Manager vs Savitri Debya
2023 Latest Caselaw 1442 Jhar

               IN THE HIGH COURT OF JHARKHAND AT RANCHI
                       (Civil Miscellaneous Appellate Jurisdiction)
                               M.A. No. 01 of 2018
                                ......

Manager, Oriental Insurance Co. Ltd. ...... Appellant Versus

1. Savitri Debya

2. Chandan Das

3.Kundan Das

4.Dukhan Das

5. Rameshwar Mahra

6. Ravindra Kumar

7. Jwala Prasad Singh . .......Respondents

CORAM: HON'BLE MR. JUSTICE KAILASH PRASAD DEO

......

      For the Appellant                                    : Mr. Alok Lal, Advocate
                                                           : Mr. Santosh Kumar, Advocate
      For the Respondents                                  : Mrs. Abha Verma, Advocate
      For the respondent no.7                              : Mr. Abhishek Kumar, Advocate
                                         -----

The matter is being taken up through Video Conferencing. Learned counsel for the parties have no objection with it and submitted that audio and video qualities are good.

11/ Dated: 03/04/2023

Heard, learned counsel for the appellant, Mr. Alok Lal assisted by learned counsel, Mr. Santosh Kumar, learned counsel for the respondents, Mrs. Abha Verma and learned counsel, Mr. Abhishek Kumar appearing on the instruction of learned counsel for the respondent no.7, Mr. Lalit Yadav.

The appellant-Manager, Oriental Insurance Co. Ltd. has preferred this appeal against the award dated 31.05.2017 passed by the learned District Judge-V-cum-Motor Accident Claims Tribunal, Deoghar in Motor Accident Claim Case No.19 of 2008, whereby the claimants, namely, Savitri Debya (respondent No.1), Chandan Das (respondent No.2), Kundan Das (respondent No.3), Dukhan Das (respondent No.4), Guldi Devi (respondent No.5, whose name has been deleted from the cause title of the memo of appeal in terms of order dated 03.12.2018) and Rameshwar Mahra (respondent No.6), (respondent Nos.2, 3 and 4 are minors being represented through their mother being their natural guardian as their next friend) have been awarded compensation to the tune of Rs.5,94,000/- out of which Rs.50,000/- has already been paid under Section 140 of the Motor Vehicle Act.

The appellant -Manager, Oriental Insurance Co. Ltd. has preferred this

appeal not on the ground of computation of compensation as stated by the learned counsel for the appellant, Mr. Alok Lal rather he has only challenged the award on the ground that liability has wrongly been fastened upon Oriental Insurance Company Limited without considering their application filed along with some documents with regard to fake driving licence of the driver of the offending vehicle at the time of driving of the said vehicle.

Learned counsel for the appellant has submitted that there is violation of Section 134(c) of the Motor Vehicle Act, 1988, as such, the impugned order is bad in law and right of recovery may be granted in favour of the Oriental Insurance Company Limited against owner of the vehicle, namely, Ravindra Kumar, S/o Biswanath Rai, R/o Village- Barakadiyan, P.S. Krishnabrham, District- Buxar, as such, this Court may consider the same.

Learned counsel for the appellant has further submitted that there is delay of 118 days in preferring the instant appeal by the Insurance Company and for condonation of the delay of 118 days, I.A. No.44 of 2018 has been preferred, as such, the said delay may be condoned.

Learned counsel for the claimants-respondents, Mrs. Abha Verma has submitted that the learned Tribunal has rightly recorded at para 3 of the impugned award that though the Oriental Insurance Company Limited has filed written statement, but did not adduce any oral or documentary evidence in support of their case. She has further submitted that this fact has elaborately been decided at page No.5 of the impugned award while deciding the issue No.VII i.e. "whether the driver of the offending vehicle (Truck) was holding a valid license at the time of accident" and has recorded that the document shows that the driver was authorized to drive heavy goods vehicle and his driving licence was renewed from time to time. Lastly, the driving license of the driver was renewed and valid from 23.10.2007 to 20.10.2010. O.P. No.2 has not brought any material on record to question the genuineness and validity of the driving license."

