National Insurance Company Ltd vs Asik Khan & Others
2021 Latest Caselaw 2588 Jhar

IN THE HIGH COURT OF JHARKHAND AT RANCHI
            (Civil Miscellaneous Appellate Jurisdiction)
                   M.A. No. 342 of 2019
                          ........

National Insurance Company Ltd. .... ..... Appellant Versus Asik Khan & Others .... ..... Respondents

CORAM: HON'BLE MR. JUSTICE KAILASH PRASAD DEO (Through : Video Conferencing) ............

For the Appellant : Mr. Amresh Kumar, Advocate. For the Respondent Nos. 1 to 5 : Mr. Birendra Kumar, Advocate.

........

12/28.07.2021.

Heard, learned counsel for the appellant, Mr. Amaresh Kumar. Learned counsel for the appellant has submitted that appellant- National Insurance Company Limited has preferred this appeal against the award dated 29.04.2019, passed by learned Presiding Officer, Motor Vehicles Accident Claims Tribunal, Ranchi, in Motor Accident Claim Case No. 28/2016, whereby the claimants namely, (1) Asik Khan, son of Late Mahboob Khan, (2) Musarrat Jahan, wife of Ashik Khan, (3) Baby Tabassum, daughter of Asik Khan, (4) Nehan Parveen, daughter of Ashik Khan and (5) Saniya Parween, daughter of Ashik Khan (Claimant no. 5 is minor represented through her father, applicant no. 1, guardian and next friend) have been awarded compensation to the tune of Rs. 8,26,400/- along with interest @ 9% per annum from the date of admission of the Claim Application under Section 166 of Motor Vehicles Act i.e. 30.06.2016 till its realization.

Learned counsel for the appellant has submitted, that Insurance Company has assailed the impugned award on limited question that whether the owner of the offending vehicle has violated the terms and conditions of the policy or not, as the driver was not possessing valid licence?

Learned counsel for the appellant has fairly submitted that the Insurance Company has not preferred appeal to assail the quantum of compensation awarded to the Claimants, as such, this Court may only consider whether terms and conditions of the policy has been violated by the insured owner in view of the judgment passed by the Apex Court passed in the case of Pappu Vs. Vinod Lamba

reported in (2018) 3 SCC 208, of which Para-11 to 14 may profitably be quoted hereunder:-

"11. The question is: whether the fact that the offending vehicle bearing No. DIL 5955 was duly insured by Respondent 2 insurance company would per se make the insurance company liable?

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.

14. In the present case, the Tribunal has accepted the claim of the appellants. It has, however, absolved Respondent 2 insurance company from any liability for just reasons. The High Court has also affirmed that view. It rightly held that there can be no presumption that Joginder Singh was driving the offending vehicle at the relevant time."

Learned counsel for the respondent nos. 1 to 5 / claimants has submitted that the claimants have not preferred any appeal for enhancement.

After hearing, learned counsel for the parties, perused the judgment passed by the Apex Court passed in the case of Nirmala Kothari vs. United India Insurance Company Limited, reported in (2020) 4 SCC 49, of which para-12 & 13 may profitably be quoted hereunder:-

"12. While hiring a driver the employer is expected to verify if the driver has a driving licence. If the driver produces a licence which on the face of it looks genuine, the employer is not expected to further investigate into the authenticity of the licence unless there is cause to believe otherwise. If the employer finds the driver to be competent to drive the vehicle and has satisfied himself that the driver has a driving licence there would be no breach of Section 149(2)(a)(ii) and the insurance company would be liable under the policy. It would be unreasonable to place such a high onus on the insured to make enquiries with RTOs all over the country to ascertain the veracity of the driving licence. However, if the insurance company is able to prove that the owner/insured was aware or had notice that the licence was fake or invalid and still permitted the person to drive, the insurance company would no longer continue to be liable.

13. On facts, in the instant case, the appellant complainant had employed the driver, Dharmendra Singh as driver after checking his driving licence. The driving licence was purported to have been issued by the licensing authority, Sheikh Sarai, Delhi, however, the same could not be verified as the officer concerned of the licensing authority deposed that the record of the licence was not available with them. It is not the contention of the respondent insurance company that the appellant complainant is guilty of wilful negligence while employing the driver. The driver had been driving competently and there was no reason for the appellant complainant to doubt the veracity of the driver's licence."

(emphasis supplied) Since the appellant-Insurance Company has not adduced any evidence that there was a deliberate laches on the part of the owner of the vehicle, liability may not be shifted upon the owner nor any right of recovery be granted in favour of the Insurance Company and against the owner of the offending vehicle.

Accordingly, the appeal, being devoid of any merit, is hereby dismissed.

The statutory amount deposited by the appellant at the time of preferring the appeal shall be remitted to the learned Tribunal within a period of four weeks from today by the Registrar General of this Court since the occurrence is of year 2015.

It is expected that the appellant - Insurance Company shall indemnify the award passed by the learned Tribunal in favour of the claimants, if not already satisfied.

The learned Tribunal is directed to notice the claimants and after due verification shall release the amount in favour of the claimants, as the appeal has already been dismissed, as such, the interim order dated 05.03.2021 passed by this court is hereby vacated.

Let the LCR be sent down at once.

(Kailash Prasad Deo, J.) Sunil/-