Chattisgarh High Court

United India Insurance Company ... vs Smt. Guruwari Bai on 31 January, 2023

                                1

                                                               NAFR
          HIGH COURT OF CHHATTISGARH, BILASPUR
               Judgment reserved on : 11/11/2022
               Judgment delivered on : 31/01/2023
                      MAC No. 1436 of 2019
   United India Insurance Company Limited Through Its Divisional
     Manager, Divisional-Office, Block No. 4, Jaiswal Building, Main
     Road, Korba, Station Road, Korba, Tahsil And District-Korba
     Chhattisgarh
                                                      ---- Appellant
                              Versus
  1. Smt. Guruwari Bai Wd/o - Late Gendram Sahu Aged 48 Years
  2. Minor Deepak Kumar S/o - Late Gendram Sahu Aged 17 Years
  3. Minor Ku. Babli S/o Late Gendram Sahu Aged 13 Years
     Respondents No. 2 & 3 are minor through their mother Smt.

Guruwari Bai (Respondent No.1) Respondents No. 1 to 3 all are R/o - Vill. Khemda, Tahsil - Malkharauda, P.S.-Dabhra, District-Janjgir Champa Chhattisgarh

4. Darshan Singh Jat S/o - Labh Singh Aged 48 Years R/o - Pani Pachauna, P.S.- Badsau, District- Patiyala Punjab (Owner- Driver)

5. Kirti Bai D/o - Late Gendram Sahu Aged 32 Years (W/o- Tukaram Sahu) R/o Chantipali, Tah. - Malkhrauda, District Janjgir-Champa Chhattisgarh

6. Radhika D/o - Late Gendram Sahu Aged 31 Years (W/o- Kamlesh Sahu), R/o- Khamhariya, P.S.- Baradwar, Hal Mukam - Ranipara, Janjgir, District - Janjgir-Champa Chhattisgarh

7. Babita D/o- Late Gendram Sahu Aged 26 Years (W/o Dinesh Sahu), R/o- Khamhariya, P.S.- Baradwar, Hal Mukam- Ranipara, Janjgir, District - Janjgir-Champa Chhattisgarh

8. Naval Kishor S/o- Late Gendram Sahu Aged 28 Years R/o- Khemda, Tah. - Malkhrauda, District Janjgir-Champa Chhattisgarh

---- Respondents

For Appellant : Shri Dashrath Gupta, Advocate. For Respondents No.1 to 3 : Shri Ishwar Jaiswal, Advocate For others Respondents : None though served.

Hon'ble Smt. Justice Rajani Dubey

C A V JUDGMENT

01. The appellant/insurer has filed this appeal under Section 173 of

the Motor Vehicles Act against the award dated 27.2.2019 passed by

the II Additional Motor Accident Claims Tribunal, Sakti, Distt. Janjgir-

Champa in Claim Case No.33/2016 awarding total compensation of

Rs.6,50,800/- to the claimants with interest @ 9% p.a. from the date of

claim petition till realization, fastening liability jointly and severally on

the appellant/insurer with respondent No.4/owner-driver.

02. As per claim petition, on 27.11.2015 at around 8.00-9.00 am

Gendram, a mason, was going by bicycle for doing his work. However,

when he reached near old District Hospital, Janjgir, in front of Rarula

Hospital, respondent No.4 Darshan Singh Jat by driving Harvester

vehicle bearing registration No. PB 11 AK 7633 (hereinafter referred to

as "offending vehicle") in a rash and negligent manner hit the bicycle of

Gendram resulting in grievous injuries to Gendrum including fracture of

his waist bone. Immediately thereafter Gendram was taken to hospital

where the doctor declared him dead. At the time of accident, the

offending vehicle was owned and driven by respondent No.4 Darshan

Singh Jat and insured with the appellant United India Insurance Co.

Ltd.

03. The claimants filed a claim petition under Section 166 of the

Motor Vehicles Act, with the averments that the deceased was a

healthy person of 52 years, earning Rs.300/- to 400/- per day as a

mason and this apart, was also earning Rs.10,000/- per month from

agriculture. Hence they claimed a total sum of Rs.36,30,000/- under

various heads with interest @ 12% per annum.

