Punjab-Haryana High Court
Sarwan Singh And Anr vs Deeso And Anr on 6 December, 2022
FAO-3539-2018(O&M) -1-
IN THE HIGH COURT OF PUNJAB AND HARYANA AT
CHANDIGARH
FAO-3539-2018(O&M)
Date of decision:-6.12.2022
Sarwan Singh and another
...Appellants
Versus
Deeso and others
...Respondents
CORAM: HON'BLE MR.JUSTICE H.S.MADAAN
Present: Mr.Mandeep Singh, Advocate
for the appellants.
Mr.Sandeep Suri, Advocate
for respondent No.4 - insurance company.
****
H.S. MADAAN, J.
1. Briefly stated, the facts of the case are that on account of
death of one Laddi Ram in a motor vehicular accident, which took place
on 6.9.2016 statedly on account of rash and negligent driving of oil tanker
bearing registration No.PB-13V-9739 (hereinafter referred to as the
offending vehicle) by respondent No.1 - Sarwan Singh, legal
representatives of said deceased, namely, his widow - Deeso, daughter -
Ms.Suman Rani and son - Kuldeep Kumar had brought a claim petition
under Section 166 of the the Motor Vehicles Act, 1988 against Sarwan
Singh -driver, Bhagwan Singh - owner and United India Insurance
Company Ltd. - insurer of the said offending vehicle. It was filed before
Motor Accidents Claims Tribunal, Sangrur (hereinafter referred to as the
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Tribunal) on 8.5.2017.
2. Notice of the claim petition was given to respondents, who
put in appearance and contested the claim petition by filing written
statements. Respondents No.1 and 2 had filed a joint written statement,
whereas respondent No.3 came up with a separate written reply. All the
three respondents have craved for dismissal of the claim petition.
3. On the pleadings of the parties, following issues were
framed:-
1. Whether on 6.9.2016, Laddi Ram met with an accident with oil
tanker bearing registration No.PB-13V-9739 driven by respondent
No.1, which resulted to his death? OPA.
2. Whether the claimants are entitled to receive compensation, if so, to
what amount and from whom? OPA.
3. Whether respondent No.1 was not holding valid and effective
driving licence and other documents at the time of accident? OPR-
3.
4. Relief.
4. The the parties led evidence in support of their respective
claims.
5. After hearing arguments, the Tribunal decided issues No.1
and 2 in favour of the claimants and against the respondents, whereas with
regard to issue No.3, the verdict was given in favour of the insurance
company and against respondents No.1 and 2. However a compensation
of Rs.11 lakhs was granted in favour of the claimants and against the
respondents along with interest @ 7% per annum from the date of filing
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of the claim petition till actual realization. The insurance company was
held liable to pay the amount of compensation, however it was granted
recovery rights against respondent No.2 insured.
6. This award left the respondent Nos.1 and 2 driver and owner
of the offending vehicle aggrieved and they have approached this Court
by filing the present appeal.
7. Notice of the appeal was given to the respondent No.4 -
insurance company, which put in appearance through counsel.
8. I have heard learned counsel for the parties besides going
through the record.
9. Learned counsel for the appellants has submitted that the
appellants had moved an application under Order 41 Rule 27 read with
Section 151 CPC for permission to place on record Annexure A1 by way
of additional evidence, which is copy of training certificate. The said
certificate clarifies that appellant No.1 Sarwan Singh driver of the
offending vehicle was holding a valid driving licence and was competent
to drive the offending vehicle at the time of alleged accident. Although the
document was handed over to counsel for the appellants (respondents
No.1 and 2 in the claim petition) before the Tribunal but due to omission
or inadvertent mistake the same could not be brought on record, therefore,
it be allowed to be placed on record by way of additional evidence for just
decision of the case.
10. Whereas this application is being opposed vehemently on
behalf of the respondent No.4 - insurance company, who states that no
such additional evidence can be allowed to be adduced at this stage of
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appeal; the genuineness of this document is suspected and doubtful; even
otherwise, the appellants could have produced the document before the
Tribunal during the trial but they did not do so and now they have
procured this certificate from some where and want to deprive the
insurance company of recovery rights by projecting that appellant No.1
Sarwan Singh was competent to drive the offending vehicle at the relevant
time.
