Jharkhand High Court
Smt. Malti Devi vs Smt. Sunita Devi on 20 September, 2021
1
IN THE HIGH COURT OF JHARKHAND AT RANCHI
M.A. No. 251 of 2014
----
Smt. Malti Devi ... ... Appellant
-versus-
1. Smt. Sunita Devi
2. Md. Imtiyaz
3. Bajaj Allianz General Insurance Company Ltd., G.E. Plaza, Airport
Road, Yarwada, Pune 411006 (Maharastra) (Head Office of Insurer of
Savari Jeep No. JH-11E-1315).
4. Bajaj Allianz General Insurance Company Ltd., through Branch
Manager, Bank More, Katras Road, P.O. P.S. Bankmore, District
Dhanbad 826001, Jharkhand.
... ... Respondents
----
WITH
M.A. No. 249 of 2014
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Smt. Malti Devi ... ... Appellant
-versus-
1. Julias Marandi @ Yulias Marandi
2. Md. Imtiyaz
3. Bajaj Allianz General Insurance Company Ltd., G.E. Plaza, Airport
Road, Yarwada, Pune 411006 (Maharastra) (Head Office of Insurer of
Savari Jeep No. JH-11E-1315).
4. Bajaj Allianz General Insurance Company Ltd., through Branch
Manager, Bank More, Katras Road, P.O. P.S. Bankmore, District
Dhanbad 826001, Jharkhand.
... ... Respondents
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CORAM : HON'BLE MR. JUSTICE ANANDA SEN
THROUGH VIDEO CONFERENCING
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For the Appellant : Mr. P.K. Mukhopadhyay, Advocate
For the Respondents : Mr. Arvind Kumar Lall, Advocate
Mr. Siddhartha Jyoti Roy, Advocate
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ORDER
RESERVED ON 09.08.2021 PRONOUNCED ON 20.09.2021
13/20.09.2021 Appellant, who is the owner of the vehicle, in M.A. No. 251
of 2014 and M.A. No.249 of 2014, has prayed to set aside the part of the
award dated 06.05.2013 passed by the Principal District Judge-cum-
P.O., M.V.A.C.T., Giridih in M.V. Claim Case No. 44 of 2009 and M.V.
Claim Case No. 43 of 2009, respectively, by which the right has been
given to the Insurance Company to recover the amount of compensation
from the owner of the vehicle after satisfying the claimants.
2. I have heard learned counsel for the parties.
3. Counsel appearing on behalf of the appellant, submitted
that the offending vehicle, i.e., Jeep bearing registration No. JH 11E
1315 was insured with Bajaj Allianz General Insurance Company Ltd.,
vide a valid policy, at the time of accident, thus, it is the Insurance
Company, who has to indemnify the owner. He submitted that the driver
had a valid driving licence and there was no violation of the terms and
conditions of the insurance policy, thus, "right to recover" could not have
been given to the Insurance Company. This is the only point raised by
the owner of the vehicle, i.e., appellant in these two appeals.
4. Counsel appearing on behalf of the Insurance Company,
admits that the vehicle was insured with the Insurance Company at the
time of accident, but, the said vehicle was being driven by a driver, who
at the time of accident, did not possess a valid driving licence. It is
submitted that since the driver did not possess a valid driving licence, it
was the owner, who has to pay the amount of compensation, but, in this
case, the Tribunal has directed the Insurance Company to pay the
amount to the claimants and recover the same from the owner of the
vehicle which is involved in accident. He submits that the onus is upon
the owner and the driver, at the very first instance, to prima facie, prove
that the vehicle was driven by a person, having valid driving licence and
if this onus is discharged by the owner and driver of the vehicle, the
onus shifts upon the insurer. He submits that in the instant case, from
the materials on record, it is apparent that at the time of accident, the
vehicle was being driven by the driver, without having valid licence, thus,
the Insurance Company was given liberty to recover the said amount.
5. Considering the submission of the parties, the only point,
which falls for consideration is, whether the vehicle in question
(offending vehicle) was being driven by a person, without having valid
driving licence and whether the Tribunal was justified in giving the right
to the Insurance Company to recover the compensation amount from
the owner of the vehicle.
