FAO No.614 of 2010 1 IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH FAO No.614 of 2010 (in MACT No.64 of 2006) Date of decision: 21.10.2011 1.FAO No.614 of 2010 United India Insurance Co.Ltd. Appellant v. Rekha and Others Respondents 2. FAO No.615 of 2010 (in MACT NO. 65 of 2008) and X-obj.No.25-CII of 2010 United India Insurance Co.Ltd. Appellant v. Jasbir Kaur and Others Respondents CORAM: HON'BLE MR.JUSTICE JITENDRA CHAUHAN Present: Mr. Gopal Mittal, Advocate for the appellant Mr.P.S.Jammu, Advocate Mr. Vikas Kumar,Advocate .... JITENDRA CHAUHAN, J. These two appeals have been filed by the appellant-Insurance Company against the common Award dated 9.11.2009, passed by the Motor Accident Claims Tribunal, (Fast Track Court) Sirsa (for short the Tribunal). Brief facts of the case are that claimants-Rekha and Others; and Jasbir Kaur (respondents herein) had filed the claim petition Nos. 64-MACT of 2006 and 65-MACT of 2008 FAO No.614 of 2010 2 under section 163-A of the Motor Vehicles Act,1988 before the Ld. Tribunal, for grant of compensation on account of death of Rajbir and Nachhattar Singh in road accident, occurred on 15.10.2006. On the day of accident, Jeep bearing registration No. DDV 2872 was being driven by driver Mohan Lal, respondent No.1, and Rajbir was one of the occupant of the said jeep. The Jeep No. HRM 5359 was being driven by Nachhattar Singh. It was alleged that both the drivers were negligent as a result of which both of them (Rajbir and Nachhattar Singh) died on the spot. FIR No. 194 dated 16.10.2006 was registered against Nachattar Singh, the driver of Jeep No.HRM 5359 at Police Station, Kalanwali. Upon notice, respondent Nos.1 and 2, driver and owner of the Jeep No. DDV 2872 filed written statement. They took a stand that claimants are not entitled to get compensation as there was no fault on the part of respondent No.1, driver of Jeep No. DDV 2872. In the written statement filed by Respondent No.3, the Insurance Company, the stand that the Jeep No. DDV 2872 was being plied as a taxi in violation of the terms and conditions of the insurance policy. Rajbir was traveling as a passenger in the said jeep. It was in and The driver, Mohan Lal, was not holding a valid and effective driving licence at the time of the accident, therefore, Insurance company is not liable to pay the compensation. Both the claim petitions were consolidated and FAO No.614 of 2010 3 tried together. From the pleadings of the parties, the following issues / additional issues were framed: 1. Whether Rajbir son of Chander Singh died in the road accident which took place on 15.10.2006 in the area of village Chakorian Distt.Sirsa within the jurisdiction of Police Station Kalanali by use of Jeep No. DDV 2872 as alleged? OPP 1-A To what amount of compensation the petitioners and proforma respondents are entitled to on account of death of Nachhattar Singh son of Bachan Singh resident of village Jalalana in the accident in question and from whom? OPR 1.B To what amount of compensation the petitioner and proforma respondents are entitled to on account of damage to Jeep No. HRM 5359 owned by Nachhattar Singh being his Lrs and from whom? OPP 2. Whether petitioners are entitled to award of compensation and if so how much and from whom? OPP 3. Whether the petition is not maintainable in the present form? OPR 4. Whether the petitioner has no cause of action to file the present petition? OPR FAO No.614 of 2010 4 5. Whether the petition is bad for non-joinder and mis-joinder of parties? OPR 6. Whether the respondent No.1 was holding a valid driving licence at the time of alleged accident? If so to what effect?OPR 3 7. Relief.” The Ld. Tribunal while deciding issue No.1, in para Nos. 13, 14 and 15 of the Award, observed as under:- “13. The petitioners Rekha and Jasbir Kaur while appearing as PW1 and PW2 tendered their affidavits Ex.PW1/A and Ex.PW2/A in examination in chief respectively. The petitioners have also examined Raj Singh who tendered his affidavit Ex.PW3/A while deposing that the accident took place on 15.10.2006 due to rash and negligent driving of Mohan Lal, driver of Jeep No. DDV No. 2872 and not due to rash and negligent driving of deceased Nachhatter Singh of Jeep No. HRM 5359. 14. Insurance Company respondent No.3 has also examined RW2 Rakesh Mehta to prove the fact that the vehicle No. DDV 2872 was being used as Taxi. The testimony of Rakesh Mehta, Advocate cannot be relied upon qua the fact that the Jeep bearing No. DDV No. 2872 was being used as Taxi on 15.10.2006 as no cogent evidence FAO No.614 of 2010 5 such as receipt of fare, the statement of any occupant of Jeep No. DDV 2872 has been adduced by the answering respondent. Therefore, it is held that the vehicle bearing No. DDV-2872 is not being used as Taxi in which Rajbir was traveling as passenger. 15. After appraisal of the evidence adduced it is concluded that accident took place on 15.10.2006 between Jeep No. DDV 2872 and Jeep No. HRM 5359. Rajbir Singh and Nachattar Singh, driver of Jeep No. HRM 5359 died due to this accident arising out of the use of the above said two Jeeps as also evidence from Ex. RI bearing FIR No. 194 dated 16.10.2006 registered against deceased Nachattar Singh and accordingly this issue No. 1 is decided in favour of the petitioners and against the respondents. In view of the observations made by the Ld. Tribunal, it accepted the claim petitions of the petitioners and awarded the compensation as under:- i) Rs. 3,94,000/- to all the claimants of claim petition No. 64-MACT of 2006, Smt.Rekha and others. ii) Rs. 2,02,000/- to Smt. Jasbir Kaur in claim petition No. 65-MACT of 2008. The Ld. Tribunal further observed that the FAO No.614 of 2010 6 respondents were liable jointly and severally to pay the amount of compensation to the claimants in both the claim petitions. Aggrieved against the findings of the Ld. Tribunal, the Insurance Company has filed these