National Insurance Company Ltd. vs Sunder Singh and Others

V.K. Ahuja, J.—This is an appeal filed by the appellant/Insurance Company u/s 173 of the Motor Vehicles Act against the award passed by the learned Motor Accident Claims Tribunal, Shimla, dated 24.5.2004, vide which the claim petition filed by respondents No. 1 to 5 as claimants for the grant of compensation u/s 166 of the Motor Vehicles Act was allowed and compensation to the tune of Rs. 5,14,000/- was granted in favour of the claimants and as against the appellant and other respondents, namely, respondents No. 6 and 7. Whether reporters of Local papers may be allowed to see the judgment? Yes.

Briefly stated the facts of the case are that respondents No. 1 to 5 as claimants filed a claim petition u/s 166 of the Motor Vehicles Act in regard to the death of Partap Singh. The petition had been filed by the mother of the deceased, widow of the deceased, two minor daughters and one minor son of the deceased. Respondent No. 6 was impleaded as respondent No. 1 being the owner of the vehicle, while respondent No. 7 was impleaded as respondent No. 3 being the insurer of the vehicle. The claimants alleged that the deceased was going in the truck bearing No. HP 09 1818 and had loaded his 20 boxes of apple in the said vehicle, which was being driven by respondent No. 2 rashly or negligently. The truck met with an accident and Partap Singh suffered injuries and died resultantly. The deceased was stated to be an agriculturist and horticulturist and his income was alleged to be as Rs. 3 to 4 lacs per annum. The age of the deceased was alleged to be 38 years and the claimants claimed compensation to the extent of Rs. 10.00 lacs.

The petition was contested by the respondents. The owner and the driver did not deny the accident or the death of the deceased in the said accident. However, they denied that the driver was driving the vehicle rashly or negligently. The appellant/Insurance Company took up the plea that the vehicle was being driven by a person who was not having a valid and effective driving license. They also took up the plea that there was breach of terms and conditions of the insurance policy since the deceased was travelling as an unauthorized passenger and as such the Insurance Company is not liable. On the pleadings of the parties, issues were framed by the learned Tribunal, who, on conclusion of the trial, held that the accident had taken place due to the rash or negligent driving of respondent No. 2. It was also held that there was no proof that the vehicle was not being driven by respondent No. 2 who was not having a valid and effective driving license and a finding was also given that the vehicle was not being driven in violation of the terms and conditions of the insurance policy and accordingly, the petition was allowed as against the respondents, as detailed above.

I have heard the learned Counsel for the parties and have gone through the record of the case. The submissions made by the learned Counsel for the appellant were that there was sufficient material on record to prove that respondent No. 2 was not the driver of the vehicle at the time of the accident, but it was being driven by one Surjit Singh, as alleged in the FIR also. It was further submitted that there was collusion in between the claimants and respondents No. 1 and 2 and they twisted the facts and pleaded that the vehicle was being driven by respondent No. 2. It was submitted that since the deceased was a gratuitous passenger in the vehicle and the driver was not having a valid and effect driving license, therefore, the responsibility has been wrongly fastened upon the Insurance Company also. On the other hand, the learned Counsel for the claimants had supported the impugned award for the reasons given therein. In regard to the plea that the vehicle was being driven by another person, the submissions made were that there are definite findings of the learned Tribunal that the vehicle was being driven by respondent No. 2 and there is no infirmity in the said findings recorded by the learned Tribunal. In regard to the plea of unauthorized passenger, it was submitted that the deceased was travelling in the vehicle as an owner of the goods being carried in the vehicle and as such there was no breach of the terms and conditions of the insurance policy, which conditions have also not been proved and accordingly there is no merit in the appeal filed by the appellant which deserves to be dismissed accordingly. On appraisal of the record of the case, it is clear that the claimants pleaded in regard to the driver of the vehicle that it was being driven by respondent No. 2 Madan Lal. In reply filed by the owner as respondent No. 1 and driver Madan Lal as respondent No. 2, they simply denied that the accident took place due to the rash or negligent driving of respondent No. 2 and they never took up any such plea that the vehicle was being driven by any other person except respondent No. 2. In reply filed by respondent No. 3/Insurance Company, they also did not take any specific plea that the vehicle was being driven by any other person, namely, one Surjit Singh, and not by respondent No. 2 Madan lal. They simply took up the plea that there was violation of the terms and conditions of the policy since the deceased was an unauthorized passenger and there was no valid and effective driving license in possession of the driver. Accordingly, the learned Tribunal framed issues as to whether this fact stands proved that the vehicle was being driven rashly or negligently by respondent No. 2. Another issue framed was as to whether respondent No. 2 was not having a valid and effect driving license at the time of the accident.

