Accident claim - Non-renewal of licence by driver never absorb the company from third party liability - Reimbursement of compensation from owner arose only when company proves that the owner intentionally violated the conditions and allowed the driver with out renewal to drive the vehicle - Company failed to prove this fact - as the owner not filed any appeal against the order of lower court not entitled for any relief - Confirmed the judgement - Dismissed the appeal= M/s.National Insurance Co. Ltd.,Rep. by its Br. Manager, Tirupati, Chittoor District. ... Appellant Anugula Munaswamy Naiduand another..... Respondents = published in http://judis.nic.in/judis_andhra/qrydisp.aspx?filename=10521

Accident claim - Non-renewal of licence by driver never absorb the company from third party liability - Reimbursement of compensation from owner arose only when company proves that the owner intentionally violated the conditions and allowed the driver with out renewal to drive the vehicle - Company failed to prove this fact - as the owner not filed any appeal against the order of lower court not entitled for any relief - Confirmed the judgement - Dismissed the appeal=
it is clear that an Insurance Company in
order to succeed in its defence pleas touching the driving licence issues must:
a) Firstly establish 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 vehicle by a duly licensed driver or one who was not
disqualified to driving at the relevant time.
b) Secondly, the breach which was committed by the insured was so fundamental as  
is found to have contributed to the cause of the accident.
        Upon establishing the above conditions by the Insurance Company, the
Tribunal can direct that the insurer is liable to be reimbursed by the insured
for the compensation and other amounts which it has been compelled to pay to the
third party under the award of the Tribunal.
11)     Now the point is whether the appellant has established aforesaid two
conditions to absolve itself of the liability. 
The first condition to be
established is that the owner allowed his driver to drive the vehicle knowing
that his licence was not renewed by the date of accident.  In the evidence of
RW.1, except stating that the driver had no driving licence at the time of
accident, we do not find him saying that the owner knowing this fact and still
allowed him to drive the vehicle.  Such a knowledge was not imputed to the owner
in the evidence of RW.1.  It should be noted that such a burden is on the
Insurance Company as per the above Apex Court's judgment.   
Then the second  
condition to be established is that the breach of the policy which was committed
by the owner is a fundamental one causing the accident. 
It must be said that
this condition is also not established by the Insurance Company because it is
nobody's case that either the driver does not know the driving or that his lack
of driving knowledge had resulted in accident.  
Therefore, following Apex Court's decision, the Tribunal has rightly held that the Insurance Company cannot avoid its liability to a third party. 
In the case of Vidhyadhar Mahariwala and others(4 Supra) cited by the
appellant, the facts are that, the driving licence of the driver of the
offending vehicle was not in force as on the date of accident.  The Tribunal and
High Court have turned down the plea of Insurance Company holding that mere gap 
in the renewal of driving licence cannot be a ground for its exoneration. 
The
appeal by the Insurance Company was allowed by Hon'ble Apex Court From the  
facts, it is not clear whether the owner knowingly allowed the driver to drive
the vehicle or not.  In view of this and the judgment in Swaran Singh's case (1
Supra) being rendered by a larger Bench, this judgment cited by the appellant
cannot be accepted. 
15)     So in the light of above discussion, no merits are found in the appeal.
It may be noted that on behalf of respondent No.2, it was argued that the
Tribunal ought not to have granted opportunity to Insurance Company to recover
the compensation amount from the owner of the vehicle since it failed to
establish the breach of the terms of the policy.  The said argument cannot be
accepted because respondent No.2/owner of the vehicle has not carried out appeal
against said finding.
16)     In the result, this M.A.C.M.A is dismissed by confirming the judgment of
the Tribunal in M.V.O.P.No.177 of 2004.  No costs.

THE HON'BLE SRI JUSTICE U. DURGA PRASAD RAO          

M.A.C.M.A. No.189 of 2009

18-11-2013

M/s.National Insurance Co. Ltd.,Rep. by its Br. Manager, Tirupati, Chittoor
District.       ... Appellant

Anugula Munaswamy Naiduand another..... Respondents  

Counsel for Appellant: Sri Kota Subba Rao

Counsel for Respondent No.2: Sri P. Govind Reddy

<Gist:

>Head Note:

?Cases referred:
1. 2004 ACJ 1 SC
2. 2009 (8) SCC 785
3. 2013 ACJ 2129 SC
4. 2008 ACJ 2860
5. 2013 ACJ 2440

