Punjab-Haryana High Court
Narinder Singh vs The Oriental Insurance Company Ltd. And ... on 15 February, 2006
Equivalent citations: II(2007)ACC510, 2007ACJ1082, (2006)144PLR258
Author: Viney Mittal
Bench: Viney Mittal
JUDGMENT Viney Mittal, J.
1. The appellant-Narinder Singh is the owner of tanker No. PB-11-F-9343 and has challenged the award dated July 25, 2001 passed by Motor Accident Claims Tribunal, Hoshiarpur (hereinafter referred to as 'the Tribunal). He has challenged the award of the learned Tribunal to the extent whereby a right of recovery has been provided to the Insurance Company
2. The accident had occurred on June 16, 1999 whereby Surinder Singh, who was riding on a bicycle, was hit by an Oil Tanker No. PB-ll-F-9343 owned by Narinder Singh and being driven by driver Satnam Singh. As a result of the injuries suffered by Surinder Singh, in the aforesaid accident, he died.
3. A claim petition was filed by the dependents of Surinder Singh. The claimants are widow and minor children of the deceased Surinder Singh and his parents Ved Kaur and Charan Singh.
4. The learned Tribunal on the basis of the evidence led by the parties held that driver Satnam Singh who was driving the offending vehicle at the relevant time was rash and negligent in his driving and on account of the aforesaid fact had caused the accident. Consequently, the claimants were held entitled to compensation. The Oriental Insurance Company the insurer of the offending tanker took up a plea that the driving licence possessed by Satnam Singh was a fake driving licence. The learned Tribunal noticed the fact that the aforesaid driving licence although originally was a fake driving licence, but subsequently had been renewed a number of times. However, the learned Tribunal found that mere renewal of a fake driving licence would not confer legitimacy on the driving licence, and therefore, held that the Insurance Company would pay the amount of compensation to the claimants but shall have a right of recovery against the owner. The amount of compensation was assessed as Rs. 3,67,000/- alongwith interest at the rate of 9% per annum.
5. As noticed above, the owner of the vehicle has filed the present appeal challenging the right of recovery granted to the Insurance Company.
6. I have heard Mr. P.K. Gupta, the learned Counsel appearing for the appellant and Mr. Deepak Manchanda, the learned Counsel appearing for respondent No. 1 Insurance Company and Mr. Shailender Sharma, the learned Counsel appearing for respondents No. 3 to 8 - claimants.
7. Mr. P.K. Gupta, has drawn my pointed attention towards the statement of Narinder Singh, owner and also the statement of Satnam Singh driver, who had appeared as witnesses before the Tribunal. Narinder Singh owner, in his statement, while appearing as RW-2 had categorically stated that before employing Satnam Singh, he had seen the driving licence and also took his driving test. It was further stated by Narinder Singh that Satnam Singh was having a licence from Licensing Authority, Hoshiarpur. He also got verified from Licencing Authority, Hoshiarpur, the fact of issuance of driving licence to him. A similar statement was made by Satnam Singh, who appeared as RW-1, Satnam Singh had also stated that at the time of is employment by Narinder Singh, the employer had taken a test for his driving. He also stated that the employer had verified his licence as well.
8. Mr. Gupta, on the strength of the aforesaid statements of the witnesses has argued that the appellant-employer had done all, what was within his power to find out the validity of the driving licence of Satnam Singh, and therefore, he as a prudent man had employed Satnam Singh as a driver. In these circumstances, it has been argued that no recovery rights could have been granted to the Insurance Company for recovering the amount of compensation payable to the claimants.
9. I have duly considered the aforesaid contention of the learned Counsel and found myself in agreement with the same.
10. The Hon'ble Supreme Court of India in the case of National Insurance Co. Limited v. Swaran Singh and Ors. (2004-1)136 P.L.R. 510 (S.C.), has held as fol-lows:
(iii) The breach of policy condition e.g. disqualification of the driver or invalid driving licence of the driver, as contained in Sub-section (2)(a)(ii) of Section 149, has 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 the 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 a duly licensed driver or one who was not disqualified to drive at the relevant time.
From the law laid down by Apex Court in the aforesaid case, it is apparent that a 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 the 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 a duly licensed driver or one who was not disqualified to drive at the relevant time. Evidence on the record shows that owner Narinder Singh had taken due care and had made appropriate enquiry at the time of employment of Satnam Singh. No evidence has been led on record by the Insurance Company that at the time of employment of Satnam Singh, Narinder Singh was negligent.
10. In this view of the matter, the present appeal is allowed. The award passed by the learned Motor Accident Claims Tribunal is modified to the extent that the driver, owner and the Insurance Company shall be jointly severally liable to pay the compensation to the claimants. The Insurance Company shall have no right to recover against the owner. The present appeal stands allowed in the aforesaid terms.
11. At this stage, the learned Counsel for the appellant states that an amount of Rs. 25,000/- has been deposited by the appellant at the time of filing of the present appeal. The aforesaid shall be refunded to the appellant.