11. Before proceeding to analyze the submissions made by
learned counsel for the parties, it would be relevant to refer to the findings
recorded by the Tribunal with regard to issue No.3 contained in paras 12
and 13 of the impugned award. For ready reference, those are being
reproduced as under:
ISSUES NO.3:
12. Onus to prove this issue is affixed on respondent No.3 that
respondent No.1 was not holding a valid and effective driving licence
and other documents at the time of accident. Learned counsel for the
insurance company has placed on record copy of insurance cover note
Exhibit R2, copy of driving licence of respondent No.1 Exhibit R3, copy
of registration certificate of offending oil tanker Exhibit R4, copy of
fitness certificate Exhibit R5 and copy of permit Exhibit R6. The main
argument advanced by learned counsel for the insurance company was
that Sarwan Singh was not holding valid driving licence. He was driving
an oil tanker but in the driving licence Exhibit R3, there is no
endorsement of the licensing authority that he was competent to drive oil
tanker carrying hazardous goods. Therefore, the vehicle was driven
without proper driving licence and the insurance company cannot be
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held liable to pay compensation to the claimants. On the other hand,
learned counsel for respondents No.1 and 2 argued that there was no
rash and negligent act on the part of respondent No.1. The driving
licence is Exhibit R3, which was valid driving licence to drive transport
vehicle. Therefore, the insurance company cannot escape its liability as
the vehicle was duly insured from 13.01.2016 to 12.01.2017, whereas the
alleged accident took place on 06.09.2016. Therefore, the insurance
company is liable to pay compensation if awarded by the Motor Vehicle
Tribunal.
13. I have considered the arguments advanced before me. It is an
admitted fact that the oil tanker bearing registration No. PB-13V-9739
was insured from 13.01.2016 to 12.01.2017. The insurance policy is
Exhibit R2. The main point in controversy is whether Sarwan Singh was
having valid driving licence or not. The copy of driving licence produced
on the file is Exhibit R3 according to which Sarwan Singh was having
driving licence bearing No.UP22 19920004564 issued by Rampur
Licensing Authority U.P. It was issued on 16.09.1992 and it was valid
for transport upto 11.10.2019 and non transport upto 23.09.2021. It is
rightly pointed out by learned counsel for the insurance company that
there is no endorsement on the driving licence of respondent No.1 that
he was competent to drive vehicle carrying dangerous and hazardous
goods. The provisions of Section 14 sub clause 2 of the Motor Vehicles
Act, 1988 runs as under:-
"14(2) A driving licence issued or renewed under this Act shall,-
(a) in the case of a licence to drive a transport vehicle, be effective for a
period of three years;
[Provided that in the case of licence to drive a transport vehicle
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carrying goods of dangerous or hazardous nature be effective for a
period of one year and renewal thereof shall be subject to the condition
that the driver undergoes one day refresher course of the prescribed
syllabus."
Therefore, as per this provision, the driving licence of a driver
transporting dangerous and hazardous goods is required to have specific
endorsement on the driving licence which is valid for one year and after
going refresher course it is to be renewed for another one year. There is
no endorsement that respondent No.1 was competent to drive the oil
tanker carrying hazardous goods. Therefore, there is nothing on record
to show that Sarwan Singh respondent No.1 was carrying valid driving
licence to drive the oil tanker. No doubt, the oil tanker is insured with
respondent No.3 but it was being driven by respondent no.1 in
contravention of the terms and conditions of Motor Vehicles Act.
Respondent No.1 was not competent to drive the oil tanker. Therefore,
the insurance company is given recovery rights against the insured i.e.
respondent No.2 under the provisions of Section 174 of Motor Vehicle
Act. With this observation, this issue is decided in favour of insurance
company and against respondents No.1 and 2.
12. Learned counsel for the appellants has placed reliance upon
judgment by a Single Judge of this Court in case National Insurance Co.
Ltd. Versus Harbans Kaur and others, FAO No.1210 of 2014 (O&M)
and the connected matter Harbans Kaur and others Versus M/s Indian
Oil Corporation and others, FAO No.8292 of 2014(O&M), date of
decision being 26.3.2018, wherein dealing with a similar situation in light
of the settled legal position, it was observed that the insurance company
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can neither escape its liability to pay compensation nor press for right of
recovery merely for want of endorsement required under Rule 9(3) of the
Rules on the licence held by driver of the offending vehicle. The other
judgment relied upon by learned counsel for the appellants was National
Insurance Co. Ltd. Versus Swaran Singh and Ors., passed by the Apex
Court in Special Leave Petition (C) Nos.9027 of 2003 with other SLPs,
date of decision being 5.1.2004, wherein it was observed that insurer is
entitled to raise all defences available under Section 149(2) of the Act,
however mere absence, fake or invalid licence at the relevant time are not
the defences available to insurer against the insured or third parties
because to avoid its liability towards the insured also, the insurer has to
prove the insured to be guilty of negligence and failure to exercise
reasonable care in compliance of conditions of policy. The burden is on
the insurer to establish breach of policy by leading cogent evidence and
mere non-production of licence or evidence by the insured cannot be
considered as discharge of burden of insurer.
