Sikkim High Court
Branch Manager, United India Insurance ... vs Shri Biresh Giri And Others on 15 September, 2014
Equivalent citations: AIR 2015 (NOC) 812 (SIK.)
Author: S. P. Wangdi
Bench: S. P. Wangdi
THE HIGH COURT OF SIKKIM : GANGTOK
(Civil Appellate Jurisdiction)
JUDGMENT
S.B. MAC App. No.07 of 2014 The Branch Manager, United India Insurance Company Limited, Deorali Bazaar, 31A National Highway, P.O. Tadong, P.S. Gangtok, East Sikkim. ... Appellant versus
1. Mr. Biresh Giri, S/o Late Thakur Giri
2. Mrs. Basanti Giri, W/o Mr. Biresh Giri
3. Master Niraj Kumar Giri, S/o Mr. Biresh Giri
4. Master Achhelal Giri, S/o Mr. Biresh Giri All residents of -
Ward No.3,
Singtam Nagar Panchayat,
Mandir Line,
P.O. & P.S. Singtam,
East Sikkim. ... Respondents-
Claimants
5. Mr. Atikur Rahman,
S/o Shri Sheikh Safiullah,
R/o Bhanu Park,
P.O. & P.S. Singtam,
East Sikkim
(Owner of vehicle No.SK 07 TR 5909).
... Respondent
2
MAC App. Nos.07 and 08 of 2014
The Branch Manager, United India Insurance Company Limited vs. Biresh Giri and Others For Appellant : Ms. Navtara Sarda, Advocate. For Respondents No.1 to 4 : Mr. Ajay Rathi, Mr. Rahul Rathi and Ms. Pema Wongmu Bhutia, Advocates.
For Respondent No.5 : Mr. Zangpo Sherpa, Advocate
as Legal Aid Counsel with Mr.
Dewen Sharma Luitel,
Advocate.
S.B. MAC App. No.08 of 2014
The Branch Manager,
United India Insurance Company Limited, Deorali Bazaar, 31A National Highway, P.O. Tadong, P.S. Gangtok, East Sikkim. ... Appellant versus
1. Mr. Chaman Mali, S/o Late M. Mali
2. Mrs. Muni Mali, W/o Mr. Chaman Mali
3. Master Prabhu Mali, S/o Mr. Chaman Mali
4. Master Dani Mali, S/o Mr. Chaman Mali
5. Master Gopal Mali, S/o Mr. Chaman Mali
6. Master Soni Mali, S/o Mr. Chaman Mali 3 MAC App. Nos.07 and 08 of 2014 The Branch Manager, United India Insurance Company Limited vs. Biresh Giri and Others All residents of -
Ward No.3,
Singtam Nagar Panchayat,
Mandir Line,
P.O. & P.S. Singtam,
East Sikkim. ... Respondents-
Claimants
7. Mr. Atikur Rahman,
S/o Shri Sheikh Safiullah,
R/o Bhanu Park,
P.O. & P.S. Singtam,
East Sikkim
(Owner of vehicle No.SK 07 TR 5909).
... Respondent
CORAM
HON'BLE MR. JUSTICE S. P. WANGDI, JUDGE DATE OF JUDGMENT : 15-09-2014 Wangdi, J.
1. By these Appeals, the Appellant-Insurance Company seeks to assail the impugned judgments dated 27-12-2013 and dated 21-12-2013 in MACT Case No.21 of 2012 and MACT Case No.22 of 2012 respectively passed by the Learned Member, Motor Accident Claims Tribunal, East and North Sikkim at Gangtok (in short the "Learned Claims Tribunal"), by which the Respondents-Claimants have been awarded compensation with interest to be paid by the Appellant-Insurance Company. 4
MAC App. Nos.07 and 08 of 2014 The Branch Manager, United India Insurance Company Limited vs. Biresh Giri and Others
2. These Appeals are being disposed of by this common judgment as the issues involved in both the cases are the same having arisen from the same motor vehicle accident when driven by the same driver in which the deceased persons had died.
