AO/317/2007 of NATIONLA INSURANCE COMPANY LIMITED Vs MOHAN SINGH and ANOTHER

IN THE HIGH COURT OF UTTARAKHANDAT NAINITAL

Appeal From Order No. 317 of 2007

National Insurance Co. Ltd.

...Appellant

Versus

Sri Mohan Singh & another …Respondents

Sri Lalit Belwal, Advocate for appellant Sri K.K. Tiwari, Advocate for respondent no. 2

Hon’ble B.C. Kandpal, ACJ.

Dated: 26-02-2009

This appeal, under Section 173 of Motor Vehicles Act, 1988, has been preferred by National Insurance Co. Ltd, who is the insurer of offending vehicle Jeep No. D.L.-4C/D9474, against the judgment and award dated 6.10.2004 passed by Motor Accident Claims Tribunal/District Judge, Nainital, in M.A.C. Case No. 147 of 2001, Mohan Singh versus Balkishan and another.

Brief facts of the case, according to the claimant, are that on 10.12.2000 claimant-injured along with other passengers was travelling in Jeep No. D.L.-4C/D 9474 owned by opposite party no. 1-Balkishan and when the said jeep reached at Majar bend near village Ragauda towards Ranikhet from Ramnagar, the said vehicle lost its control due to high speed and turned turtle in order to save buffalo and in the said accident claimant as well as other passengers sustained injuries. The claimant has further alleged that sum of Rs.2,00,000/- has been spent on his treatment. The claimant thus claimed sum of Rs.3,00,000/- as compensation

against the opposite parties on account of injuries sustained by him in the accident.

Opposite party no. 1 Sri Balkishan, who is the owner of vehicle in question, contested the claim by filing his written statement and stated that accident had not taken place on account of rash and negligence of driver of jeep in question, rather it had occurred in the process of saving of animal coming on the way. It was also stated that vehicle in question was insured with National Insurance Co. Ltd. on the date of accident and liability to pay the compensation, if any, is of insurance company.

Opposite party no. 2 National Insurance Co. Ltd. filed its written statement pleading therein that driver of vehicle in question was not made party in the claim petition and therefore the claim petition is bad for non-joinder of driver as party. The claimant has claimed an exaggerated amount of compensation. The claim petition is liable to be dismissed.

The learned Tribunal on the basis of pleadings adduced by the parties framed necessary issues in the claim petition.

Parties led oral as well as documentary evidence in support of their case. 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.1,46,000/- along with interest of 9% per annum from the date of filing the petition till the date of

actual payment, vide judgment and award dated 6.10.2004.

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

Heard Sri Lalit Belwal, learned counsel for the appellant-National Insurance Co. Ltd., Sri K.K. Tiwari, learned counsel for respondent no. 2-owner of vehicle in question and perused the record.

Learned counsel for the appellant-insurance company has confined his argument to this aspect that there is no hill endorsement on the driving licence of driver to drive the vehicle on hill routes as was required under Rule 193 of U.P. Motor Vehicles Rules.

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. The appeal lacks merit and is liable to be dismissed.

No other point has been pressed.

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

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

(B.C. Kandpal, ACJ.)