IN THE HIGH COURT OF HIMACHAL PRADESH AT SHIMLA FAO (MVA) No. 228 of 2004 Reserved on : 18th August, 2008 Date of Decision: 26th August,2008 Smt. Sarswati Devi and others Appellants Versus Smt. Bimla Rani and others Respondents Coram The Hon’ble Mr. Justice Sanjay Karol, J. Whether approved for reporting1? Yes. For the appellants: Mr.Manohar Lal Sharma, Advocate. For respondent No.1: Mr. B.S.Verma, Advocate For respondent No.2. Ms. Sunita Sharma, Advocate. For respondent No.3: Mr.M.S.Guleria, Advocate. Sanjay Karol, J. The present appeal arises out of an Award dated 6.10.2003 passed by Motor Accident Claims Tribunal (I), Kangra Division at Dharamshala, in MACP No. 53-B/II-02, titled as Smt. Bimla Rani vs. Shri Dalip Singh and others, allowing the claimant’s petition under Section 166 of the Motor Vehicles Act, 1988 (hereinafter referred to as the Act). Smt. Bimla Rani, respondent No.1 herein, filed a Claim Petition under Section 166 of the Act claiming compensation of Rs. 8 lacs, on account of death of her son Sh. Prithvi Pal Singh, aged 35 years, in an accident dated 16.4.2002 with jeep bearing No. HP-02-8595, driven by Shri Whether the reporters of Local Papers are allowed to see the Judgment? 2 Dalip Singh, original respondent No.1 and respondent No.3 herein and owned by Capt. Mehar Singh, original respondent No.2 and original appellant herein, succeeded by his legal representatives, the present appellants. The vehicle being insured with National Insurance Company, original respondent No.3 is respondent No.2 herein. In the claim petition, it was specifically averred that the accident occurred due to rash and negligent driving on the part of Shri Dalip Singh. The respondent-Insurance Company filed a separate written statement, inter alia, stating that the driver was not holding a valid and effective driving licence to drive the vehicle at the relevant time and thus in view of the violation of the terms and conditions of the Insurance Policy the Insurance Company was not liable to pay compensation. Based on the pleadings of the parties, the Tribunal below framed the following issues:- 1. Whether respondent No.1 on 16.4.2002 was driving jeep No. HP-02-8595 rashly and negligently and while so driving, struck against Prithvi Pal Singh, waiting for bus at Talwar, causing serious injuries, leading to his death? OPP 2. Whether the petitioner is entitled to compensation, if so, what amount and from whom? OP Parties. 3. Whether respondent No.1 was not possessing effective driving licence, at the time of accident? OPR-3 4. Whether the petition is collusive as alleged? OPR-3 5. Whether vehicle in question had no valid documents? OPR-3 6. Relief. Appreciating the material on record, the Tribunal below held that Shri Dalip Singh had been driving the vehicle rashly and negligently 3 and the deceased Shri Prithvi Pal Singh suffered injuries and died due to the same. For the purpose of dependency, the income of the deceased was determined to be Rs.30,000/- per annum and applying a multiplier of ‘8’ the total amount of compensation determined was Rs.2,40,000/-. The Tribunal also found that at the time of the accident the driver was not possessing a valid and effective driving licence to drive the transport vehicle in question. Therefore, the Insurance Company was absolved of its liability towards third party and the liability to pay the compensation was fastened only on the owner and driver jointly and severally. It is against this finding of fact that the owner has filed the present appeal. During the course of hearing, learned counsel for the appellants has confined his submissions on Issue No.3 as framed by the Tribunal below. In support of his contention, he has relied upon and referred to the decisions referred by the Apex Court in National Insurance Co. Ltd. vs. Swaran Singh and others, (2004) 3 SCC 297 and National Insurance Corporation Ltd. vs. Kanti Devi (Mrs.) and others, (2005) 5 SCC 789, to contend that since the Insurance Company had failed to prove that insured was guilty of negligence and had failed to exercise reasonable care in the matter of fulfillment of conditions regarding the use of vehicle, the Tribunal below has seriously erred in absolving the Insurance Company of the liability. Per contra, learned counsel for the Insurance Company has referred to and relied upon the judgment rendered by the Apex Court in New India Assurance Company Limited vs. Prabhu Lal, (2008) 1 SCC 696, to 4 contend that since the driver was not authorized to drive the transport vehicle, therefore, no liability can be fastened on the Insurance Company. I have heard the learned counsel for the parties and perused the record. In Swaran Singh (supra), the Apex Court has held as under:- “The summary of our findings to the various issues as raised in these petitions are as follows: ……………………………………………………… ……………………………………………………… (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, have 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 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 duly licensed driver or one who was not disqualified to drive at the relevant time. (iv) The insurance companies are, 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 said burden would be discharged, inasmuch as the same 5 