Monday, 7 March 2016

When defence of intoxication of driver of vehicle is not available to insurance company?

The insurer has not led any evidence on Issues
No. 3 to 6. Thus, it can not lie in the mouth of the appellantinsurer
that the driver was driving the offending vehicle in
the state of intoxication. In terms of Section 149 of the
Motor Vehicles, Act, 1988, the ground of intoxication is not
available.
11. This Court in Khem Chand versus Smt. Uma Devi Khem Chand versus Smt. Uma Devi
and others, reported in Latest HLJ 2010 (HP) 1, Latest HLJ 2010 (HP) 1, has laid

down the same principle. It is apt to reproduce para-4 of the
judgment., supra, herein:-
“4. The law is very well settled that a claim
which falls within the purview of an Act
policy i.e. a liability falling within the ambit
of Section 147 of the Motor Vehicles Act,
1988 ( the Act) can only be contested by the
Insurance Company on the grounds
available to it under Section 149 of the Act.
It is not permitted to contest the
proceedings on any other grounds.
Intoxication of the driver is not a ground
available to the Insurance Company under
Section 149 of the Act. Therefore, the
liability, which is statutory under Section
147 of the Act, has to be satisfied by the
insurer. It may be clarified that in case the
insurer in addition to the liability which it is
bound to cover under the Act covers other
liability then in case of such extended
liability, it may raise the defences available
to it as per terms of the policy, but as far as
statutory liability is concerned, the insurer
has no authority to incorporate any term in
the policy which is not contemplated in
terms of Section 149 of the Act. Therefore,
the Insurance Company could not have been
permitted to raise this defence and it could
not be permitted to recover the awarded
amount from the insured.”
IN THE HIGH COURT OF HIMACHAL PRADESH,
SHIMLA
FAOs No. 580, 581, 589, 590 & 591 of
2008

 Date of decision: 07.08.2015

FAO No. 580 of 2008 of 2008
Oriental Insurance Co. Ltd. ….Appellants
 Versus
Smt. Sangeyum & others ...Respondents

Coram:
The Hon’ble Mr. Justice Mansoor Ahmad Mir . Chief Justice.
Citation;2016(1)ALLMR(JOURNAL)15

 A vehicular traffic accident has given birth to
these five appeals, thus I deem it proper to deal with all
these appeals by this common judgment.
2. Claimants have filed claim petitions seeking
compensation as per the break-ups given in their respective
claim petitions, on the grounds taken therein.
3. The respondents resisted the claim petitions on
the grounds taken in their respective memo of objections.
4. The Tribunal, on the pleadings of the parties,
framed common issues in all the claim petitions. It is apt to
reproduce the issues framed in Claim Petition No. 56 of
2006:-

 1. Whether the accident had taken place due
to rash and negligent driving of vehicle No.
HP-02A-3010? …OPP
2. If issue No. 1 is proved in affirmative,
whether the petitioners are entitled to
compensation and if so, to what extent at
what rate of interest? …OPP
3. Whether the vehicle in question was not
driven by the authorized driver and the driver
was not holding a valid and effective driving
licence at the time of accident? …OPR-2
4. Whether the vehicle in question was being
driven under intoxication. If so, its effect?
 ….OPR-2
5. Whether the driver of the vehicle in question
was not possessing valid fitness certificate
and route permit etc. at the time of the
accident. If so, its effect? …OPR-2
6. Whether there is violation of the terms and
conditions of the insurance policy? If so, its
effect? …OPR-2
7. Relief.”

5. The claimants have led evidence in all the claim
petitions. The insurer, owner and driver have not led any
evidence. Thus, the evidence led by the claimants has
remained unrebutted.


6. There is ample evidence on the record to prove
that on 06.07.2006 at about 6.20 p.m., near Sungra on
National Highway No. 22 in Kinnaur District, the driver,
namely, Sanjiv Kumar alias Kaka had driven the vehicleMarshal
taxi bearing registration No. HP-02A-3010, rashly
and negligently and caused the accident. This issue is not
disputed. Accordingly, the findings returned by the Tribunal
on Issue No. 1 are upheld.
7. Before dealing with Issue No. 2, I deem it proper
to deal with Issues No. 3 to 6.
8. It was for the insurer to prove all these issues,
has not led any evidence, thus has failed to discharge the
onus. Accordingly, I am of the considered view that the
Tribunal has rightly determined issues No. 3 to 6 against the
appellant and in favour of the respondents.
9. Though, the Tribunal has awarded meager
amount in all these appeals, the claimants have not
questioned the same, are within their rights to question the
adequacy of compensation in view of the ratio laid down by

the apex Court in Sarla Verma (Smt.)and others and others and others versus Delhi
Transport Corporation and another, reported in AIR Transport Corporation and another AIR 2009 SC 2009 SC
3104 read with Reshma Kumari & others 3104 Reshma Kumari & others Reshma Kumari & others versus Madan
Mohan and another, reported in 2013 AIR (SCW) 3120 Mohan and another, 2013 AIR (SCW) 3120 2013 AIR (SCW) 3120. But,
I deem it proper not to enhance the compensation, for so
many reasons. The claimants are fighting for their rights
since 2006, have not received the compensation so far, is
against the concept of purpose of granting compensation
Accordingly, the findings returned by the Tribunal on issue
No. 2 are upheld.
10. The insurer has not led any evidence on Issues
No. 3 to 6. Thus, it can not lie in the mouth of the appellantinsurer
that the driver was driving the offending vehicle in
the state of intoxication. In terms of Section 149 of the
Motor Vehicles, Act, 1988, the ground of intoxication is not
available.
11. This Court in Khem Chand versus Smt. Uma Devi Khem Chand versus Smt. Uma Devi
and others, reported in Latest HLJ 2010 (HP) 1, Latest HLJ 2010 (HP) 1, has laid

down the same principle. It is apt to reproduce para-4 of the
judgment., supra, herein:-
“4. The law is very well settled that a claim
which falls within the purview of an Act
policy i.e. a liability falling within the ambit
of Section 147 of the Motor Vehicles Act,
1988 ( the Act) can only be contested by the
Insurance Company on the grounds
available to it under Section 149 of the Act.
It is not permitted to contest the
proceedings on any other grounds.
Intoxication of the driver is not a ground
available to the Insurance Company under
Section 149 of the Act. Therefore, the
liability, which is statutory under Section
147 of the Act, has to be satisfied by the
insurer. It may be clarified that in case the
insurer in addition to the liability which it is
bound to cover under the Act covers other
liability then in case of such extended
liability, it may raise the defences available
to it as per terms of the policy, but as far as
statutory liability is concerned, the insurer
has no authority to incorporate any term in
the policy which is not contemplated in
terms of Section 149 of the Act. Therefore,
the Insurance Company could not have been
permitted to raise this defence and it could
not be permitted to recover the awarded
amount from the insured.”

12. The Tribunal has rightly made discussion in
para-19 of the impugned award in Claim Petition No. 56 of
2006 and held that the driver was in a fit state of mind.
13. Having said so, no interference is required.
Accordingly, the impugned awards are upheld and the
appeals are dismissed.
14. The Registry is directed to release the awarded
amount in favour of the claimants, strictly as per the terms
and conditions contained in the impugned awards.
15. Send down the records after placing a copy of
the judgment on each of the Tribunal's file.

 August 7, 2015. . . (Mansoor Ahmad Mir), 
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