Jammu & Kashmir High Court
National Insurance Co. vs Vishal Sharma Alia Bishal Sharma on 26 March, 2003
Equivalent citations: 2003(3)JKJ294, 2003 A I H C 4291, (2004) 3 TAC 255
JUDGMENT S.K. Gupta, J.
1. I have heard Mr. Kamal Gupta, learned counsel for the appellants, and perused the judgment, in extenso.
2. This appeal is preferred by the National Insurance Company Limited against the judgment and award dated 31st December, 2002 passed by the Presiding Officer, Motor Accident Claims Tribunal, Jammu in File No. 224 (Claims), whereby the Tribunal awarded an amount of Rs. 6,15,000 along with 9% interest except on future loss of income effective from the commencement of the claim petition. Learned Tribunal further ordered the Insurance Company to satisfy the award, however, with liberty to recover the amount from the owner.
3. It is not in dispute that Vishal Sharma, a student, suffered injuries in a vehicular accident on 13.6.1997. As a result of this accident, he sustained crush injuries of right upper limb and above elbow amputation was done in the hospital. The doctor, who examined Vishal Sharma and under whom he received treatment, had given 84% permanent disability. The claim petition was strongly contested by the Insurance Company on variety of grounds explicitly delineated in the demurrer filed to the claim petition.
4. The Insurance Company, however, repudiated its liability to indemnify the insured mainly on the ground that the driver of the offending vehicle was not holding a valid driving licence at the time of the accident. There was a simple denial of the claim petition by the Respondent/Insurance Company. The learned Tribunal, after recording evidence brought on record by the parties and hearing the arguments, awarded an amount of Rs. 6,15,000 under various heads. The compensation was estimated and assessed by the Tribunal in view of the guidelines laid down by the Apex Court in R.D. Hattangadi v. Pest Control (India) Pvt. Ltd., 1995 ACJ 366.
5. Aggrieved by the impugned award, the National Insurance Company Limited, herein appellant, canvassed its correctness chiefly on twin grounds:
(1) That once the Insurance Company is held exonerated from its liability to indemnify its insured, no direction in the judgment can be given to the Insurance Company to satisfy the award with the liberty to recover the same from the owner thereafter, (2) That the Tribunal has assessed the awarded Compensation on higher side, which is against the well-settled canons of law for just compensation.
6. It is not in dispute that the Tribunal while deciding issue No. 3 held that the owner has violated the terms and conditions of the Insurance Policy and is not liable to indemnify the insured. It is also not disputed that the vehicle involved in the accident causing injuries to the claimant rendering 84% permanent disability stood insured with the national Insurance Company, herein Appellant, at the time of the accident. If that be the position, Insurance Company has statutory liability to indemnify the insured/owner. The Tribunal had rightly held so on the basis of the evidence adduced by the Insurance Company. The employee of the Licencing Authority examined by the Insurance Company with definiteness stated that the licence produced by the driver was never issued by the Licensing Authority, Mandi, nor it was ever renewed as per their record. Apart from that, a fake driving licence always remains fake and it would never require legal validity anytime by whatever process including its renewal. The renewal of a licence does not afford validity to the licence, which is originally fake. It would ever remain counterfeit. It is in Section 149 that provisions, relating to the duty of the insurer for satisfying the judgments and awards in respect of third-party claims, are incorporated. It means that when a certificate of insurance has been issued by the Insurance Company, it is under an obligation to pay to the person entitled to the benefit of the judgment or award as if the insurer were the judgment debtor in respect of the liability when any such judgment or award is secured against the insured. A conjoint reading of the proviso to Sub-section (4) and Sub-section (5) of Section 149 would clearly indicate that the provisions are meant to safeguard the interest of an insurer, who otherwise has no liability to indemnify the insured but for the aforesaid provisions. The effect of aforesaid provisions is that when the Insurance Policy has been issued in respect of the vehicle insured, burden is always on the insurer to pay to the third party whether or not there has been a breach of the Policy conditions, but the amount so paid by the insurer to the third party can be allowed to be recovered from the insured if it is found that the insurer had no liability as per the Policy conditions to pay such sums to the owner/insured. The controversy has also been set at rest by the Supreme Court in New India Assurance Co., Shimla v. Kamla and Ors., AIR 2001 SC 1419.
7. The second ground urged by the Appellant is that the amount of compensation ordered by the Tribunal is on the higher side and contrary to the settled principles of just compensation. This plea is also not available to the Insurance Company since the Insurance Company cannot challenge the quantum of compensation on merit, as the defence available to the insurer is limited to the ground mentioned under Section 149(2) of the Motor Vehicles Act, 1988., Sub-section (2) of Section 149 clearly provides that an insurer made a defendant to the action is not entitled to take any defence which is not specified in it and for this proposition, it has already been handed down by the Apex Court in catena of cases, one of which is British India General Insurance Co. Ltd. v. Captain Itbar Singh and Ors., AIR 1959 SC 1313. The contention put across by the appellant's counsel is, therefore, without any substance and does not merit acceptance. The present appeal challenging the quantum of compensation is not maintainable as the Insurance Company cannot take defence not provided in the aforesaid provision. Therefore, the appeal by Insurance Company against the award of the Tribunal on merit without having obtained permission under Section 170 of the Motor Vehicles Act, 1988, is not maintainable, as is handed down by the Apex Court in Shankarayya and Anr. v. United India Insurance Co. Ltd. and Anr., 1998 ACJ 513 (SC). The impugned judgment and awarded compensation to the claimant, in my view, does not suffer from any infirmity, factual or legal, inviting interference in the appeal.
8. In the facts and circumstances discussed above, I do not find any merit in this appeal and is, therefore, accordingly dismissed.