Allowed

Brahm Parkash v. Devki Devi

Himachal Pradesh HC6 May 2016FAO/1/2010

Case brief

AI extract

What is this about?

The High Court allowed an appeal filed by the vehicle owner challenging a Motor Accident Claims Tribunal award. The Court held that since the driver possessed a valid license for a light motor vehicle and there was no fundamental breach of policy conditions by the owner, the insurer could not be exonerated from liability. The award was modified to saddle the insurer with the claim amount.

What did the court decide?

The impugned award was modified to saddle the insurer with liability; the insurer is directed to deposit the entire amount along with interest in the Court Registry.

Brahm Parkash Vs Devki Devi — Motor Accident Claims | Himachal Pradesh HC (2016)

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IN THE HIGH COURT OF HIMACHAL FAO No.	PRADESH, SHIMLA 1 of 2010.
Decided	on : 06.05.2016
Brahm Parkash	…..Appellant
Versus
Devki Devi and others	….. Respondents

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Coram:

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The Hon’ble Mr. Justice Mansoor Ahmad Mir, Chief Justice

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Whether approved for reporting? yes.

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For the appellant:	Mr.Tara Singh Chau	han, Advocat	e.
For the respondents:	Mr.Rajiv Rai, respondent No.1.	Advocate,	for
	Mr.Varun Chandel	, Advocate,	for
	respondent No.2.
	Mr.G.D. Sharma,	Advocate,	for
	respondent No.3.

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Mansoor Ahmad Mir, Chief Justice(Oral)

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Subject matter of this appeal is the award, dated 2^nd June, 2009, passed by the Motor Accident Claims Tribunal, Ghumarwin, H.P., (for short, the Tribunal), in Claim Petition No.76 of 2005, titled Devki Devi vs. Brahm Parkash and others, whereby the claim petition was allowed and compensation to the tune of Rs.4,36,000/-, with interest at the rate of 7.5% per annum from the date of filing the claim petition till realization, was awarded in favour of the

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claimant and the insurer was saddled with the liability, with

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right of recovery, (for short, the impugned award).

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The claimant, the insurer and the driver have not questioned the impugned award on any count, thus, the same has attained finality so far as it relates to them. Feeling aggrieved, the owner has challenged the impugned award on the ground that the Tribunal has fallen in an error in saddling him with the liability.

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Thus, the only question needs to be determined

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in the instant appeal is – Whether the Tribunal has rightly exonerated the insurer from its liability?

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I have heard the learned counsel for the parties and have gone through record.

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During the course of hearing, the learned counsel for the appellant/owner has argued that the driver of the offending vehicle was having a valid and effective driving license, and thus, the Tribunal has wrongly fastened liability on the owner.

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Photocopy of the driving licence has been

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placed on record as Mark X-2, which would show that the

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driver was competent to drive a light motor vehicle and the

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said license was valid at the time of accident. The offending vehicle involved in the accident was Jeep, registration certificate of which has been placed on record as Mark X-1, wherein it is mentioned that the unladen weight of the offending vehicle was 1700 kg. Thus, the offending vehicle, in terms of Section 2(21) of the Motor Vehicle Act, which is reproduced hereinbelow, comes under the

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definition of “light motor vehicle”.

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“2. ………………… ……………….

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(21) “light motor vehicle” means a transport vehicle or omnibus the gross vehicle weight of either or which or a motor car or tractor or roadroller the unladen weight of any of which, does not exceed 7,500 kilograms.”

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The above provision clearly shows that the

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vehicle, with unladen weight not exceeding 7,500 kilograms,

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would fall within the definition of “light motor vehicle”.

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As has been discussed supra, the driver of the offending vehicle was having driving license to drive vehicles falling within the definition of “light motor vehicle”, thus, can be said to have a valid and effective driving

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licence, as has been held by this Court in catena of judgments, i.e. FAO No.125 of 2006, titled Oriental Insurance Company vs. Shashibala and others, FAO No.312 of 2012, titled Sukhvinder Singh and another vs. The New India Assurance Ltd. and others, etc.

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This Court in series of cases i.e. FAO No.320 of 2008, titled Dalip Kumar and another vs. New India Assurance Company Ltd. & another, decided on 6^th June, 2014, FAO No.306 of 2012, titled Prem Singh and others vs. Dev Raj and others, decided on 18^th July, 2014 and FAO No.54 of 2012, titled Mahesh Kumar and another vs. Smt.Priaro Devi and Others, decided on 25^th July, 2014, has discussed the issue and held that the driver having driving licence to drive Light Motor Vehicle is not required to have endorsement of “PSV” i.e. public service vehicle.

