said Bharadwaj and Company, no such certificate issued by the R.T.O.
Dehradun is produced on record to show that the driving liecnce on which
the Opponent No.2 has relied upon, was totally false or fake one. Thirdly,
in the claim form it was stated that the licence was issued by the R.T.O.
Nashik. The insurance company has not produced any documents on
record to show that the R.T.O. Nashik has made inquiry and found that no
such liecnce was issued in the name of the Opponent No.2.
13] Needless to state that as the insurance company is coming before
the court with a specific plea that the driver was not having valid licence
and hence, there was breach of insurance policy, the burden obviously
therefore was on insurance company to prove that the driver does not
have valid licence. Appellant company should have discharged that
burden by carrying out necessary investigations and inquiries with R.T.O.
Nashik or Dehradun and not on the basis of some letter issued by private
investigator.
14] In such circumstances, I do not find tthat the Tribunal has
committed any error in holding the insurance company liable along with
the owner for payment of compensation amount to the claimants. The
appeal therefore is devoid of merits.
IN THE HIGH COURT OF JUDICATURE AT BOMBAY
CIVIL APPELLATE JURISDICTION
FIRST APPEAL NO.99 OF 1999
Oriental Insurance Company Ltd.
V
Smt.Balubai Shivaji Dabhade and Ors.
CORAM : DR. SHALINI PHANSALKAR-JOSHI, J.
DATE : 3rd October 2016.
Citation: 2017(2) MHLJ 405
1] This appeal takes an exception to the judgement and order
dated 14th October 1998 passed by the Motor Accidents Claim Tribunal
(MACT), Nashik in MACP No.257 of 1991. The appellant is the
Insurance Company.
2] The facts of the appeal can be stated in brief as follows:-
On 21st May 1990 the deceased Shivaji Pandharinath Dabhade
was working as a labourer over tractor bearing No.MH-15-B-6804 owned
by respondent No.7. He met with a fatal accident when original opponent
No.2 was driving the said tractor and as a result of rash and negligent
driving on the part of Opponent No.2, the trolly turned turtle and
deceased came under the trolly. At the time of accident, the deceased
was running the age of 25 years. The original claimant No.1 is wife and
claimant No.2 is the daughter of the deceased who was born two months
after the death of deceased. They filed claim petition before the tribunal
for compensation, which came to be resisted by the original opponent
No.1. Admitting that tractor trolly was owned by him but denying the
knowledge relating to how the accident took place and who was
responsible for the same. In the alternate it was submitted that the tractor
was duly insured with opponent No.3 and hence there was no liability of
opponent No.1 to deny the compensation. As to the income of deceased,
it was denied that the deceased was earning Rs.1500/- per month. It was
further contended that if any thing has happened due to the act of
opponent No.2, then, opponent No.2 was personally liable fort the same.
3] Opponent No.2 has denied that the accident has occurred due to
his negligence. It was contended that the deceased was leading the
manure in the trolley at his own risk.
4] As regards the Opponent No.3, insurance company, a specific
contention was raised to the effect that the driver of the vehicle was not
having valid licence and in view thereof there was breach of the terms
and conditions of the insurance policy, hence, insurance company needs
to be absolved of the liability and responsibility.
5] On these respective pleadings of the parties, the tribunal framed
necessary issues. The claimant No.1 led her own evidence and mainly
relied upon the copy of the complaint, Exh.51 and the copy of
panchanama Exh.15. Opponent No.2, the driver also entered into the
witness box and produced a photocopy of the driving licence issued by
the R.T.O. at Dehradun. Insurance Company, however, did not led any
oral evidence. In the light of the evidence led before the Tribunal, the
Tribunal was pleased to hold that the insurance company has failed to
discharge the burden to prove that the driver of the vehicle was not
having valid driving licence. Accordingly, the Tribunal held both the
owner of the vehicle and also the insurance company jointly and severally
liable to pay the claim amount of Rs.96,400/- with interest.
6] This judgement of the tribunal is challenged by the insurance
company on the only ground that there was no evidence worth the name
to show that the driver of the vehicle was having any valid licence. It is
urged that in the complaint Exh.51, certified copy of which was relied
upon by the claimant themselves, it was clearly stated that the Driver was
not having valid driving licence and hence offence under section 3 read
with section 181 of the Motor Vehicles Act was registered against the
driver. By placing reliance on the judgement in the case of Oriental
Insurance Company Vs. Premlata Shukla and Ors., reported in (2007)
13 S.C.C. 476, it is urged that when the claimants themselves are relying
upon the certified copy of the F.I.R. / complaint, then contents thereof are
ipso facto proved and claimants cannot rely upon them partially. It is
urged that the party which has brought the documents on record cannot
later contend that other portion of document has not been proved.
