Oriental Insurance Company Limited @APPELLANT@Hash Vinod Kumar and Others

Sandeep Sharma, J.

On the joint request of the learned counsel representing the parties, who stated that keeping in view the controversy involved in the appeal, same

may be disposed of at pre-admission stage, appeal was taken up for hearing and is being disposed of at pre-admission stage.

By way of present appeal having been filed under S. 173 of Motor Vehicles Act, challenge has been laid to theaward dated 21.9.2017 passed by

the learned MACT. (III) Una, District, Una, Himachal Pradesh in M.A.C. Petition No. 103/2014 titled Vinod Kumar and another vs. Bihari Lal and

other, whereby learned Tribunal below, held respondents No.1 and 2-claimants (hereinafter, ‘claimants’) entitled to compensation to the tune of

Rs.1,50,346/- alongwith interest at the rate of 9% per annum from the date of filing of the petition till its realization. Vide aforesaid award, learned

Tribunal below has saddled the liability upon the appellant-Insurance Company, hence, this appeal by the appellant-Insurance Company.

Facts, as emerge from the record are that the claimants preferred a claim petition under S. 166 of the Motor Vehicles Act, seeking therein

compensation on account of injuries suffered by them in a motor vehicle accident, alleging therein that on 5.5.2013, claimants were coming from

Bhanjal to Gagret on Scooter Eterno bearing registration No. HP-19A-1245 and when they reached near Bhanjal, a motorcycle bearing registration

No. HP-37A-6277, being driven by respondent No. 3, Bihari Lal came in a high speed and hit their scooter, as a consequence of which, they suffered

injuries. Injured were taken to CHC Amb, from where they were referred to Government Medical College and Hospital, Sector 32, Chandigarh.

Claimant No.2, Akash remained admitted with effect from 6.5.2013 to 9.5.2013 and during this period, he was operated upon. Claimant No.1 claimed

that he spent a sum of Rs.1.00 lakh on the medical treatment, conveyances and medical expenses on claimant No.2. He also claimed that he was also

admitted in CHC Gagret, on account of multiple injuries suffered by him in the accident and in this process, he spent approximately Rs.30,000/- for his

medical treatment.

Aforesaid claim petition having been filed by claimants, came to be contested by respondents No. 3 to 5 and present appellant-Insurance Company,

by way of filing separate replies. Respondent No.3 Bihari Lal, while admitting factum with regard to accident, denied the allegation of his driving the

vehicle rashly and negligently. He claimed before the learned Tribunal below that accident took place due to rash and negligent driving on the part of

claimant No.1. Respondent No.4 herein, Sanjeev Kumar claimed that he had sold the motor cycle much prior to the accident. Present appellant-

Insurance Company refuted the claim of the claimants on the ground that driver of the motor cycle bearing registration No. HP-37A-6277 was not

having a valid and effective driving licence to drive the type of vehicle involved in the accident and as such, it is not liable to indemnify the insured.

Appellant-Insurance Company also claimed that since the vehicle in question was being plied in contravention of the terms and conditions of the

insurance policy, it could not have been saddled with any liability. Apart from above, appellant-Insurance Company also claimed before the learned

Tribunal below that since registered owner had sold the vehicle to one Farooq Mohd., respondent No.5 vide affidavit dated 28.5.2011, he ought to

have been impleaded as party respondent. Appellant-Insurance Company further claimed that the number of driving licence was not supplied despite

an application to this effect, which clearly proves on record that respondent No.3, Bihari Lal was not having a valid and effective driving licence.

Insurance Company also alleged that owner, driver and insurer of Scooter No. HP-19A-1245 (scooter of the claimants), were also required to be

impleaded as parties but in the instant case, neither the documents of the same were taken into possession by the police, nor any detail was ever

furnished to the appellant-Insurance Company to enable it to verify the genuineness and correctness of the same.

On the pleadings of the parties, learned Tribunal below framed following issues:

“1. Whether the petitioners suffered injuries on account of rash and negligent driving of respondent No.1, while driving motorcycle No. HP-37A-

6277? OPP

If issue No. 1 is proved in affirmative to what amount of compensation, the petitioners are entitled to and from whom? OPP

Whether the driver of the offending vehicle was not having valid and effective driving licence as alleged? OPR-3

Whether the offending vehicle was being driven in breach of provisions of Motor Vehicles Act 1988 as alleged? OPR-3

Whether the petition is bad for non-joinder of owner and insurer of scooter No.HP-19A-1245? OPR

Reliefâ€​

Subsequently, the learned Tribunal below, vide impugned award dated 21.9.2017, held claimants entitled to compensation to the tune of

Rs.1,50,346/-, to be paid by the appellant-Insurance Company alongwith interest at the rate of 9% per annum, from the date of filing of the petition till

its realization. In the aforesaid background, appellant-Insurance Company has approached this court, in the instant proceedings, praying therein for

setting aside the impugned award passed by learned Tribunal below, in as much as it has been saddled with the amount of compensation.

