IN THE HIGH COURT OF HIMACHAL PRADESH SHIMLA FAO (MVA) No. 410 of 2007 Date of Decision : June 18, 2009 Oriental Insurance Company Ltd. Appellant Versus Smt. Dharmi Devi and others. Respondents Coram: Hon’ble Mr. Justice Sanjay Karol, Judge. Whether approved for reporting?1 No. For the appellant : Mr. G.D. Sharma, Advocate, for the appellant. For the respondents : Mr. Varun Rana, Advocate, vice Mr. N.K. Sood, Advocate, for respondents No. 1 & 2. Mr. Baldev Singh, Advocate for respondents No. 3 & 4 Mr. G. R. Palsra, Advocate, for respondent No.5. Sanjay Karol, J. (Oral) M/s Oriental Insurance Company Ltd, the insurer of vehicle in question has filed the appeal assailing the impugned award dated 6.7.2007, passed by the Motor Accidents Claims Tribunal, Mandi, H.P. in Claim Petition No. 46 of 2004, titled as Smt. Dharami Devi and another versus Himachal Pradesh State Electricity Board and others, awarding compensation of Rs. 4,42,000/- alongwith interest @ 7.5% per annum from the date of filing of the claim petition till its realization. 1 Whether reports of Local Papers may be allowed to see the judgment? 2 The claimants, respondents No. 1 and 2 herein, filed a petition under Section 166 of the Motor Vehicle Act, 1988 (hereinafter referred to as the Act), claiming compensation on account of the death of their predecessor-in-interest, Shri Jagdish Kumar who died in a motor accident on 27.3.2004. The said Sh. Jagdish Kumar was driving scooter No. HP-31-1857 which was hit by truck No. HP-33-7435 at a place called Salah, Tehsil Sundernagar, Distt. Mandi, H.P. on the national highway. The deceased died due to injuries sustained by him in the accident. The truck was owned by Himachal Pradesh State Electricity Board and was being driven by respondent No. 5 Shri Karam Chand. The vehicle was insured with the insurer, present appellant. Based on the pleadings of the parties the Tribunal framed the following issues: “1. Whether the respondent No. 3, was driving the truck bearing No. HP-33-7435, on 27.3.2004, at place Salah, teh. Sundernagar, District Mandi, H.P. in a rash and negligent manner resulting in death of Jagdish Kumar as alleged? OPP 2. If issue No. 1 is proved, whether the petitioners are entitled for compensation. If so as to what amount and from whom? OPP 3. Whether the respondent No.3 was not having a valid and effective driving licence to drive vehicle which was being driven in breach of the terms and conditions of the insurance policy as alleged? OPR(4) 4. Whether the petition is not legally maintainable as alleged? OPR(4) 3 5. Relief.” Opportunity to lead evidence was afforded to the parties. Based on the material on record (both oral and documentary) the Tribunal came to the conclusion that deceased Jagdish Kumar had died in a motor accident on 27.3.2004, and that truck No. HP- 33-7435 was infact being driven by its driver Shri Karam Chand in a rash and negligent manner which caused the accident. The claimant was held entitled to compensation of Rs. 4,42,000/- alongwith interest. While deciding issues No. 3 and 4 the Tribunal came to the conclusion that the driver was possessed with a valid and effective driving licence (Ext. RC) which was duly proved by Shri Karam Chand (RW-2), Shri Rajinder Kumar, Clerk Licensing Office (RW-3) and also Ms. Kamlesh (RW-4), clerk from the office of Licensing Authority Bhawa Nagar, Kinnuar. I have heard learned counsel for the parties and also perused the record. The challenge to the impugned award is limited to issue No. 3 only. The findings returned by the Tribunal with respect to the same are reproduced in toto as under: “25. Respondent No. 3 Karam Chand while appearing as RW-2 has clearly stated that he was holding a valid licence which was issued in the year 1986. The respondent Mul Raj while appearing as RW-1 deposed that documents of the driver were duly verified. He was an experienced driver and 4 he was driving the vehicle for the last 12-13 years before the accident. 26. The insurance company has examined Rajender Kumar Clerk (PW-3). This witness has deposed that the driving licence of Karam Chand was for LMV valid from 2.9.2004 to 1.9.2009. There is also endorsement for driving H.T.V. from 2.9.2004 to 1.9.2007. The licence of the driver was renewed prior to that. This witness has clarified in cross examination that when the licence came for renewal then the same was valid for H.T.V. at that time and it is on the basis of said endorsement it was renewed. 