HON'BLE SRI JUSTICE U. DURGA PRASAD RAO        

M.A.C.M.A. No.189 of 2009

JUDGMENT:  
        Aggrieved by awarding of compensation of Rs.3,84,575/- in favour of
injured/claimant in its judgment dated 08.08.2008 in M.V.O.P.No.177 of 2004 by
Motor Accidents Claims Tribunal-cum-V Additional District Judge, Tirupathi, the
2nd respondent-National Insurance Company Limited preferred the present
M.A.C.M.A. 1st and 2nd respondents in this appeal are the claimant and 1st
respondent respectively before the Tribunal.
2)      The brief facts of the case which led to file the present appeal can be
stated thus:
a)      A. Muna Swami Naidu, Supervisor in Head Post Office, Tirupathi, the
claimant while proceeding on his Hero Honda Motorcycle bearing No.AP 03 J 0998
along with his daughter as pillion rider from Tirupathi to Bandarlapally on the
road leading to Tirupathi Chandragiri on the night of 11.09.2012, on the way,
when they reached C.Mallavaram Village at about 7:45pm, a Jeep bearing No.AP 03
C 8298 came in the opposite direction being driven by its driver G. Vijay Kumar
in a rash and negligent manner and without following road rules and dashed
claimant's motorcycle and thus caused the accident.  In the resultant accident,
it is averred that the claimant sustained fracture to his right leg besides
multiple injuries all over the body.  The claimant took treatment in different
hospitals namely S.V.R.R G.G Hospital, Rassh Hospital, Tirupathi and Bone and
Joint Hospital, Chennai for considerable period and underwent surgeries three to
four times by incurring huge medical expenditure and ultimately suffered
disability in his right leg.  It was his case that the driver of the Jeep was at
fault as he drove the vehicle in a rash and negligent manner and caused the
accident.  The claimant reported the matter before M.R.Pally Police Station.  A
case in Crime No.145 of 2002 was registered on 12.09.2002 and charge-sheet was
filed against the driver of the Jeep.  Ultimately, the claimant filed O.P.No.177
of 2004 against respondents 1 and 2 who are the owner and insurer of the
offending vehicle and claimed compensation of Rs.9,00,000/- under different
heads mentioned in the O.P. 
b)      Both the respondents opposed the claim.
Respondent No.1, the owner of 
vehicle opposed the claim on the main contention that his driver was not at
fault and in fact the claimant himself drove his motorcycle in a rash and
negligent and in a zigzag manner and dashed the Jeep and caused the accident. 
He denied the injuries and medical expenditure incurred by the claimant and
urged to put him in strict proof.  He contended that the claim is highly
excessive and exorbitant and claimant does not deserve the same.
 Respondent No.1 further contended that he insured his vehicle with respondent No.2 and
respondent No.2 is liable to pay compensation if any awarded.
c)      The 2nd respondent-Insurance Company opposed the claim on two main  
grounds.  
Firstly, the facts of the case would show that it was an accident by
collision of two vehicles and therefore, there was contributory negligence on
the part of the petitioner/claimant.  
Secondly, though respondent No.1 insured
his vehicle, he grossly violated the terms and conditions of the policy and
allowed an unlicensed driver to drive the Jeep knowing that his driving licence
bearing No.894/93 was valid up to 12.07.2001 only.
Due to such breach,
respondent No.2 contended that it may be exonerated from its liability.
 Further
respondent No.2 denied the injuries, treatment in different hospitals,
disability, and huge medical expenditure as pleaded by the claimant in his O.P
and urged that he should be put to strict proof.  Finally, respondent No.2
contended that the claim was highly excessive and exorbitant and untenable.
d)      The judgment of the Tribunal shows that during trial, PWs.1 to 5 were
examined and Exs.A.1 to A.18 were marked for petitioner/ claimant and RWs.1 and
2 were examined and Exs.B.1 and B.2 were marked on behalf of 2nd
respondent/Insurance Company.
e)      The judgment would further show that considering the evidence of PW.1-
claimant, PW.2- his daughter and eye witness and also Ex.A.1-F.I.R, Ex.A.2-
charge sheet etc., the Tribunal on Issue No.1 held that the accident was
occurred due to the rash and negligent driving of the driver of the 1st
respondent's Jeep.
f)      About the contention of Insurance Company that the driver had no valid
license on the date of accident, the Tribunal on considering the evidence of
RWs.1 and 2, observed that the driver of the Jeep had driving licence till
12.07.2001 and again it was renewed from 08.09.2003 to 07.09.2006 but the
licence was not in force on 11.09.2002 i.e., the date of the accident.  
The
Tribunal further observed that on that count alone the Insurance Company cannot
repudiate its liability in view of the decision of Hon'ble Apex Court rendered
in National Insurance Company Limited vs. Swaran Singh and others1 wherein it
was held that mere absence or fake or invalid driving licence or its
disqualification of driver from 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 condition of the policy regarding use of vehicle by duly licensed driver or one who was not disqualified to drive at the relevant time.