I have heard the learned counsel for the parties and gone through the record carefully.

Having carefully perused the record vis-à -vis impugned award, this court finds that onus to prove the issue, “whether the driver of the

offending vehicle was not having valid and effective driving licence as alleged?†was upon the appellant-Insurance Company but the evidence on

record clearly suggests that the appellant-Insurance Company was not able to discharge aforesaid onus, as such, issue rightly came to be decided

against it. Similarly, this court finds that there is no evidence led on record by the appellant-Insurance Company that the offending vehicle was being

driven in breach of the provisions of Motor Vehicles Act. In nutshell, case as projected before this court by the learned counsel representing the

appellant-Insurance Company is that appellant-Insurance Company could not be saddled with the compensation on account of injuries suffered by

claimants involving offending vehicle being driven by respondent No.3 because on the ill-fated day, respondent No.3 was only having a learner’s

licence to drive the vehicle.

Aforesaid argument having been made by the learned counsel representing the appellant-Insurance Company, deserves to be rejected in view of law

laid down by Hon'ble Apex Court in National Insurance Company Limited vs. Swaran Singh, AIR 2004 (SC) 1531, which has been otherwise taken

note by the learned Tribunal below. In the aforesaid judgment, Hon'ble Apex Court has categorically held that breach of policy conditions i.e.

disqualification of driver or invalid driving licence of the driver, as contained in Sub-section (2)(a)(ii) of S. 149, has to be proved by leading cogent and

convincing evidence. Mere absence or fake or invalid driving licence or disqualification of driver for driving the vehicle at the relevant time, are not the

defences available to the insurance company against the insured or third party.

In the case at hand, it is not in dispute, rather is admitted fact that at the relevant time, respondent No.3, driver of offending vehicle was having

learner licence, Ext. RW-3/A. As has been observed herein above, no cogent and convincing evidence has been led on record by appellant-Insurance

Company to suggests that at the time of accident, respondent No. 3/driver of the offending vehicle was not having any kind of licence. Another

contention of the learned counsel representing the appellant-Insurance Company that since nothing has come in the evidence that at the time of

accident, driver of the offending vehicle, who was having learner licence to drive the vehicle, was accompanied by an instructor, learned Tribunal

below ought not have placed reliance upon the judgment rendered by Hon'ble Apex Court in Swaran Singh (supra), while holding claimants entitled to

compensation, also deserves rejection, because, there is nothing placed on record by appellant-Insurance Company to substantiate aforesaid argument

that person having learner licence is/was required to be accompanied by an instructor.

Leaving everything aside, Hon'ble Apex Court in Swaran Singh (supra) has categorically laid down that mere absence, fake or invalid driving

licence or disqualification of the driver to drive at the relevant time, can not be a ground available to the insurer against insured or third party. Another

argument raised by the learned counsel representing the appellant-Insurance Company that since no positive evidence was led on record by owner of

the offending vehicle that at the time of accident, driver of the vehicle, who was having learners licence, was being accompanied by an instructor and

there was display of mark, “L†on the offending vehicle showing that the vehicle is being driven by a person having a learner’s licence,

learned Tribunal below ought not have saddled the appellant-Insurance Company with the liability, rather, liability, if any, ought to have been imposed

upon owner of the offending vehicle, can not be accepted because onus to prove that driver of offending vehicle was not having a valid and effective

driving licence and vehicle was being driven in breach of provisions of Motor Vehicles Act, was upon the appellant- Insurance Company. Evidence, if

any, with regard to breach of terms and conditions insurance policy as well as Motor Vehicles Rules, was to be led on record by the appellant-

Insurance Company and not by the owner of the offending vehicle.

Consequently, in view of the detailed discussion made herein above, this court finds no occasion to interfere with the award passed by the learned

Tribunal below, which deserves to be upheld. Resultantly, appeal is dismissed being without any merits. Pending applications, if any, are disposed of.

Interim directions, if any, are also vacated.