IN THE HIGH COURT OF HIMACHAL PRADESH, SHIMLA. FAO No. 209/2004 Reserved on:28.7.2007 Decided on:8.9.2008 Oriental Insurance Company Limited …Appellant. Versus Saroj Sharma and others. …Respondents Coram The Hon’ble Mr. Justice Rajiv Sharma, J. Whether approved for reporting ?1. For the Appellant : Mr. J.L. Kashyap, Advocate. For the Respondents : Mr. V.S. Chauhan, Advocate for respondent No.1. Mr. Rahul Mahajan, Advocate for respondent No.2. Rajiv Sharma, J. This FAO has been filed against the award dated 5.4.2004 passed by the Motor Accident Claims Tribunal, Shimla in MACC No. 24-S/2 of 2000. The brief facts necessary for the adjudication of this appeal are that respondent No.1 Saroj Sharma had arrived at Shimla from Delhi on 25.10.1999 by a Haryana Roadways bus. She got down of this bus at Victory tunnel, Shimla and was waiting to board another bus for going to her residence at Knolls Wood, Shimla. She was hit by a bus No. HP-01- 1 Whether the reporters of Local Papers may be allowed to see the judgment? 2 1710. She sustained injury. The bus was being driven at the relevant time by Yadvinder Kumar, respondent No.2. She filed claim petition before the learned Motor Accident Claims Tribunal, Shimla. The claim petition was resisted by the owner as well as by the appellant-insurance company. The sum and substance of the stand of the appellant-insurance company was that there was a breach of the terms of the insurance policy. It was further case of the insurance company that petition under section 161 of the Code of Criminal Procedure was not maintainable. The learned Motor Accident Claims Tribunal, Shimla on the basis of the evidence led by the parties awarded a sum of Rs. 3,12,000/- to the claimant. The present appeal has been filed by the insurance company against the award dated 5.4.2004. Mr. J.L. Kashyap, Advocate has argued that the liability could not be fastened on the appellant- insurance company since according to him there was breach of the terms of the policy. Mr. V.S. Chauhan, Advocate and Mr. Rahul Mahajan, Advocate appearing on behalf of the respondents have supported the award dated 5.4.2004. I have heard the learned counsel for the parties and have also perused the record carefully. It is not disputed that the bus in question was ensured with the appellant-insurance company. The accident has taken place on 25.10.1999. The claimant had received multiple fractures. She was operated upon and was confined to bed for considerable period. She had to spend considerable amount for her treatment. The short question which has fallen for consideration is: whether the insurance company could be held liable to indemnify the owner as per the award dated 5.4.2004? The bus in question was being driven at the time of accident by Yadvinder Kumar. He did not hold the licence to drive 3 the bus. It is not disputed by the parties that the owner had engaged RW- 2 Om Prakash to drive the bus. He was holding a valid driving licence. Once the owner of the bus had engaged a person holding a valid and effective driving licence to drive the bus, the insurance company cannot escape from its liability for payment of compensation merely on the fact that the man who was driving the vehicle at the time of occurrence of the accident did not possess a licence. The insurance company was required to plead and prove that it was with the knowledge of the owner or on account of some act of carelessness/negligence on the part of the owner that the vehicle went into the hands of a person not possessing a licence. In the present case, no such allegations have been made that it was only on account of some negligence or careless on the part of the owner that a person not holding a valid licence came to occupy driver’s seat. The learned Single Judge of this Court on same and similar facts in New India Assurance Company Limited versus Satya Parkash Thakur and others, 2007 ACJ 714 has held the Insurance Company liable even if the person, who was driving the bus at the time of accident did not possess the valid driving licence and the owner had engaged the person, who was holding valid driving licence and the insurance company failed to prove that it was with the knowledge of the owner that the vehicle went into the hands of a person not possessing a licence. The learned Single Judge has held as under: “I have heard the counsel for the parties and gone through the record. It is true that evidence on record clearly established that the vehicle at the relevant time was being driven by Raj alias Dani. It is also a fact that Raj alias Danu did not hold a licence to drive the bus. But it is also a fact that the owner of the bus had engaged a man, named J.R. Verma, to drive the bus and said J.R. Verma was holding a valid licence. Now, when 4 the owner of the bus had engaged a person holding a valid and effective licence to drive the bus, the insurance company cannot escape its liability for payment of compensation merely by proving the fact that the man who was driving the vehicle at the time of occurrence of the accident did not possess a licence. In such a situation, the insurance company is further required to allege and prove that it was with the knowledge of the owner or on account of some act of carelessness on the part of the owner that the vehicle went into the hands of a person not possessing a licence. In the present case, admittedly neither such an allegation was made nor was any evidence led to show that it was with the knowledge of the owner or on account of some act of carelessness on his part that a person not holding a licence came to occupy driver’s seat. In this view of the matter, I find support from a judgment of the Hon’ble Supreme Court in National Insurance Co. Ltd. vs. Swaran Singh and others [2004 (3) SCC 297 ]. So the first contention raised by the Insurance Company is rejected.” The Single Judge of Andhra Pradesh High Court in Pinnaboyina Chittamma and others versus B. Narasingarao and others, 2003 ACJ 1531 has held as under: “Even the finding of the Claims Tribunal that the accident was caused by an unauthorized person who was driving the vehicle and, therefore, the insurance company cannot be made liable is unsustainable in view of the judgment of Apex Court in Sohan Lal’s case, 1996 ACJ 1044 (SC). It is not the case of the owner or the insurance company that initially entrustment was not given to the person who was not possessing valid driving licence and there is no such evidence on this issue also. Under those circumstances, the insurance 5 company has to be made liable even though the accident was caused by the cleaner of the lorry.” In the present case also Sh. Om Prakash had been authorized to drive the bus, who was possessing the valid driving licnece. In these circumstances the insurance company has to be made liable even if the accident was caused by Yadvender Kumar. Mr. J.L. Kashyap, Advocate had also tried to assail the award on the question of quantum. It is settled law by now that the insurance company can file an appeal only on the grounds which are available to it under the statute. Even on merit, a sum of Rs. 3,12,000/- for the injuries received by claimant is reasonable and cannot be said to be excessive or exorbitant. Consequently, there is no merit in the present appeal and same is dismissed. There shall be no order as to costs. 8.9.2008 (Rajiv Sharma ), J. *awasthi*