Learned counsel for the claimants-respondents, Mrs. Abha Verma has further submitted that this issue is no more res-integra, in view of the decision passed by the Hon'ble Apex Court in the case of Nirmala Kothari vs. United India Insurance Company Ltd., reported in 2020 SCC OnLine 286

at paras 7, 8, 9, 10 and 11, which may profitably be quoted hereunder:-

"7. Breach of conditions under Section 149(2)(a) of the Motor Vehicles Act, 1988 absolves the insurer of its liability to the insured. Section 149(2)(a)(ii) deals with the conditions regarding driving licence. In case the vehicle at the time of accident is driven by a person who is not duly licenced or by a person who has been disqualified from holding or obtaining a driving licence during the period of disqualification, the insurer is not liable for compensation. In the instant case it is a matter of fact that no record of the licence bearing no. P03041288753070 was found with the licensing authority.

8. Having set forth the facts of the present case, the question of law that arises for consideration is what is the extent of care/diligence expected of the employer/insured while employing a driver? To answer this question, we shall advert to the legal position regarding the liability of the Insurance Company when the driver of the offending vehicle possessed an invalid/fake driving licence. In the case of United India Insurance Co. Ltd. v. Lehru a two Judge Bench of this court has taken the view that the Insurance Company cannot be permitted to avoid its liability on the ground that the person driving the vehicle at the time of the accident was not duly licenced. It was further held that the willful breach of the conditions of the policy should be established. The law with this respect has been discussed in detail in the case of Pepsu RTC v. National Insurance Co. (2013) 10 SCC217, We may extract the relevant paragraph from the Judgment: (Pepsu case, SCC pp. 223-24, para 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. However, the situation would be different if at the time of insurance of the vehicle or thereafter the insurance company requires the owner of the vehicle to have the licence duly verified from the licensing authority or if the attention of the owner of the vehicle is otherwise invited to the allegation that the licence issued to the driver employed by him is a fake one and yet the owner does not take appropriate action for verification of the matter regarding the genuineness of the licence from the licensing authority. That is what is explained in Swaran Singh's case (2004) 3 SCC

297. If despite such information with the owner that the licence possessed by his driver is fake, no action is taken by the insured for appropriate verification, then the insured will be at fault and, in such circumstances, the insurance company is not liable for the compensation."

9. 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 willful breach of the conditions of the insurance policy or the contract of insurance lies on the insurer.

10. The view taken by the National Commission that the law as settled in the Pepsu case (Supra) is not applicable in the present matter as it related to third- party claim is erroneous. It has been categorically held in the case of National Insurance Co. Ltd. v. Swaran Singh(2004) 3 SCC 297 (SCC pp.341, para 110) that,

"110. (iii)...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 licenced driver or one who was not disqualified to drive at the relevant time."

11. While hiring a driver the employer is expected to verify if the driver has a driving licence. If the driver produces a licence which on the face of it looks genuine, the employer is not expected to further investigate into the authenticity of the licence unless there is cause to believe otherwise. If the employer finds the driver to be competent to drive the vehicle and has satisfied himself that the driver has a driving licence there would be no breach of Section 149(2)(a)(ii) and the Insurance Company would be liable under the policy. It would be unreasonable to place such a high onus on the insured to make enquiries with RTOs all over the country to ascertain the veracity of the driving licence. However, if the Insurance Company is able to prove that the owner/insured was aware or had notice that the licence was fake or invalid and still permitted the person to drive, the insurance company would no longer continue to be liable."

Learned counsel for the claimants-respondents, Mrs. Abha Verma has

lastly submitted that the appellant has wrongly came before this Hon'ble Court, as such, appeal may be dismissed though she has fairly submitted that she has not preferred any appeal for enhancement of the award, but since the quantum of award has never been challenged by the appellant, as such, the appeal may be dismissed.

