National Insurance Company vs Abdul Karim & Others
2013 Latest Caselaw 811 ALL

HIGH COURT OF JUDICATURE AT ALLAHABAD
 
 

AFR
 
Reserved
 

 

 

 
FIRST APPEAL FROM ORDER NO. 745 OF 1994
 
National Insurance Company Ltd. (Divisional Office) Allahabad, through its Administrative Officer..................................Defendant/Appellant.
 
Vs.
 
Abdul Karim and others..................................Claimants-Respondents.
 

 

 
Hon'ble Rajes Kumar, J.

Heard Sri V.K. Birla, learned counsel for the appellant and Sri R.K. Porwal, learned counsel appearing on behalf of the respondents. Despite the service of notice on respondent no.3, no one appears on behalf of the respondent no.3.

This is an appeal by the Insurance Company, insures of Metador Toyota, bearing registration No.U.P. 78/B-3606 against the order of the Tribunal dated 04.04.1994 awarding compensation ar Ts.16,000/- along with interest @ 12% arises from the claim petition filed by Sri Abdul Karim claiming compensation for the expenses incurred in the treatments and other losses.

It was the case of the claimants that on 9.7.1991 when Abdul Karim, along with his daughter Km. Najma, had gone to meet his elder daughter Smt. Shakeela, in her in-laws house, in village Nandpur , P.S. Phaphund, District Etawah, while returning from village Nandpur they were waiting for bus at Kakor Buzurg on Dibiyapur Auraiya Road and were sitting at a distance of about 5-6 steps away from the road under a tree near a cycle repairing shop. At about 9-30 a.m. Metador Toyota, bearing registration no. U.P. 78/B-3603 reached at the spot which was being driven rashly and negligently, dashed with a box kept at the cycle repairing shop and also dashed Abdul Karim and his daughter Km. Najma-deceased as a result Abdul Karim and his daughter Km. Najma received grievous injuries along with other persons standing over there. The driver of the vehicle Sri Rajesh alias Bhanoo left the vehicle and ran away from the spot. The claimant Abdul Karim and his daughter were taken to Dibiyapur Hospital where Km. Najma succumbed to her injuries on reaching at the hospital.

It was the case of the claimant that he was having a good health and was about 45 years of age at the time of his accident and was doing agricultural work efficiently. According to the claimant, his monthly income from the agricultural work was Rs.1200/-. The claimant claimed an amount of Rs. 68,400/- as total compensation including Rs.25,000/- as pecuniary loss and further Rs. 25,000/- for pains and sufferings. The Tribunal, however, awarded compensation at Rs.16,000/- along with interest @ 12%.

Learned counsel for the appellant submitted that the claimants and owner of the vehicle failed to discharge the burden to prove that the driver of the vehicle possessed the valid driving licence. He further submitted that the interest awarded is excessive.

Now coming to the question that whether the claim of the insurance company that since there was breach of contract as the owner of the vehicle was not able to produce the valid driving licence of the driver, the insurance company is not liable to indemnify the owner of the vehicle as the burden lies upon the owner of the vehicle to prove that driver possessed the valid driving licence.

Reliance is placed on the various decisions.

In the case of Oriental Insurance Company Limited Vs. Meena Variyal and others, reported in 2007 (2) TAC, 417, Apex Court has held that ordinarily contract of insurance is a contract of indemnity. When a car belonging to an owner is insured with the insurance company and it is being driven by a driver employed by the insured, when it meets with an accident, the primary liability under law for payment of compensation is that of the driver. Once the driver is liable, the owner of the vehicle becomes vicariously liable for payment of compensation. It is this vicarious liability of the owner that is indemnified by the insurance company and, therefore, the claimant should implead the driver of the vehicle as party.

In the case of New India Assurance Co. Ltd. Vs. Mandar Madhav Tambe, reported in 1996 ACJ, 253 (SC), two Judges Bench of the Apex Court held that exclusion clause in the insurance policy makes it clear that the insurance company, in the event of an accident, would be liable only if the vehicle was being driven by a person holding a valid driving licence of a permanent driving licence 'other than a learner's licence'. The use of the words 'permanent driving licence' in the insurance policy was to emphasise that a temporary or a learner's licence holder would not be covered by the insurance policy.

In the case of National Insurance Co. Ltd. Vs. Brij Pal Singh and another, reported in 2003 (3) TAC, 849, the Division Bench of this Court has held that driving licence is especially within the knowledge of the person concerned, therefore, burden lies upon the owner of the vehicle to prove that the driver had a valid driving licence and not upon the insurer and in case, if the driver of the vehicle did not possess the valid and effective driving licence, the insurance company can not be made liable to satisfy the award against the owner.

Apex Court in the case of Bhuwan Singh Vs. Oriental Insurance Company Limited and another, reported in (2009) 5 SCC, 136 held that burden of proof ordinarily would be on the insurance company to establish that there has been a breach of conditions of the contract of insurance. In terms of Section 149 of the Act the insurance company would be liable to pay the awarded amount to the claimants provided the accident is covered by the terms of the policy, although the burden in respect thereof would be on the insurance company. It has been further held that the question as to whether the appellant was holding a valid licence or not was within his knowledge. The driver was to show that he held licence in respect of the vehicle for which he had filed an application.

Learned counsel for the respondent submitted that in the case of Narcinva V. Kamat and others etc. Vs. Alfredo Antonio Doe Martins and others, reported in 1985 (2) TAC, 396 Apex Court held that burden lies upon the insurance company to prove the breach of terms of contract. Apex Court further held that merely because driving licence could not be produced in the cross-examination, the insurance company can not riggle out its liability under the contract of insurance.

On the principle laid down above it emerges that burden lies upon the insurance company to prove that there was breach of terms of contract. Once insurance company alleged that there is breach of policy for the want of driving licence by the driver of vehicle, since it is within the knowledge of the driver and the owner of the vehicle that the driver possess valid driving licence, it is upon the owner and the driver of the vehicle to give details of the driving licence and to produce the same before the Tribunal. Thereafter, the burden shifts upon the insurance company to establish that there was breach of contract.

In the present case, neither the driver of vehicle nor the owner of the vehicle appeared before the Tribunal and neither filed any statement alleging that the driver possessed the valid driving licence. No details of the driving licence has been furnished and in such situation, it will amount that the insurance company discharged its burden to prove that there was breach of policy.

The Apex Court in the cases of Tejinder Singh Gujral v. Inderjit Singh and another, reported in 2007 (1) T.A.C. 15 (SC) as well as National Insurance Co. Ltd. v. Keshav Bahadur and others, reported in 2004 (2) T.A.C. 1 (SC) has allowed interest @ 9% per annum and following the aforesaid two decisions, the Division Bench of this Court in the case of National Insurance Co. Ltd. v. Salil Prakash Gupta, reported in 2012 (3) T.A.C. 359 has also awarded interest only @ 9% and modified the order of the Tribunal to that extent.

In the result, the appeal is allowed in part. The order of Tribunal is modified to the extent stated above. However, the insurance company is directed to pay the entire amount of compensation and recover the same from the owner of the vehicle. Any amount already deposited in excess of the amount of compensation fixed above, the insurance company shall be entitled to get the same.

Dated: 12th April, 2013

OP