Himachal Pradesh High Court
Ketal Singh vs Narinder Kumar And Others on 16 October, 2015
Author: Mansoor Ahmad Mir
Bench: Mansoor Ahmad Mir
IN THE HIGH COURT OF HIMACHAL PRADESH, SHIMLA
FAO No.285 of 2009 and
FAO No.286 of 2009
Reserved on : 09.10.2015
Pronounced on : 16.10.2015
.
1. FAO No.285 of 2009
Ketal Singh .....Appellant
Versus
Narinder Kumar and others ..... Respondents
2. FAO No.286 of 2009
Ketal Singh .....Appellant
of
Versus
Bhag Devi & others ..... Respondents
Coram: rt
The Hon'ble Mr. Justice Mansoor Ahmad Mir, Chief Justice
Whether approved for reporting? Yes.
For the appellant(s): Mr.Arun Kumar, Advocate, vice
Mr.Peeyush Verma, Advocate.
For the respondents: Ms.Soma Thakur, Advocate, vice
Ms.Devyani Sharma, Advocate, in FAO
No.286 of 2009.
Mr.Ratish Sharma, Advocate, for
respondent No.7, in FAO No.286 of
2009.
Nemo for other respondents.
___________________________________________________________
Mansoor Ahmad Mir, Chief Justice (oral)
Both these appeals are the outcome of a motor vehicle accident, which was caused by driver, namely, Kuldeep Singh while driving the truck bearing registration ::: Downloaded on - 15/04/2017 19:13:21 :::HCHP 2 No.HR-37A-5735, rashly and negligently. Therefore, both the appeals are taken up together for final disposal.
2. Claimants in MAC Petition No.34/03 RBT 7/05/03 .
are the legal representatives of deceased Gurmail Singh, who filed the Claim Petition claiming compensation to the tune of Rs.9.00 lacs, as per the break-ups given in the Claim Petition The injured Narinder Kumar also filed the Claim of Petition, which was registered as MAC Petition No.35/03 RBT 6/05/03, titled Narinder Kumar vs. Kuldeep Singh and others, rt claiming compensation to the tune of Rs.4.00 lacs, as per the break-ups given in the Claim Petition.
3. Precisely, the facts of the case are that on 21st November, 2002, deceased Gurmail Singh alias Mela Ram, alongwtih one pillion rider, namely, Narinder Kumar, was going on his motorcycle bearing registration No.HP-19A-
1576, and when they reached at Amb at about 10.30 p.m., a truck bearing registration No. HR-37A-5735 was parked in the middle of road, without any indicator as per the requirement and mandate of the Motor Vehicles Act and Rules. The said Gurmail Singh applied the brakes, but, ::: Downloaded on - 15/04/2017 19:13:21 :::HCHP 3 despite taking all precautions, the motorcycle struck with the truck resulting into injuries to Gurmail Singh, who lateron succumbed to the same. The pillion rider Narinder Kumar .
also suffered injuries in the said accident.
4. The claim petitions were resisted by the respondents by filing replies. The Tribunal, after examining the pleadings of the parties, framed similar issues and the of issues framed in Claim Petition No.34/03 RBT 7/05/03, (subject matter of FAO No.286 of 2009), are reproduced below:
rt "1. Whether deceased Gurmail Singh had died because of negligence on the part of the respondent No.1 being driver of truck No. HR-37A-5735, as alleged? OPP
2. If issue No.1 is proved in the affirmative whether the petitioner is entitled to compensation. If so, how much and from whom? OPP
3. Whether the petition is not maintainable as alleged? OPR
4. Whether the petition is bad for non-joinder and mis-
joinder of parties, as alleged? OPR.
5. Whether accident in question took place because of rash and negligent driving of motor-cycle No.HP-19A-1576 by deceased Gurmail Singh himself as alleged, if so, its effect? OPR
6. Whether driver of truck No.HR-37-5735 was not holding any valid and effective driving licence at the time of accident in question, if so, its effect? OPR ::: Downloaded on - 15/04/2017 19:13:21 :::HCHP 4
7. Whether the petition is vague, baseless and does not disclose any cause of action against respondent No.3, as alleged. If so, its effect? OPR 3 & 4
8. Whether the deceased Gurmail Singh was driving the vehicle in question at the time of accident in question .
without any valid and effective driving licence. If so, its effect? OPR 4
9. Whether the vehicle NO.HP-19A-1576 was being driven in violation of the terms and conditions of the insurance policy at the relvant time. If so, its effect? OPR.4 of 9A. Whether the truck NO.HR-37A-5735 was being plied without any valid and effective route permit and fitness certificate at the relevant time, if so its effect? OPR.3.