g)      Emulating the above decision, the Tribunal further observed that the
Insurance Company failed to prove that the insured while knowing the fact that
driver has no license still allowed him to drive the vehicle.
It also observed
that the accident was occurred not because the driver was not knowing the
driving but because of his negligent driving. The driver had valid driving
licence both prior and subsequent to the accident and he was not disqualified to
drive the vehicle at the relevant time.  With these observations and following
the Apex Court's decision, the Tribunal gave a finding that both insured and
insurer are jointly and severally liable to pay compensation and the Insurance
Company is entitled to recover the compensation amount from the owner of the
vehicle.
h)      Then regarding the quantum of compensation, the Tribunal granted
Rs.3,84,575/- under different heads.
        Hence, the appeal by the appellant/Insurance Company.
3)      Heard arguments of both sides.
4)      Carping the judgment of Tribunal, learned counsel for appellant argued
that in this case admittedly the driver of the Jeep had no valid driving licence
on the date of accident as his driving licence expired long back. Even then
owner of the Jeep knowingly allowed his driver to drive the vehicle and
therefore, he committed breach of the terms of the policy.  Though the Tribunal
agreed with the contention of Insurance Company that the driver did not hold
valid driving licence by the date of accident, instead of exonerating the
appellant/Insurance Company from the liability it erroneously directed the
appellant to pay compensation and then recover the same from the insured.
Learned counsel vehemently argued that when there is no liability on the part of
Insurance Company, the question of it paying the compensation at first and
recovering the same later from the insured does not arise. 
 In support of his
arguments he relied upon the following decisions:
 a)National Insurance Company
Limited vs. Parvathneni and another2, b)United Insurance Company Limited vs.
Sujata Arora and others3 and c)National Insurance Company Limited vs. Vidhyadhar 
Mahariwala and others4.  He thus prayed to allow the appeal.
5)      Per contra, supporting the judgment of Tribunal learned counsel for
respondent No.2 argued that the Tribunal has rightly applied the ratio of Swaran
Singh's case (1 Supra) to the present case and decreed the O.P.  Expatiating it,
he argued,
the Tribunal firstly observed that it is not established by the
evidence of RWs.1 and 2 that the insured knowingly allowed the driver to drive
the vehicle, though his licence was not renewed as on the date of accident.
Hence as per this observation, no knowledge of lack of driving licence can be
attributed to the owner of the vehicle and consequently, breach of terms of
policy also cannot be attributed to him.
 Learned counsel further argued that
secondly, the Tribunal observed that the accident was occurred not due to lack
of driving knowledge by the driver but because of his rash and negligence.
Since he had valid driving licence prior and subsequent to the accident, the
Tribunal observed that the accident was not because of his not knowing the
driving.  It also observed that he was not disqualified to drive the vehicle at
the relevant time of accident.  Learned counsel submitted that in the opinion of
Tribunal, lack of driving knowledge was not the fundamental breach of the policy
and hence the Tribunal rightly rejected the contention of Insurance Company.
Learned counsel argued that in fact while observing as above, the Tribunal ought
to have fastened the entire liability on the Insurance Company instead of
directing it to pay and recover.  He thus submitted that the contention of
appellant is not valid and the citations relied upon by it are not applicable to
the present case and the appeal may be dismissed.  To buttress his argument, he
relied upon the decision reported in
  Pepsu Road Transport Corporation vs. National Insurance Co. Ltd.5
wherein it was held that when the owner without
knowing that the licence of the driver was a fake one allowed him to drive the
vehicle by verifying his licence and providing him training in the driving
school, the Insurance Company cannot absolve its liability in an accident.
6)      In the light of above divergent arguments, now the point for consideration
is:
 "Whether the owner of the offending vehicle/2nd respondent knowingly committed breach of terms of the policy to absolve appellant/Insurance Company of its liability"?
7)      POINT: The factum of accident and involvement of Jeep of
2nd respondent and motorcycle of claimant are not in dispute.  Regarding the
fault of driver of the Jeep in the resultant accident, we have the evidence of
PWs.1 and 2 who are victims, besides the documentary evidence Ex.A.1-F.I.R and
Ex.A.2-charge sheet.  PW.1 deposed that when himself and PW.2- his daughter were
proceeding on his motorcycle from Tirupathi to Bandarlapally and reached
C.Mallavaram village, on the night of 11.09.2002, the offending jeep came in the
