Court No. - 2
Case :- FIRST APPEAL FROM ORDER No.783 of 1998
Appellant :- United India Insurance Company Ltd.
Respondent :- Ajai Singh & Others
Counsel for Appellant :- A.B.Saran,Amaresh Sinha,Parmatma Rai
Counsel for Respondent :- B.N. Rai,M.N.Siddiqui,M.S.Siddiqui
Hon'ble Dr. Kaushal Jayendra Thaker,J.
1. By way of this appeal, the Insurance company has felt aggrieved by the judgment and decree passed by Motor Accident Claims Tribunal in MACP No.155 of 1994 on 30.4.1998 awarding a sum of Rs.72,000/- to the claimant with interest.
2. The factual scenario is that on the fateful day a tempo met with an accident whereby Ajay Singh, who was 36 years of age, sustained injuries because of the vehicular accident which occurred on 4.4.1994. He was admitted in hospital and as he incurred loss, he filed the claim petition. The owner and the Insurance company appeared and filed their reply one of denial. The owner submitted that the vehicle was insured with new India Insurance company whereas respondent no.2 submitted that he has sold the vehicle to Shiv Dulare. The vehicle was insured with United India Insurance company. The respondent no.3 – Insurance company has filed its reply and has denied that the vehicle was never insured with it.
3. All the issues were answered against the owner and the Insurance company and in favour of the claimant.
4. The dispute, which is raised, is regarding breach of policy conditions and quantum hence the said issue is being taken up for decision. The Insurance company has accepted that the vehicle on the date of accident was insured with it but the driver did not have any driving licence.
5. The fact that vehicle was insured but no driving licence was ever produced is an admitted position of fact and, therefore, I am in agreement with submission of Sri Anubhav Sinha holding brief of Sri Amresh Sinha and, therefore, recovery rights according to him will have to be granted as the Insurance company has by now deposited the amount awarded by the Tribunal.
7. The grounds urged are taken up together as the following four issues are also decided by this common judgment. The first submission of the learned counsel for the Insurance company is that the Tribunal in coming to the conclusion that the Insurance company failed to prove that the driver did not have driving licence. It is submitted that the licence of the driver was not filed and, therefore, they should not have been made liable.
8. In this context it has to be decided whether it was the duty of Insurance company to prove that there was breach of policy conditions. The term breach of policy condition has to be culled out from the provisions of Section 147 and 149 of the Motor Vehicles Act, 1988. The said sections read as follows:-
“Mainly Section 145 of the Act defines certain terms once vehicles are registered and start plying even before plying the vehicle should be registered as per the provisions of the Motor Vehicles Act, 1988 as applicable. The motor accidents have been now sought to be regulated by the Tribunals and jurisdiction vests with the Tribunal. It would be necessary to have birds' eye view of Sections 147 and 149 of the Act.
The defences available to the Insurance Company are enumerated under Section 147 of Motor Vehicle Act, 1988, which reads as under :-
147 Requirements of policies and limits of liability. —
(1) In order to comply with the requirements of this Chapter, a policy of insurance must be a policy which—
(a) is issued by a person who is an authorised insurer; and
(b) insures the person or classes of persons specified in the policy to the extent specified in sub-section (2)—
(i) against any liability which may be incurred by him in respect of the death of or bodily 27 [injury to any person, including owner of the goods or his authorised representative carried in the vehicle] or damage to any property of a third party caused by or arising out of the use of the vehicle in a public place;
(ii) against the death of or bodily injury to any passenger of a public service vehicle caused by or arising out of the use of the vehicle in a public place: Provided that a policy shall not be required—
(i) to cover liability in respect of the death, arising out of and in the course of his employment, of the employee of a person insured by the policy or in respect of bodily injury sustained by such an employee arising out of and in the course of his employment other than a liability arising under the Workmen's Compensation Act, 1923 (8 of 1923) in respect of the death of, or bodily injury to, any such employee—
(a) engaged in driving the vehicle, or
(b) if it is a public service vehicle engaged as conductor of the vehicle or in examining tickets on the vehicle, or
(c) if it is a goods carriage, being carried in the vehicle, or
(ii) to cover any contractual liability.
• Provision of Section 149 of Motor Vehicle Act, 1988, is a provision, which would permit to Insurance Company to avoid its liability and raise defence as follows :-
(a) that there has been a breach of a specified condition of the policy, being one of the following conditions, namely:—
(i) a condition excluding the use of the vehicle—
(a) for hire or reward, where the vehicle is on the date of the contract of insurance a vehicle not covered by a permit to ply for hire or reward, or
(b) for organised racing and speed testing, or
(c) for a purpose not allowed by the permit under which the vehicle is used, where the vehicle is a transport vehicle, or
(d) without side-car being attached where the vehicle is a motor cycle; or
(ii) a condition excluding driving by a named person or persons or by any person who is not duly licensed, or by any person who has been disqualified for holding or obtaining a driving licence during the period of disqualification; or
(iii) a condition excluding liability for injury caused or contributed to by conditions of war, civil war, riot or civil commotion; or
(b) that the policy is void on the ground that it was obtained by the non- disclosure of a material fact or by a representation of fact which was false in some material particular.”
9. In view of these provisions and the law of evidence strict proof of civil procedure and the scope of section 147 will have to be viewed if the Insurance company had taken any kind of extra caution in proving that there was no licence by way of summoning of RTO trying to prove that there was no licence issued by them to the driver of the vehicle, they could have proved by proving that the owner placed the vehicle in hands of a driver who was incompetent to drive but nothing of this sort has been brought on record. The Insurance company would be asked to discharge its duty only after the owner in whose possession the vehicle and the driving licence was produces the same. Once the said is not produced, the duty will not be shifted to the Insurance compay, therefore, it cannot be said that there is no breach of policy conditions. A person or a company who alleges a fact must prove the said fact failing which they cannot get the benefit of their pleading of breach of policy conditions. However, the burden shifts on them only after the owner has proved that the driver had a driving licence. In this case, the owner did not file the driving licence at all and, therefore, there was no question of verifying whether the driver had any kindly of driving licence leave apart a licence to drive the said vehicle. Hence, the said submission is accepted.
10. Pappu and others Vs. Vinod Kumar Lamba and
another, AIR 2018 SC 592, supports may stand and as there was no driving licence filed. No evidence was filed to show that the vehicle was driven by an authorized person having valid driving licence to drive the said vehicle.
11. The question of the amount being exonerated and fanciful cannot stand the scrutiny of this Court and the submission that the amount is more is rejected as the disability was such that he has been given a sum of Rs.72,000/- as he had sustained disability and he has examined 4 witnesses. He had fracture of upper arm as well as his hip bone was fractured. The doctor has also opined in his favour. He had incurred 50% physical disability which was considered to be giving loss of Rs.1,000/- per month and multiplier of only 5 years was granted though he was aged 36 years of age and, therefore, no interference is called for in quantum in the compensation awarded.
12. The Insurance company is granted recovery rights to recover the amount as awarded by the Tribunal from the owner unless the owner proves by evidence that the vehicle was driven by a person holding proper licence.
13. Appeal is partly allowed. Judgement and decree be modified likewise.
Order Date :- 31.5.2018 Irshad