Madras High Court
National Insurance Co. Ltd. vs N. Devadas And Ors. on 16 April, 1999
Equivalent citations: 2000ACJ925, (1999)IIMLJ685, 1999 A I H C 2837, (1999) 2 MAD LJ 685, (1999) 2 MAD LW 447, (2000) 1 TAC 264, (2000) 2 ACJ 925
Author: P. Sathasivam
Bench: P. Sathasivam
JUDGMENT P. Sathasivam, J.
1. Respondent No. 3 in M.C.O.P. No. 25 of 1992 on the file of Motor Accidents Claims Tribunal (Subordinate Judge), Tiruppur is the appellant in the above appeal. Respondent Nos. 1 to 5 herein/claimants in the said petition prayed for a compensation of Rs. 1,00,000 for the death of one Gnanamani in a motor vehicle accident which took place on 2.6.91. The court below on the basis of oral and documentary evidence, passed an award for Rs. 40,000 in favour of the claimants and directed respondent Nos. 1 to 3 therein to pay the same. Aggrieved by the said award, National Insurance Co. Ltd. alone has filed the present appeal.
2. Heard the learned counsel for the appellant as well as respondents.
3. Learned counsel for the appellant insurance company would contend that inasmuch as the rider of the vehicle in question, namely, moped No. TCI 7833 was not having licence to drive the same and having pleaded guilty by admitting the offence and paid fine in the criminal proceedings, the Tribunal committed an error in directing the insurance company to pay the compensation on behalf of the owner of the vehicle in question. It is seen from the records that in the counter statement filed by the respondent No. 3 it is stated that the driver of the moped No. TCI 7833 did not have valid driving licence on the date of the accident and he was charge-sheeted under Section 279 read with Section 304-A, Indian Penal Code. He had been convicted under Section 3 read with Section 177 of the Motor Vehicles Act for not having a valid driving licence. Apart from the said plea, one Manoharan was examined as RW 1 on the side of the insurance company. No doubt, RW 1 reiterated the plea taken by them in their counter statement. On the other hand, it is contended on the side of the respondent Nos. 1 to 5 that merely because the rider of the moped had pleaded guilty before the criminal court for not having a licence, it does not mean that he was not having any licence, nor debarred from possessing the licence under the provisions of the Act. It is true that Exhs. A-2 and A-3 show that the rider of the moped was not having a valid licence to drive a two-wheeler and on the basis of his admission, fine was imposed on him by the criminal court. We are concerned with the liability of the insurance company in respect of the claim made by the victims. It is equally true that if there is any violation of the statutory condition or terms and conditions of the insurance policy, it is open to the insurance company to repudiate its liability. It is also well settled that the rider of the two-wheeler should possess valid licence under the provisions of the statute. It is also settled in series of decisions that it is the bounden duty of the insurance company to discharge its burden that the rider of the moped was not having valid licence on the date of the accident, nor debarred from getting such a licence. Admittedly, except the interested oral evidence of RW 1, the appellant insurance company/respondent No. 3 before the Tribunal had not taken any steps either to summon the records from the Regional Transport Officer, or to direct the person concerned for production of valid licence. This aspect has not been disputed. No doubt, learned counsel for the appellant by relying on a decision of the Apex Court in United India Insurance Co. Ltd. v. Gian Chand , contended that since the vehicle in question was driven by the person not having a valid licence, the liability cannot be fastened on the insurance company. After noting the fact that the car in question was being driven by a person who has no driving licence, ultimately held that the insurance company is not liable to indemnify the owner. The perusal of the said judgment clearly shows that the insured had handed over the vehicle for being driven by an unlicensed driver. In other words, in that case, after knowing that the person who is going to drive the vehicle is not having licence, the insured had handed over the said vehicle to him. In such a situation, their Lordships have held that the insurance company would get exonerated from its liability to meet the claims of third party. In our case, there is no evidence whether the owner of the vehicle in question was aware of the fact that the rider had no licence to drive a two-wheeler. Further, the record shows that except the oral evidence of RW 1, an officer of the insurance company, no steps have been taken by them to ascertain whether the driver was having a valid licence either before the accident or he was debarred from possessing the same at any point of time by examining the person concerned in the Regional Transport Office. Now I shall consider various decisions in regard to the above aspect.
