Jharkhand High Court
National Insurance Company Ltd vs Gyatri Devi on 21 January, 2022
IN THE HIGH COURT OF JHARKHAND AT RANCHI
Misc. Appeal No. 11 of 2012
National Insurance Company Ltd.
through Divisional Manager,
Divisional Office, Ranchi .... .... Appellant
Versus
1. Gyatri Devi
2. Pappu Kumar
3. Guddu Kumar Soni
4. Phool Kumari
5. Julie Kumari
6. Pinki Kumari
7. Kishore Kumar
8. Mungeshwar Singh
9. The New India Assurance Co. Ltd.
through its Divisional Manager,
Divisional Office-II, Ranchi .... .... Respondents
With
Misc. Appeal No. 10 of 2012
National Insurance Company Ltd.
through Divisional Manager,
Divisional Office, Ranchi .... .... Appellant
Versus
1. Gyatri Devi
2. Pappu Kumar
3. Kishore Kumar
4. Mungeshwar Singh
5. The New India Assurance Co. Ltd.
through its Divisional Manager,
Divisional Office-II, Ranchi .... .... Respondents
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CORAM: HON'BLE MR. JUSTICE GAUTAM KUMAR CHOUDHARY
------
For the Appellants : Mr. Alok Kumar, Advocate
For the Respondents : Mr. K.L. Ojha, Advocate
C.A.V. ON 22.12.2021 PRONOUNCED ON 21 /01/2022
1. The National Insurance Company Ltd. has preferred Misc Appeal
No.10/2012 against the judgment and Award of compensation under
Section 166 of the M.V. Act in Compensation Case No. 202 of 2002
passed by the Motor Vehicle Accident Claims Tribunal, Ranchi for the
death of Vicky Kumar and Misc. Appeal No.11/2012 against the
Judgment and award in Misc. Case no.203 of 2002 passed by the
Motor Vehicle Accident Claims Tribunal, Ranchi for the death of
Gupteshwar Prasad @ Gupteshwar Soni in Motor vehicle accident.
Both these cases have been heard together and disposed by a common
Judgment by the learned Court below.
2. The claimant Gayatri Devi W/o late Gupteshwar Prasad filed the claim
case no.202/2002 for the death of her son Vicky Kumar aged 17 years
and claim case no. 203 for the death of her husband Guptehswar
Prasad who died in a motor vehicle accident, and involving one
Trekker bearing No. BR-13P-9651 and Dumper bearing No. BHB-
8571. The owner and insurer of the Trekker bearing No. BR-13P-9651
have been impleaded as O.P. Nos. 1 and 2 and that of the Dumper
bearing No. BHB-8571 has been impleaded as O.P. Nos. 3 and 4.
3. As per the case of the claimants the both the deceased died in a motor
vehicle accident involving a Trekker bearing BR-13P- 9651 in which
they were travelling and the dumper bearing No. BHB-8571caused by
the rash and negligent driving of both the vehicles. Both sustained fatal
injuries and died during the course of treatment at R.M.C.H. Ranchi.
Both the owners and the Insurance Company have been impleaded.
Vicky Kumar was unmarried aged 17 years and Gupteshwar Prasad
was aged about 60 years and a businessman with a monthly income of
Rs 5000/- per month.
4. On the basis of the pleadings of the parties the following main issues
were framed by the Tribunal.
III. Had the death of the deceased Vicky Kumar and deceased
Gupteshwar Pd. @ Gupteshwar Soni resulted due to motor vehicle
accident arising out of the offending Trekker No.BR-13P-9651 and
Dumper No.BHB-8571?
IV. - Had the accident occurred due to rash and negligent driving of
the drivers of both the vehicles?
V. - Is this a case of composite negligent of both the vehicles?
VII.- Were the drivers of both the offending vehicles were having a
valid and effective driving license at the time of accident?
VIII. - Did the insured of the offending vehicle violate the terms and
conditions of the insurance policy?
5. The learned Tribunal recorded the finding of fact on these material
issues. Deceased Vicky Kumar of Compensation Case No. 202 of 2002
and deceased Gupteshwar Pd. @ Gupteshwar Soni of Compensation
Case No. 203 of 2002 had died in the Motor Vehicle accident caused
due to rash and negligent driving by the drivers of both the offending
vehicles.
6. It has further been held that Trekker bearing No. BR-13P-9651 was
insured with Opposite Party No. 2 whereas the owner of the offending
Dumper bearing No. BHB-8571 was Opposite Party No. 3 but it was
not insured with O.P. No. 4, the New India Insurance Company Ltd.
The charge-sheeted driver Ashok Mahto of Trekker No. BR-13P-9651
was having valid and effective driving license at the relevant time of
accident for driving L.M.V and H.M.V. and as the Trekker comes
within the category of L.M.V., therefore, he was also having valid
driving license to drive it.