13. As against that, learned counsel for respondent No.4 -
insurance company has referred to judgment Rajesh Singh and another
Versus Hardeep Singh and another, 2018(1) PLR 683 wherein it was
observed that in case of transport vehicles carrying goods which are
dangerous or hazardous in nature, the driving licence ordinarily issued is
not sufficient and the oil tanker was one which would fall within a
category of a transport vehicle meant to carry dangerous or hazardous
substances; when the owner had engaged the driver, it was his
responsibility to see that the licence had the necessary endorsement and if
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the owner failed to discharge his duly/responsibility placed upon a
transporter/owner of goods carriage, the Tribunal had rightly exonerated
the insurance company since there was a breach of the conditions of the
insurance policy. It was further observed that the argument advanced that
on particular journey the oil tanker was empty would be meaningless
because the oil tanker is used for transporting oil and licence does not
show any endorsement.
14. After considering the submissions made by learned counsel
for the parties as well as going through the judgments referred to by them,
I find that the Apex Court in judgment National Insurance Co. Ltd.
Versus Swaran Singh and Ors.(supra) has clarified the matter observing
that though in a claim petition under Motor Vehicles Act, 1988, the
insurance company is entitled to raise all defences available under Section
149(2) of the Act, however, mere absence, fake or invalid licence of the
driver at the relevant time are not such defences available to the insurer
against the insured or third parties because to avoid its liability towards
the insured, such insurer has to prove the insured to be guilty of
negligence and failure to exercise reasonable care in compliance of
conditions of the policy. It has further been clarified that the burden is on
the insurer to establish breach of policy by leading cogent evidence and
mere non-production of licence or evidence by the insured cannot be
considered as discharge of burden of insurer.
15. In the instant case, the Tribunal has though observed that
appellant No.1 Swaran Singh was having driving licence issued on
16.9.1992, which was valid for transport up to 11.10.2019 and non
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transport up to 23.9.2021. Further in absence of the endorsement that he
was competent to drive vehicle carrying dangerous and hazardous goods,
which is valid for one year and it is to be extended by one year after
undergoing refresher course, in absence of endorsement respondent No.1
was not competent to drive oil tanker carrying hazardous goods and this
was taken to be violation of terms and conditions of the insurance policy;
resultantly the Tribunal gave recovery rights to the insurance company to
recover the amount paid by it to the claimants from respondent No.2
insurer.
16. In my view, these observations of the Tribunal are not
sustainable in view of judgment National Insurance Co. Ltd. Versus
Swaran Singh and Ors.(supra), where the Apex Court had observed that
every proven breach of policy will not entitle the insurer to avoid his
liability unless the breach is proved to be so fundamental to have played
main role in the cause of accident and the extent of violation and non-
fulfillment of conditions of policy have to be determined by the Tribunal
on the facts of each case and no hard and fast rule can be laid down in that
regard. It was further observed that even learning driving licence
possessed by a driver is a valid driving licence under the rules and the
insurer cannot take it as defence to avoid its liability.
17. In this case it has to be taken note of that the accident, which
took place had nothing to do with the expertise and experience and
capability of the tanker driver to drive oil tanker carrying hazardous
goods. As a matter of fact, the accident had taken place when the oil
tanker was parked and not in motion. As per the case of the claimants, the
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oil tanker was standing in the middle of the road without any indication in
a negligent manner and due to reflection head lights of coming vehicles,
Laddi Ram could not see the tanker and struck on the backside of the
tanker, in the process receiving multiple injuries to which he had
succumbed. It is the basic rule of the road, which is supposed to be known
by every vehicle owner going on the road that vehicle is not to be parked
in the middle of the road, therefore, parking oil tanker in the middle of the
road is not something, which has anything to do with specialized training
to drive oil tanker and that lack of endorsement cannot be taken to be the
main cause for happening of the mishap. The finding recorded by the
Tribunal on this issue is not sustainable and is liable to be set aside. The
insurance company was wrongly granted recovery rights. The violation of
terms and conditions of the insurance policy, if any, could not be said to
be so fundamental so as to have played main role in causing of the
accident.
18. Therefore, the appeal has merit. The verdict given by the
Tribunal on issue No.3 that 'Whether respondent No.1 was not holding
valid and effective driving licence and other documents at the time of
accident' is reversed and issue No.3 is decided against the insurance
company. Resultantly, the relief of recovery rights granted to the
insurance company stands withdrawn.
It being so, the application for additional evidence filed by
the appellants has become infructuous and is disposed of as such.
19. With such modification with regard to finding on issue No.3
and consequently in the relief clause, the appeal stands allowed partly.
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Since the main appeal stands allowed partly, the
miscellaneous application(s), if any, stand disposed of accordingly.
6.12.2022 (H.S.MADAAN)
Brij JUDGE
Whether reasoned/speaking : Yes/No
Whether reportable : Yes/No
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