Heard, learned counsel for the parties. The brief facts of the case is as on 27.12.2007 at about 5.30 P.M., the offending vehicle (Truck) bearing Registration No.UP53T-733 hit the deceased, Girdhari Das near the Village- Charkipahari under Mohanpur (Kunda) Police Station in the District- Deoghar (Jharkhand), resulting into his death. An FIR has been instituted being Mohanpur (Kunda) P.S. Case No.2 of 2008, which has been marked as Exhibit-1. Charge-sheet has been submitted by police, which has been marked as Exhibit- 2. Postmortem report of the deceased has been proved, which has been marked as Exhibit-3. The vehicle was registered in the name of Ravindra Kumar and it was driven by Jwala Prasad Singh. The photocopy of the Insurance Paper issued by the Oriental Insurance Company Limited has been proved and marked as Exhibit-4. Photocopy of the permit issued in favour of the offending vehicle has been proved and marked as Exhibit-5. Fitness certificate for a period starting from 27.09.2007 to 26.09.2008 has been proved and marked as Exhibit-6. Photocopy of death certificate of deceased, Girdhari Das has been proved and marked as Exhibit-7 and photocopy of the

driving licence of driver, Jwala Prasad Singh has been proved and marked as Exhibit-8. In the trial court, proceeding against the O.P. Nos.1 and 3 remains ex-parte and no steps was taken by Insurance Company to secure the attendance of the owner and driver of the offending vehicle. The appellant/ O.P. No.2 has filed its written statement, but failed to adduce any oral or documentary evidence to establish their petition dated 04.12.2014.

Issue raised by the learned counsel for the appellant, has already been decided by the learned Tribunal under issue No.VII. No steps was taken on behalf of appellant- Oriental Insurance Co. Ltd. to adduce any evidence on the issue that the driving licence was fake nor any contrary material has been brought on record, in view of the judgment passed by the Hon'ble Apex Court in the case of Nirmala Kothari (supra), wherein it has been held that it would be unreasonable to place such a high onus on the insured to make inquiries with RTOs all over the country to ascertain the veracity of the driving licence, accordingly, this Court not find any substance in the argument advanced by the learned counsel for the appellant-Oriental Insurance Company Limited, accordingly, the appeal is hereby dismissed being devoid of merit, in view of the judgment passed by the Hon'ble Apex Court in the case of Nirmala Kothari (supra).

The appeal is also barred by limitation of 118 days. This Court fails to understand why the Insurance Company is not diligent in pursuing their matter. The reason advanced by the Insurance Company in their Interlocutory Application being I.A. No.44 of 2018 for condonation of delay of 118 days is also not satisfactory as it is a social welfare legislation, where Insurance Company, who are responsible for payment of the compensation amount to the legal heir(s) of the deceased on the date of occurrence, has delayed the same because of no reason, as appeared from the said Interlocutory Application though the accident is of the year 2007, decided by the learned Tribunal on 31.05.2017 and even then, the appeal has been preferred after great delay of 118 days.

Accordingly, I.A. No. 44 of 2018 is also dismissed.

However, learned counsel for the appellant, Mr. Alok Lal has submitted that the compensation amount has already been deposited along

with interest before the learned Tribunal, in view of the order dated 26.02.2018 passed by a Co-ordinate Bench of this Court, as such, the statutory amount may be refunded to the Insurance Company.

Learned counsel for the claimants has submitted that, if the amount has already been deposited by the Insurance Company, statutory amount may be refunded to the Insurance Company, but the interest must be paid in this matter as the claimants cannot be suffered because of pendency of the appeal.

Accordingly, this Court directs the learned Tribunal to disburse the amount awarded by the learned Tribunal along with interest up-to-date in the Bank Account of the claimants. If any of the claimants has remained minor, the amount shall be paid to his mother or if any of the claimants has died, the amount should be disbursed to the legal heirs in equal ratio.

The learned Tribunal is directed to submit a report with regard to disbursement of compensation amount to the claimants.

After report submitted by the learned Tribunal, the statutory amount shall be refunded to the Insurance Company, if the same has not been refunded.

Let the Lower Court Records be sent back to the learned Court below.

(Kailash Prasad Deo, J.) R.S./Madhav