F.A.O. No. 6405 of 2011 1 .. IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH F.A.O. No. 6405 of 2011 (O&M) Date of Decision: December 12, 2011 The Oriental Insurance Company Limited .... Appellant Versus Monika and others .... Respondents CORAM : HON'BLE MR. JUSTICE VIJENDER SINGH MALIK 1.Whether Reporters of local papers may be allowed to see the judgment? 2.Whether to be referred to the Reporters or not? 3.Whether the judgment should be reported in the Digest? Present Mr. Amit Rawal, Advocate, for the appellant. Mr. Ashwani Arora, Advocate, for respondents No. 1 to 3. VIJENDER SINGH MALIK, J. The Oriental Insurance Company Limited is in appeal before this court against the award dated 23.5.2011 passed by the Motor Accidents Claims Tribunal, Chandigarh (for short, "the Tribunal"), vide which the claim petition brought by Monika and others under the provisions of section 163-A of the Motor Vehicles Act, 1988 (for short, “the Act”) has been allowed, awarding a sum of Rs.4,84,700/- as compensation to them on the death of Jai Bhagwan, in a road side accident that took place F.A.O. No. 6405 of 2011 2 .. on 6.4.2007. The insurance company has challenged its liability to satisfy the award or rather indemnify the owner of the vehicle on two grounds. The first submission advanced on its behalf is that Jai Bhagwan (deceased) had been driving the motor vehicle involved in the accident after borrowing the same from the owner and secondly, Jai Bhagwan was not possessing any licence to drive the vehicle and, consequently, the insurer claims that it could not be held liable to satisfy the award. The claim of the petitioners can be briefly put as under:- On 6.4.2007, at about 1.15 p.m., Jai Bhagwan was driving scooter No. PB-65-2946 on the road leading to ISBT, Sector 43, Chandigarh. When he was near the wine shop of village Kajheri, an unknown Skoda car came from his back side and struck against the scooter as a result of which Jai Bhagwan suffered multiple injuries. He was immediately taken to PGI, Chandigarh, where he succumbed to those injuries on 7.4.2007. Jai Bhagwan is claimed to be 22 years old at the time of accident. He is said to have been working as labourer with Indian Hobby House, Mohali and was earning ` 3,300/- per month. A sum of ` 50,000/- is claimed to have been spent on the treatment of the deceased as also his funeral and last rites. Claiming that scooter No. PB-65-2946 was owned at the time of accident by respondent No.1, Mohinder Pal Kohli and was insured with. The Oriental Insurance Company Limited, respondent No.2 and that the death of Jai Bhagwan had occurred due to an accident arising out of the use of said F.A.O. No. 6405 of 2011 3 .. scooter, a sum of ` 20,00,000/- is claimed as compensation. Respondent No.1, the owner of the scooter has challenged the maintainability of the petition against him. He has, however, claimed that Jai Bhagwan was duly licensed to drive the vehicle. The other averments of the claimants have been denied and the claim petition is prayed to be dismissed. The insurer has also questioned the maintainability of the petition and has alleged violation of terms and conditions of the insurance policy as the scooter was being driven by a person not holding a valid and effective driving licence at the time of the alleged accident. It has also been averred that the petition is not maintainable under the provisions of section 163- A of the Act. Therefore, the claim petition is prayed to be dismissed. On the pleading of the parties, the following issues were framed by the Tribunal. 1. Whether Jai Bhagwan died in a motor vehicular accident, which took place near Wine shop, village Kajheri, UT, Chandigarh at about 1.15 p.m. on 6.4.2007 on account of use of scooter bearing registration No. PB-65-2946? OPP 2. If issue No.1 is proved to what amount of compensation the claimants are entitled and from whom? OPP 3. Whether Jai Bhagwan, since deceased was not holding valid and effective driving licence at F.A.O. No. 6405 of 2011 4 .. the time of accident? OPR 4. Relief. Parties led their respective evidence. Hearing learned counsel representing them, learned Tribunal awarded compensation in a sum of ` 4,84,700/- to the claimants. Learned Tribunal has dealt with the question of driving licence in para No. 15 of the award and noticing that Monika, petitioner appearing as PW-2 has categorically stated that her husband Jai Bhagwan was having a valid and effective driving licence and that Mohinder Pal Kohli (RW-1) has categorically stated that Jai Bhagwan (deceased) was holding a valid driving licence, learned Tribunal has held the insurance company to have failed to discharge the onus placed on it to prove that Jai Bhagwan was not holding a valid and effective driving licence. Learned Tribunal has placed reliance on a decision of Hon'ble Bombay High Court, Aurangabad Bench in New India Assurance Company Limited Vs. Mangla and others 2010 ACJ 2041 in this regard. Coming to the other aspect, learned Tribunal has concluded in para No.17 of the award that accident took place on account of use of scooter No.PB-65-2946, which was registered on the relevant date in the name of respondent No.1 and was insured with The Oriental Insurance Company Limited, respondent No.2 vide insurance policy (Ex. R1). It is also found by learned Tribunal that the insurance policy in question is a package policy where the claim of driver is covered. In F.A.O. No. 6405 of 2011 5 .. this regard, reliance has been placed on a decision of this court in The Oriental Insurance Company Limited Vs. Smt. Sharda and another FAO No. 3974 of 2002, decided on 6.9.2010 and it has been held that respondents No.1 and 2 are jointly and severally liable to pay compensation. I have heard Mr. Amit Rawal, learned counsel for the appellant and Mr. Ashwani Arora, learned counsel for respondent Nos. 1 to 