Jharkhand High Court
M/S. Ganesh Ram Dokania Son Of Late ... vs Branch Manager on 1 April, 2022
1
IN THE HIGH COURT OF JHARKHAND AT RANCHI
M.A. No. 222 of 2009
M/s. Ganesh Ram Dokania son of Late Kaliram dokania, resident of
village- Kumar Para, P.O. & P.s.- Dumka, Town & Dist- Dumka
..... ..... Appellant
Versus
1. Branch Manager, Oriental Insurance Company Limited, Branch
Dumka, P.O., P.S., Town & Dist- Dumka.
2. Talamai Hembrum widow of Late Hanjay Kisku.
3. Subash Kisku son of Late Hanjay Kisku
4. Nunu Kisku Daughter of Late Hanjay Kisku
5. Talababu Kisku son of Late Hanjay Kisku
6. Himoli Kisku daughter of late Hanjay Kisku
7. Marangmai Hansda, wife of Late Bisu Kisku
All residents of village- Dhamani Simaria, P.O. & P.S.- Boarijore, Dist-
Godda.
8. Birendra Kumar Singh son of Krishna Nand Singh, resident of village-
Kenuyar, P.O. & P.S.- Banka, Dist- Banka.
.... .... Respondents
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CORAM :HON'BLE MR. JUSTICE GAUTAM KUMAR CHOUDHARY
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For the Appellant : Mr. Sachin Kumar, Advocate
Mr. Binod Kumar, Advocate
For the Respondents : Mr. G.C. Jha, Advocate
Mr. Raunak sahay, Advocate
Mr. Bibhash Sinha, Advocate
CAV ON 16. 02.2022 PRONOUNCED ON 01.04.2022
1. Owner of the offending vehicle has preferred the instant appeal
under section 173 of the Motor Vehicle Act, 1988 against the judgment and
award of compensation in Title Claim Case No. 13/2008 (44/2004) whereby
the liability for payment of the compensation amount has been saddled
appellant on the ground that the driver of the offending vehicle had no valid
driving licence at the time of the accident.
2. It is an admitted position that the deceased Hanjay Kisku died in
a motor vehicle accident and at the time of the accident the offending vehicle
was under the insurance cover of O.P. No.3 Oriental Insurance Company
Limited. Appellant owner of the offending vehicle appeared in the Court
below but did not contest the claim and the written statement was not filed on
behalf of the owner of the vehicle.
3. The appeal has been preferred on the ground that since the
vehicle was admittedly insured, therefore the Insurance Company can not be
absolved from the liability to pay compensation amount to third party in cases
of breach of condition of insurance policy. It is also contended that the
Insurance Company had not taken the plea that the driver was not having a
valid driving licence at the time of accident. The surveyor has not been
examined to prove the surveyor report.
4. The central question in the instant appeal is the liability of the
owner of the vehicle for non-production of the driving licence of the driver of
the offending vehicle. The law on the point has been laid down by Hon'ble the
Apex Court in Pappu v. Vinod Kumar Lamba, (2018) 3 SCC 208 wherein it
has been held:
"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".
It has been further held in "National Insurance Co. Ltd. v. Swaran
Singh, (2004) 3 SCC 297 that if the insurer succeeds in establishing its
defence, the Tribunal or the court can direct the insurance company to pay the
award amount to the claimant(s) and, in turn, recover the same from the owner
of the vehicle".
5. Here in the present case the basic document of driving licence
has not been produced on behalf of the owner of the vehicle and therefore
there is no infirmity in the order of the Tribunal regarding the breach of terms
of insurance policy on the part of the appellant who is the owner of the
offending vehicle. The owner can not escape from the principal liability
paying compensation to the claimants. However since the offending vehicle is
under insurance cover of respondent no.1- Oriental Insurance Company and
the deceased was the third party, therefore, Insurance Company shall liable to
pay the compensation amount and recovered the same from the owner of the
vehicle.
6. Since the matter involves third party risk and this is a case in
which the accident took place in the year 2004 and to ensure that there is no
further delay in payment to the claimants, under the principle of 'Pay and
Recover' as enunciated by the Supreme Court in Shamanna v. Divisional
Manager, Oriental Insurance Co. Ltd., (2018) 9 SCC 650, the awarded
amount is to be paid by the insurer first and the same then can be recovered
from the owner/driver. The said judgment, holds as under:
"6. As per the decision in Swaran Singh case [National Insurance Co.
Ltd. v. Swaran Singh, (2004) 3 SCC 297 : 2004 SCC (Cri) 733], onus is
always upon the insurance company to prove that the driver had no valid
driving licence and that there was breach of policy conditions. Where the
driver did not possess the valid driving licence and there are breach of policy
conditions, "pay and recover" can be ordered in case of third-party risks. The
Tribunal is required to consider "as to whether the owner has taken
reasonable care to find out as to whether the driving licence produced by the
driver ...... does not fulfil the requirements of law or not will have to be
determined in each case".
7. The Oriental Insurance Company (O.P. No.3) is directed to pay
the compensation amount as per the order of the Tribunal to the claimants
within a month of this order. The Insurance Company shall be at liberty to
recover the amount so paid from the owner of the vehicle (O.P. No.1).
The appeal is dismissed with this modification.
(Gautam Kumar Choudhary, J.)
Jharkhand High Court, Ranchi
Dated the 01st April, 2022
NAFR / Anit