4. In New India Assurance Co. Ltd. v. C.B. Shankar 1986 ACJ 82 (Madras), a Division Bench of this court, after referring to proviso to Section 96(2)(b)(ii) of the Motor Vehicles Act, has held as follows:
(3) It is in evidence that the driver of the taxi was charged under Section 3 read with Section 2(21) of the Motor Vehicles Act, in C.C. No. 11634 of 1981 on the file of the V Metropolitan Magistrate's Court, Egmore, and the owner of the vehicle was charged under Section 5 in the same proceeding. Both pleaded guilty and they were convicted. Under the proviso to Section 96(2)(b)(ii), the insurance company would not be liable unless 'the person driving holds a licence to drive the motor vehicle or has held and is not disqualified for holding or obtaining such a licence'. There could be no doubt, therefore, that in order to escape the liability not only it should be proved that the driver of the vehicle was not having a licence at the time of the accident, but also the insurance company should prove that the driver was disqualified from holding or obtaining a licence or never had any licence at all. Merely proving that on the date of the accident the driver did not have a licence and that he pleaded guilty and was convicted in the criminal court, itself is not enough to hold that the insurance company is not liable for the claim. It has been held by a Division Bench of this court also in the decision reported in National Insurance Co. Ltd. v. Sugantha Kunthalambal 1981 ACJ 302 (Madras), that the onus of proving that the driver of the vehicle never had a licence or was disqualified from holding a licence is on the insurance company.
It is clear that in spite of the fact that the driver was convicted for not having valid licence, it is the duty of the insurance company to prove that the driver of the vehicle never had a licence or is disqualified from holding a licence.
5. In the case of United India Insurance Co. Ltd. v. Hukum Singh , a learned single Judge of the Madhya Pradesh High Court, after referring a decision of the Apex Court in Skandia Insurance Co. Ltd. v. Kokilaben Chandravadan 1987 ACJ 411 (SC), has taken a view that merely because the vehicle was driven by a non-licensed person would be no ground not to compensate the victim.
6. In the case of Narcinva V. Kamat v. Alfredo Antonio Doe Martins 1985 ACJ 397 (SC), the Hon'ble Supreme Court has concluded thus:
(12) It is contended on behalf of the insurance company that the appellant No. 2 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 by the policy of insurance (the whole of which was not shown to us) and that the appellant No. 2 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 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 issue Nos. 7 and 8 have been cast by the Tribunal clearly cast the burden of proof on the insurance company. Not an iota of evidence has been led by the insurance company to show that the appellant No. 2 did not have a valid driving licence to drive the vehicle...
After holding so, their Lordships have concluded in para 15 as follows:
(15) To sum up, the insurance company failed to prove that there was a breach of the term of the contract of insurance as evidenced by the policy of insurance on the ground that the driver who was driving the vehicle at the relevant time did not have a valid driving licence. Once the insurance company failed to prove that aspect, its liability under the contract of insurance remains intact and unhampered and it was bound to satisfy the award under the comprehensive policy of insurance.
7. In the case of National Insurance Co. Ltd. v. A Babu , a Division Bench of this court has observed as follows:
(3) As regards the contention of the appellant that the respondent No. 1 had no valid driving licence and that he was prosecuted under Section 3 of the Motor Vehicles Act and as such, as per the terms of the policy, it is not liable to pay any compensation. It is uniform decision of various High Courts and Supreme Court that the onus of proof in regard to breach of condition in the policy is on the insurer and not on the claimant or the owner of the vehicle. In Bishan Devi v. Sirbaksh Singh 1979 ACJ 496 (SC), it was observed:
Under Section 96(2)(b)(ii) the insurer can defend a claim for compensation on the ground that the vehicle was driven by a person who was not duly licensed. Apart from making the averment in his written statement the insurer did not take any steps to establish that the vehicle was driven by a person who was not properly licensed... It is the duty of the insurer to have substantiated his plea.
In Indian Mutual Ins. Co. now merged in the United India Fire & Genl. Ins. Co. Ltd. v. Vijaya Ramulu 1978 ACJ 366 (AP), it was held that the onus is on the insurer to prove that the driver who drove the vehicle at the time of the accident did not possess a valid driving licence. It was further held that it was not enough for the insurer to have merely given notice to the owner to produce the driver for evidence. They ought to have approached the Road Transport Authority and proved on their own that the driver was not duly licensed. The insurer ought to have taken steps to examine the driver. Hence, for these reasons, the insurer could not be absolved of its liability, merely on the basis of its pleading that the driver was not duly licensed. In United India Fire & Genl. Ins. Co. Ltd. v. Surindarsinh Gurasinh 1982 ACJ (Supp) 209 (Gujarat), it was held:
The onus is on the insurer to plead and prove that the driver who drove the vehicle at the time of the accident did not have a valid driving licence. The mere averment to that effect in the written statement, or a mere suggestion to a witness with regard to it in cross-examination, is not sufficient to discharge the burden on the insurer.