3/claimants. I have gone through the record carefully. Learned counsel for the appellant has placed reliance on a decision of Hon'ble Supreme Court of India in Ningamma & Anr. Vs. United India Insurance Co. Ltd. J.T. 2009 (8) SC 262, wherein taking a borrower of a two wheeler/scooter from the owner as the owner of the vehicle in view of the decision of Hon'ble Supreme Court in New India Assurance Company Limited Vs. Sadanand Mukhi and others (2009) 2 Supreme Court Cases 417, it has been held that an owner cannot maintain a claim under section 163-A of the Act because under Section 163-A of the Act, the person liable to pay compensation is the owner himself and an owner cannot be both a claimant and a tort-feasor. He has further submitted that the statements of Monika and Mohinder Pal Kohli are not able to prove that Jai Bhagwan had even a driving licence. He referred me to the cross-examination of Mohinder Pal Kohli, which is extracted in the grounds of appeal itself, where the witness has admitted that he was not in possession of the driving licence of Jai F.A.O. No. 6405 of 2011 6 .. Bhagwan (deceased). According to him, the insurance company sought driving licence from the claimants as well as the person from whom, Jai Bhagwan borrowed the scooter and when none of them was in a position to give copy of the driving licence to the insurance company, the onus of the insurance company to prove that the driver of the vehicle was not possessing a valid and effective driving licence stood discharged. He has submitted that the decision of Hon'ble Bombay High Court, Aurangabad Bench in Mangla's case (supra) cannot be held to lay good principle of law and the same cannot be followed. For these reasons, he has submitted that insurance company could not be held liable to pay compensation and the decision of learned Tribunal is, therefore, claimed to be incorrect and liable to be set aside. Learned counsel for respondents No.1 to 3/claimants has submitted that in Ningamma's case (supra) the policy had been an Act policy only while in the case in hand, the insurance policy is a comprehensive policy and there is no exclusion clause proved by the insurer under which the unpaid driver is not excluded from the cover offered to the owner. He has submitted that the insurance company has stated by way of reply to a query under the Right to Information Act that no separate premium is required to be paid for covering the risk of unpaid driver under package policy for two wheelers. He has further submitted that the insurance company has further replied that no extra premium is charged from the insured, if the F.A.O. No. 6405 of 2011 7 .. insured was interested in covering owner and driver under personal accident cover. According to him, the standard form of a two wheeler package policy as approved by the Tariff Committee covers the risk of the driver and the insurance company cannot escape the liability. According to him, the circumstances clearly show that the ratio of Ningamma's case (supra) does not apply to the facts of this case. Learned counsel for the respondents-claimants has further submitted that the insurance company has not taken any steps to find out the licence of the driver. According to him, the driver was known to be a resident of a particular place and the insurer could find out from the adjoining licensing authorities about his licence, which has not been done by it. He has, thus, submitted that the insurance company has not discharged the onus lying on its shoulders in this regard and learned Tribunal has been fully justified in holding the insurance company responsible for payment of the compensation. Taking the question of driving licence of the deceased first, I may notice the statement of Monika, petitioner, who has asserted on oath that her husband had a driving licence authorizing him to drive the scooter. Mohinder Pal Kohli, respondent No.1 has appeared as RW-1 in this case and he has also asserted that Jai Bhagwan (deceased) had a valid driving licence. In his cross examination, he has denied the suggestion that deceased Jai Bhagwan did not have a valid and effective driving licence. He has, however, failed to produce his driving F.A.O. No. 6405 of 2011 8 .. licence because the same was not in his possession. There was no reason with Mohinder Pal Kohli to have the driving licence of Jai Bhagwan. Monika being the wife of Jai Bhagwan had the means to know that Jai Bhagwan had the driving licence. Now, it is a fact on the file that the driving licence of Jai Bhagwan or a copy of the same had not been produced by either the claimants or respondent No.1 on the record and on this very circumstance, learned counsel for the appellant has submitted that the finding that the insured had violated the terms and conditions of the insurance policy should follow. Learned Tribunal followed the ratio of Mangla's case (supra) to hold that the insurance company did not take any steps to find out from the Licensing Authorities in the vicitiny of the place of accident to know about the fact that Jai Bhagwan had any driving licence or not. There is a decision of Hon'ble Supreme Court of India in Narchinva Vs. Kamat and another etc. Vs. Alfredo Antonia Deo Martins and others AIR 1985 SC 1281, which is helpful on the point. In this case, the very claimant, who was required to drive the vehicle with a valid driving licence appeared in the witness box and he was questioned in his cross-examination on behalf of the insurance company for production of his driving licence. Still he failed to produce the same. In the face of this fact, it has been held as under:- “14. The last question is whether he had a valid driving licence. The High Court has not recorded a F.A.O. No. 6405 of 2011 9 .. clear cut finding on this point. The finding of the Tribunal is more evasive than the one by the High Court. Mr. Sharma