3. In MAC App. No.7 of 2014, the Respondents No.1 and 2 are the parents of the deceased Mardhoj Giri while Respondents No.3 and 4 are his brothers (Respondent No.4 has been wrongly mentioned as daughter in the cause title). Similarly, in MAC App. No.8 of 2014, the Respondents No.1 and 2 are the parents of the deceased Hari Mali while Respondents No.3 to 6 are his brothers.
4(i). The facts as would be material for disposal of these Appeals are that deceased Mardhoj Giri and Hari Mali had boarded a Hyundai Santro Car bearing registration number SK 07 TR 5909 at Singtam, belonging to Atikur Rahman, Respondent No.5 in MAC App. No.07 of 2014 and Respondent No.7 in MAC App. No.08 of 2014, driven by his brother Sheik Masoom, a juvenile and headed towards Rangpo in the early morning of 07-12- 5 MAC App. Nos.07 and 08 of 2014 The Branch Manager, United India Insurance Company Limited vs. Biresh Giri and Others 2011 at about 6 a.m. As they reached Bardang, 19th Mile, falling under the jurisdiction of Singtam Police Station, the vehicle fell off the road into the river Teesta causing the death of these two persons on the spot.
(ii) Since the vehicle was insured with the Appellant-Insurance Company, Claim Petitions were filed before the Learned Claims Tribunal by the dependants of the deceased persons separately which were registered as MACT Case No.21 of 2012 (MAC App. No.07 of 2014 in the present Appeal) and MACT Case No.22 of 2012 (MAC App. No.08 of 2014 in the present Appeal).
(iii) The Appellant-Insurance Company contested the claims by filing a written objection and denied its liability on all accounts. Upon considerations of the respective pleadings, the Learned Claims Tribunal framed four identical issues in both the cases which are reproduced below:-
(i) Whether the vehicle bearing No.SK-
07/TR/5909 was insured with the O.P. No.1 at the time of the accident? (Onus on Claimants)
(ii) Whether the deceased was a third party?
(Onus on Claimants) 6 MAC App. Nos.07 and 08 of 2014 The Branch Manager, United India Insurance Company Limited vs. Biresh Giri and Others
(iii) Whether the said vehicle was driven by a qualified driver or not at the time of the accident? (Onus on Claimants)
(iv) Whether the Claimants are entitled to the compensation claimed along with interest from the date of filing of the claim petition and, if so, who is liable to pay the same? (Onus on Claimants)
(iv) By the impugned judgment, the Learned Claims Tribunal decided all issues against the Appellant-Insurance Company and allowed compensation of ` 6,18,500/- in MACT Case No.21 of 2012 (MAC App. No.07 of 2014 in the present Appeal) and ` 5,46,500/- in MACT Case No.22 of 2012 (MAC App. No.08 of 2014 in the present Appeal) respectively in favour of the Respondents-Claimants. 5(i). It is relevant to note that in these Appeals the Appellant-Insurance Company has confined their challenge only in respect of the findings on issue no.(iii) and, therefore, we may not delay ourselves on the rest.
(ii) As would appear from issue no.(iii) reproduced above, the question that arose for determination was the import of the term of the insurance policy which protected 7 MAC App. Nos.07 and 08 of 2014 The Branch Manager, United India Insurance Company Limited vs. Biresh Giri and Others the Appellant-Company from the liability of payment under the insurance cover which prescribed that -
"Persons or Class of Persons entitled to driver:
Any person including Insured provided that a person driving holds an effective driving licence at the time of the accident and is not disqualified from holding or obtaining such a licence. Provided also that the person holding an effective Learner's Licence may also drive the vehicle and such a person satisfies the requirements of Rule 3 of Central Motor Vehicle Rule, 1989."
