NATIONAL INSURANCE CO LTD Vs. GOMTI DEVI

JUDGEMENT

(1.) PRESENT appeal is preferred by the appellant insurance company against the award dated 28/10/2006 of the learned Motor Accident Claims Tribunal.

(2.) THE main grievance of the appellant is that the tribunal passed the impugned award contrary to the law and the facts of the case and has erred in holding the appellant liable to pay the compensation to the claimants; therefore, the impugned award should be set aside. To appreciate the controversy raised, a brief reference needs to be made to the facts of the present case, which are as follows: on 3. 9. 1992 the deceased Sh. Satya Narain Bharadwaj was sitting in his car near Raj Hotel, NTPC Gate No. 2 for getting the air filled in the tyres of his car bearing registration no. DBD 1335. Suddenly, a bang occurred in the high tension electric line which was passing through the said place, therefore, people started running helter skelter causing chaos. Mr. Bharadwaj also ran towards the gap in verge and suddenly Sh. Nand Lal appeared at the said place driving a Haryana Roadways vehicle bearing registration no. HR 08 5363, being driven in a rash and negligent manner and at a high speed. The said vehicle of haryana Roadways hit Sh. Bharadwaj and due to the forceful impact Sh. Bharadwaj was thrown on the road and the driver fled away. He was removed to the NTPC dispensary and then to AIIMS hospital but he ultimately died on 13. 9. 1992. Ms. Neerja Sachdeva, counsel for the appellant contended that the tribunal erred in not appreciating the fact that in the instant case the driver of the alleged offending vehicle appeared as RW1 and also tendered his affidavit on behalf of respondent nos. 8 to 11 as Ex. R2w1/1 and also exhibited his driving licence as Ex. R2w1/2. He further deposed that the said licence was issued by mlo, Kotdwara on 11/7/1979 and was renewed upto 3/11/1991 and thereafter, this licence was renewed only on 10/6/1993 but in the intervening period, licence was not renewed. In his cross examination, the said witness R2w1 admitted that at the time of the accident he was not holding any valid driving licence. The counsel also submitted that while passing the impugned award the trial court gravely erred in not accepting the plea of the appellant that the respondent nos. 9 to 11 made a willful breach of the terms and conditions of the policy by allowing the driver to drive the offending vehicle without having a valid driving licence. The counsel urged that the tribunal erred in ignoring the deposition of RW5 Asstt. Admn. Officer of the Appellant Company who stated that notice under Order 12 Rule 8 was duly served through Regd. AD Post, the proof regarding the same being Ex. RW5/1/3 to RW5/1/6, upon the driver and the owner of the alleged offending vehicle to produce the Original Insurance Policy as well as the original driving licence of the driver valid on the date of the accident i. e. , 3/9/1992. However, the said respondent remained negligent and therefore, due to such lapse on the part of the insured the appellant could not have been held liable to pay any compensation to the claimants in view of the provisions of Section 149 (2) (a) (ii) of the Motor Vehicles Act, 1988. The counsel avowed that the tribunal erred in not appreciating that the appellant filed the verification report, Ex. RW5/1/7, regarding the driving licence no. 8120/ktw/79 of Sh. Nand Lal and according to which the said licence was issued on 11/7/1979 for HMV only and was valid upto 10/7/1982 as per the Kotdwara licensing Authority, meaning thereby that on the date of the accident, i. e. 3/9/1992, the driver of the offending vehicle was not having a valid driving licence, thus, the appellant cannot be held liable to pay the compensation amount to the claimants. The counsel further stated that the driver himself admitted that the said licence was not renewed from 3/11/1991 to 10/6/1993. Placing reliance on various decisions of the Hon"ble Apex Court, the counsel submitted that if the driving licence is not renewed within 30 days from the date of its expiry then the renewal has to be reconed from the date of the renewal application and not from the date of expiry of the license. Based on these submissions, the counsel pleaded recovery rights from the insured. Counsel for the appellant relied on the following judgments of the Apex court supporting her contentions: 1. Malla Prakasarao vs. Malla Janaki and Ors. " (2004) 3 SCC 343; and 2. Ishwar Chandra and Ors. Vs. The Oriental Insurance Co. Ltd. and Ors. " AIR 2007 SC 1445.

(3.) PER contra Mr. Madan Lal Sharma counsel for respondent nos. 1 to 7 and Mr. R. K. Sharma for respondent no. 8 vehemently refuted the said submissions of counsel for the appellant. Counsel contended that the award made by the tribunal is just and fair and required no further interference by this Court. The counsel also submitted that the appellant failed to prove that the insured owner of the offending vehicle was having the knowledge about the expiry of the driving licence of the driver Sh. Nand Lal, thus, the tribunal rightly held the appellant insurer liable for payment of the impugned award. I have heard learned counsel for the parties and perused the award. On perusal of the record it is manifest that according to the verification report, Ex. RW5/1/7, regarding the driving licence no. 8120/ktw/79 of Sh. Nand lal, the said licence was issued on 11/7/1979 for HMV only and was valid upto 10/7/1982 as per the Kotdwara Licensing Authority, meaning thereby that on the date of the accident, i. e. 3/9/1992, the driver of the offending vehicle was not having a valid driving licence. The said fact has been supported by the driver of the offending vehicle Sh. Nand Lal, who in his deposition stated that the said licence was issued by MLO Kotdwara on 11/7/1979 and it was further renewed upto 3/11/1991 and thereafter this licence was renewed only on 10/6/1993 and in the interregnum period, licence was not renewed. Also, according to the driving licence brought on record by the driver himself, duly exhibited as Ex. R2w1/2, the licence was issued on 11/7/1979 and was valid upto 10/7/1982. Thereafter it was renewed on 4/11/1988 to 3/11/1991, and then renewed on10/6/1993 upto 9/6/1996 and lastly it was renewed from 8/12/1999 to 7/12/2002. The tribunal cannot burden insurance company when in the face of the facts, circumstances and the documents duly proved on record, the only possible answer is that the driver of the offending vehicle was not holding a valid driving licence on the date of the accident. Once the breach of policy terms is established on the part of the insured, the insurance company cannot be fastened with the liability to pay the award amount.