Hanumanthappa vs G. Jagadeesha

S. Sujatha, J.—The insurer is challenging the judgment and award passed by the Civil Judge (Senior Division) and Member, VI-MACT, Kudligi (''Tribunal'' for short) in MVC Nos. 4, 5, 6 and 1085 of 2009, whereas, the claimant is in appeal challenging the judgment and award of the Tribunal in MVC No. 4 of 2009.

Since the subject-matter of all these appeals pertain to the same accident, they are heard together and disposed of by this common judgment.

The insurer is assailing the impugned judgment and award solely on the ground that the driver of the offending vehicle did not possess the valid driving licence to drive the transport vehicle at the time of the accident. This fact had come to the knowledge of the appellant-insurer only when the DL extract in respect of the driver of the offending vehicle was secured. Placing reliance on the DL extract, sought to be produced as an additional evidence, the learned Counsel would contend that the driver of the offending vehicle had possessed valid driving licence to drive the LMV, not the transport vehicle, which clearly establishes the breach of terms and conditions of the Insurance Policy, as such the insurer is not liable to indemnify the owner.

Per contra, learned Counsel appearing for the claimant in MVC No. 4 of 2009 would contend that the Tribunal has grossly erred in awarding meager compensation under the different heads; the Tribunal failed to appreciate the material evidence on record while computing the compensation under different heads. Thus, the learned Counsel seeks for enhancement of compensation.

It was further contended that no ground is made out by the insurer to take the additional evidence on record in the appellate stage; the parameters set out in Order 41, Rule 27 of Civil Procedure Code, 1908 for the production of additional evidence in Appellate Court is not satisfied. Appeal filed on new ground cannot be entertained.

Heard the learned Counsel appearing for the parties and perused the material on record.

The liability is challenged by the insurer, mainly placing reliance on DL extract now sought to be produced before this Court. Apparently, the insurer has not let in any evidence in support of the defence to establish the breach of terms and conditions of Insurance Policy. The defence taken by the insurer in written statement filed before the Tribunal are general in nature. Order 41, Rule 27 of the Code of Civil Procedure, 1908 contemplates the production of additional evidence before the Appellate Court. The parties seeking to produce additional evidence is required to establish that notwithstanding the exercise of due diligence, such evidence was not within the knowledge or could not, after the exercise of due diligence, be produced by him at the time when the decree appealed against was passed, or the Appellate Court is empowered to take such evidence and document to be produced as an additional evidence. On a perusal of the affidavit filed by the appellant-insurer along with the application for production of copy of driving licence extract and investigation report, it is evident that no plausible explanation is offered for not producing the driving licence extract issued by the Transport Authority before the Tribunal. Driving licence is a public document which cannot be construed that such evidence was not within the knowledge of the Insurance Company, exercising the due diligence nor after exercise of due diligence could not be produced before the Tribunal. The additional information provided in the investigation report dated 3-3-2009 runs thus:

"(i) In this accident alleged vehicle is maxicab i.e., passenger vehicle but the driver was having only non-transport driving licence. Hence, at the time of accident "No valid and effective DL".

(ii) In this case I am not meet the claimant due to all are residing at Kudligi Taluk.

(iii) In tills case I am not obtained DL and B'' Register extract due to out of District.

This report is issued by without prejudice."

The impugned judgment and order is dated 1-9-2009. If the investigation report pointed out the factum of the driver not possessing valid driving licence if was available as on 3-3-2009, no diligence action is taken by the insurer to take such defence before the claim proceedings. The insurer is estopped from taking such new defence at the appellate stage. The Insurance Company is well-acquainted with the procedures of law to be followed being a company dealing with the cases relating to the motor vehicles on regular basis, equipped with good infrastructure, assisted by battery of Advocates to adjudicate the matters before the Courts. This Court can accept the additional evidence, provided the appellant had made sincere efforts by exercising due diligence to produce the evidence before the Tribunal. As could be seen, the DL extract now sought to be produced before this Court as an additional evidence could have been easily procured. If the same was not produced before the Tribunal, the same cannot be allowed to be produced in the appellate stage de hors the parameters set out under Order 41, Rule 27 of CPC. This Court can come to the rescue of the litigant who is diligent in prosecuting the matter and not to a litigant who sleeps and raises from the slumber. A right accrued to the claimant cannot be disturbed at this appellate stage. Accordingly, the production of additional evidence cannot be taken on record at the appellate stage.

