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Judgment
Nawal Kishore Agarwal, J.—This is insurer''s appeal against the award dated 1-10-2004 passed by 5th Additional Motor Accident Claims Tribunal (for short ''the Tribunal'') in claim case No. 63/2004. Facts, in brief of the case, are as under:
(i) An application u/s 166 of the Motor Vehicles Act 1988 (for short ''the Act'') was filed by the respondent No. 1/claimant claiming compensation to the tune of Rs. 2,00,000/- for the injuries sustained by him in the motor accident dated 23-12-2002.
(ii) While admitting the factum of insurance, appellant-Insurance Company denied its liability, inter alia, on the ground that the respondent No. 2 i.e. owner-cum-driver of the offending vehicle i.e. motor cycle bearing registration No. CG-15/6686 was not possessing valid and effective driving licence to drive the motor cycle at the time of accident.
The Tribunal, on a close scrutiny of the evidence led, held: accident had occurred due to rash and negligent driving of Kinetic Challenger motor cycle being registration No. CG-15/6686 by its owner-cum-driver-Amarnath Singh; Claimant-Manoj Kumar Shrivastav sustained injuries in the said accident; appellant/Insurance Company liable for payment of compensation as it could not establish the violation of policy conditions; and assessed and awarded Rs. 25,000/- as compensation to the claimant alongwith interest @ 9% per annum from the date of filing of claim petition till its actual payment.
Shri Abhishek Sinha, learned counsel appearing for the appellant by referring to Investigation Report (Ex. D-2) and licence particulars issued by Additional Regional Transport Authority, Sarguja (Ex. D-3) would submit: respondent No. 2--Amarnath Singh was possessing learning licence for the period with effect from 2-8-1999 upto 2-1-2000 and thereafter, it was renewed only on 7-1-2003 i.e. about two years after its expiry and, therefore, he was not possessing any licence at all on the date of accident. It was further contended to establish breach of the specified condition of the policy, it was not necessary for the appellant/Insurance Company to exhibit and prove the policy of insurance and mere filing of the policy was sufficient for that purpose. Reliance has been placed upon the judgment of Apex Court in cases of Bhuwan Singh Vs. Oriental Insurance Company Ltd. and Another, , Jawahar Singh Vs. Bala Jain and Others, and United India Insurance Co. Ltd. Vs. Rakesh Kumar Arora and Others,
On the other hand, Shri Manoj Mishra, learned counsel appearing for the respondent No. 2/owner-cum-driver would submit: the appellant/Insurance Company has failed to discharge its burden by adducing admissible evidence that respondent No. 2 was not possessing valid and effective driving licence at the time of accident. It was further contended in order to prove breach of a Specified condition of the policy of insurance. Insurance Company is required to prove the policy of insurance containing such conditions. However, for the reasons best known the appellant/Insurance Company, despite examining its Assistant Administrative Officer--A.B. Mate as (NAW-1), it did not prove the policy of insurance and its conditions so as to prove the breach of a specified condition of the policy nor has proved the fact that respondent No. 2 was unlicensed driver by examining RTO person and/or Investigator, in the absence whereof, the Tribunal has not committed any error in fastening the liability of payment of compensation upon the appellant/Insurance Company.
I have heard learned counsel appearing for the parties and perused the material available on record including award impugned.
As per Section 149(2)(a)(ii) of the Act: The appellant/Insurance Company is entitled to defend the claim case on the ground that there has been a breach of a specified condition excluding driving by a named person or persons or by any person who is not duly licensed, or by any person who has been disqualified for holding or obtaining a driving licence during the period of disqualification.
Under the above provision, it was necessary for the appellant/Insurance Company to prove the policy of Insurance to establish breach of a specified condition of the policy. Appellant/Insurance Company was further required to prove the fact that driver of the offending vehicle was not possessing valid and effective driving licence.
The Supreme Court in case of National Insurance Co. Ltd. Vs. Swaran Singh and Others, , has held in paragraphs 110 (iii), (iv) and (vi) as under:
110 (iii). The breach of policy condition e.g., disqualification of driver or invalid driving licence of the driver, as contained in sub-section (2) (a) (ii) of Section 149, have to be proved to have been committed by the insured for avoiding liability by the insurer. 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. To avoid its liability towards insured, the insurer has to prove that the insured was guilty of negligence and failed to exercise reasonable care in the matter of fulfilling the condition of the policy regarding use of vehicles by driver or one who was not disqualified to drive at the relevant time.
110(iv) The insurance companies are, however, with a view to avoid their liability must not only establish the available defence(s) raised in the said proceedings but must also establish ''breach'' or on the part of the owner of the vehicle; the burden of proof wherefore would be on them.
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110(vi) 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. The Tribunals in interpreting the policy conditions would apply "the rule of main purpose" and the concept of "fundamental breach" to allow defences available to the insured u/s 149(2) of the Act.
For the reasons best known to the appellant/Insurance Company although it has examined the Officer of the Insurance Company but did not prove the conditions of the policy to establish breach thereof. The best evidence about the contents of the document is the document itself. Section 91 of the Evidence Act excludes the admission of oral evidence for proving the contents of the document except in cases where secondary evidence is allowed to be led under the relevant provision of the Evidence Act. Admittedly, neither permission to adduce secondary evidence is obtained nor the appellant/Insurance Company marked and proved the copy of policy to establish its breach.
Furthermore, the appellant/Insurance Company also failed to examine RTO person and/or Investigator to establish the fact that respondent No. 2 -- Amarnath Singh was not possessing valid and effective driving licence at the time of accident in the absence whereof, the documents i.e. Investigation Report (Ex. D-2) and licence particulars (Ex. D-3) not being public documents u/s 35 of the Evidence Act are not admissible in evidence, unless proved by concerned officer or person by personal appearance with the Court.
The Supreme Court in case of Bhuwan Singh (supra), in case where appellant/owner has raised a specific plea that he was not driving the vehicle and one Diwan Singh was driving the same, has held the burden in terms of Section 106 of the Evidence Act was on the appellant.
By referring to Section 3 to 5 of the Motor Vehicles Act, Supreme Court in case of United India Insurance Co. Ltd. v. Rakesh Kumar (supra) & Jawahar Singh v. Bala Jain and others (supra) has held: if the vehicle was being driven by minor at the time of accident, the Insurance Company need not prove deliberate breach of policy conditions by the owner of the vehicle.
There is no quarrel about the ratio of the law laid down by the Supreme Court in the aforesaid cases. However, the Hon''ble Supreme Court has not laid down any law in the aforesaid cases that either there is no necessity to prove the condition of the policy, to prove the violation of policy conditions or any policy of insurance can be read in evidence without getting it marked and exhibited and the cases cited and relied upon by the appellant''s counsel are of no help to him.
Considering every aspect of the matter, I do not find any merit in the submission of Mr. Sinha, that there is no necessity to prove the condition of the policy, to prove the violation of policy conditions or any policy of insurance can be read in evidence without getting it marked and exhibited. Appellant has further failed to prove by examining RTO person and/or investigator that the respondent No. 2/driver was not possessing valid and effective driving licence at the time of accident. In view of above, in my opinion, the appellant/Insurance Company failed to establish the defence taken by it in the written statement and the appeal being devoid of merit is liable to be and is hereby dismissed.