National Insurance Co. Ltd vs Mst. Hajira And Others
2021 Latest Caselaw 1012 j&K/2

                                          1




         HIGH COURT OF JAMMU & KASHMIR AND LADAKH
                        AT SRINAGAR

                                                                    MA No. 87/2018
                                                                   CM No. 228/2019
                               Reserved on: 09.08.2021
                             Pronounced on: 06.09.2021

 National Insurance Co. Ltd.                                     .........Petitioner(s)

                         Through:        Mr. J.A. Kawoosa Sr. Advocate with
                                         Mr. Areeb Kawoosa, Advocate.

                   V/s


 Mst. Hajira and others                                        .......Respondent(s)


                         Through:        Mr. Abdul Ahad Rather, Advocate.



CORAM: HON'BLE MR. JUSTICE DHIRAJ SINGH THAKUR, JUDGE

                                     JUDGEMENT

-09-2021

1. This is an appeal under Section 173 of the Motor Vehicles Act praying

for setting aside the judgment and award dated 12.10.2018 passed by the

Motor Accident Claims Tribunal, Srinagar (for short,'Tribunal')

The Tribunal by virtue of the award impugned, allowed an amount

of Rs. 6,98,500/- with 6.5% per annum in favour of the petitioners from

the date of the presentation of the claim petition till realization.

2. The main ground of challenge in the present appeal is that since the driver

of the offending vehicle did not have an effective and valid licence,

therefore, no liability could be fastened on the insurance company.

3. In its defence, the insurance company took two pleas; firstly, it was stated

that the driver of the offending vehicle was not holding a valid driving

licence at the time of the alleged accident and secondly, it was generally

stated that the petitioners be put to strict proof regarding the vehicular

documents like Registration Certificate, Route Permit, Fitness Certificate

and other vehicular documents.

4. On a perusal of the award impugned, it is seen that issue No. 2 was

framed by the Tribunal, which reads as under:

"Whether the owner of the offending vehicle i.e., respondent No. 2 had permitted the driver of the offending vehicle i.e., respondent No. 1 to ply the offending vehicle without having a valid and effective driving licence thereby committed breach of policy conditions, if so, what would be its effect on the claim petition?"

5. The insurance company in support of their defence examined RW-Gulzar

Ahmed Wani, Administrative Officer, who deposed that on receipt of the

summon, the company had deputed an investigator, who after investigation

found that although the offending vehicle was insured at the time of the

accident, the conditions of the route permit were found breached. He has

also stated that the driving licence of the driver was fake. On cross-

examination, however, the witness deposed that the offending vehicle was

driven by one Asif Ahmed Dar s/o Abdul Gani Dar R/o Hajan and that the

driving licence of the said driver was got verified from ARTO, Poonch.

The said witness, however, further stated in his cross-examination that he

had no information or knowledge whether the report of the investigation

by the investigator was placed before the Tribunal or not.

6. The second witness examined by the insurance company was RW-

Maroof Ahmed, Statistical Assistant, ARTO Poonch, who deposed that he

had brought the record pertaining to driving licence No. 3511/MVD/P

dated 31.3.2008 with him, which was issued in favour of one Asif Ahmed

S/o Abdul Gani Dar R/o Haveli, Poonch and that he was authorized to

drive the light motor vehicle and motor cycle with gear. The said witness

also deposed that the said licence bears a PSV endorsement for plying

heavy vehicles. In cross-examination, the said witness deposed that the

original driving licence had not been shown to him by the insurance

company and that he cannot say about the entries recorded in the original

driving licence.

7. Based upon the testimony of the aforementioned witness, the issue No. 2

was decided against the respondent-insurance company by holding that the

driving licence belonged to the driver Asif Ahmed Dar and that it was

valid and effective w.e.f., 31.3.2008 to 30.3.2013 and was, thus, valid even

on the date of accident on 30.12.2009.

With regard to the route permit, the Tribunal held that although

there was a photocopy on record but the same was not proved in evidence

and, therefore, verbal version of the investigator as contained in the

testimony of RW-Gulzar Ahmed Wani that the vehicle in question was

being plied contrary to the conditions of route permit was nothing but

hear say.

8. Learned senior counsel appearing for the appellant, Mr. Kawoosa stated

that the Tribunal had committed an error in law in placing the onus of

proof with regard to the route permit on the insurance company when the

same ought to have been proved by the owner/driver.

