National Insurance Co.Ltd. vs Dhannu Lal Kushwah And Ors.
2022 Latest Caselaw 12063 MP

                                                     01

    IN THE HIGH COURT OF MADHYA PRADESH

                    AT GWALIOR
                       BEFORE
    HON'BLE SHRI JUSTICE DEEPAK KUMAR AGARWAL
               ON THE 12th OF SEPTEMBER, 2022


             MISC. APPEAL No. 982 of 2004

 Between:-
  NATIONAL INSURANCE CO.LTD.
  THROUGH     ITS    DIVISIONAL
  MANAGER,   DIVISION   OFFICE:
  JAYENDRAGANJ,        LASHKAR
  GWALIOR (MADHYA PRADESH)
                                         .....APPELLANT
 (SHRI R.V. SHARMA, LEARNED COUNSEL FOR APPELLANT)

 AND

1. DHANNU LAL KUSHWAH S/O SHRI
   HAR CHARAN KUSHWAH AGED 30
   YEARS R/O BADONI KHURD, P.S.
   BADONI, DISTT. DATIA (MADHYA
   PRADESH)

2. GANESH KUMAR S/O SHRI HUKUM
   CHAND SHARMA R/O DANDANA P.S.
   AARUNDA    DISTT.    KARNAL
   (HARYANA)

3. GOVIND RAM S/O SHRI RIJJUMAL
   R/O R-7, SHABJI MANDI, INDIRA
   MARKET, DELHI


                                        ....RESPONDENTS
                                                                  02

  (SHRI R.P. GUPTA, LEARNED COUNSEL FOR RESPONDENTS)
      This appeal coming on for hearing this day, the court

passed the following:

                          JUDGMENT

Aggrieved by the award passed in Claim Case No. 02/1999 by Motor Accident Claims Tribunal, Datia on 01.09.2004 appellant-Insurance has preferred this appeal.

Precisely stated facts of the case are that on 28.11.1998 at 7 am, respondent-claimant Dhannu Lal by loading grains and husk on a bullock cart was coming from village Badoni to Datia. When he reached ahead of Badoni Tiraha, driver of offending truck came driving his truck rashly and negligently and dashed the bullock cart of claimant due to which left leg of claimant got fractured. Jagat Singh- Son of claimant also received injuries on his head. One bull got injured and due to impact, bullock cart was broken. In regard to the said accident, claimant lodged report at Police Station Kotwali on the very same day. On medical examination, it was found that tibia and fibula bone of left leg of claimant got fractured therefore, plaster was implanted on his left leg but the fracture could not be cured and he suffered permanent disability. Claimant contended that he used to earn Rs.225/- per day by growing vegetables and selling the same and bear responsibility of his family. By filing claim petition under Section 166 of Motor Vehicle Act, claimant prayed for compensation to the tune of

Rs.2,50,000/- and adduced evidence in support of his claim. Respondent No.1 and 2 owner and driver of the offending vehicle i.e. Truck remained ex-parte before the Tribunal.

Learned Tribunal after analyzing the evidence led by rival parties, partly allowed the application of claimant and has awarded the compensation to the tune of Rs.70,500/- and fastened liability on the Insurance Company to pay compensation.

The present appeal has been filed by the Insurance Company on the ground that despite the driver of the offending vehicle was not holding a valid driving licence and it was stated by Jagdish Prasad Sharma (DW-2)-Clerk of RTO, in his statement that the licence of driver of offending vehicle i.e. Truck produced before the Court, having been issued in the name of one Pawan Kumar Sharma and not in the name of Ganesh Kumar-driver of offending truck, learned Tribunal fastened the liability to pay compensation on Insurance Company. The Insurance Company in this appeal has also raised ground that claimant has not suffered any permanent disability.

Learned counsel for the respondents submits that despite the fact of sustenance of fracture of tibia and fibula bone of the left leg of claimant having been proved by the evidence and the same has not been cured despite implantation of plaster resulting into shortening of leg by one and half inch and claimant suffered 41.8 % disability, learned Tribunal erred in assessing the disability

at 15%. It is also submitted that the quantum of compensation awarded by the learned Tribunal is on lower side and the same deserves to be enhanced.

The photocopy of the licence of Ganesh Kumar-driver of offending vehicle is at Ex.P-8. Jagdish Prasad Sharma (DW-2)- Clerk of R.T.O, Mathura in his statement has stated that the aforesaid license was issued by R.T.O. Mathura in the name of one Pawan Kumar. During cross-examination, claimant could not carve out any discrepancy so that his evidence can be disbelieved. Since driver and owner of the offending vehicle remained ex-parte before the Tribunal, therefore, could not cross-examine the said witness.

The three-Judges Bench of Apex Court in the case of National Insurance Co. Ltd. v. Swaran Singh & others reported in (2004) 3 SCC 297 in paragraph no.110 has observed as under:-

"110. The summary of our findings to the various issues as raised in these petitions are as follows:

(i) Chapter XI of the Motor Vehicles Act, 1988 providing compulsory insurance of vehicles against third party risks is a social welfare legislation to extend relief by compensation to victims of accidents caused by use of motor vehicles. The provisions of compulsory insurance coverage of all vehicles are with this paramount object and the provisions of the Act have to be so interpreted as to effectuate the said object.