6(i). Pressing the Appeals, Ms. Navtara Sarda, Learned Counsel, appearing on behalf of the Appellant- Insurance Company, submitted that the Learned Claims Tribunal failed to appreciate that the evidence clearly established the driver of the vehicle to be a minor and, therefore, not eligible to be issued with a driving licence to drive a vehicle of the kind that met with the accident in pursuance of Section 4 of the Motor Vehicles Act, 1988 (in short the "Act") and that the vehicle being allowed to be driven by the minor without a valid driving licence was also in gross violation of Sections 3 and 5 of the Act. As per Ms. Sarda, the evidence of Mrs. Basanti Giri, mother of the victim, Claimant No.2 in MACT Case No.21 of 2012, would clearly establish this fact as it has come in her 8 MAC App. Nos.07 and 08 of 2014 The Branch Manager, United India Insurance Company Limited vs. Biresh Giri and Others evidence that the driver of the vehicle Sheik Masoom was a minor who did not possess a valid and effective licence to drive any vehicle and that the keys of the vehicle were in fact handed over to him by the owner of the insured vehicle, the brother of Sheik Masoom, Atikur Rahman, the Respondent No.5 in MAC App. No.07 of 2014 and Respondent No.7 in MAC App. No.08 of 2014.
(ii) The Learned Counsel sought to rely upon the very same decisions cited by her before the Learned Claims Tribunal in support of her contentions. They are -
(a) Jawahar Singh vs. Bala Jain and Others : (2011) 6 SCC 425;
(b) United India Insurance Company Limited vs. Lajwant Kaur and Others : dated 20-01-2014 of the Punjab & Haryana High Court in FAO Nos.19 and 20 of 1998;
(c) United India Insurance Co. Ltd. through its Divisional Manager vs. Sujata Arora and Others :
2013 ACJ 2129;
(d) Premkumari and Others vs. Prahlad Dev and Others : (2008) 3 SCC 193;
(e) Ammayamma vs. Mohammed Rasid Jamal and Another : MANU/KA/0347/2012; and
(f) United India Insurance Company Limited vs. Rakesh Kumar Arora and Others : (2008) 13 SCC 298. 9 MAC App. Nos.07 and 08 of 2014 The Branch Manager, United India Insurance Company Limited vs. Biresh Giri and Others
(iii) However, emphasis was laid by her on the case of Jawahar Singh (supra) with reference to paragraphs 15 and 16 therein to contend that the plea taken on behalf of the owner Atikur Rahman that his minor brother had taken the keys of the vehicle without his permission was improbable and far-fetched.
7(i). Mr. Ajay Rathi, Learned Counsel, appearing for the Respondents No.1 to 4 in MAC App. No.07 of 2014 and Respondents No.1 to 6 in MAC App. No.08 of 2014 and, Mr. Zangpo Sherpa, Learned Counsel, appearing as Legal Aid Counsel for the Respondent No.5 in MAC App. No.07 of 2014 and Respondent No.7 in MAC App. No.08 of 2014, submit that reliance placed on behalf of the Appellant- Insurance Company on the evidence of Mrs. Basanti Giri was unsustainable as being grossly contradictory and in conflict with the documentary evidence on record. Her statement that "It is true that the keys of the vehicle were handed over to Sheikh Masom by O.P.No.2" stands clearly contradicted by her later statement that "It is true that on the morning of the incident I was at my home. It is true that I came to learn of the incident when people in the bazaar started talking about the accident". It is contended that when at the 10 MAC App. Nos.07 and 08 of 2014 The Branch Manager, United India Insurance Company Limited vs. Biresh Giri and Others material time the witness was at her own home it was improbable for her to have been in the house of O.P. No.2/Respondent-owner of the vehicle at the same time. The improbability of her story gets worse confounded when she has also stated in no uncertain terms that she had learnt of the accident at the Bazaar.
(ii) On the other hand, the report of the very Insurance Investigator engaged by the Appellant- Insurance Company, marked Exhibit 'B', reinforces the case of the Respondents-Claimants that the driver of the vehicle Sheik Masoom had taken the vehicle keys without the knowledge of the owner Aitakur Rahman and that the claims were genuine.