did not dispute that the second appellant had a driving licence. His grievance is that he having failed to produce the same when called upon to do so in the cross-examination, an adverse inference be drawn against him that he did not have a valid licence to drive a pick-up van. The submissions fails to carry conviction with us. The burden to prove that there was breach of the contract of insurance was squarely placed on the shoulders of the insurance company. It could not be said to have been discharged by it by a mere question in cross-examination. The second appellant was under no obligation to furnish evidence so as to enable the insurance company to wriggle out its liability under the contract of insurance. Further the R.T.A. which issues the driving licence keeps a record of the licences issued and renewed by it. The insurance company could have got the evidence produced to substantiate his allegation. Applying the test who would fail if no evidence is led, the obvious answer is the insurance company.” For the aforesaid reasons, Hon'ble Supreme Court of India in the above cited case has held that the insurance company failed to prove that there was any breach of terms of contract of the insurance as evidenced by the policy of F.A.O. No. 6405 of 2011 10 .. insurance on the ground that the driver was not possessing a valid driving licence. There is another circumstance that has to be considered in this case. In the case in hand, the person who was driving the scooter has himself met with an accident and he died on the very next day of the date of accident. No body from his family could reach the site of accident and he was shifted to the hospital by other persons. In such a situation, a driver of the vehicle, who meets with an accident may lose his driving licence. The widow of the deceased having been married recently and Mohinder Pal Kohli, the owner of the scooter could not have been in a position to tell as to wherefrom Jai Bhagwan had got the driving licence issued and, therefore, they could not have been in a position to produce the driving licence of the deceased. Issue No.3 required the insurance company to prove that Jai Bhagwan was not holding a valid and effective driving licence and on such an issue, the claimants or the owner- insured were not obliged to lead any evidence. The principle applicable in this regard is as to who would fail in establishing the case if no evidence was led on either side. This principle would clearly show that it was for the insurance company to prove that Jai Bhagwan (deceased) did not possess the valid and effective driving licence on the date of accident and, consequently, the insured had committed no breach of terms of contract of the insurance. Coming to the other aspect, where the liability is F.A.O. No. 6405 of 2011 11 .. sought to be disowned by the insurance company, the ratio of another decision in National Insurance Company Limited Vs. Sinitha & Others 2011 STPL (Web) 1005 SC may be relied upon, wherein Hon'ble Supreme Court has held as under:- “19. To substantiate his second contention, it would be essential for the petitioner to establish, that Shijo having occupied the shoes of the owner, cannot be treated as the third party. Only factual details brought on record through reliable evidence, can discharge the aforesaid onus. During the course of hearing, despite our queries, learned counsel for the petitioner could not point out the relationship between Shijo and the owner of the motorcycle involved in the accident. Shijo is not shown to be the employee of the owner. He was not even shown as the representative of the owner. In order to establish the relationship between the Shijo and the owner, the petitioner- Insurance Company could have easily produced either the owner himself as a witness, or even the claimants themselves as witnesses. These, or other witnesses, who could have brought out the relationship between the owner and Shijo, were not produced by the petitioner herein, before the Tribunal. The petitioner has, therefore, not discharged the onus which rested on its shoulders. Since the relationship between the Shijo and the owner has not been established, nor the capacity in which he was riding the vehicle has been brought out, it is not possible for us to conclude, that Shijo while riding the motorcycle on the fateful day, was an agent, employee or representative of the owner. It was open to the petitioner to defeat the claim for compensation raised by the respondents by establishing, that the rider Shijo represented the owner, and as such, was not a third party, in terms of the judgment rendered by this Court in Oriental F.A.O. No. 6405 of 2011 12 .. Insurance Company Limited case (supra). The petitioner failed to discharge the said onus. In view of the above, it is not possible for us to accede to the second contention advanced at the hands of the learned counsel for the petitioner.” There is nothing on the record to prove the relationship between Jai Bhagwan and Mohinder Pal Kohli. In the absence of evidence as to the relationship between the two, it cannot be held that Jai Bhagwan was either an agent or representative of the owner or even a borrower of the vehicle. Therefore, the decision in Ningamma and Sadanand Mukhi's cases (supra) would have no application to the facts of this case. Rather, the decision in Sinitha's case (supra) would help the claimants in proving that Jai Bhagwan had been a 3rd party and as the insurance policy in this case is a package policy and there is no term excluding a driver like Jai Bhagwan from cover of the insurance, he will be covered by the insurance policy. In these circumstances, I find no substance in any of the two submissions raised by learned counsel for the appellant. Consequently, the appeal fails and is dismissed. (VIJENDER SINGH MALIK) JUDGE December 12, 2011 som