Oriental Insurance Company Ltd vs Rakesh Kumar (Now Deceased) ...
2022 Latest Caselaw 12202 P&H

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FAO No.3429 of 2017(O&M)


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       IN THE HIGH COURT OF PUNJAB AND HARYANA
                    AT CHANDIGARH


                                         FAO No.3429 of 2017(O&M)
                                         Date of decision: 27.09.2022


Oriental Insurance Company Limited
                                                             ..... Appellant

                                    versus

Rakesh Kumar and others
                                                           ..... Respondents

CORAM: HON'BLE MR. JUSTICE TRIBHUVAN DAHIYA

Present: Mr. Ashish Yadav, Advocate for the appellant.

Mr. Ram Kumar Saini, Advocate for respondents No.2 to 4.

Mr. Manu Sachdeva, Advocate for Mr. Abhimanyu Singh, Advocate for respondent No.6.

TRIBHUVAN DAHIYA J.

This appeal has been filed by the Insurance Company against

the award dated 11.01.2017, passed by the Motor Accident Claims

Tribunal, Ambala, disputing its liability to pay the compensation awarded.

2. The facts in brief are, on 31.07.2015, Nisha (since deceased)

along with her minor son/respondent No.4, who was going on foot, was hit

by the offending vehicle/Bolero Jeep bearing registration No.HR-99-UH-

TP-1013 driven by respondent No.1. Nisha died on the spot, and the minor

suffered injuries. The Tribunal held respondent No.1 was driving the

offending vehicle in a rash and negligent manner, resulting in death of

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Nisha. Compensation amounting to Rs.12,55,000/- along with interest was

awarded to respondents No.1 to 4/claimants, payable by the appellant and

respondents No.5 and 6 (driver and owner of the offending vehicle), jointly

and severally.

3. Firstly, learned counsel for the appellant has argued that the

Tribunal has wrongly held respondent No.5/driver of the offending vehicle

negligent on the basis of statement of eye-witness, Raman Kumar (PW-3).

Testimony of this witness is not to be believed, since in the criminal trial,

pertaining to the accident in question and arising out of FIR No.239, dated

31.07.2015, under Sections 304, 337 and 114 of IPC, at Police Station

Ambala Cantt, this eye-witness appeared as PW-11 before the Judicial

Magistrate, First Class, and denied the accident as well as involvement of

the offending vehicle in the accident. He has, therefore, contradicted

himself and deposed falsely. His testimony has been wrongly relied upon

by the Tribunal to return the finding of negligence of respondent

No.5/driver on issue No.1. Secondly, it has further been argued by learned

counsel for the appellant that the licence (Exhibit R-4), said to have been

issued on 18.08.2009 to respondent No.5/driver by the Licencing

Authority, Bulandshahar, UP, was a fake licence. It has been proved by

examination of Rakesh, Licencing clerk as RW-2 that the licence (Exhibit

R-4) was never issued, and that it was a fake document.

4. Per contra, learned counsel for the respondents have argued

that respondent No.5/driver has been rightly held negligent by the Tribunal

on the basis of statement of the eye-witness. Respondent No.5/driver had a

genuine driving licence issued on 11.01.2016, valid upto 15.11.2017

(Exhibit R-12).

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5. Learned counsel for the parties have been heard and record

perused.

6. The Tribunal while returning finding of negligence against

respondent No.5/driver of the offending vehicle, has referred to statement

of the eye-witness, Raman Kumar as PW-3, who was himself injured in the

accident. FIR (Exhibit P-2) was lodged on the statement of this witness.

Pursuant thereto, driver of the offending vehicle faced criminal trial in case

titled State vs. Shahrukh Khan under Sections 304, 337 and 114 of IPC.

Copy of the Post Mortem report of deceased Nisha is on record as Exhibit

P-1. The Tribunal also recorded that respondent No.5/driver along with

one Danish were acquitted of all the charges by the learned Additional

Sessions Judge, Ambala, vide judgment dated 19.10.2016 (Exhibit R-6). It

is also a matter of record that driver of the offending vehicle/respondent

No.5 did not enter the witness box to controvert the statement of eye-

witness, Raman Kumar (PW-3). On the basis of this evidence, the

Tribunal held that the accident in question occurred on account of rash and

negligent driving of the offending vehicle by respondent No.5/driver.

7. A perusal of the statement of eye-witness, Raman Kumar/

PW-3 before the Tribunal establishes that the factum of acquittal of

respondent No.5/driver in criminal trial, vide judgment dated 19.10.2016,

was not put to him. He was not confronted with the contradictory

testimony, said to have given by him in the criminal trial, and deprived of

the opportunity to explain as to why the said statement was made.

