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Judgment
Assailing the judgment dated 29.05.2003 passed
by learned Additional District Judge, No.5, Kota in Civil Suit
No.14/2000, this appeal has been preferred.
Factual matrix of the case in brief is that plaintiff
Suresh Kumar Jain filed a suit seeking compensation for
Rs.62,000/- with respect to damage allegedly caused to his
vehicle, insured with defendant, New India Assurance Company,
collided with a stationary truck on 26.03.1997 at Beawar Road,
Chungi Naka, Sojat, causing damage to his Bus No.RJ 14P 5619,
whose claim was repudiated by defendant, insurance company
vide its letter dated 15.09.1997.
Defendant, New India Assurance Company
contested the suit and denied liability rebutting that at the time of
alleged accident, driver of the bus was not having a valid driving
license, which was a condition precedent for compensation. So,
defendant assurance company was not liable to pay compensation
for loss of property, which was assessed to be of Rs.56,166/-.
The trial court framed following issues:-
"VERNACULAR MATTER OMITTED"
The suit culminated in a decree for Rs.56,166/-
towards damages, in favour of the plaintiff against defendants
insurance company with an interest @ 9% per annum from April,
1997.
While advancing oral submissions, learned
counsel for appellant insurance company has contended that trial
court has manifestly committed error in ignoring provisions of law,
because as per the evidence, it is an admitted position that driver
of bus was not having a valid license at the time of accident and in
such a situation insurance company cannot be held liable for any
damages arising out of the alleged accident. The alleged accident
is also not involving any third party but the claim relates to
vehicle/property of the owner and for such kind of self damage, no
action lies against insurance company, despite in ignorance of it,
learned trial court has held appellant insurance company liable for
damages, which is not tenable under the provisions of law so,
findings are perverse and are liable to be reversed and be set
aside.
On the other hand, learned counsel appearing for
the respondent-plaintiff has submitted that there is no illegality in
the judgment impugned because insurance company has failed to
establish that the owner was at fault in ascertaining the veracity of
driving license of the driver, since he was having a valid license
and factum of its validity was not at all required to be again
verified and regarding its renewal, which too was validly in
existence, even after the accident and there are several
authorities of this point and so far as damage to the property is
concerned, precedents on this point are very much applicable in
this aspect as well, so there is no illegality in the judgment
impugned and trial court was very much competent with
jurisdiction to decide the damages'' suit.
Perusal of evidence discloses that PW-1 Suresh
Kumar Jain, owner of the bus, has explicitly proved his case by
saying that he had employed a driver having valid driving license
and he has said that:
"VERNACULAR MATTER OMITTED" in his cross-examination, he has again said that
he had seen validity of Mohan Lal driver''s license from 30.12.1992
to 29.12.1995 and after retaining a copy of the same, driver was
employed and has further said that according to his belief also
Mohanlal was having a valid driving license.
Likewise, driver of the bus Mohanlal has also said
that at the time of accident he was plying Bus No.RJ 14P 5619 on
26.03.1997 and was holding a valid driving license, which was
valid from 30.12.1992 to 29.12.1997, he has also said that he was
employed by Suresh Kumar Jain, after observing and examining
his valid driving license, which was valid w.e.f. 30.12.1992 to
29.12.1997 and a photo copy of it was also retained by him.
Defendant insurance company has examined B.C.
Sethi as DW-1 who has said that on 26.03.1997, a claim was
presented in their office regarding damage to bus of the plaintiff
and Mohanlal defendant No.2 was shown driver as plying vehicle
at the time of the accident whose driving license number 82433
was issued from Kota, Ex.NA-1 is its copy, he has further said that
on getting it investigated from R.T.O., entry relating to renewal
was found fake, so claim was repudiated, he has admitted that
according to Surveyor''s report, there was a damage estimating
Rs.56,165.70p. and because of breach of policy condition, claim
was found not payable, he has also said that he did not investigate
and ascertained validity of license in R.T.O. Office, himself.
DW-2 Chandra Prakash Gupta, Investigator, has
said that the questioned driving license was issued in the name of
Mohanlal Rao, bearing S.No.82433, which was issued on 25.11.
and after verifying, its date was found to be of 25.11.1988. He
has further said that according to his investigation, said driving
license was issued in the name of Mohanlal Rao S/o Kalyan Rao,
r/o Ladpura on 25.11.1986, which was valid for plying H.M.V. and
its validity was w.e.f. 25.11.1988 to 24.11.1991. Further, it was
found renewed from 30.12.1992 to 29.12.1997. He has also said
that its validity was also effective subsequently from 09.04.1997
to 08.04.2000 and it was not renewed for the period from
30.12.1995 to 08.04.1997.