(iii) The next document relied upon in support of their contention was the final report Exhibit D1 submitted by the Police under Section 173 of the Code of Criminal Procedure, 1908 (in short "Cr.P.C.") wherein it has been stated as under:-
"Investigation revealed that the Juvenile driver, Sheikh Masum 15 yrs,s/o Safi Ullah r/o Bhanupath Singtam is living with his eldest brother Atikur Rehman (vehicle owner). That on 07.12.11 at around 0400 hrs, the juvenile without the knowledge of his brother ;Atikur Rehman (vehicle 11 MAC App. Nos.07 and 08 of 2014 The Branch Manager, United India Insurance Company Limited vs. Biresh Giri and Others owner) took away the key of the vehicle bearing no.SK07 TR 5909 (Santro). ....................."
(iv) The other document referred to and relied upon was Exhibit D3 being the statement of the minor driver Sheik Masoom recorded under Section 161 Cr.P.C. in the Nepali vernacular, which when translated in English, reads as follows:-
"My true statement is that I got up at about 4 a.m. in the morning of today, i.e., 07.12.11, when everybody were asleep in the house and I picked up the car keys of my brother Atikur hung on a nail without letting anyone know about it and started the car. ........................... I used to take the keys without anybody knowing every morning to learn driving. .........................."
(v) By referring to the various portions of the impugned judgment, it was submitted by the Learned Counsel that the questions now raised on behalf of the Appellant-Insurance Company had been duly considered by the Learned Claims Tribunal while dealing with issue no.(iii) and had thereafter rejected them and decided in favour of the Respondents-Claimants.
(vi) Mr. Zangpo Sherpa, Learned Counsel, submitted that the present case is entirely covered by the ratio laid down in Skandia Insurance Co. Ltd. vs. Kokilaben 12 MAC App. Nos.07 and 08 of 2014 The Branch Manager, United India Insurance Company Limited vs. Biresh Giri and Others Chandravadan and Others : (1987) 2 SCC 654 which was later followed in Sohan Lal Passi vs. P. Sesh Reddy and Others : (1996) 5 SCC 21.
8(i). Upon consideration of the rival submissions of the Learned Counsel and the evidence on record, I am inclined to agree with the contentions placed on behalf of the Respondents.
(ii) From the submissions made on behalf of the Appellant-Insurance Company set out above, it is apparent that the sole foundation of the Appellant-Insurance Company in assailing the findings on issue no.(iii) is the evidence of Mrs. Basanti Giri, Claimant No.2 in MACT Case No.21 of 2012. The sentences in her evidence heavily relied upon are as under:-
"....................... It is true that the keys of the vehicle were handed over to Sheikh Masom by O.P.No.2. .................................
.................................. It is not a fact that the key to the vehicle was not given by O.P.No.2 to Sheikh Masom. .................................."
(iii) However, in my view, it is difficult to accept such stray sentences in the evidence of a witness who does not live with the family of the owner of the vehicle 13 MAC App. Nos.07 and 08 of 2014 The Branch Manager, United India Insurance Company Limited vs. Biresh Giri and Others and the minor driver but, elsewhere in her own home. These sentences are completely incongruous to the other part of her evidence where, as pointed earlier, she had stated that she was at home in the morning of the incident and that she had come to learn of the incident in the Bazaar and, also the documentary evidence Exhibit 'B', Exhibit 'D1' and Exhibit 'D3'. As such, the witness appears to be completely unreliable thereby shaking the very foundation of the Appellant's case.
(iv) Statement of a witness recorded under Section 161 Cr.P.C. no doubt cannot be accepted as a valid evidence but, it certainly would be permissible to consider it solely for the collateral purpose of ascertaining the facts appearing in the other evidence particularly it has been referred to by the owner in his evidence. The statement of the driver Sheik Masoom under Section 161 Cr.P.C., Exhibit D3, duly extracted earlier undeniably reinforces the evidence of his brother Atikur Rahman, the owner of the vehicle, that at the time of the accident the vehicle was driven by a person, i.e., his minor brother Sheik Masoom, who was not authorised by him as he had taken the keys of the vehicle without his knowledge and consent and 14 MAC App. Nos.07 and 08 of 2014 The Branch Manager, United India Insurance Company Limited vs. Biresh Giri and Others driven it away. This part of his evidence has remained firm and undemolished when cross-examined by the Learned Counsel for the Appellant-Insurance Company.