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 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 insured 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. ……………………………………………………… ……………………………………………………… (x) Where on adjudication of the claim under the Act the tribunal arrives at a conclusion that the insurer has satisfactorily proved its defence in accordance with the provisions of section 149(2) read with sub-section (7), as interpreted by this Court above, the Tribunal can direct that the insurer is liable to be reimbursed by the insured for the compensation and other amounts which it has been compelled to pay to the third party under the award of the tribunal. Such determination of claim by the Tribunal will be enforceable and the money found due to the insurer from the insured will be recoverable on a certificate 6 issued by the tribunal to the Collector in the same manner under Section 174 of the Act as arrears of land revenue. The certificate will be issued for the recovery as arrears of land revenue only if, as required by sub-section (3) of Section 168 of the Act the insured fails to deposit the amount awarded in favour of the insurer within thirty days from the date of announcement of the award by the tribunal. (xi) The provisions contained in sub-section (4) with proviso thereunder and sub-section (5) which are intended to cover specified contingencies mentioned therein to enable the insurer to recover amount paid under the contract of insurance on behalf of the insured can be taken recourse of by the Tribunal and be extended to claims and defences of insurer against insured by relegating them to the remedy before regular court in cases where on given facts and circumstances adjudication of their claims inter se might delay the adjudication of the claims of the victims.” In order to ascertain as to whether the Insurance Company has discharged the onus, it is pertinent to examine the evidence, documentary and oral on record. Shri Jagdish Rana (PW-1), Shri Vijay Kumar (PW-2), Shri Ranjit Singh (PW-3), Shri Narayan Kumar (PW-4) and Smt. Bimla Rani (PW-5) are the claimant’s witnesses. Since the scope of the present appeal is limited, therefore, testimony of Shri Vijay Kumar (PW-2) is relevant to the effect that an FIR No. 19 dated 16.4.2002 was registered against the driver with Police Station Lakhagoan, under Sections 279, 337, 338, 304-A, IPC. 7 The driver Shri Dalip Singh examined himself as RW-1 and has proved on record his driving licence Ext.RW-1/A. He has denied the suggestion put on behalf of the Insurance Company to the effect that the driving licence was not valid or forged and fabricated. This is the only evidence led by the driver. Importantly, no evidence was led by the owner, the appellant herein. The Insurance Company examined Shri Vijay Partap Singh (RW-2), Senior Assistant, Motor Licencing Officer, Agra, U.P. and from his statement it is evident that licence in question was issued and valid only for the purposes of driving Motorcycle and Light Motor Vehicle (Private). The same was not valid for driving commercial and/or transport vehicle of any description nor was licence holder authorized to drive vehicle of any description other than for which the licence was issued. From the aforesaid discussion, it is thus evident that the Insurance Company had not only pleaded but also proved the fact that the driver was not having a licence to drive commercial or transport vehicle. From the Insurance Policy Ext.RX, it is evident that the vehicle in question was registered as transport vehicle and insured for carriage of passengers in accordance with permit. From the combined reading of the provisions of Sections 3 and 2(47) of the Act it is abundantly clear that there is a clear prohibition for driving a vehicle unless and until specifically entitled to in terms of licence issued by the transport authority. It is evident that the driver could not have been authorized to drive the vehicle in question as he was not possessing an effective and valid driving licence, thus violating the conditions of Insurance Policy. 8 After noticing the ratio of law laid down in its earlier decisions in Swaran Singh (supra) and Ashok Gangadhar Maratha v. Oriental Insurance Co. Ltd. (1999) 6 SCC 620, the Apex Court in Prabhu Lal (supra) came to the conclusion that a vehicle – a taxi, being driven by the driver holding licence of Light Motor Vehicle without any endorsement to drive transport vehicle, no liability can be saddled upon the Insurance Company and can be ordered to pay compensation. In my view, the Insurance Company has taken all possible steps, within their power, to prove the negligence on the part of the owner and breach of the conditions of the Insurance Policy. The onus stood discharged and it was for the owner to have proved the fact that the driver was possessing a valid driving licence on the date of occurrence of the accident. Incidentally, no steps, whatsoever, were taken by the owner in that regard. The decision and the findings of fact arrived at by the Tribunal below are clearly borne out from the record. I see no reason to interfere with the same. There is no illegality or infirmity or perversity in the impugned award and the appeal is accordingly dismissed. No costs. August 26, 2008 (Sanjay Karol), (C) Judge.