Divisional Manager vs Md. Asif
2022 Latest Caselaw 677 Jhar

      IN THE HIGH COURT OF JHARKHAND AT RANCHI
                           M.A No. 422 of 2016
      Divisional Manager, National Insurance Co. Ltd. .... .... Appellant(s).
                                 Versus
      1. Md. Asif
      2. Jaskirat Kaur                                .... .... Respondent(s)
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CORAM : HON'BLE MR. JUSTICE ANANDA SEN.

THROUGH : VIDEO CONFERENCING

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For the Petitioner(S) : Mr. Alok Lal, Advocate For the Respondent(s) : Mr. Shekhar Prasad Sinha, Advocate Mr. Anil Kumar, Advocate Mr. Shailendra Kumar Singh, Advocate

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06/Reserved on 22.02.2022 Pronounce on:24 /02/2022

Heard learned counsel for the parties.

2. The insurer of the Vehicle No. OR-09F-9128, the National Insurance Company has preferred this appeal challenging the judgment dated 12.04.2016 passed in T (M.V) S. No. 216 of 2011 passed by District Judge-X-cum-MACT, Judge, Dhanbad.

3. Mr. Alok Lal, counsel appearing on behalf of the appellant-Insurance Company submits that the only ground in this appeal is that the Tribunal has not granted Insurance Company the right recover the amount of compensation from the owner of the vehicle. He submits that when a specific plea has been taken by the insurer before the Tribunal, to the effect that offending vehicle was being driven without a licence and/or without a valid Driving Licence, it was incumbent upon the owner of the vehicle to produce the licence, so that the validity of the same could be verified. He submits that initial onus is upon the owner of the vehicle to produce the Driving Licence and other documents in relation to a vehicle and then only the onus will shift upon the Insurance Company. It is stated that in this case, before the Tribunal the owner did not appear nor produced any documents thus the Tribunal has specifically drawn adverse inference against the owner and that being so, the Tribunal should have granted the right to recover the compensation amount from the owner of the vehicle. He lastly submits that solely on the fact that the vehicle was insured, the Tribunal directed the Insurance Company to indemnify the owner, ignoring the issue of violation of condition of the terms of the policy.

4. Counsel appearing on behalf of the owner of the vehicle submits that admittedly the vehicle was insured. It is his situation when the vehicle was insured, no matter whatever the situation, the Insurance Company has to pay the amount of compensation. As per him, the Tribunal has rightly directed the Insurance Company to pay the amount of compensation. He submits that it cannot be presumed that a vehicle was being driven without licence and a driving licence remains valid for a period of twenty years or till the driver attains the age of 55 years. In the instant case presumption would be that the vehicle was being driven with a valid licence.

5. Counsel appearing on behalf of the claimants submits that award has been satisfied and the Insurance Company has paid the amount of compensation and this appeal has been filed to recover the amount from the owner, thus he will not be aggrieved by any order which will be passed in this case either in favour or against the Insurance Company.

6. After hearing the counsel for the parties and after going through the record, I find that the only ground which the Insurance Company has taken in this appeal is to grant them the right of recovery. The manner of accident, dependency, monthly income, the application of multiplier and all other aspects are not disputed. The fact that the offending Dumper (Tipper) bearing Registration No. OR-09F-9128 was duly insured with the appellant-Insurance Company is also not disputed. Since the issue lies in very narrow compass in this appeal, I am not dealing with other issues which has not been raised.

7. The issue which falls for consideration before this Court is to whether the Insurance Company can be given the right to recover the amount of compensation from the owner of the vehicle. The Insurance Company has taken a plea that since the vehicle was being driven by a person without licence and /or without a valid licence, there is a breach of fundamental condition of the policy, thus it is the owner of the vehicle who has to pay the amount of compensation. It is submitted that at best the Insurance Company would have been directed to pay the amount and recover the same from the owner. In support of his contention he refers to the judgment of the Hon'ble Supreme Court in the case of Pappu & Ors. Vrs. Vinod Kumar Lamba & Anr. reported in (2018) 3 SCC 208 & Amrit Paul Singh & Anr. Vrs. Tata AIG General Insurance Company Ltd. & Ors. reported in (2018) 7 SCC 558.

8. From the record I find that Insurance Company had appeared before the Tribunal and had filed their written statement. In their written statement at paragraph no.10 the Insurance Company has stated and submitted that the driver of Dumper (Tipper) bearing Registration No. OR-09F-9128 was not holding a valid and effective licence and at the same time was not qualified for holding the same. It is necessary to quote paragraph no. 10 of the written statement:-

"10. That, it is submitted that the driver of Tipper No. OR-09F-9128 was not holding a valid and effective driving licence at the time of accident and was further not qualified for holding or obtaining such driving licence and further has not satisfied the requirement of rule no.3 of Central Motor Vehicle Rules, 1989. The defendant no.1 had handed over the possession of the vehicle to the said driver and therefore has contravened the provisions of M.V. Act and the rules framed thereunder and has committed the breach of the terms and conditions of the policy".