(v) On a strict construction of the relevant clause of the insurance policy alluded to above, it would appear that since the driver Sheik Masoom was firstly a minor and, therefore, falling within the mischief of Sections 3 and 4 of the Act and secondly, he was not authorised under Section 5 of the Act, the Appellant-Insurance Company would stand protected from its liability which then would shift to the owner of the vehicle. However, the position of law now stands settled under the circumstances as in the present case. In Skandia Insurance Co. Ltd. (supra) it has been held as follows:-
"14. Section 96(2)(b)(ii) extends immunity to the insurance company if a breach is committed of the condition excluding driving by a named person or persons or by any person who is not fully licensed, or by any person who has been disqualified for holding or obtaining a driving licence during the period of disqualification. The expression 'breach' is of great significance. The dictionary meaning of 'breach' is 'infringement or violation of a promise or obligation'. It is therefore abundantly clear that the insurer will have to establish that the insured is guilty of an infringement or violation of a promise that a person who is duly licensed will have to be in charge of the vehicle. The very concept of infringement or violation of the 15 MAC App. Nos.07 and 08 of 2014 The Branch Manager, United India Insurance Company Limited vs. Biresh Giri and Others promise that the expression 'breach' carries within itself induces an inference that the violation or infringement on the part of the promisor must be a wilful infringement or violation. If the insured is not at all at fault and has not done anything he should not have done or is not amiss in any respect how can it be conscientiously posited that he has committed a breach? It is only when the insured himself places the vehicle in charge of a person who does not hold a driving licence, that it can be said that he is 'guilty' of the breach of the promise that the vehicle will be driven by a licensed driver.
..................................... To construe the provision differently would be to rewrite the provision by engrafting a rider to the effect that in the event of the motor vehicle happening to be driven by an unlicensed person, regardless of the circumstances in which such a contingency occurs, the insured will not be liable under the contract of insurance. It needs to be emphasised that it is not the contract of insurance which is being interpreted. It is the statutory provision defining the conditions of exemption which is being interpreted. These must therefore be interpreted in the spirit in which the same have been enacted accompanied by an anxiety to ensure that the protection is not nullified by the backward looking interpretation which serves to defeat the provision rather than to fulfil its life- aim. To do otherwise would amount to nullifying the benevolent provision by reading it with a non-benevolent eye and with a mind not tuned to the purpose and philosophy of the legislation without being informed of the true goals sought to be achieved. What the legislature has given, the Court cannot deprive of by way of an exercise in interpretation when the view which renders the provision potent is equally plausible as the one which renders the provision impotent. In fact it appears that the former view is more plausible apart from the fact that it is more desirable. .............................." [underlining mine] The above proposition of law has been followed in the later decision of Sohan Lal Passi (supra).16
MAC App. Nos.07 and 08 of 2014 The Branch Manager, United India Insurance Company Limited vs. Biresh Giri and Others
(vi) What follows from the above is that violation of the provisions of Sections 3, 4 and 5 of the Act per se is not the sole consideration while determining the question of breach of a policy condition. Such breach ought to have been committed willfully. This also appears to be the scope of Section 149 of the Act as would be revealed in the discussions that follow hereafter.
(vii) The decisions cited on behalf of the Appellant-
Insurance Company would have no application to the facts obtaining in the present case. Those decisions rather go against the case of the Appellant-Insurance Company in so far as the question of breach of the policy is concerned. The observation of the Hon'ble Supreme Court in paragraphs 15 and 16 of the decision in Jawahar Singh (supra) relied upon on behalf of the Appellant is consistent with the decision of Skandia Insurance Co. Ltd. (supra). Paragraphs 15 and 16 are reproduced below for convenience:-
"15. Without going into the merits of the case, we are of the view that the story of Jatin, who was a minor, walking into the house of the petitioner and taking the keys of the motorcycle without any intimation to the petitioner, appears to be highly improbable and far-fetched. It is difficult to accept the defence of the petitioner that 17 MAC App. Nos.07 and 08 of 2014 The Branch Manager, United India Insurance Company Limited vs. Biresh Giri and Others the keys of the motorcycle were taken by Jatin without his knowledge. Having regard to the aforesaid facts, we are not inclined to accept the case of contributory negligence on the part of the deceased, attempted to be made out on behalf of the petitioner.
