1 IN THE HIGH COURT OF JUDICATURE FOR RAJASTHAN AT JODHPUR. .. :: JUDGMENT :: Mangi Lal & Anr. Vs. Mohd. Suban Rehmani & Ors. S.B. CIVIL MISC. APPEAL NO.1094/2004. Against the award dated 16.04.2004 made by the Motor Accidents Claims Tribunal, Deedwana in Claim Case No.86/2000. Date of Judgment :::: 5th January 2007. PRESENT HON'BLE MR. JUSTICE DINESH MAHESHWARI Mr. Rajendra Charan, for the appellants. Mr. B.L. Choudhary for Mr. J.R. Beniwal, for the claimants-respondents Nos.1 to 3. Mr. Dinesh Mehta, for the respondent No.4. ..... BY THE COURT: The owner and driver of the vehicle involved in accident have preferred this appeal against the award dated 16.04.2004 made by the Motor Accidents Claims Tribunal, Deedwana in Claim Case No.86/2000. By the award aforesaid, the Tribunal has allowed compensation in the sum of Rs.3,14,400/- to the dependants of the vehicular accident victim Sagir Ahmed Rehmani, about 2 26 years in age, said to be working as an artisan. While making the award, the Tribunal has proceeded to exonerate the insurer of the offending vehicle of its liability with the finding that as on the date of accident, i.e. 27.05.1999, driving licence of the vehicle driver was not renewed and the same was got renewed only on 29.05.1999; and for the driver not holding valid and effective licence on the date of accident, the insurer has been able to establish violation of policy conditions. The appellants in this appeal seek only to question the findings whereby the insurer has been exonerated. In view of the short question involved, notice for final disposal was issued in this appeal on 27.07.2004. The respondents have put in appearance and record has been received. Learned counsel for the parties have been heard on merits of the case. Briefly put, the background facts are that on 27.05.1999, the victim Sagir Ahmed Rehmani while riding a motorcycle driven by his friend Majid sustained injuries on Deedwana-Baliya road near Kharda on being hit by a tractor bearing registration No. RJ 21 1R 2858 driven by non- applicant No.3 Iqbal (appellant No.2), owned by the non- applicant No.2 Mangi Lal (appellant No.1), and insured with the non-applicant No.1, the Oriental Insurance Company Limited (respondent No.4). The victim Sagir Ahmed 3 succumbed to the injuries sustained in the accident in Government Hospital, Deedwana. The claimants, parents, wife and daughter of the deceased stating their dependency sought compensation for pecuniary and non-pecuniary losses against the persons related with the offending tractor alleging responsibility of the tractor driver in causing accident and for quantification of compensation averred that the deceased was about 26 years in age and was earning about Rs.4,500/- per month while working as an artisan and fabricating steel doors and almirahs. Perusal of the record of the claim case shows that the claim application was filed on 13.10.1999 and after umpteen number of adjournments, the Tribunal granted twice over the opportunities to the non-applicants to file reply on costs on 26.07.2002 and 17.08.2002; and upon failure yet, their chance to file reply was closed on 24.09.2002. Thus, no reply having been filed on behalf of any of the non-applicants, no issues were framed. The claimants examined five witnesses and produced relevant documentary evidence. The non-applicants examined NAW-1 Mangi Lal, the vehicle owner; NAW-2 Iqbal, the driver; and NAW-3 Prem Chand, Senior Assistant in the office of the insurance company. 4 The Tribunal proceeded to find the accident to have occurred for rash and negligent driving of the tractor and for quantification of compensation, took the income of the deceased at Rs.2,100/- per month for want of any other cogent evidence on record; and in view of his age at 26 years, applied a multiplier of 18 and assessed pecuniary loss at Rs. 3,02,400/-. Allowing Rs.5,000/- towards loss of consortium and other Rs.5,000/- towards loss of love and affection and further Rs.2,000/- towards funeral expenses, the Tribunal assessed total loss for the claimants in the sum of Rs.3,14,400/- and, after deducting Rs.50,000/- received under No Fault Liability, held them entitled for the remaining amount of Rs.2,64,400/-. It was argued before the Tribunal on behalf of the insurer that at the time of accident, the tractor driver was not holding valid and effective driving licence and hence the insurer was not liable for compensation. The Tribunal observed that the tractor driver Iqbal was holding a driving licence valid upto 20.05.1999 whereas the accident occurred on 27.05.1999 and the licence was got renewed only on 29.05.1999 and, therefore, held that on the date of accident, the tractor driver was not holding a valid licence. A decision of this Court in the case of Laxminarain Vs. Smt. Sona Devi, reported in 2003 (3) DNJ (Raj.) 1034, cited by the claimants 5 and the owner of the vehicle, was distinguished with the observation that in the said case, the vehicle driver got the licence renewed within time. The Tribunal observed that in the present case, the insurer was not liable for it was established that on the date of accident, the driver was not holding effective driving licence. On these considerations, the Tribunal proceeded to make the award only against the owner and driver of the vehicle while exonerating the insurer of its liability. Having heard learned counsel for the parties and having examined the record, this Court is unable to countenance the approach of the Tribunal in exonerating the insurer in this case. It was distinctly clear before the Tribunal that so far the non-applicants in this claim case are concerned, none has filed any reply at all and hence no issues were framed. The assertion on the part of the insurer to be exonerated of liability in the present case for want of driving licence with the vehicle driver is lacking in the basic foundation because the insurer has failed to take even primary pleadings in that regard; and no such defence of violation of policy condition was open even to be suggested by the insurer before