Orissa High Court
Divisional Manager vs Smt. Subasha Naik And Others on 12 December, 2022
IN THE HIGH COURT OF ORISSA AT CUTTACK
MACA No.887 of 2007
Divisional Manager, The Oriental
Insurance Company Ltd., Misson
Road, Cuttack .... Appellant
Mr. N.B. Das, Advocate
-versus-
Smt. Subasha Naik and Others .... Respondents
Mr. Abhaya Kumar Parida, counsel for Respondents 1 & 3
CORAM:
SHRI JUSTICE B. P. ROUTRAY
ORDER
12.12.2022
Order No.
12. 1. The matter is taken up through hybrid mode.
2. Heard Mr. N.B. Das, learned counsel for the insurer -Appellant
and Mr. A.K. Parida, learned counsel for claimant - Respondents 1 &
3.
3. Present appeal by the insurer is against the impugned judgment
dated 4th July, 2007 of the learned 1st MACT, Keonjhar passed in
MAC No.24 of 1996, wherein compensation to the tune of
Rs.1,72,700/- has been granted on account of death of deceased
Bharat in the motor vehicular accident dated 13th July, 1995.
4. Mr. Das submits that the offending vehicle, i.e. dumper bearing
registration number ORJ 6219 did not have a valid insurance policy
and its driver did not possess a valid driving licence on the date of
accident.
5. Upon perusal of the impugned judgment it reveals that a copy
of the insurance policy was produced from the side of the claimants
and marked as Ext.5. The insurance company did not dispute the same
before the tribunal nor produced any material before this court to
dispute said copy of insurance policy under Ext.5. Therefore the
contention raised by Mr. Das at this stage to dispute the validity of the
insurance policy in respect of the offending vehicle on the date of
accident is without merit and hence rejected.
6. As per the finding of the tribunal, the driving licence produced
by the accused driver, namely Kalusingh Purty is found a fake one. So
taking note of Ext.A and Ext.B as adduced from the side of the insurer
the tribunal while holding that the driver had a fake lincense, has
further opined that the incompetency of the accused to drive the
vehicle was never questioned by the insurer and no evidence was also
adduced in that regard.
7. In the case of National Insurance Co. Ltd. v. Swaran Singh,
(2004) 3 SCC 297 the Hon'ble Supreme Court has held as follows:-
"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."
8. Relying on the decision rendered in the case of Swaran Singh
(supra), the Supreme Court further in the case of Lal Chand v.
Oriental Insurance Co. Ltd., (2006) 7 SCC 318, held that, the insurer
has the onus to prove that the owner of the vehicle was guilty of
negligence and failed to exercise reasonable care in the matter of
fulfilling the condition of the policy regarding use of vehicle by a duly
licensed driver or one who was not disqualified to drive at the relevant
point of time.
9. Again in the case of Nirmala Kothari vs. United India
Insurance Company Limited, (2020) 4 SCC 49 it is held by Supreme
Court that the owner while hiring a driver is though expected to verify
that 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 and if the employer finds the driver to be
competent to drive the vehicle and has satisfied himself that the driver
has a driving licence, then there would be no breach of Section
149(2)(a)(ii) of the MV Act and the insurance company is liable under
the policy to indemnify the compensation.
10. In the case of Rishi Pal Singh vs- New India Assurance Co.
Ltd, Civil Appeal No.4919 of 2022 (decided on 26 July 2022), the
Supreme Court set aside the liberty given to the Insurance Company
to recover the amount from the owner by holding that, once the owner
is satisfied that the driver is competent to drive the vehicle, it is not
expected from the owner thereafter to verify the genuineness of the
driving license issued to the driver.
11. So, keeping in view the principles decided in afore-stated cases,
the approach of the tribunal to saddle the liability on the insurer
cannot be faulted with. It is true that no material is produced on record
to doubt competency of the accused driver. As such, no merit is seen
in the submission of Mr. Das to warrant any interference in the
impugned award. It is needless to say that no dispute is raised with
regard to quantification of compensation amount which otherwise also
appears reasonable and just. However, the rate of interest is reduced to
6% from 9%.
12. In the result, the appeal is disposed of with a direction to the
Appellant - insurer to deposit the entire compensation amount of
Rs.1,72,700/- (One lakh seventy two thousand seven hundred) before
the tribunal along with interest @ 6% per annum from the date of
filing of the claim application, within a period of three months from
today; where-after the same shall be disbursed in favour of the
claimant - Respondents 1 & 3, namely Smt. Subasha Naik and
Kumari Sangeeta Naik on such terms and proportion to be decided by
the learned tribunal.
13. It is submitted by Mr. Das that in terms of direction of this
court dated 12th May, 2022 the entire award amount along with
interest has been deposited before this court.
14. The Appellant is permitted to take back the same and deposit
before the tribunal within the stipulated period stated above.
15. The statutory deposit made by the insurer - Appellant before
this court along with accrued interest be refunded to the Appellant on
proper application and on production of proof of deposit of the
awarded amount before the tribunal.
16. An urgent certified copy of this order be issued as per rules.
( B.P. Routray)
Judge
M.K.Panda
