Oriental Insurance Co. Ltd vs Md Moidul Islam And 5 Ors
2022 Latest Caselaw 784 Gua

                                                                   Page No.# 1/5

GAHC010010512017




                       THE GAUHATI HIGH COURT
  (HIGH COURT OF ASSAM, NAGALAND, MIZORAM AND ARUNACHAL PRADESH)

                        Case No. : MACApp./33/2017

         ORIENTAL INSURANCE CO. LTD
         HAVING ITS REGISTERED OFFICE AT ORIENTAL HOUSE, A-25/27 ASAF ALI
         ROAD, NEW DELHI 110002 AND REGIONAL OFFICE AT GUWAHATI-7,
         REPRESENTED BY THE REGIONAL MANAGER



         VERSUS

         MD MOIDUL ISLAM and 5 ORS
         S/O MD. MAHMUD ALI, R/O VILL. MARANJANA, P.S. RANGIA, DIST.
         KAMRUP, ASSAM, PIN 781354

         2:SMTI REBATI NATH

          W/O SRI KRISHNA NATH
          R/O VILL. NA KUCHI MARANJANA
          P.S. RANGIA
          DIST. KAMRUP
          ASSAM
          PIN CODE-781354

         3:DHARMESWAR DAS

          S/O LATE MAHINDRA DAS
          R/O VILL. LOWKURI
          P.S. KAMALPUR
          DIST. KAMRUP
          ASSAM
          PIN 781380

         4:DHARANI NATH

          S/O SRI SITA RAM NATH
                                                                            Page No.# 2/5

             R/O VILL. UTTAR HAHARA
             P.S. KAMALPUR
             PIN 781380
             DIST. KAMRUP
             ASSAM.

            5:SOCHEN CH. AS
             S/O SRI DHARANI DHAR DAS
            VILL. UTTAR HAHARA
             P.S. KAMALPUR
             PIN 781380
             DIST. KAMRUP
            ASSA.

            6:THE REGIONAL MANAGER

             UNITED INDIA INSURANCE CO. LTD.
             CHRISTIAN BASTI
             G.S. ROAD
             GUWAHATI-

Advocate for the Petitioner   : MS.N MODI

Advocate for the Respondent : MR.H BARUAHR-2




                                     BEFORE
                    HONOURABLE MR. JUSTICE PARTHIVJYOTI SAIKIA

                                       JUDGMENT

Date : 07-03-2022

Heard Ms. M. Choudhury, learned counsel appearing for the appellant as well as Mr. H. Baruah, learned counsel representing the respondents and Mr. A. Dutta, learned counsel appearing for the United India Insurance Com. Ltd.

2. This is an appeal under Section 173 of the Motor Vehicles Act, 1988 (as amended) against the Judgment and Award dated 12.05.2016 passed by the MACT No.1, Kamrup (M), Guwahati in MAC Case No. 161/2011.

3. On 18.04.2010, at about 4.25 p.m., the claimant was travelling in a vehicle bearing regd. No. AS-01/BC/6051. At the time another vehicle No.AS-01-BC-8651 coming from the said direction knock the other vehicles. As a result, the vehicle No. Page No.# 3/5

AS-01-BC-6051 turned turtle. The claimant sustained grievous injuries. The claim application was filed seeking compensation.

4. The owner of the vehicle No.AS-01-BC-8651 contested the claim by stating that the vehicle was duly insured by the appellant/insurance company and the driver of the vehicle had a valid driving licence.

5. The appellant/insurance company contested the case by filing another written statement and the appellant claim that if the policy condition found to be violated, the appellant shall not be liable pay compensation.

6. On the basis of the pleadings of both sides, the tribunal framed the following issues-

i. Whether claimant, Md. Moidul Islam, was sustained injuries in the alleged road accident dated 18.04.2010 involving vehicle bearing No. AS-01-BC-8651 and whether the said accident took place due to rash and negligent driving of the driver of the offending vehicle?(sic)

ii. Whether the claimant is entitled to get any compensation for the injuries sustained by him/her and if yes, to what extent and by whom amongst the opposite parties, the said compensation amount will be payable?(sic)

7. The claimant/respondent examined one witness. The appellant/insurance company also examined one witness.

8. On the basis of the evidence on record, the tribunal awarded Rs.1,08,000/- along with interest @ 6% per annum from the date of the filing of the claim petition.