opposite direction being driven by its driver in a rash and negligent manner and
without following road rules and dashed their vehicle and caused the accident.
In the cross-examination he stated that he holds valid driving licence. In fact
he produced Ex.A.14- driving licence which shows that he had valid driving
licence.  He denied the suggestion that he does not know driving and he drove
the motorcycle in a zigzag manner and dashed against the Jeep and that the
accident was occurred due to his fault.  Regarding topography of the accident
road, he stated that the road at the place of accident was a 30 feet wide road
and two vehicles can pass at a time.  PW.2 also deposed in similar fashion.
Ex.A.2- charge sheet shows that police after investigation found fault with Jeep
driver and charge-sheeted him.   To rebut aforesaid oral and documentary
evidence, the respondents have not examined the driver of Jeep to prove his
innocence if any.  On the other hand, the evidence on claimant's side clearly
shows that though there was ample space on the road, the driver of the Jeep went
and dashed the motorcycle.  Therefore, the accident can be said to have occurred
due to his rash and negligent driving.  The Tribunal thus rightly held that the
Jeep driver was at fault.
8)      Then coming to the driving licence issue of the Jeep driver, the evidence
of RW.2, the Senior Assistant in R.T.O office coupled with Ex.B.2- driving
licence particulars of the driver, would show that the driver G. Vijay Kumar
possessed the driving licence to drive transport vehicles from 13.07.1998 to
12.07.2001 and his licence was again renewed from 08.09.2003 to 07.09.2006. 
Thus it is clear that his licence was not renewed as on the date of accident
i.e., 11.09.2002.  Then Ex.B.1- policy copy shows that the offending Jeep
bearing No. AP 03 C 8298 was insured with appellant/Insurance Company for the
period covering 01.06.2002 to 31.05.2003, thus covering the date of accident. It
is the contention of appellant that one of the terms and conditions of Ex.B.1-
policy is that the vehicle should be driven by a driver holding valid and
effective driving licence and since the Jeep driver did not hold such valid
driving licence as on the date of accident and as 1st respondent knowingly
allowed him to drive the vehicle, it amounts to breach of terms of the policy
and Insurance Company is not liable to pay compensation on that count.
In this
regard, it must be mentioned that Ex.B.1-policy copy is only a one page document
and it is not containing the full details of all the terms and conditions
entered into by the parties.
However, since the parties addressed before
Tribunal that such a condition was in existence in the policy and the Tribunal
also answered the same, the existence of such condition in the policy is taken
for granted, of course with a note of caution to the Trial Courts that while
marking documents as exhibits they shall not only check their relevancy and
admissibility but also confirm whether the documents contain the necessary
details touching their pleas or not.
9)      Now regarding the contention of breach of terms of policy, the Tribunal
following the ratio of Swaran Singh's case (1 Supra) held that there was no
breach.  In the said case, Hon'ble Apex Court was dealing with wide spectrum of
defence pleas of Insurance Companies basing on the deficiencies in driving
licences.  Such deficiencies are:
a) Fake driving licenses of the driver.
b) Driver not having licence whatsoever.
c) No renewal of driving licence as on the date of accident.
d) License granted for one class or description of vehicle but vehicle involved
in accident was of different class or description.
e) Driver holding only a learner's licence.
The Apex Court after discussing various issues involved in this regard,
summarized its findings thus:
i) 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 condition of the policy regarding use of vehicles by duly
licensed driver or one who was not disqualified to drive at the relevant time.
ii) 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 wherefore would be on them.
iii)  Even where the insurer is able to prove breach on the part of the insured
concerning the policy condition regarding holding of a valid license by the
driver or his qualification to drive during the relevant period, the insurer
would not be allowed to avoid its liability towards insured unless the said
breach or breaches on the condition of driving licence 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 insured
under section 149(2) of the Act.
iv)  The question as to whether the owner has taken reasonable care to find out
as to whether the driving licence produced by the driver, (a fake one or
otherwise), does not fulfill the requirements of law or not will have to be
determined in each case.
v)  Where on adjudication of the claim under the Act the tribunal arrives at a
conclusion that the insurer has satisfactorily proved its defence in accordance
with the provisions of section 149(2) read with sub-section (7), as interpreted
by this Court above, the Tribunal can direct that the insurer is liable to be
reimbursed by the insured for the compensation and other amounts which it has
