Himachal Pradesh High Court
Oriental Insurance Co. Ltd vs Man Kumari And Others on 1 January, 2016
Author: Mansoor Ahmad Mir
Bench: Mansoor Ahmad Mir
IN THE HIGH COURT OF HIMACHAL PRADESH, SHIMLA FAO No. 275 of 2009 Decided on: 01.01.2016 .
Oriental Insurance Co. Ltd. ...Appellant.
Versus Man Kumari 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. G.D. Sharma, Advocate.
For the respondents: Ms. Seema K. Guleria, Advocate, for respondents No. 1 to 3.
Nemo for respondent No. 4.
Mansoor Ahmad Mir, Chief Justice.
Subject matter of this appeal is the judgment and award, dated 05.03.2009, made by the Motor Accident Claims Tribunal (II), Shimla, H.P. (for short "the Tribunal") in M.A.C.T. Petition No. 73S/2 of 2006, titled as Smt. Man Kumari and others versus The Oriental Insurance Company Ltd., whereby compensation to the tune of ` 4,36,500/ with ::: Downloaded on - 15/04/2017 19:38:19 :::HCHP 2 interest @ 9% 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 and the claimants have not questioned the impugned award on any count, thus, has of attained finality so far it relates to them.
3. Appellantinsurer has questioned the impugned rt award on the ground that the driver of the offending vehicle was not having the requisite endorsement of PSV on the driving licence and the Tribunal has fallen in an error in saddling it with the liability.
4. The argument of the learned counsel for the appellant is not tenable and the Tribunal has not fallen in an error in saddling the appellantinsurer with liability.
5. This Court in a series of cases has held that the driver, who is having driving licence to drive Light Motor Vehicle requires no PSV endorsement.
6. The Apex Court in a case titled as National Insurance Company Ltd. versus Annappa Irappa Nesaria & Ors., reported in 2008 AIR SCW 906, has also ::: Downloaded on - 15/04/2017 19:38:19 :::HCHP 3 discussed the purpose of amendments, which were made in the year 1994 and the definitions of 'light motor vehicle', 'medium .
goods vehicle' and the necessity of having a driving licence. It is apt to reproduce paras 8, 14 and 16 of the judgment herein:
"8. Mr. S.N. Bhat, learned counsel appearing on behalf of the respondents, on the other hand, submitted that the of contention raised herein by the appellant has neither been raised before the Tribunal nor before the High Court. rt In any event, it was urged, that keeping in view the definition of the 'light motor vehicle' as contained in Section 2(21) of the Motor vehicles Act, 1988 ('Act' for short), a light goods carriage would come within the purview thereof.
A 'light goods carriage' having not been defined in the Act, the definition of the 'light motor vehicle' clearly indicates that it takes within its umbrage, both a transport vehicle and a nontransport vehicle. Strong reliance has been placed in this behalf by the learned counsel in Ashok Gangadhar Maratha vs. Oriental Insurance Company Ltd., [1999 (6) SCC 620].
9. .....................
10. ..................
11. ..................
12. .................
13. .................
::: Downloaded on - 15/04/2017 19:38:19 :::HCHP 414. Rule 14 prescribes for filing of an application in Form 4, for a licence to drive a motor vehicle, categorizing the same in nine types of vehicles.
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Clause (e) provides for 'Transport vehicle' which has been substituted by G.S.R. 221(E) with effect from 28.3.2001. Before the amendment in 2001, the entries medium goods vehicle and heavy goods vehicle existed which of have been substituted by transport vehicle. As noticed hereinbefore, Light Motor Vehicles also found place therein.
15. ............................. rt 16. From what has been noticed hereinbefore, it is evident that 'transport vehicle' has now been substituted for 'medium goods vehicle' and 'heavy goods vehicle'. The light motor vehicle continued, at the relevant point of time, to cover both, 'light passenger carriage vehicle' and 'light goods carriage vehicle'. A driver who had a valid licence to drive a light motor vehicle, therefore, was authorised to drive a light goods vehicle as well."
7. The Apex Court in the latest judgment in the case titled as Kulwant Singh & Ors. versus Oriental Insurance Company Ltd., reported in JT 2014 (12) SC 110, held that PSV endorsement is not required.
8. The Apex Court in the case titled as National Insurance Co. Ltd. versus Swaran Singh and others, ::: Downloaded on - 15/04/2017 19:38:19 :::HCHP 5 reported in AIR 2004 Court 1531, has laid down principles, how can insurer avoid its liability. It is apt to reproduce .
relevant portion of para 105 of the judgment herein:
"105. .....................
(i) .........................
(ii) ........................
(iii) The breach of policy condition e.g. of disqualification of driver or invalid driving licence of the driver, as contained in subsection (2) (a) (ii) of rt 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 the available defence(s) raised in the said but must also establish 'breach' on the part of the owner of the vehicle; the burden of proof wherefore would be on them.
(v).........................::: Downloaded on - 15/04/2017 19:38:19 :::HCHP 6
(vi) Even where the insurer is able to prove breach on the part of the insured concerning the policy condition .
regarding holding of a valid licence by the driver or his qualification to drive during 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 of 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 rt allow defences available to the insured under Section 149 (2) of the Act."
9. It would also be profitable to reproduce para 10 of the judgment rendered by the Apex Court in Pepsu Road Transport Corporation versus National Insurance Company, reported in (2013) 10 Supreme Court Cases 217, 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 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 the vehicle is concerned, when he hires a driver, he ::: Downloaded on - 15/04/2017 19:38:19 :::HCHP 7 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 of 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 rt 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 verification of the matter regarding the genuineness of the licence from the licensing authority.
That is what is explained in Swaran Singh case. 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 is not liable for the compensation."
10. Having said so, the Tribunal has not fallen in an error in saddling the appellantinsurer with liability. The impugned judgment is well reasoned, needs no interference.
::: Downloaded on - 15/04/2017 19:38:19 :::HCHP 811. Viewed thus, the impugned award is upheld and the appeal is dismissed.
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12. Registry is directed to release the awarded amount in favour of the claimants strictly as per the terms and conditions contained in the impugned award through payee's of account cheque or by depositing the same in their respective accounts.
13. rt Send down the record after placing copy of the judgment on Tribunal's file.
(Mansoor Ahmad Mir) Chief Justice January 1, 2016 ( rajni ) ::: Downloaded on - 15/04/2017 19:38:19 :::HCHP