Oriental Insurance Company Ltd. vs Harjit Kaur

Lisa Gill, J.—This order shall dispose of FAO No. 118 of 1997; FAO No. 119 of 1997 and FAO No. 120 of 1997, which arise on account of the same accident, which took place on 31.10.1992 as all the appeals involve the same issue. These appeals have been filed by the appellant-Insurance Company challenging the finding of the Motor Accident Claims Tribunal, Amritsar (hereinafter referred to as, the ''Tribunal'') to the extent that the appellant-insurance company is entitled to be absolved of its liability in these cases.

In an accident which took place on 31.10.1992 near the bye-pass of village Kaka Kandiala at 11.15 AM, three persons, namely, Joginder Singh, Malook Singh and Amarjit Singh travelling in Mini Bus bearing registration No. PAB-1252 lost their lives due to the rash and negligent driving of the said mini bus by respondent-Resham Singh. The claim petitions were filed by the dependents of the deceased and the same have been decided vide separate awards passed by the Tribunal. In all the awards, the respondents in the claim petition including the insurance company have been held liable jointly and severally.

The sole contention raised by learned counsel for the appellant-insurance company is that the insurance company is liable to be discharged on the ground that the vehicle was being driven by a driver not having a valid and effective licence at the time of accident. Hence, due to a breach of the terms and conditions of the insurance policy, the appellant-Insurance Company cannot be made liable for the payment of compensation to the claimants. It is urged by the learned counsel that as per Mehar Chand RW 2, the driving licence bearing No. 261/47/K/1989 had not been issued by their office (SDM Kangra) for the period from 03.10.1987 to 03.01.1991. Therefore, the renewal of the licence as proved on the record through RW 3 Smt. Harvinder Kaur, a Clerk from the office of District Transport Officer, Amritsar from the period from the year 1992 to 1996 cannot confer any validity upon the said licence as even a valid renewal of such a licence cannot impart any kind of validity to it. The Tribunal had negated the plea of the insurance company on the ground that if a licence is validly renewed it has got validity in view of the provisions of the Motor Vehicles Act and the insurance company would be liable to pay the compensation.

I have heard learned counsel for the appellant and gone through the whole record.

Though not agreeing with the reasoning given by the Tribunal, I am of the considered view that the insurance company cannot be absolved of its liability to pay the compensation in this case. It has been observed by Hon''ble Supreme Court in National Insurance Co. Ltd. Vs. Swaran Singh and Others, that the insurance company must not only establish the available defence(s) raised in the said proceedings but must also establish ''breach'' on the part of the owner of the vehicle. It is further observed that mere absence, fake or invalid driving licence or disqualification of the driver for driving at the relevant time, are not in themselves defences available to the insurer against either the insured or the third parties. It is incumbent upon the insurer to prove that the insured was guilty of negligence and failed to exercise reasonable care in the matter by fulfilling the conditions of the policy. The Hon''ble Supreme Court has, in fact, specifically observed as under:-

Even where the insurer is able to prove breach on the part of the insured concerning the policy condition regarding holding of a valid licence by the driver or his qualification to drive during the relevant period, the insurer would not be allowed to avoid its liability towards insured unless the said breach or breaches on the condition of driving licence is/are so fundamental as are found to have contributed to the cause of the accident. ...

It has been further observed by the Hon''ble Supreme Court as under:-

...The question as to whether the owner has taken reasonable care to find out as to whether the driving licence produced by the driver, (a fake one or otherwise), does not fulfil the requirements of law or not will have to be determined in each case.

The Hon''ble Supreme Court dismissed the appeals filed by the insurance company.

In the present matters, there are neither any such pleadings nor has it been proved on record that the insured/owner was negligent or did not take due care and caution to inquire about the genuineness of the driving licence produced by the driver. In view of the fact that the licence was validly renewed, it would be too far-fetched to expect from the owner to verify the original licence purported to be fake.

Thus, keeping in view the above, all the three appeals filed by the appellant-Insurance Company must necessarily fail.

Before parting with this judgment, it is noticed that notices in these appeals had been issued initially in 1997 to respondents owner and driver only. After reconstruction of the file, fresh notices were issued. The driver-Resham Singh had refused to accept the notice which was however, affixed as well. The said respondent was directed to be proceeded against ex parte vide order dated 04.04.2014. Fresh notice was issued to the respondent-Sukhwinder Singh. As per office report, the service could not be effected due to want of fresh complete address. Keeping in view the fact that these appeals are being dismissed, it would be a futile exercise to attempt service upon the said respondent.

Accordingly, all the three appeals are, hereby, dismissed.