27. The respondent also examined Kumari Kamlesh from the office of Licencing Authority Bhawa Nagar, Kinaur as RW- 4 who has deposed that as per record duplicate licence was issued to Karam Chand and the same was valid for LMV and MHV. She has also deposed that at the time of renewal also the licence was valid for HMV and HTV. 28. The law is fairly settled that onus to prove that the driving licence is fake or invalid is always on the insurance company who must lead cogent and reliable evidence to prove the same. 29. In the present case there is no evidence on the record that driver was not holding valid licence to drive the type of vehicle involved in the accident. The endorsement of the licence clearly shows that the same was valid for HTV also. Thus when the owner has taken precaution and found the driver to be experienced then it cannot be said that there is any wilful or intentional breach on the part of the owner regarding violation of the conditions of the insurance. In view of this it is held that the driver was holding a valid licence so far as the liability of insurance qua 3rd party is concerned.” 5 Having perused the record, in my considered view there is nothing which would reveal that the aforesaid findings are either factually incorrect or not borne out from the record. The Apex Court in National Insurance Co. Ltd. versus Swaran Singh and others, (2004) 3 SCC 297 has held as under:- “The summary of our findings to the various issues as raised in these petitions are as follows: (i) Chapter XI of the Motor Vehicles Act, 1988 providing compulsory insurance of vehicles against third party risks is a social welfare legislation to extend relief by compensation to victims of accidents caused by use of motor vehicles. The provisions of compulsory insurance coverage of all vehicles are with this paramount object and the provisions of the Act have to be so interpreted as to effectuate the said object. (ii) Insurer is entitled to raise a defence in a claim petition filed under Section 163 A or Section 166 of the Motor Vehicles Act, 1988, inter alia in terms of Section 149(2)(a)(ii) of the said Act. (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, has 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 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. 6 (iv) The 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. (v) The court cannot lay down any criteria as to how the said burden would be discharged, inasmuch as the same would depend upon the facts and circumstance of each case. (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 the 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 insurer under section 149(2) of the Act. (vii) The question, as to whether the owner has taken reasonable care to find out as to whether the driving licence produced by the driver (a fake one or otherwise), does not fulfil the requirements of law or not will have to be determined in each case.” The onus to prove that the licence was fake and that the insurer was absolved for its liability due to breach of the terms and conditions of the policy is on the insurer. In the present case the owner through Shri Mul Raj (RW-1) has proved that the licence was verified prior to the engagement of the driver, who in any case was having sufficient experience to drive vehicle in question. The driver 7 as also the officials of the licencing authority have proved the factum of the validity of the driving licence. From the record it cannot be pointed out that as to how and in what manner the terms and conditions of the policy stand violated. I see no reason to interfere with the impugned award. The Tribunal has considered the material in its entirety. There is neither any illegality nor any irregularity. The present appeal without any merit is consequently dismissed. CMP No. 287/2009 and CMP No. 288/2009 Mr. Varun Rana, learned vice counsel states that in view of the dismissal of the main appeal he does not press the present applications, however, liberty is granted to him to move comprehensive applications for withdrawal of the awarded amount. CMP No. 938 of 2007 In view of the dismissal of the main appeal, the present application has become infructuous and is disposed of as such. (Sanjay Karol), Judge. June 18, 2009 (PK)