04. The Tribunal considering the evidence led by both the parties

partly allowed the claim petition and awarded compensation in favour

of the claimants as mentioned in para-1 of this judgment.

05. Learned counsel for the appellant/insurance company submits

that the impugned award is per se bad in law and as such, not

sustainable. Respondent No.4/owner-driver of the offending vehicle

was not having a valid and effective driving licence to drive the

offending vehicle, the unladen weight of which is 8700 kg. Therefore,

there being violation of terms and conditions of the insurance policy,

the Tribunal was not justified in fastening liability upon the insurance

company of satisfying the award and thus, the impugned award is

liable to be set aside.

06. On the other hand, learned counsel appearing for

respondents/claimants supporting the impugned award submitted that

the Tribunal considering all the relevant aspects of the matter has

rightly passed the award in favour of the claimants fastening the liability

jointly and severally upon the appellant/insurer and respondent

No.4/owner-driver of the offending vehicle, which warrants no

interference by this Court.

07. Heard learned counsel for the parties and perused the material

available on record.

08. The claims Tribunal found that the appellant/insurance company

did not file any document and did not examine any witness to prove

that respondent No. 4 - driver and owner, committed breach of terms

and conditions of the insurance policy. Contention of learned counsel

for the appellant is that from the documents it is clear that respondent

No.4/driver possessed the driving licence which was valid for

motorcycle with gear and light motor vehicle only whereas the

offending vehicle is a Harvester, unladen weight of which as per the

registration document is 8700 kgs. Therefore, the offending vehicle

does not fall in the category of light motor vehicle.

09. The Hon'ble Supreme Court in the matter of Amrit Paul Singh

and another Vs. Tata AIG General Insurance Co. Ltd. & others,

(2018) 7 SCC 558, observed in para -17 as under:

"17. The three-Judge Bench summed up its conclusions and we think it appropriate to reproduce the relevant part of the same:- (swaran Singh case, SCC pp. 341-42, para 110)-

"110. (iii) 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 to drive at the relevant time.

x x x x

(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 fulfill the requirements of law or not will have to be determined in each case."

10. In the matter of Oriental Insurance Co. Ltd. Vs. Zaharulnisha

and others, 2008 (2) TAC 801 (SC) the Hon'ble Supreme Court held

in para 18 as under:

"18. In the light of the above-settled proposition of law, the appellant insurance company cannot be held liable to pay the amount of compensation to the claimants for the cause of death of Shukurullah in road accident which had occurred due to rash and negligent driving of scooter by Ram Surat who admittedly had no valid and effective licence to drive the vehicle on the day of accident. The scooterist was possessing driving licence of driving HMV and he was driving totally different class of vehicle which act of his is in violation of Section 10(2) of the MV Act.

19. In the result, the appeal is allowed to the limited extent

and it is directed that the appellant insurance company though not liable to pay the amount of compensation, but in the nature of this case it shall satisfy the award and shall have the right to recover the amount deposited by it along with interest from the owner of the vehicle, viz. respondent No. 8, particularly in view of the fact that no appeal was preferred by him nor has he chosen to appear before this Court to contest this appeal. This direction is given in the light of the judgments of this Court in National Insurance Co. Ltd. v. Baljit Kaur and Others [(2004) 2 SCC 1 : 2004 (1) TAC 366] and Deddappa and Others v. Branch Manager, National Insurance Co. Ltd. [(2008) 2 SCC 595 : 2008 (1) TAC 417].

11. Thus, keeping in view the oral and documentary evidence

available on record, it is clear that unladen weight of the offending

vehicle is 8700 kgs vide registration certificate of Ex.P/16. Section 2

(21) of the Motor Vehicles Act, 1988 defines that "light motor

vehicle" means a transport vehicle or omnibus the gross vehicle

weight of either of which or a motor car or tractor or road-roller

the unladen weight of any of which, does not exceed 7,500

kilograms. In view of all this, it stands proved that the offending

vehicle is not a light motor vehicle whereas on the date of accident,

respondent No.4/driver & owner was having licence (Ex.P/15)

authorizing him to drive only LMV and MCWG. Thus, the beach of

terms and conditions of the insurance policy on the part of driver-owner