CMAM/175/2012 of NATIONAL INSURANCE COMPANY LIMITED Vs SMT. RAFIQA AND OTHERS on 30 December 2022

JUDGEMENT

1. Impugned in this Appeal is Award dated 28.06.2012, passed by Motor Accident Claims Tribunal, Leh-Ladakh (for short “Tribunal”) on a Claim petition bearing File no. 11/2010 titled Smt. Rafiaq and Ors. v. National Insurance Co. Branch Leh and others, directing appellant Insurance Company to pay compensation in the amount of Rs. 10,95,000/- along with 8% interest per annum from the date of institution of claim till realization, on the grounds made mention of therein. Accident Claims Tribunal, Leh-Ladakh (for short “Tribunal”) on a Claim petition bearing File no. 11/2010 titled Smt. Rafiaq and Ors. v. National Insurance Co. Branch Leh and others, directing appellant Insurance Company to pay compensation in the amount of Rs. 10,95,000/- along with 8% interest per annum from the date of institution of claim till realization, on the grounds made mention of therein.

2. A claim petition, as is discernible from perusal of the file, was filed by respondent- Mst. Shameema and Ors., before the Tribunal on 28.12.2010, averring therein that the husband of petitioner No. 1 and father of petitioners 2 to 4, died in an accident, which took place on 29.11.2010 at Ibex Crossing at Skalzangling Leh, due to rash and negligent driving of driver of offending vehicle, bearing Registration no. JK10/G-2362 (Tipper) respondent- Mst. Shameema and Ors., before the Tribunal on 28.12.2010, averring therein that the husband of petitioner No. 1 and father of petitioners 2 to 4, died in an accident, which took place on 29.11.2010 at Ibex Crossing at Skalzangling Leh, due to rash and negligent driving of driver of offending vehicle, bearing Registration no. JK10/G-2362 (Tipper)

which was insured with appellant Insurance Company. Claimants/ respondents herein sought compensation in the amount of Rs. 87.00 lacs.

3. Appellant Insurance Company resisted the claim petition. It was stand of appellant before the Tribunal that the Insurance Company is liable to compensate the driver of offending vehicle was holding a valid driving licence and the vehicle was also having valid fitness certificate, route permit at the time of accident. appellant before the Tribunal that the Insurance Company is liable to compensate the driver of offending vehicle was holding a valid driving licence and the vehicle was also having valid fitness certificate, route permit at the time of accident.

4. The Tribunal, in view of pleadings of parties, framed following Issues for determination, which are:

1) Whether the deceased died on 29.11.2010 at Ibex Crossing Skalzangling, Leh due to rash and negligent driving of the driver of the offending vehicle bearing registration No. JK10-2362? …OPP Skalzangling, Leh due to rash and negligent driving of the driver of the offending vehicle bearing registration No. JK10-2362? …OPP

2) If the issue no. 1 is proved in affirmative, whether the petitioners are entitled to compensation from whom and to what extent? OPP entitled to compensation from whom and to what extent? OPP

3) Whether the driver of the offending vehicle was not having valid and effective license on the material date of occurrence?...OPR-1 effective license on the material date of occurrence?...OPR-1

4) Whether the owner of the offending vehicle has violated the policy stipulations as such is liable to pay the compensation ?OPR-1 stipulations as such is liable to pay the compensation ?OPR-1

5) Relief.

2. Claimants/respondents herein produced and examined three witness before the Tribunal. Appellant Insurance Company also produced one witness.

3. By impugned Award, the Tribunal found claimants/respondents entitled to

receive compensation of Rs. 10,95,000/- along with 8% interest per annum.

4. Heard and considered.

5. Counsel for appellant Insurance Company has stated that the Tribunal erred in passing impugned Award as it has been specifically pleaded and proved by appellant Insurance Company by sufficient evidence that owner/respondent No.7 herein has violated terms and conditions of insurance policy wilfully and knowingly by allowing respondent no.6 to drive offending vehicle without any valid and effective driving licence. in passing impugned Award as it has been specifically pleaded and proved by appellant Insurance Company by sufficient evidence that owner/respondent No.7 herein has violated terms and conditions of insurance policy wilfully and knowingly by allowing respondent no.6 to drive offending vehicle without any valid and effective driving licence.

