AO/38/2007 of NATIONAL INSURANCE CO. LTD Vs RAKESH PRASAD and ANR

IN THE HIGH COURT OF UTTARAKHANDAT NAINITAL

Appeal Against Order No. 38 of 2007

National Insurance Co. Ltd.

…Appellant

Versus

Rakesh Prasad and another

… Respondents

Sri D.S. Patni, Advocate for appellant Sri R.P. Nautiyal, Advocate for respondents

Dated: August 7, 2008

Hon’ble B.C. Kandpal, J.

This appeal, preferred u/s 173 of Motor Vehicles Act, 1988, is directed against the judgment and award dated 24.06.2006 passed by MACT/District Judge, Rudraprayag, in M.A.C.T. No. 08/2006, whereby the claim of the claimants was allowed for an amount of compensation to the tune of Rs.1,57,000/- and National Insurance Co. Ltd. was directed to pay the same.

Brief fact of the case as narrated in the claim petition are that on 6.11.2005 at 4.00 p.m. when son of claimant no. 1 Ayush, along with his mother-Smt. Anita Devi (deceased) was going by Tata Sumo No. U.A.7C/9210, near P.W.D. Office Rudraprayag the said vehicle being driven by its driver rashly and negligently, met with an accident and fell into river, due to which Ayush aged about 6 years sustained injuries. The claimants claimed sum of Rs.5,00,000/- as compensation against opposite party.

Opposite party/National Insurance Co. Ltd. has filed written statement admitting the factum of

accident, insurance of offending vehicle. In the additional pleas, it has been stated that insurance company cannot be held liable on the basis of no fault liability. It has also been stated that the income of deceased as has been shown in claim petition is confusing and in this regard claimants have filed no reliable income certificate. It has further been stated that driver of vehicle was not holding valid driving licence and there is no valid permit to drive the said vehicle on the hill route. Therefore, the insurance company is not liable to pay compensation to the claimants.

The learned Tribunal on the basis of pleadings of parties framed relevant issues in the claim petition. Parties led evidence in support of their cases. The learned Tribunal after having considered the entire material available on record and hearing learned counsel for the parties decreed the claim petition for sum of Rs.1,57,000/-, in favour of claimants, against the opposite party/National Insurance Co. Ltd., along with interest @ 6% per annum from the date of filing the petition till the date of actual payment.

Feeling aggrieved by the impugned aforesaid judgment and award, the appellant/National Insurance Co. Ltd. has preferred the appeal before this Court.

Heard Sri D.S. Patni, learned counsel for appellant/insurance company, Sri R.P. Nautiyal, learned counsel for respondents/claimants and perused the record.

Learned counsel for the appellant has firstly argued that there is no finding regarding rash and negligent driving by the driver of Tata Sumo in question insured by National Insurance Co. Ltd. and therefore claimants are not entitled for any compensation u/s 166 of Motor Vehicles Act.

The argument advanced by learned counsel for the appellant is devoid of any force. The learned Tribunal has categorically recorded finding on that point that the vehicle in question was being driven rashly and negligently by its driver, on account of which said vehicle met with an accident and fell into river, in which son of claimant Ayush sustained grievous injuries and wife of claimant-Smt. Anita Devi died at the spot itself.

The second argument of learned counsel for the appellant is that there is no hill endorsement on the driving licence of driver to drive the vehicle on hill routes.

The argument advanced by learned counsel for appellant has also no substance. TheDivision Bench of this Court in case The New India Assurance Co. Ltd. vs. Smt. Kala Devi alias Kalawati Devi & others, decided on 31.10.2006, observed that the driving licence of the driver will not be held invalid merely on the ground of absence of endorsement to drive the vehicle on hill routes under the provisions of Rule 193 of Motor Vehicles Rules.

The Division Bench of this Court has also relied upon the decision of the Hon’ble Apex Court

rendered in the case of National Insurance Co. Ltd. vs. Swaran Singh, 2004 AIR SCW 663, in which it has been observed as under:

“(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 duly licensed driver or one who was not disqualified to drive at the relevant time.

(iv) Even where the insurer is able to prove breach on the part of the insured concerning the policy condition regarding holding of valid licence by the driver or his disqualification to drive during the relevant period, the insurer would not be allowed to avoid its liability towards the insured unless the said breach or breaches on the condition of driving license 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 insurer under Section 149(2) of the Act.

The Division Bench of this Court has further relied upon the decision of the Hon’ble Apex Court rendered in the case of Lal Chand vs. Oriental Insurance Co. Ltd., 2006 AIR SCW 4832, in which it has been observed as under:

“In the instant case, the owner has not only seen and examined the driving licence produced by the driver but also took the test of the driving of the driver and found that the driver was competent to drive the vehicle and thereafter appointed him as driver of the vehicle in question. Thus, the owner has satisfied himself that the driver has licence and is driving competently, there would be no breach of section 149(2)(a)(ii) and the Insurance Company would not then be absolved of its liability.”

In view of the aforesaid decisions of the Hon’ble Apex Court as well as the Division Bench of this Court, the argument advanced by learned counsel for appellant has no force.

In view of above discussion, the appeal is liable to be dismissed.

Accordingly, the appeal is dismissed. The impugned judgment and award passed by Tribunal is confirmed.

The statutory amount deposited by the appellant-insurance company with this Court be remitted to the Tribunal concerned.

(B.C. Kandpal, J.)