New India Assurance Company Limited vs Suresh Kumar Jain

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.