It can be viewed from another angle also. Admittedly, the driver of the offending vehicle had the driving licence to drive the LMV even assuming that the driver did not possess the effective and valid driving licence to drive the transport vehicle with the badge, if the same has not come to the knowledge of the Insurance Company at the earliest point of time, it is unrealistic to expect a common man/the owner of the vehicle to know the intricacies of the legal procedure in much as different types of licence for different types of vehicles. In the circumstances, no fault can be found with the owner of the vehicle. The Hon''ble Apex Court in the case of Lakhmi Chand v. Reliance General Insurance, (2016) 3 SCC 100 has held thus:

"It becomes very clear from a perusal of the above mentioned case-law of this Court that the Insurance Company, in order to avoid liability must not only establish the defence claimed in the proceeding concerned, but also establish breach on the part of the owner/insured of the vehicle for which the burden of proof would rest with the Insurance Company. In the instant case, the respondent-company has not produced any evidence on record to prove that the accident occurred on account of the overloading of passengers in the goods carrying vehicle. Further, as has been held in the case of B.V. Nagaraju v. Oriental Insurance Company Limited, Divisional Officer, Hassan, (1996) 4 SCC 647, that for the insurer to avoid his liability, the breach of the policy must be so fundamental in nature that it brings the contract to an end ........"

In National Insurance Company Limited v. Swaran Singh and Others, (2004) 3 SCC 297, the Hon''ble Apex Court has held as under:

"49. Such a breach on the part of the insured must be established by the insurer to show that not only the insured used or caused or permitted to be used the vehicle in breach of the Act but also that the damage he suffered flowed from the breach....."

The judgment in Swaran Singh has been followed subsequently in Oriental Insurance Company Limited v. Meena Variyal and Others, 2007 ACJ 1284 (SC), wherein the Hon''ble Apex Court held as under: (para 16)

"16. We shall now examine the decision in Swaran Singh on which practically the whole of the arguments on behalf of the claimants were rested. On examining the facts, it is found that, that was a case which related to a claim by a third party. In claims by a third party, there cannot be much doubt that once the liability of the owner is found, the Insurance Company is liable to indemnify the owner, subject of course, to any defence that may be available to it under Section 149(2) of the Act. In case where the liability is satisfied by the Insurance Company in the first instance, it may have recourse to the owner in respect of a claim available in that behalf. Swaran Singh was a case where the Insurance Company raised a defence that the owner had permitted the vehicle to be driven by a driver who really had no licence and the driving licence produced by him was a fake one. Their Lordships discussed the position and held ultimately that a defence under Section 149(2)(a)(ii) of the Act was available to an insurer when a claim is filed either under Section 163-A or under Section 166 of the Act. The breach of a policy condition has to be proved to have been committed by the insured for avoiding liability by the insurer. Mere absence of or production of fake or invalid driving licence or disqualification or the driver for driving at the relevant time, are not in themselves defences available to the insurer against either the insured or the third party. The Insurance Company to avoid liability, must not only establish the available defence raised in the proceeding concerned but must also establish breach on the part of the owner of the vehicle for which the burden of proof would rest with the Insurance Company. Whether such a burden had been discharged, would depend upon the facts and circumstances of each case. Even when the insurer is able to prove breach on the part of the insured concerning a policy condition, the insurer would not be allowed to avoid its liability towards the insured unless the said breach of condition is so fundamental as to be found to have contributed to the cause of the accident."

In the light of these judgments, it can be held that the driver of the offending vehicle merely not possessing the valid and effective driving licence to drive a transport vehicle, not being satisfactorily established, would not be termed as breach and violation of the conditions of the policy. The breach must be so fundamental that the contract must come to an end. The onus lies on the shoulders of the Insurance Company to establish that the driver was disqualified from possessing the valid and effective driving licence to drive a transport vehicle, that exercise not having been done by the Insurance Company. Now, it cannot be held that the insured committed breach of terms and conditions of the policy. The production of document, DL extract, at the appellate stage to cure the lacuna cannot be allowed. It is not necessary to dispose of the appeals on merits considering the additional evidence not confronted to the witness before the Tribunal more particularly, where there was no opportunity to the Tribunal to address on this point. For the reasons aforesaid, the appeals filed by the Insurance Company lacks merit and deserves to be dismissed, accordingly, the appeals stand dismissed.

As regards the appeal filed by the claimant, it is perspicuous that the Tribunal has appreciated the evidence on record in extenso to award a sum of Rs. 3,35,455/- with interest at 8% per annum which is just and reasonable and do not call for interference. Thus, the appeal filed by the claimant fails.

In the result, all the appeals stand dismissed.

The amount in deposit shall be transferred to the jurisdictional Tribunal for disbursement.

For the reasons aforesaid, all the pending applications are dismissed.