the Tribunal. Then, the Tribunal has proceeded to distinguish a binding decision of this Court cited before it in the case of 6 Laxminarain (supra) with a cursory observation that the driver therein had got the licence renewed. The Tribunal has failed to notice the principles explained by this court that neither the insured nor the claimant is under obligation to prove that the driver of the vehicle was duly licensed; and the Insurance Company cannot be exonerated from the liability unless it would plead and prove that the driver was not duly licensed and he has been disqualified for holding or obtaining a driving licence. The principles of law in relation to breach of policy conditions for want of driving licence and parameters for avoiding the liability by the insurer have been settled by the authoritative pronouncement of the Hon'ble Supreme Court in the case of National Insurance Co. Ltd. Vs. Swaran Singh and others : 2004 ACJ 1 and the Hon'ble Supreme Court has been pleased to hold that mere absence, fake or invalid licence or disqualification of the driver for driving, are not in themselves defences available to the insurance company and it is enjoined upon the insurer to establish 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 the vehicle by duly licensed driver. The Apex Court held,- ''The breach of policy condition e.g. disqualification of the driver or invalid driving licence of the driver, as contained in sub- section (2)(a)(ii) of Section 149, has to be 7 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 the 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 a duly licensed driver or one who was not disqualified to drive at the relevant time.'' The Hon'ble Supreme Court has been pleased to hold further that the insurer in order to avoid its liability must not only establish the available defence but must also establish breach on the part of the owner of the vehicle, the burden of proof wherefor would be on them. The Hon'ble Supreme Court held,- ''Insurance companies, 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'' on the part of the owner of the vehicle; the burden of proof wherefor would be on them.'' There is nothing on record to even remotely suggest that the insured was guilty of negligence or failed to exercise reasonable care in the matter of fulfilling the policy conditions regarding use of the vehicle by a duly licenced driver or by a person who was not disqualified to drive such vehicle. 8 Further, there is no evidence to suggest that want of renewal of licence was the main or contributory cause to the accident. In this view of the matter, it cannot be said that the insurer has able to establish the conditions requisite for its exoneration; and mere proof of want of renewal of driving licence on the date of accident is not sufficient to exonerate the insurer of its liability. Further, from the copy of driving licence of the driver Iqbal produced on record as Ex.A/1, it is noticed that he was licensed to drive a tractor as back as on 11.01.1988; the licence was valid upto 10.01.1993; then it was renewed upto 21.02.1998 by the endorsement dated 22.03.1993 and again it was renewed upto 28.05.2004 per the renewal endorsement dated 29.05.1999. Of course, the licence was not standing renewed as on the date of accident i.e. 27.05.1999 but the same was nevertheless renewed on 29.05.1999; and nothing has been placed on record to suggest that the driver incurred any disqualification or was under any disability on the date of accident to hold a driving licence. Moreover, as aforesaid, there is nothing on record to hold that the insured failed to exercise reasonable care in the matter of fulfilling policy condition regarding use of vehicle by a duly licensed driver or by the one who was not disqualified to drive. In the fact situation of the present case, it cannot be said that the insured 9 was guilty of negligence in the matter of fulfilling the policy conditions. Viewed from any angle, exoneration of the insurer by the Tribunal cannot be sustained and the insurer remains jointly and severally liable to satisfy the award of compensation. It may be pointed out that the claimants have also preferred cross-objections in this appeal seeking enhancement over the amount of compensation awarded by the Tribunal; however, learned counsel Mr. B.L. Choudhary appearing for the claimants fairly conceded that the award of compensation being not grossly inadequate, there does not appear any scope to press the cross-objections. Having examined the impugned award on its quantification of compensation wherein, for want of any other cogent evidence, the Tribunal has taken the income of the deceased at Rs.2,100/- per month and has taken loss of contribution at Rs.1,400/- per month; and with application of multiplier of 18 has assessed pecuniary loss at Rs.3,02,400/-; and adding other losses has allowed compensation in the sum of Rs.3,14,400/-; and after adjusting the amount received under No Fault Liability, the claimants have been allowed interest on the remaining amount @ 9% per annum from the date of filing of the claim application, this Court is satisfied that in the ultimate analysis the award remains that of just 10 compensation and cannot be said to be inadequate or insufficient as to warrant interference in appeal. Learned counsel for the claimants has rightly not pressed upon the cross-objections in this case. As a result of the aforesaid, while cross-objections are dismissed, the appeal is allowed to the extent indicated above; findings by the Tribunal insofar the insurer has been exonerated of its liability are set aside and the award is modified allowing compensation to the claimants against all the non-applicants jointly and severally. The insurer shall deposit the amount payable under the modified award within 30 days from today with the Tribunal that shall proceed with apportionment and disbursement as contemplated under the impugned award. In the circumstances of the case, the parties are left to bear their own costs. (DINESH MAHESHWARI), J. //Mohan//