6. From the records, I find that the accident had taken place
on 27.03.2009, involving a passenger vehicle bearing registration No.
JH 11E 1315. The vehicle, on the date of accident, was insured with
Bajaj Allianz Insurance Company Ltd. This fact is admitted. The Tribunal
framed several issues, one of which was issue No.(iv), to the effect that
whether there is any violation of the terms of insurance policy regarding
vehicle No. JH 11E 1315.
7. Exhibit 5 is the first information report, being Deori Police
Station Case No.51 of 2009 dated 27.03.2009. The Tribunal found that
the first information report was instituted against the driver of the
vehicle, namely, Vinod Saw, but, during course of investigation,
chargesheet was filed, showing that the driver of the vehicle was
actually Md. Imtiyaz. Driving licence of Md. Imtiaz was marked as Exhibit
'F' in the proceeding before the Tribunal. From perusal of Exhibit 'F',
Tribunal found that the said licence was renewed from 28.06.2004 till
27.06.2007, thereafter from 28.06.2007, licence was not renewed, but,
was again renewed from 02.04.2009 to 01.04.2012. Be it noted that the
date of accident is 27.03.2009. The Tribunal, thus, held that on the date
of accident, the vehicle was being driven by a person, whose driving
licence was not valid.
8. Further, I find from the aforesaid award that the registration
of the said vehicle permitted only 11 persons to occupy the vehicle, but,
admittedly it is evident from the evidence of C.W.1 that 20 to 21
passengers were travelling on the said vehicle.
9. Aforesaid two facts, clearly suggests that there was a
violation of the terms and conditions of insurance policy. The Hon'ble
Supreme Court, in the case of Pappu & Others versus Vinod Kumar
Lamba & Another reported in (2018) 3 SCC 208 has relied upon the
case of National Insurance Co. Ltd. versus Swarn Singh & Others
reported in (2004) 3 SCC 297. The Hon'ble Supreme Court, in the
aforesaid judgment, extensively taken note of several paragraphs of the
judgment delivered in the case of Swarn Singh (supra). The Hon'ble
Supreme Court quoted paragraph 110 of the aforesaid judgment of
Swarn Singh, which are the observations and findings of the Hon'ble
Supreme Court. Paragraph 110(iii) to (vii) of the aforesaid judgment of
Swarn Singh needs to be quoted herein: -
110. ...................
(i) ..............
(ii) ...........
(iii) The breach of policy condition, e.g.
disqualification of driver or invalid driving
licence of the driver, as contained in Sub-
section (2)(a)(ii) of Section 149, have 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 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 duly
licensed driver or one who was not
disqualified to drive at the relevant time.
(iv) The insurance companies are, however, with a
view to avoid their liability must not only
establish the available defence(s) raised in the
said proceedings but must also establish
'breach' on the part of the owner of the
vehicle; the burden of proof where for would
be on them.
(v) The court cannot lay down any criteria as to
how said burden would be discharged,
inasmuch the same would depend upon the
facts and circumstances of each case.
(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 insured unless the said breach of
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 insured 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 fulfil
the requirements of law or not will have to be
determined in each case.
10. While dealing with the instant case, as held earlier, it was
clear that the driver, at the time of accident, did not possess a valid
driving licence. In the aforesaid case, the owner and the driver of the
offending vehicle jointly filed written statement. In view of the findings
arrived at by the Tribunal, it is clear that there was violation of the terms
and conditions of the policy as the vehicle was being driven by a person,
who was disqualified to drive a vehicle on the date of accident.
11. Considering the aforesaid finding of the Tribunal and in view
of the judgment of the Hon'ble Supreme Court in the case of Pappu
(supra) and Swarn Singh (supra), I find that no illegality has been
committed by the Tribunal in granting the right to the Insurance
Company to recover the compensation amount from the owner of the
vehicle.
12. Both these miscellaneous appeals, i.e., M.A. No.251 of
2014 and M.A. No.249 of 2014 thus are, accordingly, dismissed.
(Ananda Sen, J.)
Kumar/Cp-02