7. Award has been assailed in both these appeals mainly on the ground
that the learned Court below committed serious error in holding the
genuineness of the driving license of Ashok Mahto issued by the
licensing authority, Hazaribagh in view of the fact that the original
driving license claimed to be issued from Giridih was fake and,
therefore, its subsequent renewal by D.T.O. Hazaribagh cannot make it
valid and a legal document. Exhibit-A remained unchallenged on
behalf of the owner of the vehicle.
8. The following are the points for determination:
a. Whether Ashok Mahto, driver of theTrekker was having a valid
and effective driving license at the relevant time of accident?
b. Whether the owner of the Trekker No. BR-13P-9651 who has
been impleaded as O.P. No. 1 had taken due and reasonable care
while engaging the driver Ashok Mahto for driving his vehicle?
9. National Insurance Company has adduced into evidence Ext.-B, which
is the report of the Investigator. As per this report, the driving license
of the driver of Trekker No. BR-13P-9651 was found to be endorsed
badge out of stock w.e.f. 16.07.2001 and renewed upto 02.01.2003
w.e.f. 03.01.2000 by D.T.O., Hazaribagh. As per Hazaribagh D.T.O.
Record, license was originally issued by D.T.O., Giridih vide D.L. No.
7501/93 which required to be verified from the office of the D.T.O.,
Giridih to ascertain the genuineness of its issuance. As per the driving
license verification report (Ext.-2/2), submitted by O.P. Sahay with
respect to D.L No. 7509/93 D.T.O., Giridih has issued a confirmatory
certificate vide Memo No. 993 dated 05.07.2003 according to which
the said driving licence issued in the name of Ashok Mahto was
completely fake, false and fabricated. The owner of the vehicle has not
appeared in the present case to contest the claim. I do not see any
cogent reason to discard Ext-2/2 which is the verification report of the
investigator mentioning that the said licence was not issued from
Giridih and it was a fake and fabricated document. On the basis of this
it can be held that the driver Ashok Mahto was not having a valid and
effective driving licence at relevant time of accident.
10. Now the question is whether the owner of the trekker O.P.1 can be
held liable for the breach of condition of the insurance policy by
permitting the driver to drive the offending vehicle without a valid and
effective driving licence.
Law on the point is settled by Hon'ble the Apex Court in Nirmala
Kothari v. United India Insurance Co. Ltd., (2020) 4 SCC 49 in
which it was held that while the insurer can certainly take the defence
that the licence of the driver of the car at the time of accident was
invalid/fake, however, the onus of proving that the insured did not
take adequate care and caution to verify the genuineness of the licence
or was guilty of wilful breach of the conditions of the insurance policy
or the contract of insurance lies on the insurer. The law laid down
in PEPSU RTC v. National Insurance Co., (2013) 10 SCC 217 was
reiterated and the observations made therein was quoted as follows:
"10. In a claim for compensation, it is certainly open to the insurer
under Section 149(2)(a)(ii) to take a defence that the driver of the
vehicle involved in the accident was not duly licensed. Once such a
defence is taken, the onus is on the insurer. But even after it is proved
that the licence possessed by the driver was a fake one, whether there
is liability on the insurer is the moot question. As far as the owner of
the vehicle is concerned, when he hires a driver, he has to check
whether the driver has a valid driving licence. Thereafter he has to
satisfy himself as to the competence of the driver. If satisfied in that
regard also, it can be said that the owner had taken reasonable care in
employing a person who is qualified and competent to drive the
vehicle. The owner cannot be expected to go beyond that, to the extent
of verifying the genuineness of the driving licence with the licensing
authority before hiring the services of the driver".
11. In the present case the driving licence was issued validly after
renewal by D.T.O., Hazaribagh as per the report of the investigator
(Ext B) . On further verification from DTO Giridih from where it was
purported to be validly issued, it was found to be fake on the basis of
the report of the investigator (Ext B/2). This is a case where invalidity
of licence could surface only after deeper investigation from different
D.T.O. offices. I am of the view that the owner of vehicle cannot be
expected to move from place to place for verifying the driving license
of a driver at the time of his engagement. To hold a contrary view will
cast an unconscionable burden on the owner of the vehicles to verify
the license from different D.T.O. offices to employ a driver. The owner
of the vehicle is expected to ask for the driving licence, but he cannot
be saddled with liability to enter into forensic investigation of its
genuineness. In these circumstances, the owner of the vehicle cannot
be held liable for not exercising reasonable care in verification of the
DL so as to result in breach of terms and condition of insurance policy.
Under the aforesaid facts and circumstance of the case, Judgment of
the learned Tribunal is affirmed.
Both the appeals stand dismissed. The appellant-Insurance Company
is permitted to withdraw the statutory amount deposited at the time of
filing of appeal. Consequently, I.A. No. 1100/12 in M.A. No. 11/12
stands disposed of.
(Gautam Kumar Choudhary, J.)
Jharkhand High Court, Ranchi
Dated the 21st January, 2022
AFR / A.K.T.
