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Judgment
G. Satapathy, J.
The finding in the impugned judgment dated 23.03.2010 as recorded by the learned 1st Motor Accident Claims Tribunal, Puri (hereinafter referred to as “the Tribunal”) in MAC Case No. 122 of 2004 granting to the Divisional Manager, New India Assurance Co. Ltd., Bhubaneswar (in short, “the Insurer”)-cum-R-1, the right to recover the compensation from the Appellant-owner of the offending vehicle after paying the compensation of Rs.79,880/- together with Simple Interest (SI) @ 7.5% per annum w.e.f. 15.05.2004 to the claimants (R-2 to 6) first, is the subject matter of the Appeal.
The facts in precise are that in an accident which took place on 26.02.2004, one Chakradhara Jena was allegedly hit by a bus bearing Regd. No OR-02-W-5859 (hereinafter referred to as “the offending vehicle”) at Baramunda Bus Stand, Bhubaneswar leading to his death. An FIR being filed on this accident came to be registered at local Police Station and upon completion of investigation; a charge sheet was filed thereon. Upon a claim being preferred by the dependents of the deceased, the same was allowed by the learned Tribunal with award of compensation indicated supra to the claimants-cum-R-2 to 6, but the finding thereon for granting the right of recovery to the insurer being seriously disputed is challenged by owner of the offending vehicle in this Appeal.
Heard, Mr. Ramesh Chandra Sahoo, learned counsel for the appellant and Mr. Gopal Chandra Samantaray, learned counsel for R-1, but none appears for the rest of the respondents despite duly noticed and having entered appearance through a counsel.
Admittedly, the impugned judgment has neither been challenged by the claimants nor the insurer, who has already satisfied the award, but the only challenge to the impugned judgment with regard to right of recovery as carried by the owner of the offending vehicle to this Court traces its origin to the following observation of the learned Tribunal at paragraph-9 of the impugned judgment: -
“9.P.W.1 testified that his deceased father was a retired Govt. servant. Who was working as a Machine working man in Orissa text Book press at Bhubaneswar. Ext.5 the pension payment order indicates that the deceased was getting net pension of Rs.1584/- per month after deduction of commuted pension amounting to Rs.791/- from the pension amount of Rs. 2375. It is thus clear from Ext.5 that the home taking pension of the deceased per month was Rs. 1584/-. In the cross-examination, P.W.1 admitted that after the death of his deceased father, his mother is getting family pension. Accordingly, his mother is getting 50% of the net home taking pension of the deceased i.e. Rs.792/-per month. So, the loss of the petitioners per month is Rs.792/- due to the death of the deceased so far as his pension is concerned. According to P.W.1 after retirement from Government service his deceased father was working as Manager in Prajnaloka Publication situated at Talamali sahi and was earning Rs.3000/- per month. P.W.2 Abhimanyu Mohapatra testified that he was tye proprietor of a publishing house namely Prajnaloka publication situated at Talamali Sahi in which the deceased was working as Manager and getting Rs.3000/- per month. In support of such oral evidence, Ext.7 the salary certificate obtained from PW.2, the proprietor of said publication is filed. Which indicates that the deceased who was working as Manager was getting Rs.3000/- per month. But in the cross examination P.W.1 discloses that one Bibudha Ranjan Mohapatra is the Proprietor of Prajnaloka Publication. Since Ext.7 the salary certificate is issued by P.W.2 Abhimanyu Mohapatra introducing himself a as the Proprietor of Prajnaloka Publication, the said exhibit 7 cannot be taken into consideration to prove the avocation and income of the deceased after his retirement from Govt. service. When Ext. 7 is discarded, there is no other documentary evidence to support the evidence of P.W.1 that after the retirement from Govt. service his deceased father was working as Manager in Prajnaloka publication and getting Rs.3000/- per month. That part though PW.2 testified that his Organisation is a book publisher company, not a single book has been produced before this Tribunal to prove such publication. P.W.2 also admitted in his cross-examination by O.P.No.2 that he maintains a salary payment register and in the said register payment of salary made to the deceased has been reflected. But no Salary register has been produced before this tribunal to show the avocation and income of the deceased after his retirement from Govt. service. So, there is no clear ana cogent evidence to show that after his retirement from Govt. service the deceased was working as a manager of prajnaloka Publication and getting Rs.3,000/- per month towards the remuneration. In such premises, the notional income of the deceased would be taken into consideration for computation of compensation after his retirement from Govt. service. Accordingly, the notional monthly income is to be taken at Rs.1800/- taking into consideration the price index etc. of the year 2004. Thus in total the petitioners sustain a loss of (Rs.1800/-+ Rs.972/-) = Rs.2772/- per month due to the death of the deceased.”
In the context of the plea of fake Driving License as advanced by the insurer in this case, the duty and responsibility of the party to establish such plea by pleading and leading evidence, has been succinctly clarified in simple way in National Insurance Co. Ltd. Vrs. Swaran Singh & others; 2004 (3) SCC 297, wherein the Apex Court in paragraph no.110 (ii) to (vii) has been held thus: -
110.(ii) An insurer is entitled to raise a defence in a claim petition filed under Section 163-A or Section 166 of the Motor Vehicles Act, 1988, inter alia, in terms of Section 149(2)(a)(ii) of the said Act.