Therefore, no adverse inference can be drawn against the eye-witness.

There is no other evidence or material on record to doubt the testimony of

this eye-witness. Consequently, the finding of negligence recorded by the

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Tribunal on issue No.1 cannot be impeached, since it is based upon

preponderance of probabilities.

8. Reliance placed by learned counsel for the appellant on a

judgment of this Court in United India Insurance Company Limited vs.

Kamla Devi and others, 2010 (4) PLR 235 to discard the testimony of the

eye-witness, is misplaced. In that case, the eye-witness was confronted

with his contradictory statement before the criminal Court, and on account

of no satisfactory explanation having been given by the said witness, it was

held that the statement was not worthy of acceptance. Such a situation does

not arise in the instant case as the eye-witness (PW-3) was not confronted

with his testimony in criminal trial.

9. Further, law on this aspect has been settled by the Supreme

Court in Sunita and others vs. Rajasthan State Road Transport

Corporation and another, (2020) 13 SCC 486, that in a motor accident

claim case, once the foundational fact, i.e., the actual occurrence of the

accident has been established, the Tribunal's role after that would be to

calculate the quantum of just compensation if accident had taken place due

to negligence of the driver. While deciding the cases, the standard of proof

to be borne in mind must be of 'preponderance of probability'. The

relevant part of para No.25 of the judgment reads as under:

25. ..... It is thus well settled that in motor accident claim cases, once

the foundational fact, namely, the actual occurrence of the

accident, has been established, then the Tribunal's role would be

to calculate the quantum of just compensation if the accident had

taken place by reason of negligence of the driver of a motor

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vehicle and, while doing so, the Tribunal would not be strictly

bound by the pleadings of the parties. Notably, while deciding

cases arising out of motor vehicle accidents, the standard of proof

to be borne in mind must be of preponderance of probability and

not the strict standard of proof beyond all reasonable doubt which

is followed in criminal case.

10. The second contention of learned counsel for the appellant

regarding licence of respondent No.5/driver being fake, also deserves

rejection in view of findings recorded on the issue. The Tribunal while

returning finding on issue No.3, "whether respondent No.1 was not having

a valid and effective driving licence on the date of accident, if so, its

effect? OPR 3", held the driver was having a valid driving licence (Exhibit

R-10). Reliance has been placed on the statement of respondent No.6-

owner of the offending vehicle (RW-1). He testified that only after due

verification of validity of the licence, he employed the driver. The licence

was issued by the District Transport Officer, Nagaland. Exhibit R-12 is

'No Objection Certificate' issued by the Authority in Nagaland that the

licence (Exhibit R-10) was issued to respondent No.5 and was valid up to

15.11.2017. The existence of the other driving licence Exhibit R-4

(referred to by the appellant-Insurance company), was denied by the

owner, RW-1. It has further been held by the Tribunal that the driving

licence (Exhibit R-10) was issued by the District Transport Authority,

Nagaland, on 05.11.2010 and was valid upto 15.11.2017, which permitted

him to drive various kinds of vehicles including light motor vehicles and

heavy motor vehicles. Therefore, respondent no.5 was held to be having a

valid driving licence.

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11. It has been held by the Supreme Court in National Insurance

Company Limited vs. Swaran Singh and others, 2004 (2) RCR (Civil) 114,

that the defence regarding fake licence of the person driving the offending

vehicle would be available to the Insurance Company. But despite the

licence being fake, the default on the part of the owner has to be

established before the Tribunal to avoid liability. Para No.105 (iii) & (iv)

of the judgment reads as under:

(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 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 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 conditions 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 wherefor would be on

them.

12. In the instant case, there is no evidence on record to establish

that the insured-respondent no.6 was guilty of any negligence or that he

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failed to exercise reasonable care in employing the driver of the offending

vehicle. Rather, the evidence has been led to the effect that insured-owner

of the offending vehicle (RW-1) did take proper care before employing

driver of the offending vehicle. He enquired about the validity of the

licence from the Licencing Authority, Nagaland, and found it to be

genuine. In these circumstances, the owner cannot be said to have

defaulted on any of the conditions of the Insurance Policy nor can he be

termed negligent. Therefore, the appellant-Insurance company cannot

avoid its liability to indemnify the insured, and finding of the Tribunal on

the issue does not suffer from any infirmity.

13. On account of the aforesaid analysis of facts and law, the

appeal fails and is hereby dismissed. No costs.

                                                (TRIBHUVAN DAHIYA)
                                                      JUDGE
27.09.2022
rittu

        Whether speaking/reasoned:         Yes/No
        Whether reportable:                Yes/No




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