16. Accordingly, since the notice on the special leave petition was confined to the question of contributory negligence, if any, on the part of the deceased, we see no reason to interfere with the award of the Motor Accident Claims Tribunal, as confirmed by the High Court. The special leave petitions are, accordingly, dismissed, but without any order as to costs." [underlining mine]
(viii) Implicit in the above finding is that the keys of the motorcycle was taken by the minor Jatin with the knowledge and consent of the owner in clear violation of Section 5 of the Act which amounted to breach as contained in Section 149(2) and, thereby of the policy condition. Similar is the case of Lajwant Kaur (supra) wherein an insured owner permitted a driver holding a fake licence to use such licence to drive the offending vehicle. In the case of Sujata Arora (supra) also the owner had entrusted his vehicle to a driver who was not holding a valid driving licence at the time of the accident and, therefore, was held liable to pay compensation amount to the claimants. In Premkumari (supra) and Rakesh Kumar Arora (supra) following the law laid down in Skandia Insurance Co. Ltd. (supra) it was held that the 18 MAC App. Nos.07 and 08 of 2014 The Branch Manager, United India Insurance Company Limited vs. Biresh Giri and Others Insurance Company must establish that the breach was on the part of the insured and the burden of proof of such breach was on the Insurance Company. Having regard to the facts obtaining in those cases, it was held that there was a breach of the condition of the insurance and, therefore, the liability to pay the compensation was shifted to the owners of the vehicle. In Ammayamma (supra) also the principle in Skandia Insurance Co. Ltd. (supra) was not digressed from. The owner was held liable to pay the compensation as he had failed to make any efforts to examine the driver of the vehicle holding a fake licence and also to produce the licence. From the facts of the case as would be discernable, the Hon'ble High Court noticed that instead of the owner filing the Appeal against the finding of the Tribunal fixing the liability on him, it was the claimant who had done so. Under such circumstance, decision of the Tribunal was not interfered with.
(ix) On a careful examination of the entire evidence discussed earlier in the backdrop of law laid down in Skandia Insurance Co. Ltd. (supra) as well as the decisions cited on behalf of the Appellant-Insurance Company, it stands established beyond doubt that Sheik 19 MAC App. Nos.07 and 08 of 2014 The Branch Manager, United India Insurance Company Limited vs. Biresh Giri and Others Masoom had as usual picked the car keys hung on a nail without the knowledge of the insured in the early morning hours of the day of the incident when every member of the family was asleep. He then started the vehicle and proceeded towards Rangpo picking up the deceased persons enroute at Singtam. It is not disputed that the owner of the vehicle Atikur Rahman and the minor Sheik Masoom are brothers living under the same roof. The plea taken by the owner that the minor Sheik Masoom had taken the keys of the offending vehicle without his knowledge and consent, appears to be more probable and, therefore, worth accepting as a reliable version. It, therefore, cannot be said that he had committed a breach of a condition of the policy falling under Section 149(2)(a)(ii) of the Act.
(x) For these reasons, Atikur Rahman, the owner of the insured vehicle, cannot be held responsible for payment of the compensation exonerating the Appellant-
Insurance Company of its liability therefor under the policy of insurance. It is to meet circumstances such as these that he had got his vehicle insured. Taking a pedantic view without examining the case in the light of Section 20 MAC App. Nos.07 and 08 of 2014 The Branch Manager, United India Insurance Company Limited vs. Biresh Giri and Others 149(2) of the Act would be an antithesis to the very object of the Act, particularly Chapters X, XI and XII thereof, which is a benevolent piece of legislation. Analysing the provisions of Sections 149 of the Act, the Hon'ble Supreme Court in United India Insurance Co. Ltd. vs. Lehru and Others : (2003) 3 SCC 338 held as under:-
"17. ..............................................................