Respondent no. 6, who had been driving the vehicle on the date of occurrence, is stated to have been holding a LMV to drive only light motor vehicles and the two-wheeler, but offending vehicle was a Tipper and the driver/respondent no. 6 could not have plied the said vehicle as he was not authorised under the licence to do so especially when he was holding only an LMV licence. It is contended that owner of offending vehicle, respondent no.7, has consciously and willingly and knowingly permitted respondent no. 6 to drive offending vehicle which is a heavy goods vehicle, knowing that respondent no. 6 is only holding a LMV license and not the Heavy goods vehicle. Under such circumstances, it can be easily found that respondent no.7 has wilfully and knowingly committed the breach of the policy condition by authorising respondent no. 6 to drive the offending vehicle without having any valid and effective licence for driving the vehicle of the nature which has caused the accident in the case in hand. The learned Tribunal has erred in exonerating respondents 5 to 7 and instead has held appellant Insurance Company liable under impugned award in violation of provisions of law and that of terms and conditions of the Insurance contract and, accordingly, the impugned award is liable to be set aside.

6. As regards above submission, the Tribunal had discussed validity and effectiveness of driving licence of driver of offending vehicle while deciding Issue no.3. According to Tribunal, driver of offending vehicle was having valid driving licence, and he could have plied offending vehicle. While saying so, the Tribunal has made reliance to Tashi Rigzin Vs. Stanzin Signed and Ors 2009 JKJ 394 (Suppl). This judgement, however, has been incorrectly applied by the Tribunal to pass impugned Award. In the present case, driver of offending vehicle, possessing LMV license, was not plying a light motor vehicle (LMV), but a heavy goods vehicle. So, impugned Award to this extent is liable to be set-aside and owner of offending vehicle is liable to be fastened with liability of making payment of compensation. At the first instance appellant Insurance Company shall pay amount of compensation with a right to recover the same from owner of offending vehicle.

7. The question, whether Insurance Company can be and ought to be directed to pay claim amount, with liberty to recover the same from the owner/driver of the vehicle, has been answered by the Supreme Court in National Insurance Company Ltd v. Swaran Singh and others (2004) 3 SCC 297, and reiterated in Pappu and others v. Vinod Kumar Lamba and others, (2018) 3 SCC 208. On the contention of Insurance Company that once the defence taken by insurer is accepted by Tribunal, it is bound to discharge insurer and fix liability only on owner and/or driver of vehicle, the Supreme Court held that even if insurer succeeded in establishing its defence, the Tribunal or the Court could direct insurance Company to pay the award amount to claimant and, in turn, recover the same from owner of vehicle. The three-Judge Bench of the Supreme Court in Swaran Singh (supra), after analyzing earlier decisions on the point, held that there was no reason to deviate from the said well-settled principle. to pay claim amount, with liberty to recover the same from the owner/driver of the vehicle, has been answered by the Supreme Court in National Insurance Company Ltd v. Swaran Singh and others (2004) 3 SCC 297, and reiterated in Pappu and others v. Vinod Kumar Lamba and others, (2018) 3 SCC 208. On the contention of Insurance Company that once the defence taken by insurer is accepted by Tribunal, it is bound to discharge insurer and fix liability only on owner and/or driver of vehicle, the Supreme Court held that even if insurer succeeded in establishing its defence, the Tribunal or the Court could direct insurance Company to pay the award amount to claimant and, in turn, recover the same from owner of vehicle. The three-Judge Bench of the Supreme Court in Swaran Singh (supra), after analyzing earlier decisions on the point, held that there was no reason to deviate from the said well-settled principle.

8. As regards computation of compensation, the Tribunal has elaborately discussed Issue no.2 and has rightly given compensation in the amount of Rs.10,95,000/- along with 8% interest. To this extent impugned Award need not be interfered with. discussed Issue no.2 and has rightly given compensation in the amount of Rs.10,95,000/- along with 8% interest. To this extent impugned Award need not be interfered with.

9. For the foregoing reasons, the Appeal on hand is partly allowed and the Award dated 28.06.2012, passed by Motor Accident Claims Tribunal, Leh-Ladakh, on a Claim Petition, bearing File no.11/2010 titled Smt. Rafiqa and Ors. v. National Insurance Co. Branch Leh. and others, to the extent it holds that driver of offending vehicle was having valid driving licence to drive offending vehicle at the time of accident, is set-aside. Appellant Insurance Company shall pay, if not already paid, award amount along with interest as given by the Tribunal, to claimants/respondents. However, appellant Insurance Company shall have a right to recover the same from owner of offending vehicle.

10. Disposed of in terms of above.

(Vinod Chatterji Koul) Judge Srinagar30.12.2022 “Mohammad Yasin Dar” Whether the order is reportable: Yes/No.