rt
10. Relief."
5. Parties led their evidence. The Tribunal, after examining the pleadings and evidence, allowed both the Claim Petitions, vide two separate awards, dated 16th February, 2009. In the Claim Petition filed by the legal representatives of deceased Gurmail Singh, the Tribunal awarded a sum of Rs.2,10,000/-, with interest at the rate of 7.5% per annum, from the date of filing of the claim petition till the payment, (subject matter of FAO No.286 of 2009). In the Claim Petition filed by the injured Narinider Kumar, the Tribunal awarded a sum of Rs.12,500/-, with interest at the ::: Downloaded on - 15/04/2017 19:13:21 :::HCHP 5 rate of 7.5% per annum, from the date of filing the claim petition till deposit, (subject matter of FAO No.285 of 2009).
The insurer was saddled with the liability at the first instance, .
with right of recovery from the owner.
6. Feeling aggrieved, the owner has filed the instant appeals.
7. It is apt to record herein that the claimants, the of insurers and the driver Kuldeep Singh have not questioned the impugned awards on any count, thus, the same have rt attained finality so far as these relate to them.
8. The owner/insured Ketal Singh has questioned the impugned award on the ground that the Tribunal has fallen in error in holding that the insured has committed willful breach, since the insurer has not proved on record the said factum.
9. Thus, the only question to be determined in these appeals is - Whether the Tribunal has rightly granted the right of recovery to the insurer. The answer is in the negative for the following reasons.
::: Downloaded on - 15/04/2017 19:13:21 :::HCHP 610. The driver of the offending truck, namely, Kuldeep Singh, has stepped into the witness box as RW-2 and the insurer has also examined one Kulwant Kumar (RW-
.
1) to prove the driving licence of the driver. The insurer has not led any other evidence to prove that the owner had committed any willful breach or there was negligence on his part. In order to hold that the owner/insured had of committed willful breach, the insurer has to lead evidence and prove issue No.9-A, has not led any evidence. Thus, it rt cannot lie in the mouth of the insurer that the owner had committed willful breach, since the insurer has failed to discharge the onus cast upon it.
11. The Tribunal, while discussing issue No.9-A, has held that the offending vehicle was being driven without any route permit, which fact weighed with the Tribunal in holding that the owner had committed willful breach of the terms and conditions of the insurance policy. Copies of the Insurance policy and the registration certificate have been placed on record as Ext.RY and RW-2/A, respectively, which do disclose that the vehicle was duly registered and insured ::: Downloaded on - 15/04/2017 19:13:21 :::HCHP 7 with the insurer. However, copy of the route permit has not been proved on the record.
12. In view of the above, the question is - Whether .
the vehicle being driven in the area, the mention of which has not been made in the route permit, can be termed as a ground to exonerate the insurer from its liability.
13. The insurer has failed to prove that the cause of of accident was the geographical conditions prevailing in the area where the vehicle was being plied at the time of rt accident without any route permit. On the other hand, the evidence does disclose that the offending truck was parked in the middle of the road. Thus, the accident was the outcome of sheer negligence on the part of the truck driver.
Therefore, by no stretch of imagination, it can be held that the owner has committed willful breach.
14. Even otherwise, the insurer has failed to prove that it was one of the conditions contained in the insurance agreement that the vehicle could not be plied in the areas other than mentioned in the route permit or that the insurer ::: Downloaded on - 15/04/2017 19:13:21 :::HCHP 8 would not be liable in case any accident occurred other than the areas mentioned in the route permit.
15. Similar question arose before this Court in case .
titled Oriental Insurance Company Ltd., Palampur vs. Bishan Dass and others, AIR 1988 HP 26, wherein it was held that breach of route permit is not a breach of the mandate of Section 96 (old), pari materia to Section 149 (new), of the of Act. It is apt to reproduce paragraph 2 of the said judgment hereunder:
rt "2. In the present case, the use of insured vehicle in question on a route for which there was no permit does not attract Cl.(c) of sub-sec.(2) of S. 96 of the Act which has been pressed into service to deny the statutory liability. At the highest, it is a case of breach of the condition of the permit which is not the same thing as breach of the purpose for which it was issued. The decision of Bombay High Court in Raghunath Eknath Hivale v. Shardabai Karbhari Kale, 1986 Acc CJ : (AIR 1986 Bom 386) and those of some of the other High Courts which are referred to in para 10 of the said decision lend support to the above view. Even if such use amounts to the breach of statutory rules then also the defences allowed by sub-sec.(2) are not attracted.
