IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH. FAO 1024 of 2009(O&M). Date of Decision:20.2.2009 M/s Oriental Insurance Company Limited ..........Appellant Versus Smt.Lalita and others ..........Respondents CORAM: HON'BLE MR.JUSTICE JASWANT SINGH. Present: Mr.Vishal Chaudhary,Advocate for the appellant-Insurance Co. JASWANT SINGH,J. Appellant-Insurance Company has filed the present appeal against the award dated 6.12.2008 passed by the learned Motor Accident Claims Tribunal, Panipat (for short the Tribunal) whereby respondents-claimants, (1 to 5 herein)-widow and four minor children of deceased Lachhman- have been awarded a sum of Rs.5,19,000/- as compensation alongwith interest @ 7.5% per annum from the date of filing of the petition till its realisation, for the death of Lachhman in a motor vehicular accident involving TVS Star Motorcycle bearing registration No. HR-06-N-1611 (hereinafter referred to as the offending vehicle), owned by Pawan Kumar Jain-respondent no.7, driven by Satish-respondent no.6, and insured by appellant Insurance Company. The appeal is accompanied by an application bearing CM No.4495-CII of 2009, seeking stay of execution of the impugned award during the pendency of the appeal. FAO 1024 of 2009(O&M). 2 Facts leading to the filing of claim petition, which led to the passing of the impugned award are that on 29.5.2006 deceased Lachmman and his brother-in-law, namely, Arjun were coming on foot towards Samalakha town via Chulkana Road on its kacha portion. When they reached in front of a store, offending vehicle being driven by respondent no.6 in a rash and negligent manner and without blowing any horn came from behind and hit Lachmman, as a result of which he received multiple and grievous injuries resulting into his death on the spot. Respondent no.7 slipped away from the spot alongwith offending vehicle. Lachmman was taken to C.H.C. Samalkha, where he was declared dead. FIR no. 207 dated 29.5.2006 under Sections 279/304-A IPC, relating to the accident in question, was registered at PS Samalkha on the statement of Arjun, brother-in-law of the deceased Lachmman, who was an eye witness to the occurrence. Respondents 1 to 5 being the dependants of deceased Lachmman filed claim petition before the learned Tribunal seeking a claim of Rs.10,00,000/-. Upon notice of the claim petition, appellants, and respondents 6 & 7 being the Insurer, owner and driver of the offending vehicle filed their separate replies, denying the claim on various grounds. On the pleadings of the parties, learned Tribunal framed issues. Parties,in support of their respective stands, led evidence. FAO 1024 of 2009(O&M). 3 Learned Tribunal, after hearing learned counsel for the parties and on the basis of evidence before it, under Issue no.1 returned a finding that the accident in question took place due to rash and negligent driving of the offending vehicle by respondent no.7, resulting into the death of Lachmman, not amounting to culpable homicide. The amount of compensation, as mentioned above, was assessed at Rs.5,19,000/- in equal shares amongst the respondents- claimants. Liability to pay the compensation was fastened upon the driver,owner and Insurer of the offending vehicle. Hence, the present appeal by appellant-Insurance Company. Learned counsel for the appellant insurance company has contended that the offending vehicle had been stolen on the intervening night of 28-29.5.2006 in respect of which, respondent no.6-owner had lodged an FIR No.282/2006 on 31.5.2006, and therefore the appellant Insurance Company could not be fastened with the liability to indemnify the insured as driver of the offending vehicle-respondent no.7, was not holding a valid driving licence at the time of accident in question, which is clearly a breach of the terms and conditions of the insurance policy. I have heard learned counsel for the parties. The manner in which the accident took place is not in dispute. Claimants, in support of their claim petition examined PW4 FAO 1024 of 2009(O&M). 4 Rajesh Kumar, working as Additional Ahlmad in the Court of JMIC, Panipat, who on the basis of summoned record, deposed that respondent no.7-driver-Satish Kumar was facing trial in case titled as State v. Satish, bearing FIR No.207 dated 29.5.2006 under Sections 279/304-A IPC, PS Samalakha and as per registration Certificate, respondent no.6-Pawan Kumar was the registered owner of the offending vehicle. Respondent no.7-driver of the offending vehicle appeared as RW-2. However, he was not confronted that he was not having a valid driving licence. It is not the case of the appellant Insurance Company that it is not Insurer of the offending vehicle. It is apparent from the record that the offending vehicle had been stolen from the custody of the owner and thus it cannot be said that the owner/insured, in any way permitted respondent no.7 to drive the offending vehicle at the time of accident. The learned Tribunal, while fastening the liability upon the appellant-Insurance Company, in para 25 of the impugned award, held as under:- “There is no reason to disbelieve the investigation carried out by the police in case FIR No. 282/2006. From the police report, it is apparent that the offending vehicle of respondent no.2 was stolen on the night of 28.5.2006 and the accident in question had FAO 1024 of 2009(O&M). 5 taken place on 29.5.2006 on Chulkana Road. It has been held by Hon'ble Apex Court in National Insurance company Limited v. Swaran Sing hand others, 2004(2) RCR (Civil) 114 that 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 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 at the relevant time. Respondent no.3, insurer of respondent no. 2 has not led any evidence to prove the fact 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 offending vehicle by a duly licensed driver. In the light of the FAO 1024 of 2009(O&M). 6 law laid down by the Hon'ble Apex Court by (sic) Swaran Singh's case (supra), respondent no.3 cannot escape its liability to indemnify the insured. Hence, all the respondents shall be jointly and severally liable to pay the compensation. Issue no.2 is decided in favour of the claimants and against all the respondents and issue no.3 is decided in favour of the claimants and against respondent no.3.” In the facts and circumstances of the case and for the reasons stated above,finding no merit in this appeal the same is hereby dismissed. 20.2.2009. (Jaswant Singh) joshi Judge