Oriental Insurance Co. Ltd. vs Chanchala Devi

Mohammad Yaqoob Mir, J.—Shri Romesh S/o Bhagat Ram R/o Village Kandharnu, lost life in a road accident on 19.07.2000 at village

challan when he was working as a labourer with tractor bearing registration No. JK02L-8396. At the time of accident, the tractor, carrying sand

was allegedly driven rashly and negligently. Respondents No. 1 to 5, being legal heirs of the deceased, filed petition for grant of compensation

before Motor Accident Claims Tribunal, Kathua, which has been decided on 29.12.2008. Claimants have been held entitled to the compensation

of Rs. 3,96,000/- along with interest @6% from the date of institution of the petition till its full realization in the ratio indicated in the award. The

appellant-insurance company has been held liable to pay the compensation, Dissatisfied therewith, instant appeal has been filed.

The appellant has assailed the impugned award on the following grounds:

(I) The driver, Pardeep Kumar, was not holding a valid and effective driving licence on the date of accident i.e. 19.07.2000;

(II) The tractor, at the time of accident, was being plied in breach of policy conditions i.e. it was insured under Kissan Package Insurance Policy,

so could not be used for any purpose other than agriculture;

(III) The death of the deceased has occurred in the course of and arose out of employment with respondent No. 6, as such, maximum liability of

the appellant could be as per Workmen's Compensation act;

The Tribunal, on the basis of pleadings of the parties, has framed the following issues:

Whether Romesh Lal has died in an accident on 19.7.2000 caused by the rash and negligent driving of vehicle No. JK02L-8396 by respondent

No. 2 owned by respondent No. 1? (OPP)

If issue No. 1 is proved, whether petitioners are entitled to receive compensation, if so, how much and from whom? (OPP)

Whether at the time of occurrence, the driver of the offending vehicle respondent No. 2 was not holding an effective and valid driving licence, if

so, what is its effect on the petition? (OPR-3)

So far as finding on issue No. 1 is concerned, same is not opposed.

The finding on issue No. 2, to the extent of fastening liability to pay compensation on the appellant, is objected on the ground that it has not been

established as to whether the sand as was being carried in the tractor was required for agriculture purpose so as to bring it within the purview of

the conditions governing Kissan Package Insurance Policy. The evidence, as has been led, does not indicate so nor is any finding recorded on this

aspect of the case.

Important aspect is as to whether tractor was carrying sand for agricultural purposes. Same was required to be proved by the owner and driver

of the vehicle who have not chosen to contest the case, as such, has remained to be proved.

In the judgment reported in Mam Chand and Another Vs. Sunita Devi and Others, rendered by Punjab & Haryana High Court, it has been held:

It was not the duty of the insurance company to prove that the vehicle was being used for commercial purpose. Rather, it was the duty of the

owner and driver to prove that the Vehicle was being used for agricultural purpose for which it was insured. Carrying the sand can also be defined

as agricultural use but for that the owner and driver have to make a statement to that effect and have to prove the agricultural use of sand being

carried from Bilaspur to Mukhor. So, it certainly appears that the tractor was being used for commercial purpose and as it was a goods carriage.

It is further pleaded that the driving, licence was not valid on the date of accident. In this context, findings recorded on issue No. 3 are 'required

to be examined.

It is not denied that the driver possessed driving licence but on the dale of accident it was not renewed. The accident has taken place on

19.07.2000. The driving licence of the driver was issued on 20.06.1996, was valid up to 19.06.1999. Then it has been renewed on 20.07.2000

to 19.07.2003. So on 19.07.2000, it was not renewed. Now it has to be seen as to whether non-renewal would mean that the driver did not

possess valid driving licence so as to exonerate the insurer from the liability.

According to learned counsel for the appellant, when driving licence was not valid on the date of occurrence, it was the owner who was liable

to pay the compensation not the insurer. In support of this contention, he relied on the judgment rendered by the Hon'ble Apex Court report in

National Insurance Co. Ltd. Vs. Vidhyadhar Mahariwala and Others, .

In the reported judgment, the date of accident was 11.06.2004. Driver's licence was initially valid for the period from 15.12.1997 to

14.12.2000 and thereafter from 29.12.2000 to 14.12.2003. Then again it was renewed from 16.05.2005 to 15.05.2008. Para 11 of the said

judgment is relevant to be quoted:

In Ishwar Chandra's case (supra) the three decisions referred to by the High Court were considered and it was held that the insurance

company would have no liability in the case of this nature. We are in agreement with the view. The appeal deserved to be allowed which we direct.

The impugned order of the High Court is set aside. It is open to the claimant to recover the amount from respondent No. 2.

In the case in hand, the appellant had specifically set up defence to the effect that the driver of the offending vehicle at the time of accident did

not possess valid licence. In support whereof, had produced Branch Manager, Rajesh Gupta, as witness, who, in his statement, stated that the

driving licence of the driver was not valid as the same has been renewed after the date of accident. It was for the owner and the driver of the

vehicle to controvert the position as it is but they have not chosen to contest the case before the Tribunal.

On identical grounds, this Court has rendered judgment in case National Insurance Co. Ltd. Vs. Fayaz Ahmed Shah and Others, , wherein

Insurance Company was not held liable to indemnify. The ratio of the judgment squarely covers the present case.

Contention of learned counsel for the appellant that the deceased was the labourer engaged with the tractor, therefore, claim could be settled

under Workmen's Compensation Act, is not tenable because there is no ample proof to establish that the deceased was permanently employed as

labourer with the tractor.

For the stated reasons, award to the extent of fastening liability on the appellant Insurance Company, is set aside. It is the owner and driver of

the offending vehicle who are liable to pay compensation. Since driver, who was son of respondent No. 6, Gian Chand (owner of the vehicle), is

also reported to be dead, therefore, it is respondent No. 6-Gian Chand, who has to pay the compensation.

The amount of compensation has been deposited by the appellant (insurance company), out of which some portion has already been released.

Balance amount along with interest shall be released in favour of the claimants in the ratio as fixed in the impugned award. The appellant-insurance

company has a right to recover the amount from the owner so shall be at liberty to launch proceedings for recovery as against the owner.

Appeal succeeds to the extent indicated above in para 16, so shall stand disposed of accordingly along with connected CMA. Record of the

Tribunal along with copy of this order be sent to the Tribunal.