The New India Assurance Co. Ltd. vs Gowramma

Aravind Kumar, J.—Heard Sri. Ravishankar, learned counsel appearing on behalf of K. Suryanarayana Rao, appearing for the appellants and perused records.

The only question that arises for consideration in this appeal is;

Whether appellant-insurer is liable to indemnify the claim as per judgment and award passed by the Tribunal or it is to be exonerated?

Accident in question occurred on 06.08.2007, when the deceased was said to be proceeding as a pedestrian on Bangalore-Tumkur road, and at that time the bus bearing registration No. KA-04-A-9090 came in a rash and negligent manner and dashed against the deceased, as a result of which he sustained grievous injuries and was shifted to NIMHANS Hospital and then to Victoria Hospital and later on he succumbed to injuries sustained in the accident. Hence, claim petition came to be filed by wife, parents and children of the deceased seeking compensation of Rs. 20.00 lakhs. Tribunal allowed the claim petition in part and has awarded a sum of Rs. 5,86,552/- with interest @ 6% p.a., from the date of petition till date of deposit in Court by fastening the liability on appellant-insurer who had been arrayed as second respondent before the Tribunal by judgment and award dated 28.01.2009. It is this judgment and award which is questioned in the present appeal by the insurer.

It is the contention of Sri. Ravishankar, counsel appearing for insurer that undisputedly, driver of offending vehicle had licence to drive only LMV (Non-Transport) and he had obtained licence to drive Heavy Transport Vehicle from 22.01.1997 to 21.01.2000 and same was renewed from 20.12.2003 to 19.12.2006 and thereafter it was not renewed, as such question of insurer indemnifying the insured in respect of award passed by tribunal on account of road traffic accident that occurred on 06.08.2007 on which date, driver did not possess driving licence would not arise and the finding recorded by tribunal by fastening the liability on insurer is an erroneous finding recorded and as such, he prays for absolving the insurer of its liability. In support of his submission, he has relied upon the judgment of the Hon''ble Apex Court in the case of National Insurance Co. Ltd. Vs. Vidhyadhar Mahariwala and Others, . He would also elaborate his submission by contending that under Section 15 of the Motor Vehicles Act an application for renewal of a licence will have to be made within 30 days of expiry and if such an application is made licence even renewed thereafter, would relate back to date of expiry and in the instant case, such factual matrix was not present and there was no material available on record before the Tribunal to hold either the driver having applied for renewal of licence within 30 days from the date of its expiry or for that matter any other date. Hence, he prays for allowing the appeal.

The Tribunal after having noticed the fact that driver of offending vehicle had not possessed licence to drive Heavy Transport vehicle after it had expired on 19.12.2006 has jumped to a conclusion that driver of the offending vehicle in question had valid driving licence to drive Light Motor Vehicle as on the date of accident and was sufficient enough to hold that insurer is liable to indemnify.

The defence available to a insurer under Section 149 of the Motor Vehicles Act to stave off its liability is traceable to Clause (ii) Sub Section (2) of Section 149 of the Motor Vehicles Act. When such a defence is raised, it is for the insured and the claimants to establish and prove that driver of offending vehicle possessed a valid and effective driving licence as on the date of accident. In the instant case, accident in question had occurred on 06.08.2007. It is not in dispute that driver of the offending vehicle was authorized to drive Light Motor Vehicle with effect from 17.11.1992 upto 20.10.2010 and he was also authorised to drive Heavy Transport Vehicle with effect from 22.01.1997 to 21.01.2000 and said licence to drive Heavy Transport Vehicle was again renewed on 20.12.2003 which was valid upto 19.12.2006. Thereafterwards, licence of the driver to drive Heavy Transport Vehicle was not renewed. In other words, as on the date of accident i.e., on 06.08.2007, driver of the offending vehicle did not possess valid and effective driving licence to drive the offending vehicle which is a heavy passenger vehicle as evidenced from Motor Vehicles report Ex. P4. The Hon''ble Apex Court in National Insurance Co. Ltd. Vs. Vidhyadhar Mahariwala and Others, referred to supra has held that insurance company has to be exonerated from its liability to indemnify the claim, when the driver of the offending vehicle does not possess a driving licence as on the date of accident. It has been held by the Hon''ble Apex Court in the said judgment as under:

Para 11:- In Ishwar Chandra''s case (supra) the three decisions referred to by the High Court were considered and it was held that the insurance company would have no liability in the case of this nature. We are in agreement with the view. The appeal deserves to be allowed which we direct. The impugned order of the High Court is set aside. It is open to the claimant to recover the amount from respondent No. 2.

In the light of law laid down by the Hon''ble Apex Court and taking into consideration the statutory provision namely Section 149(2)(ii) of the MV Act into consideration and when the facts on hand are examined, it would leave no doubt in the mind of this Court to arrive at a conclusion that insurer has to be absolved of its liability to indemnify the claim since driver of the offending vehicle did not possess valid and effective driving licence as on the date of accident or in other words driving licence possessed by him having expired on 19.12.2006 same had not been renewed and as such insurer will not be liable to indemnify the claim.

For the reasons aforestated, I proceed to pass following;

ORDER

i) Appeal is hereby allowed.

ii) Judgment and award passed by the Tribunal insofar as directing the insurer to indemnify the claim is set-aside and finding recorded by the Tribunal in fastening the liability on the owner of the vehicle stands affirmed.

iii) Mount in deposit is ordered to be refunded to appellant-insurance company on proper identification.