(ii) Insurer is entitled to raise a defence in a claim petition fled under Section 163 A or Section 166 of the Motor Vehicles Act, 1988 inter alia in terms of Section 149(2)(a) (ii) of the said Act.

(iii) The breach of policy condition e.g., disqualification of driver or invalid driving licence of the driver, as contained in sub-section (2)(a)(ii) of section 149, have to be proved to have been committed by the insured for avoiding liability by the insurer. Mere absence,

fake or invalid driving license 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 insured, the insurer has to prove that the insured was guilty of negligence and failed to exercise reasonable care in the matter of fulflling the condition of the policy regarding use of vehicles by duly licensed driver or one who was not disqualified to drive at the relevant time.

(iv) The insurance companies are, however, with a view to avoid their liability must not only establish the available defence(s) raised in the said proceedings but must also establish 'breach' on the part of the owner of the vehicle; the burden of proof wherefore would be on them.

(v) The court cannot lay down any criteria as to how said burden would be discharged, inasmuch as the same would depend upon the facts and circumstance of each case.

(vi) Even where the insurer is able to prove breach on the part of the insured concerning the policy condition regarding holding of a valid licence by the driver or his qualification to drive during the relevant period, the insurer would not be allowed to avoid its liability towards insured unless the said breach or breaches on the condition of driving licence is/ are so fundamental as are found to have contributed to the cause of the accident. The Tribunals in interpreting the policy conditions would apply "the rule of main purpose" and the concept of "fundamental breach" to allow defences available to the insured under section 149(2) of the Act.

(vii) The question as to whether the owner has taken reasonable care to find out as to whether the driving license produced by the driver, (a fake one or otherwise), does not fulfll the requirements of law or not will have to be determined in each case.

(viii) If a vehicle at the time of accident was driven by a person having a learner's license, the insurance companies would be liable to satisfy the decree.

(ix) The claims tribunal constituted under Section 165 read with Section 168 is empowered to adjudicate all claims in respect of the accidents involving death or of bodily injury or damage to property of third party arising in use of motor vehicle. The said power of the tribunal is not restricted to decide the claims inter se between claimant or claimants on one side and insured, insurer and driver on the other. In the course of adjudicating the claim for compensation and to decide the availability of defence or defences to the insurer, the Tribunal has necessarily the power and jurisdiction to decide disputes inter se between insurer and the insured. The decision rendered on the claims and disputes inter se between the insurer and insured in the course of adjudication of

claim for compensation by the claimants and the award made thereon is enforceable and executable in the same manner as provided in Section 174 of the Act for enforcement and execution of the award in favour of the claimants.

(x) Where on adjudication of the claim under the Act the tribunal arrives at a conclusion that the insurer has satisfactorily proved its defence in accordance with the provisions of section 149(2) read with sub-section (7), as interpreted by this Court above, the Tribunal can direct that the insurer is liable to be reimbursed by the insured for the compensation and other amounts which it has been compelled to pay to the third party under the award of the tribunal. Such determination of claim by the Tribunal will be enforceable and the money found due to the insurer from the insured will be recoverable on a certificate issued by the tribunal to the Collector in the same manner under Section 174 of the Act as arrears of land revenue. The certificate will be issued for the recovery as arrears of land revenue only if, as required by sub- section (3) of Section 168 of the Act the insured fails to deposit the amount awarded in favour of the insurer within thirty days from the date of announcement of the award by the tribunal.

(xi) The provisions contained in sub-section (4) with proviso thereunder and sub-section (5) which are intended to cover specified contingencies mentioned therein to enable the insurer to recover amount paid under the contract of insurance on behalf of the insured can be taken recourse of by the Tribunal and be extended to claims and defences of insurer against insured by relegating them to the remedy before regular court in cases where on given facts and circumstances adjudication of their claims inter se might delay the adjudication of the claims of the victims." In the light of the aforesaid judgment which still holds the field, it is directed that the insurance company at the first instance will indemnify the compensation amount to the claimant and thereafter recover the same from the driver and owner, jointly or severally.

As far as ground of less permanent disability assessed by the Tribunal raised by respondent in cross-objection is concerned, the claimant produced permanent disability certificate issued by Dr. M.S. Pansari to the effect that due to accident, claimant

suffered 41.8% permanent disability. During cross-examination, he admitted that the claimant had suffered simple fracture and not compound. He has also stated that left leg of claimant was shortened by one and half inch.

Looking to the certificate issued by Dr. M.S. Pansari and a bare perusal of his statement, this Court is of the considered opinion that learned Tribunal rightly assessed permanent disability at 15% and awarded compensation amount to the claimant which need not to be interfered with.

In view of aforesaid, the cross-objection filed by the respondent is rejected and present appeal filed by the Insurance Company is partly allowed.

The impugned award passed by the Tribunal is modified to the extent indicated above.

Parties are directed to bear their own costs.

YOGEND
RA OJHA
2022.09.                                    (DEEPAK KUMAR AGARWAL)
13                                                  JUDGE
10:41:37
+05'30'    ojha