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The Apex Court in latest decision, in Kulwant Singh and others vs. Oriental Insurance Company Limited, (2015) 2 Supreme Court Cases 186, has held that the driver who is having valid and effective driving licence to drive a Light Motor Vehicle is not required to have endorsement to

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drive a light commercial vehicle. It is apt to reproduce

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paragraphs No.10 and 11 hereunder:

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“10. In S. Iyyapan (supra), the question was whether the driver who had a licence to drive ‘light motor vehicle’ could drive ‘light motor vehicle’ used as a commercial vehicle, without obtaining endorsement to drive a commercial vehicle. It was held that in such a case, the Insurance Company could not disown its liability. It was observed :

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“18. In the instant case, admittedly the driver was holding a valid driving licence to drive light motor vehicle. There is no dispute that the motor vehicle in question, by which accident took place, was Mahindra Maxi Cab. Merely because the driver did not get any endorsement in the driving licence to drive Mahindra Maxi Cab, which is a light motor vehicle, the High Court has committed grave error of law in holding that the insurer is not liable to pay compensation because the driver was not holding the licence to drive the commercial vehicle. The impugned judgment (Civil Misc. Appeal No.1016 of 2002, order dated 31.10.2008 (Mad) is, therefore, liable to be set aside.”

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No contrary view has been brought to our notice.

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11. Accordingly, we are of the view that there was no breach of any condition of insurance policy, in the present case, entitling the Insurance Company to recovery rights.”

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It is beaten law of the land that the insurer has to

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plead and prove that the owner of the offending vehicle has committed willful breach of the terms contained in the

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policy and mere plea here and there cannot be a ground for seeking exoneration.

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My this view is fortified by the Apex Court judgment in the case of National Insurance Co. Ltd. versus Swaran Singh & others, reported in AIR 2004 Supreme Court

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1531. It is apt to reproduce relevant portion of para 105 of the judgment hereinbelow:

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“105. ..................... (i) ......................... (ii) ........................

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(iii) The breach of policy condition e.g. disqualification of driver or invalid driving licence of the driver, as contained in subsection (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 condition of the policy regarding use of vehicles by duly licensed driver or one who was not disqualified to drive at the relevant time.

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(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 wherefore would be on them.

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(v).........................

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(vi) Even where the insurer is able to prove breach on the part of the insured concerning the policy condition regarding holding of a valid licence by the driver or his qualification to drive during the relevant period, the insurer would not be allowed to avoid its liability towards insured

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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.”

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It is also profitable to reproduce para 10 of the latest judgment of the Apex Court in the case of Pepsu Road

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Transport Corporation versus National Insurance Company, reported in (2013) 10 Supreme Court Cases 217 hereinbelow:

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“10. In a claim for compensation, it is certainly open to the insurer under Section 149(2)(a)(ii) to take a defence that the driver of the vehicle involved in the accident was not duly licensed. Once such a defence is taken, the onus is on the insurer. But even after it is proved that the licence possessed by the driver was a fake one, whether there is liability on the insurer is the moot question. As far as the owner of the vehicle is concerned, when he hires a driver, he has to check whether the driver has a valid driving licence. Thereafter he has to satisfy himself as to the competence of the driver. If satisfied in that regard also, it can be said that the owner had taken reasonable care in employing a person who is qualified and competent to drive the vehicle. The owner cannot be expected to go beyond that, to the extent of verifying the genuineness of the driving licence with the licensing authority before hiring the services of the driver. However, the situation would be different if at the time of insurance of the vehicle or thereafter the insurance company requires the owner of the vehicle to have the licence duly verified from the licensing authority or if the attention of the owner of the vehicle is otherwise invited to the allegation that the licence issued to the driver employed by him is a fake one and yet the owner does not take appropriate action for verification of the matter regarding the genuineness of the licence from the licensing authority.

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That is what is explained in Swaran ingh case. If despite such information with the owner that the licence possessed by his driver is fake, no action is taken by the insured for appropriate verification, then the insured will be at fault and, in such circumstances, the Insurance Company is not liable for the compensation.”

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Having said so, the findings returned by the Tribunal on issue No.2 (partly) and issue No.4 are set aside and the insurer is saddled with the liability.

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In view of the above discussion, the appeal is allowed, the impugned award is modified to the extent that the insurer is saddled with the liability. The insurer is directed to deposit the entire amount, alongwith up-to-date interest, in the Registry of this Court within a period of eights weeks from today and on deposit, the Registry is directed to release the amount in favour of the claimant through her bank account, after proper identification. The statutory amount deposited by the appellant, is awarded, alongwith interest, as cost of litigation in favour of the claimant. The appeal stands disposed of accordingly.

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Copy dasti.

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May 06, 2016. ( Mansoor Ahmad Mir ) (Tilak) Chief Justice

Brahm Parkash v. Devki Devi

Case brief

What is this about?

What did the court decide?

Brahm Parkash v. Devki Devi

Case brief

What is this about?

What did the court decide?

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