A perusal of the record of the learned Tribunal shows that an application under Order 6 Rule 17 of the CPC was filed by the appellant/Insurance Company seeking leave to amend the reply filed by them. They alleged that during the pendency of the petition, it has been revealed to the applicant that the vehicle, in question, at the time of accident, was being driven by one Surjit Singh alias Sarju, who was not having a valid and effective driving license to drive the vehicle in question. They also alleged that this information was received from the Investigator appointed by the applicant during the pendency of the aforesaid petition. Therefore, they sought permission of the court to amend the reply and take the plea that the vehicle was being driven by Surjit alias Sarju, who was not having a valid and effecting driving license at the time of accident. A perusal of the record of the learned Tribunal shows that the following observations were made by the learned Tribunal in regard to the said application:

There is a dispute between the parties with regard to the identity of the person who was driving the vehicle involved in the accident. However, it is conceded by the parties that sufficient evidence regarding the identity of the person who was driving the vehicle is already available on record and can be perused by this Tribunal. The plea of the respondent Insurance Company which they now intend to take by amending their reply is to dispute their liability in respect of the payment of compensation. Such plea is already there and is covered under issues No. 1 and 4 and therefore there is no necessity for amendment of pleadings.

It is clear that after about two years of the filing of the earlier reply, respondent No. 3/Insurance Company had filed the present application to take up this plea which was not allowed by the learned Tribunal. A perusal of the record shows that prior to the filing of this application when the arguments had been advanced on the main case, the learned Tribunal, of its own accord, passed an order on 9.5.2002 observing that since it was alleged in the FIR lodged by the Conductor of the vehicle that the vehicle was being driven by Surjit Singh and therefore, there is a contradiction since subsequently it was observed that the Conductor had given the name wrongly and accordingly the learned Tribunal observed that the statement of Durga Nand, Conductor, the ASI who recorded the statement and that of Madan Lal, respondent No. 2 (driver) are relevant and they should be examined as Court witnesses. It is clear that the Insurance Company never filed any application to examine these witnesses to prove that the report was correctly lodged alleging that Surjit Singh was the driver but subsequently, the name was changed to that of Madan Lal since Surjit Singh was not having a valid driving license. Therefore, the appellant/Insurance Company had failed to allege and prove this fact that the vehicle was being driven by Surjit Singh and not by Madan Lal. I have mentioned above that an application for amending of the reply was filed by respondent No. 3/Insurance Company but no application was filed by the Insurance Company to implead the said Surjit Singh so that this question could be determined as to who was the driver of the vehicle at the relevant time. The learned Tribunal had observed that since there is sufficient material on record, including the statements of all the relevant witnesses, who have been summoned as Court witnesses, and therefore, the application for amendment of the reply filed by the appellant/Insurance Company was dismissed. It is, therefore, clear from the above discussion that now the findings have been given by the learned Tribunal that the vehicle was being driven by respondent No. 2. It has to be seen as to whether any findings could be considered by this Court that these are incorrect and the vehicle was in fact being driven by Surjit Singh in the absence of the said Surjit Singh having been impleaded as a party and given an opportunity to defend his case that he was not driving the vehicle at the relevant time. In my view, it is difficult to give any findings against Surjit Singh that he was driving the vehicle when he has not been impleaded as a party before the learned Tribunal. It may be that in case the identity of the driver was not established, the Insurance Company could have taken the plea that since his identity was not established and therefore, the evidence may be looked into if it proves whether respondent No. 2 was driving the vehicle or not but once the identity of the said driver was available and whose particulars were also available with the Insurance Company, they could have come up with an application for impleading the said Surjit Singh as a party to the petition. In the absence of the said Surjit Singh having been impleaded as a party, no findings can be given by this Court that he was driving the vehicle at the relevant time. Therefore, I have to consider the evidence as it has been produced before the learned Tribunal which consists of the statements of the Ramesh Chand as PW-5 who stated that the driver of the vehicle was Madan Lal as well as that of Court witnesses Durga Nand as CW-3, Madan Lal as CW-2 and of the owner having been examined as RW-1, who all reiterated that the vehicle was being driven by respondent No. 2. There is no evidence led by the Insurance Company in the form of the statement of the Investigator who may have gone to the spot, verified the facts or that of any police officer who may have conducted the investigation and filed any final report in that regard. The police officer, who recorded the statement of the Conductor CW-3 Durga Nand has been examined as CW-1 (ASI Karam Singh), who had recorded the original statement u/s 154 of the Cr.P.C., who admitted that in the supplementary statement of Durga Nand, it was revealed that the vehicle was being driven by Madan Lal and he was perplexed and had wrongly named Surjit Singh as the driver of the vehicle.