been compelled to pay to the third party under the award of the tribunal.
10)     From the above summarization, it is clear that an Insurance Company in
order to succeed in its defence pleas touching the driving licence issues must:
a) Firstly establish 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 vehicle by a duly licensed driver or one who was not
disqualified to driving at the relevant time.
b) Secondly, the breach which was committed by the insured was so fundamental as  
is found to have contributed to the cause of the accident.
        Upon establishing the above conditions by the Insurance Company, the
Tribunal can direct that the insurer is liable to be reimbursed by the insured
for the compensation and other amounts which it has been compelled to pay to the
third party under the award of the Tribunal.
11)     Now the point is whether the appellant has established aforesaid two
conditions to absolve itself of the liability.
The first condition to be
established is that the owner allowed his driver to drive the vehicle knowing
that his licence was not renewed by the date of accident.  In the evidence of
RW.1, except stating that the driver had no driving licence at the time of
accident, we do not find him saying that the owner knowing this fact and still
allowed him to drive the vehicle.  Such a knowledge was not imputed to the owner
in the evidence of RW.1.  It should be noted that such a burden is on the
Insurance Company as per the above Apex Court's judgment.   
Then the second  
condition to be established is that the breach of the policy which was committed
by the owner is a fundamental one causing the accident.
It must be said that
this condition is also not established by the Insurance Company because it is
nobody's case that either the driver does not know the driving or that his lack
of driving knowledge had resulted in accident.  
Therefore, following Apex Court's decision, the Tribunal has rightly held that the Insurance Company cannot avoid its liability to a third party.
The arguments of appellant which
are in similar lines before the Tribunal, cannot be accepted and the judgments
cited by it can be distinguished.
12)     In Parvathneni's case (2 Supra), the defence of Insurance Company was not
in respect of deficiency in driving licence as in the present case.  Rather its
defence was on the ground of non-coverage of insurance policy to the date of
accident i.e., 30.11.2003 since the cheque dated 29.11.2003 issued towards
premium for renewal of the policy was dishonoured.  Hence the defence in that
case was basically non-coverage of policy on the date of accident.  In the light
of these facts, Hon'ble Apex Court observed that when the Insurance Company has
no liability to pay compensation, it cannot be compelled to make payment and
later on recover from the owner.  It differed with some earlier decisions and
directed that the matter be placed before the Hon'ble the Chief Justice of India
for constituting a larger Bench for decision.  Hence this decision will not help
the appellant.
13)     The Sujata Arora's case (3 Supra) cited by the appellant can also be
distinguished on facts.  A careful reading of the said judgment would give an
impression that in that case, the owner knowingly entrusted the offending van to
the driver who was holding a fake driving licence.  In that context, Hon'ble
Apex Court held that liability cannot be fastened on the Insurance Company.
However in the instant case, the appellant could not establish that owner
knowingly entrusted the vehicle to the driver whose licence was not renewed on
the date of accident.
14)     In the case of Vidhyadhar Mahariwala and others(4 Supra) cited by the
appellant, the facts are that, the driving licence of the driver of the
offending vehicle was not in force as on the date of accident.  The Tribunal and
High Court have turned down the plea of Insurance Company holding that mere gap 
in the renewal of driving licence cannot be a ground for its exoneration.
The
appeal by the Insurance Company was allowed by Hon'ble Apex Court.  From the  
facts, it is not clear whether the owner knowingly allowed the driver to drive
the vehicle or not.  In view of this and the judgment in Swaran Singh's case (1
Supra) being rendered by a larger Bench, this judgment cited by the appellant
cannot be accepted. 
15)     So in the light of above discussion, no merits are found in the appeal.
It may be noted that on behalf of respondent No.2, it was argued that the
Tribunal ought not to have granted opportunity to Insurance Company to recover
the compensation amount from the owner of the vehicle since it failed to
establish the breach of the terms of the policy.  The said argument cannot be
accepted because respondent No.2/owner of the vehicle has not carried out appeal
against said finding.
16)     In the result, this M.A.C.M.A is dismissed by confirming the judgment of
the Tribunal in M.V.O.P.No.177 of 2004.  No costs.
17)     Miscellaneous applications if any pending in this appeal, shall stand
closed.

__________________________  
U. DURGA PRASAD RAO, J    
18-11-2013

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