Jharkhand High Court
M/S National Insurance Company ... vs Smt. Gangia Devi on 23 February, 2022
IN THE HIGH COURT OF JHARKHAND AT RANCHI
M. A. No. 355 of 2008
M/s National Insurance Company Ltd.,
through Divisional Manager, Hazaribagh .... .... Appellant
Versus
1. Smt. Gangia Devi
2. Minor Ful Kumari
3. Minor Jyoti Kumari
4. Md. Zahoor Sabir .... .... Respondents
------
CORAM: HON'BLE MR. JUSTICE GAUTAM KUMAR CHOUDHARY
------
For the Appellant : Mr. D.C. Ghose, Advocate
For the Respondents : Mr. Birendra Kumar, Advocate
Oral Order
13 / Dated : 23.02.2022
1. This appeal has been preferred by the Insurance Company against the
judgment and award of compensation passed by the Additional District
Judge-cum-Motor Accident Tribunal-Fast Tract Court-IV, Dhanbad in
Title (M.V.) Suit No. 108 of 2005 whereby and whereunder, a
compensation of Rs. 3,46,000/- has been awarded in favour of the
claimants for the death of Baldeo Rajak in the motor vehicle accident.
2. Learned counsel appearing for the appellant Insurance Company has
confined his argument to the plea of breach of terms and conditions of
the Insurance Company and consequent prayer for right of recovery in
favour of the Insurance Company.
3. It is submitted that admittedly the Truck bearing Registration No. HR
38D- 4420 was under the insurance cover of the appellant Insurance
Company. The driver of the offending vehicle at the relevant time of
accident was Masoom Khan with Driving License No. 899/F/86/H said
to be issued by the D.T.O., Hazaribagh in the year 1986. The F.I.R.
being Katras P.S. Case No. 247 of 2004 under Sections 279 and 304A
of IPC was lodged against the driver of the Truck No. HR 38D- 4420.
The police after investigation submitted the charge-sheet against the
driver-Masoom Khan. The investigator of the Insurance Company had
made specific enquiry from the D.T.O., Hazaribagh who has submitted
his report (Ext.A) that the said license was not issued by the office of
D.T.O., Hazaribagh. Investigator Ragvendra Pratap Singh has also
been examined as D.W.2 but despite this the liability of payment of
compensation has been fixed on the Insurance Company.
4. Learned counsel for the respondents/claimants submits that there is no
report or documentary evidence issued by the D.T.O. Office,
Hazaribagh that the said license was not issued in the name of
Masoom Khan. Therefore, in such circumstance, only on the basis of
the report of the investigator, the liability for payment of compensation
cannot be shifted to the owner of the vehicle completely relieving the
Insurance Company from its liability. In order to fix the liability on the
owner and to give right of recovery in favour of the Insurance
Company it was incumbent on the part of the Insurance Company to
lead evidence that the owner of the vehicle acted negligently while
engaging the driver without properly verifying his driving license.
The settled position of law is that in order to enable the
insurance company to establish breach of the terms and conditions of
the insurance policy, it is necessary to prove that the driving licence
was fake and the owner of the vehicle failed to exercise due diligence
in verifying the driving licence while engaging the driver in
employment. It has been held in Amrit Paul Singh v. TATA AIG General Insurance
Co. Ltd., (2018) 7 SCC 558
"17. The three-Judge Bench summed up its conclusions and we think it
appropriate to reproduce the relevant part of the same: (Swaran Singh
case [National Insurance Co. Ltd. v. Swaran Singh, (2004) 3 SCC 297 :
2004 SCC (Cri) 733] , SCC pp. 341-42, para 110)
"110. (iii) The breach of policy condition e.g. disqualification of the
driver or invalid driving licence of the driver, as contained in sub-
section (2)(a)(ii) of Section 149, has 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 the 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 a duly licensed driver or one
who was not disqualified to drive at the relevant time." Here the
Insurance company has failed to prove that the driving
licence was fake.
Under the circumstance I find that appeal is devoid of merit and
is dismissed accordingly. The security amount deposited by the
Insurance Company is permitted to be withdrawn.
(Gautam Kumar Choudhary, J.)
AKT