Hence, according to the learned Counsel for the appellant, when the
contents of the complaint are clear enough to show that driver of the
vehicle was prosecuted for not having valid licence and no valid licence
was otherwise also proved on record either by the claimants or the owner
or the driver himself, the trial court has committed an error in holding that
the onus was on the insurance company to prove that the driver was not
having valid licence and as the insurance company has not discharged
the said onus, the insurance company is also jointly and severally liable
to pay the compensation.
7] Secondly, learned Counsel for the appellant has invited attention of
this Court to the fact that the driver has initially not appeared nor filed any
written statement. Only when the witness summons was issued and
coercive process of bailable warrant was issued against him, he
appeared but he did not produce the copy of his valid licence. It is urged
that it was for him to do so but he has failed to do so. He has only
produced the photocopy of his driving licence alleged to be issued by the
RTO Authority at Dehradun.
8] Thirdly, it is submitted that the insurance company has taken a
search as to whether the Driver was having valid licence. Considering
that he has produced the photocopy of licence issued by the R.T.O. of
Deharadun, one M/s. B.S.Bharadwaj and Company was directed to take
search and investigate the matter. The said company issued a letter
dated 24th December 1998, to show that no such valid licence was
issued from the R.T.O. Deharadun in the name of the Opponent No.2, the
driver- Kailash S/o. Sukhdev Dabhade.
9] The learned Counsel for the appellant has further invited my
attention to the Motor Claim Form filed by the owner. It is submitted that
the issuing authority of the license mentioned therein is “RTO Nashik”.
Thus, according to the learned Counsel for the appellant, there is
absolutely no consistency as to whether any such driving licence was
issued actually and if there was one, by which R.T.O. It is submitted that
if there was no valid licence, as can be seen in this case, even from bare
perusal of the complaint, then, the insurance company is required to be
exonerated from the total liability, in view of section 149(2) of the M.V.Act.
In the appeal the affidavit is filed on record to submit that this factum
needs to be considered for absolving the insurance company from the
liability.
10] Per contra, the learned Counsel for the Opponent No.1, the vehicle
owner has relied upon the decision of the Apex Court in the case of (i)
National Insurance Co. Ltd. Vs. Geeta Bhat and Ors. reported in
A.I.R. 2008 S.C. 1837 wherein it was held that notwithstanding the fact
that licence possessed by the driver is fake one, the insurance company
would not be absolved from the liability of reimbursement for the final
amount of compensation payable by third party to the traveller. It was
further held in this authority that the owner of the vehicle is not expected
to verify the genuineness of the licence from the transport authority. Only
thing he is expected is to make reasonable enquiry and nothing more
than that. Reliance is placed on the decision in National Insurance Co.
Ltd. Vs. Laxmi Narain Dhut (2007) 3 S.C.C. 700 in which the Apex Court
has held that in case of third party risk the insurer has to indemnify the
amount and if so advised to recover the same from the insured.
11] The second decision relied upon by the learned Counsel for the
Opponent No.1 is reported in the case of Pepsu Road Transport
Corporation Vs. National Insurance Company, A.I.R. 2014 S.C. 305,
wherein the Hon'ble Supreme Court has held that “in a claim for
compensation it is certainly open to the insurer under section 149(2)(a)(ii)
to take a decence that the Driver of the vehicle involved in the accident
was not duly licenced. 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 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 genuineness of the licence from the licensing authority.”
Having regard to this legal position and the facts of the case, it has to be
held that in the instant case, barring the averment in the complaint that
the driver was not having a valid licence and hence a complaint was
lodged against him along with other offences for offence under section
381 of the M.V. Act, there is no other evidence on record to show as to
what happened to the said complaint; whether any charge sheet was filed
and if yes then whether the driver was tried for this offence and held
guilty. Therefore, even if the complaint as relied upon, at the most
shows that there was allegation in the complaint that the driver was not
having valid licence. Except for that nothing more can be inferred.
12] As regards the investigation report of the search conducted by the
said Bharadwaj and Company, no such certificate issued by the R.T.O.
Dehradun is produced on record to show that the driving liecnce on which
the Opponent No.2 has relied upon, was totally false or fake one. Thirdly,
in the claim form it was stated that the licence was issued by the R.T.O.
Nashik. The insurance company has not produced any documents on
record to show that the R.T.O. Nashik has made inquiry and found that no
such liecnce was issued in the name of the Opponent No.2.
13] Needless to state that as the insurance company is coming before
the court with a specific plea that the driver was not having valid licence
and hence, there was breach of insurance policy, the burden obviously
therefore was on insurance company to prove that the driver does not
have valid licence. Appellant company should have discharged that
burden by carrying out necessary investigations and inquiries with R.T.O.
Nashik or Dehradun and not on the basis of some letter issued by private
investigator.
14] In such circumstances, I do not find tthat the Tribunal has
committed any error in holding the insurance company liable along with
the owner for payment of compensation amount to the claimants. The
appeal therefore is devoid of merits. Hence stands dismissed. In the
circumstances, parties to bear their own costs.
(DR. SHALINI PHANSALKAR-JOSHI, J)
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