be released in their favour through payee's account cheque or by depositing the same in their respective accounts and the rest 50% be invested in FDRs for a period of five years; and
(iv) The entire share of minor son, namely Navdeep, be invested in the FDR, in terms of the impugned award.::: Downloaded on - 15/04/2017 19:38:19 :::HCHP 9
14. Send down the record after placing copy of .
the judgment on Tribunal's file.
(Mansoor Ahmad Mir) Chief Justice January 1, 2016 ( rajni ) of rt ::: Downloaded on - 15/04/2017 19:38:19 :::HCHP