I have gone through the statement of these witnesses and certain observations were made by the then Presiding Officer trying the case that the witnesses, namely, CW-2 Madan Lal and CW-3 Durga Nand appear to have stated the facts falsely and this possibility cannot be ruled out in case the statements of these witnesses are scrutinized very carefully and the observations made by the learned Presiding Officer are considered. However, a perusal of the impugned award shows that the learned Tribunal just made a reference to the testimony of these witnesses and concluded that since there is no rebuttal and these statements prove that the driver of the vehicle, at the relevant time, was respondent No. 2, therefore, these findings were given.

Even if for arguments sake I may hold that the vehicle was not being driven by Surjit Singh and the vehicle was being driven by Madan Lal, still the Insurance Company has failed to prove that he was not possessing a valid and effective driving license since the copy of the driving license was proved as per the testimony of CW-2 Madan Lal which has been produced by Narain Singh as Ext.RW-1/B. It appears that thereafter the Insurance Company did not take any steps to get the driving license proved with the result that it cannot be held that the Insurance Company had discharged the burden which was upon them. Even if for arguments sake, it is held that the vehicle was not being driven by Madan lal but was being driven by Surjit Singh, the Insurance Company has not produced any evidence that license in possession of Surjit Singh was not valid on the date of the accident. This could have been done by firstly impleading the said Surjit Singh, asking the owner or the said Surjit Singh to produce the license in possession of Surjit Singh and getting the same verified. Therefore, even if this Court, for arguments sake, was to reverse the findings and to hold that the vehicle was being driven by Surjit Singh, which findings could not have been given in the absence of Surjit Singh and the fact that his license was not got verified, in the alternative, by the Insurance Company. In my view, the Insurance Company could have taken proper steps to prove the validity of both the licenses and on the basis of the evidence produced, they could have argued that if the driver was possessing a valid and effective driving license or not.

The learned Counsel for the appellant, to substantiate his plea that the Insurance Company is not liable, had relied upon the decision in National Insurance Co. Ltd. Vs. Kusum Rai and Others, wherein it was held that if there was a breach of conditions of contract of insurance by the insured, the insurance company is, therefore, exempted from the liability. It was held that the driver did not possess a valid license to drive a commercial vehicle, the Insurance Company may recover the amount paid from the owner by initiating proceedings before the executing court. On the other hand, the learned Counsel for the respondents had placed reliance upon the decision in Sohan Lal Passi Vs. P. Sesh Reddy and others, which shows that the insured had engaged a licensed driver and had placed the vehicle in his charge and there was no allegation that the insured was guilty of violating the condition that the vehicle shall not be driven by a person not duly licensed. The driver had allowed the conductor, who was not duly licensed, to drive the vehicle and he caused the accident resulting in the death of a scooterist. It was held that since it has not been proved that the insured had wilfully violated the condition of the policy, therefore, the Insurance Company is not exonerated from the liability.