Following the observation of the Apex Court in Bishan Devi v. Sirbaksh Singh 1979 ACJ 496 (SC), it was held that the insurer had to discharge the burden satisfactorily to escape liability.
Again in the same para it was held as under:
...In New India Assurance Co. Ltd. v. C.B. Shankar 1986 ACJ 82 (Madras), this court held that the onus is on the insurer to plead and prove that the vehicle was driven by a person without a valid driving licence. In order to escape liability not only should the insurer prove that the driver of the vehicle was not holding a licence at the time of the accident but also that he was disqualified from holding or obtaining a licence or that he never had any licence at all. Merely proving that on the date of the accident, the driver did not have a licence and that he pleaded guilty is not enough to hold that the insurance company is not liable. In the above case, the driver was charged under Section 3 and the owner of the vehicle under Section 5 of the Motor Vehicles Act for contravention of the said provisions. Both pleaded guilty and were convicted. The insurer was held liable on the ground that it had failed to prove that the driver was disqualified from holding or obtaining licence or never had any licence at all. It was observed that by merely causing a notice to be served on the owner of the vehicle and the counsel for the owner of the vehicle for the production of the driver's licence would not enable the insurer to discharge its onus. It was so held in United India Fire & Genl. Ins. Co. Ltd. v. Ayisa 1979 ACJ 526 (Madras) and Srinivasa Roadways, Madurai v. Saroja 1975 ACJ 265 (Madras). It is not the case of the appellant insurance company that the respondent No. 1 was disqualified from holding or obtaining licence and that he never had licence at all. In the instant case, the finding of the learned single Judge is that the respondent No. 1 was having a licence which was in force in view of the evidence of RW 1 and that the insurance company has not discharged its burden by adducing evidence that the respondent No. 1 was not having any subsisting licence at the time of the accident. In view of the ratio laid down in the above decisions, the admission of the respondent No. 1 and the conviction awarded to the respondent No. 1 are not sufficient to absolve the insurance company as the insurance company has not discharged the onus by taking steps to summon the very licence either from PW 1 or from the Road Transport Authority who issued the licence.
The above mentioned Division Bench judgment is directly on the point and it is clear from our case that the insurance company failed to discharge its burden by placing any material except the oral evidence of RW 1. All the decisions of this court as well as the Apex Court referred to above would clearly go to show that the responsibility is on the insurance company to discharge its burden and prove that the driver of the vehicle in question was not having a valid licence not only before the accident, but also at the time of the accident or he was debarred from holding a valid licence. In the light of the peculiar factual position, the principle laid down in United India Insurance Co. Ltd. v. Gian Chand , namely, that the insured himself had handed over the vehicle for the purpose of driving to an unlicensed driver is not helpful to the appellant insurance company. On the other hand, the other decisions referred to above are directly on the point; accordingly the only contention raised by the learned counsel for the appellant is liable to be rejected.
8. Apart from the above mentioned decision, Mr. S. Gangaram Prasad, learned counsel for respondent Nos. 1 to 5, has very much relied on two Division Bench decisions of the Kerala High Court reported in (1) Oriental Insurance Co. Ltd. v. Usha 1996 ACJ 838 (Kerala) and (2) United India Insurance Co. Ltd. v. Jaimy 1998 ACJ 1318 (Kerala). After considering the motor insurance under the provisions of the Motor Vehicles Act 1988, the Division Bench in Usha's case 1996 ACJ 838 (Kerala), has observed in para 7 as follows:
In this view, we find that the Tribunal was right in taking the view that in cases where the only plea raised by the insurer is that the driver was not havinga valid licence at the time of the accident for driving the vehicle insured, it may not be possible for the insurer to avoid the liability to pay the amount awarded to the claimants. The insurer in such circumstances is statutorily liable to pay the claimants the amount awarded and to recover the same from the insured as provided in the proviso. The proviso to Section 149(4) of the Motor Vehicles Act would enable the Tribunal to permit the insurer to recover such amount paid by it from the insured in execution of the award itself. As such, we would make it clear that the appellant will be entitled to recover the amount paid to the claimants under the impugned award from the insured in execution of the award passed in O.P. (MV) No. 573 of 1992 itself....
The same view has been reiterated by the subsequent Division Bench in Jaimy's case 1998 ACJ 1318 (Kerala). In the light of the various clauses in Section 149 of the Act, more particularly Section 149(2)(b) of the Act, as rightly observed by their Lordships in the decisions of the Kerala High Court as mentioned above, the insurer would not be in a position to avoid the liability because it has got rights against the owner under the above provision.
9. In the light of what is stated above, I do not find any error or infirmity in the impugned award; consequently the appeal fails and the same is dismissed. No costs.