appeals. Learned counsel for the appellant-Insurance Company has submitted that the driver of Jeep No. HRM 5359 was rash and negligent in driving the Jeep and due to his fault the accident occurred. But the Ld. Tribunal has ignored this aspect and fastened the liability against the appellant- Insurance Company. He further submitted that the risk of the passengers traveling in the Jeep was not covered as the Insurance Policy was an Act Policy and Rajbir, one of the occupant,was traveling as a passenger. The Insurance Company is not liable to pay the compensation for the passenger of the insured vehicle as per the terms of the policy. He contended that the driver of Jeep bearing registration No. DDV 2872 , Mohan Lal was not holding valid and effective driving licence at the time of accident, therefore, the Insurance Company cannot be held liable to pay the compensation to the claimants. Learned counsel for the respondents have submitted that the Ld. Tribunal has rightly passed the Award dated 9.11.2009 (in both the claim petitions) and awarded compensation. I have considered the submission of learned counsel for the parties and gone through the file. FAO No.614 of 2010 7 The grouse of learned counsel for the appellant is that Jeep No. DDV 2872 was being plied as a taxi in violation of the terms and conditions of the Insurance policy and Rajbir was traveling as a passenger, therefore, the Insurance Company can not be held liable to compensate the claimants. A perusal of the file shows that no evidence i.e any fare receipt or statement of other occupant of the Jeep was adduced by the appellant to show that Jeep No. DDV 2872 was used as a taxi. Therefore, it cannot be said that Rajbir was traveling as a passenger in the Jeep which was allegedly being plied as taxi by respondent No. 2, in breach of terms and conditions of the Insurance policy. With regard to the other ground that Mohan Lal, the driver of Jeep No. DDV 2872 was not holding a valid and effective driving licence at the time of alleged accident, the Ld. Tribunal in para 20 (reproduced above) has observed that since the company denies its liability on the ground of breach of policy, the onus has to be discharged with great circumspection so as to conclusively establish the breach, which is alleged. Fortifying its observation, the Ld. Tribunal placed reliance on United India Insurance Co. Ltd. v. Poonam Arora (supra) and held that a presumption is drawn that Mohan Lal, respondent No.1 was holding a valid driving licence at the time of alleged accident. A perusal of file shows that the driving licence was issued in the name of Mohan Lal on 3.3.1981, which was FAO No.614 of 2010 8 renewed upto 2.3.1984. It was further renewed from 14.9.2000 to 13.9.2004. The accident occurred on 15.10.2006. The licence was again renewed from 8.11.2006 to 7.11.2011. The Ld. Tribunal while deciding Issue No. 6-whether Mohan Lal was holding a valid driving licence at the time of alleged accident, in para 20 of the Award observed as under:- “20. The respondents have examined RW1 Hardeep Singh as RW1 to prove that respondent No.1 Mohan Lal was not holding a valid driving licence at the time of accident on 15.10.2006 who proved the report Ex.RI and copy of driving licence Ex.R2. As per the report Ex.R1 the driving licence was renewed from 8.11.2006 to 7.11.2011. He has admitted in his cross- examination that he cannot definitely say that the driving licence was not renewed from 14.9.2004 to 7.11.2006 as no such entry is there in the register. The accident took place on 15.10.2006. The verification report Ex.R I was made by the concerned official but he has not been examined by the answering respondent to prove that Mohan Lal was not holding a valid driving licence at the time of accident. It is well settled that the onus to establish the breach of condition of policy on account of the driver not having a valid driving licence rests solely upon the insurance company. FAO No.614 of 2010 9 Since the company denies its liability on the ground of breach of policy, the onus has to be discharged with great circumspection so as to conclusively establish the breach which as alleged. It cannot leave gapping holes and expect the Court to draw inference and reliance can be placed on the authority United India Insurance Co. Ltd. v. Poonam Arora and Others 2007(1) RCR (Civil ) (P&H) 164 and accordingly a presumption is drawn that Mohan Lal respondent No. 1 was holding a valid driving licence at the time of alleged accident and this issue No. 6 is disposed of accordingly.” The Ld. Tribunal has rightly observed that the onus to establish the breach in policy condition solely rests on the Insurance Company and the Company cannot deny its liability. Mohan Lal, driver was holding a valid driving licence and accordingly, the Ld. Tribunal rightly fastened the liability on the Insurance Company. In view of the above, this Court is of the view that in the facts and circumstances of the case in hand, the Insurance Company is liable to idemnify the Award, as Mohan Lal driver was holding a valid driving licence at the time of accident. The Ld. Tribunal has rightly observed that all the respondents are jointly and severally liable to pay the amount of compensation to the claimants. FAO No.614 of 2010 10 X-objection No. 25-CII of 2010 in FAO No. 615 of 2010 Learned counsel for respondent No.1 states that the Ld. Tribunal has awarded compensation towards loss of consortium and funeral charges, which is on the lower side and requests that the same deserves to be enhanced. After hearing the learned counsel for the parties and going through the file, the X-objection filed by the respondent No. 1 is allowed. The amount towards loss of consortium and funeral charges is enhanced to Rs. 20,000/-. In view of the above, the FAO Nos. 614 and 615 of 2010 filed by the Insurance Company are dismissed. No costs. ( JITENDRA CHAUHAN) 21.10.2011 JUDGE MS