10 .The decision in Oriental Insurance Co. Ltd. v. Walayati Ram and Ors. Latest HLJ 2002 (HP) 83 shows that it was observed that it hardly needs to be pointed out that this was a defence set up by the Insurance Company that the driver was not holding a valid driving license on the date of accident in order to succeed it was upon the Insurance Company to have proved this fact. Another decision relied upon was in Narcinva V. Kamat and Another Vs. Alfredo Antonio Doe Martins and Others, which shows that there was a plea taken by the Insurance Company that there was breach of term of policy in that the driver of the insured vehicle did not have any valid license. The burden to prove the same is on the Insurance Company and no evidence was produced by the Company to prove the breach, therefore, the Insurance Company was held liable. The decision in Sri Pramod Kumar Agrawal and Another Vs. Smt. Mushtari Begum and Others, was also relied upon, in which question as to whether risk of passenger carried for hire or reward in a truck is covered and insurance company liable for death of fare- paying passenger was considered. It was held that the Insurance Company shall pay the amount of compensation to the claimants and recover the same from the owner by initiating proceedings before the executing court and the Insurance Company shall not be required to file a suit. Similar observations were made in National

National Insurance Co. Vs. Amar Chand and Others, wherein it was held that to avoid liability, the Insurance Company has to prove that the driver had no valid license and that he was disqualified from holding such a license. The Insurance Company can avoid its liability if it could prove either that a named person was driving the vehicle or that it was being driven by a person who did not have a duly granted license or that he is disqualified for holding or obtaining a driving license. It was held that the Insurance Company was liable who may recover the amount from the owner by filing execution proceedings. There is no dispute in regard to the preposition that it is for the Insurance Company to prove this fact that the driver was not having a valid and effective driving license at the time of the accident. There are findings of the learned Tribunal that the vehicle was being driven by respondent No. 2 and the Insurance Company had failed to prove that the license of such driver was not valid and as such it cannot be held that there was any breach of conditions. Coming to the last plea raised during the course of arguments if the deceased was a gratuitous passenger or was a person carrying his goods in the vehicle. A perusal of the record shows that there is statement of PW-1 Rita Chauhan that the deceased was carrying apple crop to Deha. PW-4 Amar Singh had stated that the deceased had forwarded 20 boxes of apples through GR Ext.P-3 in which the name of the driver was also mentioned as Madan lal. He denied that the GR was prepared after the accident and there is nothing to disbelieve his statement. These statements have been further corroborated by the statement of PW-5 Ramesh Chand, another occupant with the deceased who was also carrying his apples in the vehicle. These statements further find corroboration from the statement of CW-2 Madan Lal, respondent No. 2/driver of the vehicle and that from the statement of CW-3 Durga Nand, Conductor of the vehicle, to some extent. No evidence has been led by the Insurance Company to show that the deceased was a gratuitous passenger and was not carrying his goods. The findings of the learned Tribunal in this regard, therefore, call for no interference, once it is proved that the deceased was travelling in the vehicle as owner of the goods being carried by him and there was no violation of the terms and conditions of the Insurance policy and no evidence has been led by the present appellant/Insurance Company to prove as to what violation was there of the terms and conditions of the Insurance Company.

In view of the above discussion, there is no merit in the appeal filed by the appellant which is liable to be dismissed accordingly. However, a perusal of the impugned award shows that the learned Tribunal only observed that the petition is allowed as against respondent, but it has not specifically pointed out that the amount in question was payable by respondent No. 3/Insurance Company, though all the respondents are liable to pay the amount, but since the vehicle was insured with respondent No. 3/Insurance Company, it is the Insurance Company which shall be liable to deposit the amount in full. The appeal is accordingly dismissed. There is no order as to costs.