Thus under sub-section (1) the insurance company must pay to the person entitled to the benefit of the decree, notwithstanding that it has become "entitled to avoid or cancel or may have avoided or cancelled the policy". The words "subject to the provisions of this section" mean that the insurance company can get out of the liability only on grounds set out in Section 149. Sub-section (7), which has been relied on, does not state anything more or give any higher right to the insurance company. On the contrary, the wording of sub-section (7) viz. "no insurer to whom the notice referred to in sub-section (2) or sub-section (3) has been given shall be entitled to avoid his liability" indicates that the legislature wanted to clearly indicate that insurance companies must pay unless they are absolved of liability on a ground specified in sub- section (2). This is further clear from sub-section (4) which mandates that conditions, in the insurance policy, which purport to restrict insurance would be of no effect if they are not of the nature specified in sub-section (2). The proviso to sub-section (4) is very illustrative. It shows that the insurance company has to pay to third parties but it may recover from the person who was primarily liable to pay. The liability of the insurance company to pay is further emphasised by sub-section (5). This also shows that the insurance company must first pay, then it can recover. If Section 149 is read as a whole it is clear that sub-section (7) is not giving any additional right to the insurance company. On the contrary it is emphasising that the insurance 21 MAC App. Nos.07 and 08 of 2014 The Branch Manager, United India Insurance Company Limited vs. Biresh Giri and Others company cannot avoid liability except on the limited grounds set out in sub-section (2).
18. Now let us consider Section 149(2).
Reliance has been placed on Section 149(2)(a)(ii). As seen, in order to avoid liability under this provision it must be shown that there is a "breach". As held in Skandia [(1987) 2 SCC 654] and Sohan Lal Passi [(1996) 5 SCC 21] cases the breach must be on the part of the insured. We are in full agreement with that. To hold otherwise would lead to absurd results. Just to take an example, suppose a vehicle is stolen. Whilst it is being driven by the thief there is an accident. The thief is caught and it is ascertained that he had no licence. Can the insurance company disown liability? The answer has to be an emphatic "No". To hold otherwise would be to negate the very purpose of compulsory insurance. The injured or relatives of the person killed in the accident may find that the decree obtained by them is only a paper decree as the owner is a man of straw. The owner himself would be an innocent sufferer. It is for this reason that the legislature, in its wisdom, has made insurance, at least third-party insurance, compulsory. The aim and purpose being that an insurance company would be available to pay. The business of the company is insurance. In all businesses there is an element of risk. All persons carrying on business must take risks associated with that business. Thus it is equitable that the business which is run for making profits also bears the risk associated with it. At the same time innocent parties must not be made to suffer or loss. These provisions meet these requirements. We are thus in agreement with what is laid down in the aforementioned cases viz. that in order to avoid liability it is not sufficient to show that the person driving at the time of accident was not duly licensed. The insurance company must establish that the breach was on the part of the insured." [underlining mine]
9. In the present case, the Appellant-Insurance Company has failed to discharge the burden placed on it 22 MAC App. Nos.07 and 08 of 2014 The Branch Manager, United India Insurance Company Limited vs. Biresh Giri and Others to satisfactorily establish that there was a breach on the part of the insured. The evidence is rather overwhelmingly to the contrary.
10. Under these circumstances, I find no reason to interfere with the impugned judgments and consequently the directions issued thereunder shall remain undisturbed.
11. Needless to state that 50% of the amount paid to the Respondents-Claimants vide order of this Court dated 22-07-2014 and 21-08-2014 shall stand deducted.
The Appellant-Insurance Company shall pay the entire balance with accrued interest within a period of 30 days from the date of this judgment failing which they shall be liable to pay additional interest @ 10% from the date of this judgment until full and final satisfaction of the compensation.
12. In the result, the Appeals are dismissed.
13. No order as to costs.
14. A copy of this judgment and the original case records be transmitted to the Court of the Learned 23 MAC App. Nos.07 and 08 of 2014 The Branch Manager, United India Insurance Company Limited vs. Biresh Giri and Others Member, Motor Accident Claims Tribunal, East Sikkim at Gangtok, for compliance.
( S. P. Wangdi ) Judge 15-09-2014 Approved for reporting : Yes Internet : Yes ds