(iii)The breach of policy condition e.g. disqualification of the driver or invalid driving licence of the driver, as contained in sub-section (2)(a)(ii) of Section 149, has to be proved to have been committed by the insured for avoiding liability by the insurer. Mere absence, fake or invalid driving licence or disqualification of the driver for driving at the relevant time, are not in themselves defences available to the insurer against either the insured or the third parties. To avoid its liability towards the insured, the insurer has to prove that the insured was guilty of negligence and failed to exercise reasonable care in the matter of fulfilling the condition of the policy regarding use of vehicles by a duly licensed driver or one who was not disqualified to drive at the relevant time.
(iv)Insurance companies, however, with a view to avoid their liability must not only establish the available defence(s) raised in the said proceedings but must also establish "breach" on the part of the owner of the vehicle; the burden of proof wherefor would be on them.
(v)The court cannot lay down any criteria as to how the said burden would be discharged, inasmuch as the same would depend upon the facts and circumstances of each case.
(vi)Even where the insurer is able to prove breach on the part of the insured concerning the policy condition regarding holding of a valid licence by the driver or his qualification to drive during the relevant period, the insurer would not be allowed to avoid its liability towards the insured unless the said breach or breaches on the condition of driving licence is/are so fundamental as are found to have contributed to the cause of the accident. The Tribunals in interpreting the policy conditions would apply "the rule of main purpose" and the concept of "fundamental breach" to allow defences available to the insurer under Section 149(2) of the Act.
(vii)The question, as to whether the owner has taken reasonable care to find out as to whether the driving licence produced by the driver (a fake one or otherwise), does not fulfil the requirements of law or not will have to be determined in each case.
Examining the pleadings and evidence on record in the light of the principles laid down by the Apex Court in Swaran Singh (supra) and keeping in view the plea of the insurer to ascertain as to whether the insurer has discharged the onus to disown its liability not to indemnify the insured for the driver having fake DL, it appears that the insurer albeit had led documentary evidence under Exts. A to C to disown its liability, but it had not led any oral evidence, however, the validity of the certificate of insurance policy covering the date of accident was never disputed by the insurer and it only claimed that the Driving License (DL) of the driver namely, Govind Chandra Das who was driving the offending bus at the time of accident was a fake one. It is found from the impugned judgment that Ext.3 which was the certified copy of seizure list, shows that not only the offending bus belonging to Appellant was having valid insurance coverage, but also the same was valid up to 17.04.2004 and the offending bus was having valid route permit on the date of accident and it also discloses the seizure of DL of the driver Govind Chandra Das with DL No. 257/79-78 issued by Licensing Authority, Cuttack with validity till 27.11.2004. Ext.B is the letter No. 3510 dated 29.07.2009 issued by Licensing Authority, Baripada to show that no DL No. 143/74 has been issued in the year 1974 and Ext.C is the letter No. 5282 dated 22.09.2008 issued by Licensing Authority, Baripada to show that DL No. 143/74 has not been issued in the name of Govind Chandra Das.
No doubt, the insurer has claimed in the Appeal that the DL No. 257/77-78 was renewed from the original DL No. 143/74 which was never issued to driver of the offending bus, but the insurer had not led any evidence to correlate DL No. 257/77-78 with DL No. 143/74. Be that as it may, when it is found that DL No. 257/79-78 was issued by Licensing Authority, Cuttack to the driver of the offending bus, how come it would be considered that the insured was guilty of negligence and failed to exercise reasonable care in the matter of fulfilling the condition of the policy regarding use of vehicle by a duly licensed driver or one who was not disqualified to drive at the relevant time. Law is well settled that the insurer in order to avoid its liability must not only establish the available defence(s), but must also establish "breach" on the part of the owner of the vehicle and the burden of proof of it would be on the insurer which the insurer in this case has failed to discharge. Further, the insurer would not be allowed to avoid its liability towards the insured, unless the said breach or breaches on the condition of driving licence is/are so fundamental as are found to have contributed to the cause of the accident and in this case, it has not been established by the insurer that the accident occurred as the driver of the offending vehicle was not knowing as to how to drive the offending bus and, thereby, the driver contributed to the accident. In absence of any concrete evidence contrary to the finding of the learned Tribunal and the insurer having not been able to establish the fundamental requirements to avoid its contractual liability to indemnify the owner of the offending vehicle in paying compensation to the claimants and lastly, the insurer having failed to establish any breach of policy condition by the insured leading any cogent evidence, the insurer is not only liable to pay the compensation, but it also is contractually liable to indemnify the insured.
In the result, the appeal stands allowed on contest, but without any costs. Ergo, the finding of the learned Tribunal with regard to right to recovery as granted to the insurer to recover the same from the appellant cannot sustain and is accordingly set aside. The statutory deposit together with the accrued interest thereon be refunded to the Appellant.