The decision of the Gujarat High Court in Bomanji Rustomji Ginwala v. Ibrahim Vali Master, AIR 1982 Guj 112, supports this view. The contrary view expressed in New India Assurance Co. Ltd. v. Samundari Roadways Co. (P) Ltd., 1985 Acc CJ 239 (Punj & Har.) is, with respect, not correct."
::: Downloaded on - 15/04/2017 19:13:21 :::HCHP 916. The Madras High Court in National Insurance Company vs. T. Elumalai and another, AIR 1990 Madras 71, has also taken a similar view. It is apt to reproduce .
paragraph 17 of the said decision hereunder:
"17. It is, therefore, clear that an insurer is not entitled to take a defence, which is not specified in S. 96(2) of the Act. These provisions have to be construed strictly. As stated earlier, it is not the breach of any conditions of the policy of insurance, that would provide the insurer a defence under S. 96(2) of the Act. The policy of insurance may permit the of insurer to avoid its liability under various circumstances. However, as against the liability of the insurer to third parties, the terms of the policy of insurance are subject to the provisions of S. 96(2) of the Act. If there is a breach of the contract on the part of the insured the insurer could rt proceed against the insured, but as far as the third party risks are concerned, the liability having been created by the statute, cannot be over-ridden by the terms of the contract of insurance between the parties. S. 96(2) of the Act, does not include violation of the terms of the permit relating to plying in certain geographical area. Hence, the plea that the auto-rickshaw was found plying in the city of Madras contrary to its permit, even if established factually, cannot be a ground since the same does not fall within the ambit of S. 96(2) of the Act. It is not, therefore, open to the appellant to plead that the auto-rickshaw was found plying in the City of Madras, in contravention of a condition in its permit restricting the geographical area wherein the vehicle could be plied."
17. This Court, in an analogous case, in FAO No.362 of 2012, titled ICICI Lombard General Insurance Company vs. Sumitra Devi and Ors., decided on 25th July, 2014, has held in paragraph 10 as under:
::: Downloaded on - 15/04/2017 19:13:21 :::HCHP 10"10. According to the learned counsel for the appellant- insurer, the question is legal one and without leading any evidence, the insurer can raise these issues. This argument is devoid of any force for the reason that it was for the insurer to have proved, by leading cogent evidence, that .
the owner had committed willful breach. But there is no iota of evidence on the file which would show that the owner was in breach. Thus, the argument cannot be pressed into service. The insurer has also to plead and prove that the cause of accident is the peculiar of geographical condition prevailing in the State of Himachal Pradesh, where, as submitted by the learned counsel for the appellant-insurer, the vehicle was being plied, at the rt time of accident, without any route permit. However, there is no evidence to that effect. Accordingly, this argument of the learned counsel for the appellant deserves outright rejection."
18. Applying the tests, as discussed hereinabove, the insurer has not led any evidence and has failed to prove that the violation of the route permit, if any, is the violation of the terms and conditions contained in the insurance policy.
Thus, it cannot be held to be a ground available to the insurer to seek exoneration.
19. Learned counsel for the appellant relied upon the judgment of the Apex Court in National Insurance Co.
::: Downloaded on - 15/04/2017 19:13:21 :::HCHP 11Ltd. vs. Challa Bharathamma & Ors., III (2004) ACC 292 (SC), wherein, the question involved in the present lis, was not discussed by the Apex Court and, therefore, is not .
applicable to the facts of the present case and is distinguishable.
20. Having said so, both the appeals are allowed, the impugned awards are modified by providing that the of insurer has failed to prove any breach on the part of the owner and accordingly, the insurer is saddled with the rt liability to satisfy the impugned awards. The insurer is directed to deposit the amount, alongwith interest as awarded by the Tribunal, within a period of six weeks from today in the Registry and on deposit, the Registry is directed to release the same in favour of the claimants, strictly in terms of the conditions contained in the impugned awards.
In case the owner has deposited any statutory amount, the same shall be refunded to him, alongwith interest, forthwith.
21. Both the appeals stand disposed of accordingly.
October 16, 2015 ( Mansoor Ahmad Mir )
(Tilak) Chief Justice
::: Downloaded on - 15/04/2017 19:13:21 :::HCHP