9. Further in paragraph no.12 of the written statement, the Insurance Company pleaded that as per Section 134 (C ) of MV Act, 1988 it is a mandatory duty of the defendant no.1 (owner) to furnish the particulars of policy and particulars of the Driving Licence but the defendant owner has not complied with the same. It is necessary to quote paragraph no. 12:-

"12. That, this defendant company submits that as per section 134 ( C) of MV Act, 1988 it is mandatory duty of defendant no.1 herein to furnish the particulars of policy, date, time and place of accident, particulars of injured and the name of the driver and particulars of driving licence but the defendant no.1 herein has not complied with statutory demand. Hence this defendant is not liable to pay any compensation and the case is liable to be dismissed against this defendant for non-compliance of statutory demand".

10. Paragraph no. 14 of their written statement is also important to be taken note of which is quoted herein below:-

"14. That, the plaintiff and defendant no.1 are put to strict proof that the registered owner used vehicle no. OR- 09F-9128 without any breach of permit and traffic rules as per M.V Act and rules. The plaintiff and defendant no.1 are put to strict proof that there was no violation of any section of MV Act, 1988 and it's subsequent amendments".

11. From the aforesaid paragraphs it is clear that Insurance Company had taken a plea of invalidity of Driving Licence. Now in this scenario, the onus was upon the owner of the vehicle to produce the driving licence.

Production of the Driving Licence could have had a positive effect. In this case, it is apparent that the owner of the vehicle did not appear before the Tribunal, thus the Tribunal proceeded ex-parte against him by order dated 16.4.2013. It is well settled principal that a negative fact cannot be proved. The Insurance Company has pleaded a negative fact that the vehicle was driven without a valid licence/without licence, thus the onus shifts upon the owner of the vehicle to prove or at least to bring on record the licence to prima-facie prove that vehicle was being driven by a person holding a valid driving licence. Production of the licence before the Tribunal would have answered as to whether the licence is valid or not. In this case there is nothing on record to suggest that any Driving Licence or copy of Driving Licence was ever produced. The Hon'ble Supreme Court in the case of Pappu & Ors. (Supra) in paragraph no.13 has held that mere producing a valid insurance certificate in respect of the offending vehicle was not enough to make the Insurance Company liable to discharge its liability arising from rash and negligent driving by the driver of this vehicle. It has been further held that the Insurance Company can be fastened with the liability on the basis of 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 valid driving licence. The Hon'ble Supreme Court further went on to hold that without disclosing the name of the driver in the written statement or producing any evidence to substantiate the facts that the copy of the driving licence was produced in support of a person, and in fact he was authorised to drive the offending vehicle at the relevant point of time, the owner of the vehicle cannot be said to have extricated himself from his liability. Thus it has been held that Insurance Company would become liable only after such foundational facts were pleaded and proved by the owner of the offending vehicle.

12. From the facts of this case as held above the owner did not appear nor filed any document stating that vehicle was driven by a person having a licence. In view of the judgment referred to above, this Court holds that foundational facts had not been pleaded nor proved by the owner. In absence of such pleading and proof, the Insurance Company cannot be held liable to indemnify the owner, as adverse inference should be drawn against the owner. Further I find from the impugned judgment, the Tribunal has also drawn adverse inference against the owner which is evident from paragraph no. 14 of the judgment.

When the Tribunal has already drawn adverse inference, the right to recover should have been extended to the Insurance Company. Further from paragraph no. 28 of the impugned award, which has been heavily relied upon the owner of the vehicle, I find that the Tribunal has directed the Insurance Company to pay the amount of compensation only on the ground that the vehicle was duly insured at the time of accident. There is no doubt that the vehicle was insured at the time of accident but as held in the judgment of the Hon'ble Supreme Court in the case of Pappu & Ors. (Supra) that merely having valid Insurance Policy cannot be the ground to direct the insurer to indemnify the owner. The foundational facts about the driving licence etc. has to be pleaded and proved by the owner then only the Insurance Company can be directed to indemnify the owner. In this case as it has been held that foundational fact are missing. In such scenario in spite of the fact that vehicle was insured, the Insurance Company should have been given the right to recover the amount from the owner of the vehicle. Thus this Court holds that the Insurance Company does have the right to recover the amount of compensation, so paid to the claimants, from the owner of the vehicle.

13. In view of what has been held above this appeal stands allowed to the extent that the insurance Company is at liberty to recover the amount of compensation from the owner of the vehicle.

14. Statutory amount deposited by the Insurance Company at the time of filing of this appeal is directed to be refunded to Insurance Company.

(ANANDA SEN , J) anjali/ C.P 3