DW-3 Vasudeo Sharma, D.T.O. has also said that
driving license No.82433 was issued on 25.11.1988 in the name of
Mohanlal Rao S/o Kalyan Ji Rao and it was valid upto 24.11.1991,
which was subsequently renewed from 30.12.1992 to 29.12.1995
and further renewed from 15.04.2000 to 14.04.2003, he has also
said that duplicate copy of it was issued on 09.04.1997,
20.12.1999 and 14.12.2003, he has further narrated an
important say that according to his record, holder of license
No.82433 was never declared ineligible for driving of
vehicle.
In catena of judgments, it has been held that it is
obligatory on the part of insurance company to prove and testify
that insurer/owner of the vehicle, was ever remained negligent
with respect to ascertainment of the validity of license or willfully
employed a driver ineligible to ply vehicle or not competent to
drive vehicle under some disability or employed a driver with a
non-valid or non-renewed license but insurance company has
failed to establish this aspect in case under hand.
In Pepsu Road Transport Corp. Vs. National
Insurance Co., Civil Appeal No.8276/2009, decided on
26.08.2013, Hon''ble Supreme Court has observed as under:-
"6. The matter was subsequently considered by a three-Judge Bench of this Court in National Insurance Company Limited vs. Swaran Singh and Others . The said Bench was of the view that in case the insured did not take reasonable and adequate care and caution to verify the genuineness or otherwise of the licence, the liability would still be open-ended and will have to be determined on the basis of facts of each case. The relevant discussions are available at paragraphs 92, 99, 100 and 101, which are extracted below:
"92. It may be true as has been contended on behalf of the petitioner that a fake or forged licence is as good as no licence but the question herein, as noticed hereinbefore, is whether the insurer must prove that the owner was guilty of the wilful breach of the
conditions of the insurance policy or the contract of insurance. In Lehru case, the matter has been considered in some detail. We are in general agreement with the approach of the Bench but we intend to point out that the observations made therein must be understood to have been made in the light of the requirements of the law in terms whereof the insurer is to establish wilful breach on the part of the insured and not for the purpose of its disentitlement from raising any defence or for the owners to be absolved from any liability whatsoever." "99. So far as the purported conflict in the judgments of Kamla and Lehru is concerned, we may wish to point out that the defence to the effect that the licence held by the person driving the vehicle was a fake one, would be available to the insurance companies, but whether despite the same, the plea of default on the part of the owner has been established or not would be a question which will have to be determined in each case." This Court, however, in Lehru must not be read to mean that an owner of a vehicle can under no circumstances have any duty to make any enquiry in this respect. The same, however, would again be a question which would arise for consideration in each individual case." "The submission of Mr. Salve that in Lehru case, this Court has, for all intent and purport, taken away the right of insurer to raise a defence that the licence is fake does not appear to be correct. Such defence can certainly be raised but it will be for the insurer to prove that the insured did not take adequate care and caution to verify the genuineness or otherwise of the licence held by the driver."
Swaran Singh''s case (supra) was subsequently considered by a two- Judge Bench of this Court inNational Insurance Company Limited vs. Laxmi Narain Dhut [3]. It was explained that: "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 duly licensed driver or one who was not disqualified to drive at the relevant time..."
In a claim for compensation, it is certainly open to the insurer under Section 149(2)(a)(ii) to take a defence that the driver of the vehicle involved in the accident was not duly licensed. 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 the 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 the genuineness of the licence from the licensing authority. That is what is explained in Swaran Singh''s case (supra). If despite such information with the owner that the licence possessed by his driver is fake, no action is taken by the insured for appropriate verification, then the insured will be at fault and, in such circumstances, the insurance company is not liable for the compensation."
Context of damage to an "individual" or
"property" are not to be seen apart, so far as question of validity
of driving license is concerned and there is no distinct parameters
to scan because question of driving license always remains same,
both in case of loss to human lives and to the property.
Perusal and appreciation of above evidence shows
that driver of the vehicle was having a valid driving license, which
was admittedly issued by the R.T.O. in his name, even subsequent
to the date of accident, it has admittedly been said to be valid and
renewed. D.T.O. has also said that the license holder was never
held ineligible or incompetent for plying vehicle, no iota of
evidence has been adduced to prove that the plaintiff, bus owner
ever remained careless in employing a driver, not holding a valid
driving license and insurance company has remained unable to
discharge this onus that the owner-insured ever did so.
So far as, quantum of compensation is concerned,
it is an admission on the part of the insurance company that
according to their survey, a loss of Rs.56,166/- was found to be
verified and learned trial court has also decreed the suit for that
much damages only.
For the reasons dwelt and dealt above, this court
does not find any merit in the appeal, hence same is dismissed.