Dismissed

Bhagwana Ram v. Khiv Raj @ Khinya Ram and Ors.

Rajasthan HC3 Feb 2014CMA/275/2012

Case brief

AI extract

What is this about?

Two Civil Miscellaneous Appeals filed by vehicle owners challenging a Motor Accident Claims Tribunal order. The Tribunal directed the insurance company to pay compensation and recover the amount from owners due to the driver's invalid license. The High Court upheld the Tribunal's decision.

What did the court decide?

The appeals were rejected. The insurance company is directed to satisfy the award and recover the amount from the insured owners.

Bhagwana Ram Vs Khiv Raj @ Khinya Ram and Ors. — Motor Accident Claims | Rajasthan HC (2014)

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IN THE HIGH COURT OF JUDICATURE FOR RAJASTHAN AT JODHPUR

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J U D G M E N T

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(1) S.B. CIVIL MISC. APPEAL NO.276/2012

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Bhagwana Ram Vs. Smt.Lal Kanwar & Ors.

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(2) S.B. CIVIL MISC. APPEAL NO.275/2012 Bhagwana Ram Vs. Khinvraj @ Khinya Ram & Ors.

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Date of Judgment : 5^th March, 2014

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HON'BLE MR. JUSTICE SANDEEP MEHTA

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Mr. Roshan Lal, for the appellant. Mr. Jagdish Vyas, for the respondent-insurer. Mr. S.K.Sankhla, for the claimant-Khinvraj.

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These two instant appeals are filed by the owner of the offending vehicle against the judgment cum award dated 24.11.2011 passed by the learned Judge, Motor Accident Claims Tribunal-I, Jodhpur in MAC No.415/2009 and 628/2009 whereby the claim applications filed by the claimants respondents under Section 166 of the Motor Vehicles Act were allowed and the claimants respondents were awarded compensation and holding the insured to be in the breach of policy conditions and applying the principle of 'pay and recover' liberty was given to the insurance company to recover the amount of compensation from the appellant owner by filing execution proceedings after satisfying the award.

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Being aggrieved of the said direction of pay and recover that the appellant owner has approached this Court by way of the instant appeals.

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Heard learned counsel for the appellant, learned counsel for the insuracne company and the learned counsel for the claimant.

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Shri Roshan Lal learned counsel appearing for the appellant vehemently contends that the burden of proving the defences regarding the breach of policy conditions lies on the insurance company. The burden was not discharged appropriately and thus, the learned Tribunal was unjustified in exonerating the insurance company from the joint and several liability to satisfy the claim. He submits that the appellant owner of the vehicle was not aware that the driver not having a licence of appropriate category authorising him to drive the pickup vehicle, which is a transport vehicle. Thus, he submits that the direction in the judgment cum award whereby the insurance company was exonerated of the liability to satisfy the award be quashed and the insurance company be made jointly and severally liable to satisfy the award alongwith the owner and driver.

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Per contra, Shri Jagdish Vyas learned counsel for the insurance company urges that the licence held by Hadmana Ram, the driver of the vehicle, was exhibited by the insurance company as A2. The licence was valid for driving a light motor vehicle. The owner, before handing over his vehicle to the driver for plying the same was under an obligation to check and verify that the licence held by him was

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valid and appropriate for driving the vehicle as per its category. He submits that by a bare perusal of the licence by the naked eye, it would be evident that the licence held by the driver namely Hadmana Ram did not authorise him to drive a transport vehicle. He thus urged that the insurance company duly discharged its burden and proved beyond any manner of doubt that the owner knowingly permitted his vehicle to be driven by a person not having a valid licence to drive the same. He relies on the decision rendered by this Court in the case of Ram Kumar Vs. Mangal Chand & Ors. decided on 28.11.2013 passed in SBCMA No.842/2009 in support of his contention and prays that the appeals be rejected.

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I have given my thoughtful consideration to the arguments advanced at the bar and perused the judgment cum award impugned as well as the record.

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It is true that the burden of proving the defence regarding the driver not having the licence of appropriate category to drive the vehicle is on the insurance company. The insurance company has in this case led evidence to show that the licence held by the driver authorised him to drive a light motor vehicle only. It is not in dispute that the offending vehicle owned by the appellant was a transport vehicle. In this background, before the appellant owner handed over his vehicle to a driver for plying the same on road, he had to verify that the licence held by such driver is of the category

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which authorised him to drive a transport vehicle. There may be cases wherein such verification could not be bonafidely possible but in the present case, upon a bare look at the licence Ex.A2 by a naked eye, it becomes amply clear that the licence was valid only for driving a light motor vehicle. In this background, the insurance company duly discharged its burden and proved beyond any manner of doubt that owner of the insured vehicle knowingly permitted the vehicle to be plied by a person not authorised to drive the same.

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As a result of the aforesaid discussion and keeping in view the decisions rendered by this Court in the case of Ram Kumar (supra) and the decision of Hon'ble Supreme Court in the case of National Insurance Co. Ltd. Vs. Swaran Singh reported in 2004 ACJ 1, the only order permissible was to direct the insurance company to satisfy the award and then to recover the amount from the insured owner by filing the execution proceedings before the Tribunal. This is what exactly was done by the Tribunal.

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The judgment cum award thus cannot be said to be illegal, unjust, perverse or contrary to the material available on the record.

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The appeals thus being bereft of any merit are hereby rejected.

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(SANDEEP MEHTA), J.

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/tarun/

Bhagwana Ram v. Khiv Raj @ Khinya Ram and Ors.

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Bhagwana Ram v. Khiv Raj @ Khinya Ram and Ors.

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