9. The only ground taken by the appellant/insurance company is that the driver of the offending vehicle did not a have valid licence.

10. Ms. Choudhury, has referred to the evidence of the witness examined by the appellant and submitted that the said witness has proved that the driving licence of the driver of the offending vehicle was not actually issued by the DTO, Nalbari.

11. Ms. Choudhury has relied upon the decision of the Supreme Court in Pappu Page No.# 4/5

and Ors. -vs- Vinod Kumar Lamba and Anr., reported in 2018 3 SCC 208 paragraphs 12, 13 and 19 are quoted as under-

12. This Court in National Insurance Co. Ltd. [National Insurance Co. Ltd. v. Swaran Singh, (2004) 3 SCC 297 : 2004 SCC (Cri) 733] has noticed the defences available to the insurance company under Section 149(2)(a)(ii) of the Motor Vehicles Act, 1988. The insurance company is entitled to take a defence that the offending vehicle was driven by an unauthorised person or the person driving the vehicle did not have a valid driving licence. The onus would shift on the insurance company only after the owner of the offending vehicle pleads and proves the basic facts within his knowledge that the driver of the offending vehicle was authorised by him to drive the vehicle and was having a valid driving licence at the relevant time.

13. In the present case, Respondent 1 owner of the offending vehicle merely raised a vague plea in the written statement that the offending Vehicle No. DIL 5955 was being driven by a person having valid driving licence. He did not disclose the name of the driver and his other details. Besides, Respondent 1 did not enter the witness box or examine any witness in support of this plea. Respondent 2 insurance company in the written statement has plainly refuted that plea and also asserted that the offending vehicle was not driven by an authorised person and having valid driving licence. Respondent 1 owner of the offending vehicle did not produce any evidence except a driving licence of one Joginder Singh, without any specific stand taken in the pleadings or in the evidence that the same Joginder Singh was, in fact, authorised to drive the vehicle in question at the relevant time. Only then would onus shift, requiring Respondent 2 insurance company to rebut such evidence and to produce other evidence to substantiate its defence. Merely producing a valid insurance certificate in respect of the offending truck was not enough for Respondent 1 to make the insurance company liable to discharge his liability arising from rash and negligent driving by the driver of his vehicle. The insurance company can be fastened with the liability on the basis of a valid insurance policy only after the basic facts are pleaded and established by the owner of the offending vehicle that the vehicle was not only duly insured but also that it was driven by an authorised person having a valid driving licence. Without disclosing the name of the driver in the written statement or producing any evidence to substantiate the fact that the copy of the driving licence produced in support was of a person who, in fact, was authorised to drive the offending vehicle at the relevant time, the owner of the vehicle cannot be said to have extricated himself from his liability. The insurance company would become liable only after such foundational facts are pleaded and proved by the owner of the offending vehicle.

19. In the present case, the owner of the vehicle (Respondent 1) had produced the insurance certificate indicating that Vehicle No. DIL 5955 was comprehensively insured by Respondent 2 (insurance company) for unlimited liability. Applying the dictum in National Insurance Co. Ltd. [National Insurance Co. Ltd. v. Swaran Singh, (2004) 3 SCC 297 : 2004 SCC (Cri) 733] , to subserve the ends of justice, the insurer (Respondent 2) shall pay the claim amount awarded by the Tribunal to the appellants in the first instance, with liberty to Page No.# 5/5

recover the same from the owner of the vehicle (Respondent 1) in accordance with law.

11. I have given my anxious consideration to the submissions made by the learned counsels for both sides.

12. In the case, the owner of the vehicle claimed in his written statement that the driver had a valid licence at the time of accident. But the owner did not prove that fact. The appellant/insurance company, on the other hand, proved, by adducing evidence, that the driver of the offending vehicle did not have a valid driving licence. The preponderance of evidence is in favour of the appellant/insurance company.

13. Normally, violation of policy condition does not relieve the insurance company from its liability to pay compensation. Under the given circumstances of the case, the insurance company is liable to pay the compensation.

14. However, in view of the observation made in Oriental Insurance Com. -vs- Nanjappan and Ors., reported in 2004 13 SCC 224, the appellant/insurance company shall be at liberty to recover the money paid the claimant, from the owner of the vehicle.

15. With the aforesaid observations, the appeal is partly allowed and disposed of.

Send back the LCR.

JUDGE

Comparing Assistant