9. Reliance was placed upon the Apex Court judgment titled Amrit Paul

Singh & anr vs. Tata AIG General Insurance Company Ltd & ors

reported in 2018 (7) SCC 558.

10. It was urged that the owner having failed to prove that there was no

violation of the terms and conditions of the route permit, liability could not

have been fastened on the insurance company and if at all the company

was asked to pay compensation, then right to recover the said amount from

the owner/driver ought to have been conceded to the insurance company in

terms of the ratio laid down by the Supreme Court in National Insurance

Co. Ltd Vs. Swaran Singh & ors, (2004) 3 SCC 297.

11. Heard learned counsel for the parties.

12. A three judge bench of the Supreme Court in Swaran Singh's case

(supra) reiterated the proposition of law that the person, who alleges

breach, must prove the same. It was held that the insurance company is

required to establish the said breach by cogent evidence and that in the

event of the insurance company failing to prove that there was any breach

of the conditions of policy on the part of the insured, the insurance

company could not be absolved of its liability.

13. The aforesaid position of law continues to hold good even today and has

not been diluted even by Amrit Paul Singh's case (supra) on which

overwhelming reliance was placed by the learned senior counsel appearing

for the insurance company- Mr. J.A. Kawoosa and in particular on the

penultimate para of the judgment of the Apex Court in Amrit Paul

Singh's, case, which reads thus:

"24......Use of a vehicle in a public place without a permit is a fundamental statutory infraction. We are disposed to think so in view of the series of exceptions carved out in Section 66. The said situations cannot be equated with absence of licence or a fake licence or a licence for different kind of vehicle, or, for that matter, violation of a condition of carrying more number of passengers. Therefore, the principles laid down in Swaran Singh (supra) and Lakhmi Chand (supra) in that regard would not be applicable to the case at hand. That apart, the insurer had taken the plea that the vehicle in question had no permit. It does not require the wisdom of the Tripitaka, that the existence of a permit of any nature is a matter of documentary evidence. Nothing has been brought on record by the insured to prove that he had a permit of the vehicle. In such a situation, the onus cannot be cast on the insurer. Therefore, the tribunal as well as the High Court had directed that the insurer was required to pay the compensation amount to the claimants with interest with the stipulation that the insurer shall be entitled to recover the same from the owner and the driver. The said directions are in consonance with the principles stated in Swaran Singh (supra) and other cases pertaining to pay and recover principle."

14. An isolated reading of the observations made in the aforementioned

paragraph may perhaps have led learned senior counsel for the appellant to

insist during the course of arguments that the onus lay on the insured to

prove that there was no breach of the policy conditions as regards the route

permit, however, when the judgement is read as a whole, the picture is

otherwise. It appears from the judgment that the accident had occurred in

the said case on 19.2.2013 whereas, the vehicle was purchased in

September, 2012, insured on 20.12.2012 and registered on 26.2.2013. The

Tribunal held that the insurer was not liable and while issuing directions

for payment of compensation permitted recovery of the same from the

owner and driver of the vehicle.

The award was challenged before the High Court of Punjab and

Haryana at Chandigarh wherein it was contended by the owner of the

offending vehicle that he had deposited the necessary fee along with

application for grant of a route permit on 19.2.2013 and that the same was

issued on 27.2.2013 and that since the documents had already been

submitted to the transport office along with the requisite fee, it could

not be said that the vehicle was being plied without a valid permit. The

High Court of Punjab and Haryana placing reliance on National

Insurance Co. Ltd vs. Challa Upendra Rao reported in (2004) 8 SCC

517 held that even if it were to be assumed that the owner had already

applied for grant of a permit before the accident, the same would not

entitle the owner to ply the said vehicle.

15. It was in that background that the Apex Court in Amrit Paul Singh's case

(supra) observed that the insured had not stated whether the vehicle had a

temporary permit or any other kind of permit and that nothing had been

brought on record by the insured to prove that there was any such permit.

It was in that background that the stand of the insurance company was

upheld and was permitted to recover from the owner and driver the

compensation awarded and paid to the claimants.

16. In my opinion, reliance placed upon Amrit Paul Singh's case (supra) is,

therefore, inapt.

17. Be that as it may, I find no merit in the present appeal. The same is

accordingly dismissed along with connected application(s), if any.

(DHIRAJ SINGH THAKUR) JUDGE Srinagar 06 -09-2021 "Naresh"

                               Whether the order is reportable:      Yes/No.




SYED MUJTABA HUSSAIN
2021.09.06 12:31
I attest to the accuracy and
integrity of this document