New India Assurance Co. Ltd vs Mohd Ishfaq And Others

Sanjeev Kumar, J

1 This appeal filed by the New India Assurance Company (hereinafter referred to as the 'insurer') is directed against the award dated 26.02.2010 passed by the Motor Accident Claims Tribunal, Jammu (hereinafter referred to as the 'Tribunal') in file No.459/claim titled 'Mohd Ishfaq vs. New India Assurance Company Ltd., where respondent No.1 (claimant) has been held entitled to compensation of Rs.1,85,000/- along with interest @ 7.5% per annum to be paid by the insurer by way of indemnification of loss to respondent No.2, the owner of the vehicle.

The factual matrix of the case are that on 20.04.2006, the offending vehicle being driven by respondent No.3 rashly and negligently met with an accident and as a result whereof, respondent No.1, who was travelling in the said vehicle, sustained grievous injuries. He was immediately shifted to GMC Hospital Jammu where he was operated upon. Respondent No.1 despite successful operation suffered permanent disability to the extent of 28%.

Respondent No.1 filed a claim petition before the Tribunal claiming compensation of Rs.5.00 lac from the owner, driver and the insurer of the vehicle. The claim petition was contested by the insurer only, whereas the owner and driver chose not to contest the same and were, accordingly, set ex parte by the Tribunal.

On the basis of pleadings of the parties, the Tribunal framed the following issues:

(i). Whether an accident occurred on 20.04.2006 at Thanddi Kassi, Rajouri by rash and negligent driving of offending vehicle No. JK02D-5355 being driven in the hands of erring driver in which petitioner Mohd Ishfaq sustained grievous injuries ?OPP

(ii). If issue No.1 is proved in affirmative whether petitioner is entitled to the compensation if so to what amount and from whom ? OPP

(iii). Whether driver of the offending vehicle at the time of accident was not holding a valid and effective DL and thereby violating the terms and conditions insurance policy, route permit and fitness certificate ? OPR-1

(iv). Rlief OP Parties.

The insurer has not assailed the findings of the Tribunal on issue No.1, but has disputed the findings of fact and law returned by the Tribunal on issue Nos.2 and 3. It is contended that the insurer had led sufficient evidence to prove issue No.3. As is evident from the statement of S. Balbinder Singh, an employee of ARTO Rajouri, the driver of the offending vehicle was only authorized to drive the motor cycle, light motor vehicle (transport/non- transport) and was not competent to drive heavy passenger vehicle. It is, thus, urged that in view of the overwhelming evidence on issue No.3, the Tribunal was not correct to return a finding that the insurer had failed to establish that the driver of the offending vehicle was not in possession of valid and effective driving licence at the time of accident.

The insurer has also assailed the impugned award on the issue of quantum of compensation, contending that the Tribunal has erroneously taken 28% disability of the claimant as loss of earning capacity and, therefore, acted in derogation of the law laid down by the Supreme Court in the case of Raj Kumar vs Ajay Kumar & Anr, 2011 (1) SCC 341

Heard learned counsel for the appellant and perused the record.

It is seen that, with a view to discharge the burden of issue Nos. 2 and 3, the insurer produced two witnesses i.e S. Balbinder Singh, an employee of ARTO Rajouri and Mohd Ishaq, the driver of the offending vehicle. Balbinder Singh in his deposition stated that he had brought the record of licence No.4622/MVD/R date d 23.08.03 issued by the ARTO Rajouri in favour of driver of the offending vehicle and as per the record, the driver of the offending vehicle was initially authorized to drive light motor vehicle (non-transport), but thereafter, the license was endorsed for driving LMV (transport vehicle). He has categorically stated that the driver of the offending vehicle was not authorized by any licence or endorsement to drive heavy passenger vehicle like the Bus in the instant case. Similarly, the driver of the offending vehicle, in his deposition, has affirmed that he was issued the driving licence No.4622/12/2003 and the same was endorsed for PSV on 08.12.2004 and was, thus, authorized to drive motor cycle, LMV and HGV.

It is clarified by Mr Balwinder Singh that PSV endorsement was only with regard to driving of LMV transport vehicle, whereas, on the date of accident, the driver of the offending vehicle was driving a passenger Bus.

As is apparent from the categoric statement of official witness, namely Balwinder Singh, the driver of the offending vehicle was not possessing the licence for driving heavy goods vehicle or heavy passenger vehicle. The offending vehicle was, thus, being driven by the driver in violation of terms and conditions of the insurance policy. It, however, has not come on record, as to whether the owner had entrusted the driver the offending vehicle knowing that he was not authorized to drive such vehicle.

To escape the liability of indemnification, the insurer has to plead and prove by leading cogent evidence that there had been a breach of fundamental terms and conditions of the policy by the owner. Further more, it is the requirement of the insurer to prove that breach was fundamental and had actually contributed to the accident.

In view of the aforesaid, it is not a case of a breach of any fundamental terms and conditions of the insurance policy, nor such breach can be said to have contributed to the accident. At least, there is no such evidence on record.

Accordingly, the appeal is dismissed.

The amount deposited in the Registry shall be released in favour of the claimant after proper identification strictly in terms of the impugned award.