The New India Assurance Company Ltd vs Smt. Jug Sunarani & Ors.

Hon'ble Pankaj Purohit, J. (Oral)

The present appeal, under Section 173 of the Motor Vehicles Act, 1988, has been preferred by the appellant-Insurance Company against the judgment and award dated 13.06.2012 passed by the Motor Accident Claims Tribunal/Additional District Judge, 1^st F.T.C., Haldwani, District Nainital, in Motor Accident Claim Petition No.213 of 2009, Smt. Jug Sunarani and others v. Rajendra Singh Rautela and others, whereby the claim petition was allowed and a compensation of Rs.4,30,000/-, along with interest at the rate of 7% per annum from the date of claim-petition i.e. 11.11.2009 till actual payment is made, was awarded in favour of the claimants.

The brief facts of the case are that on the intervening night of 27/28.01.2009, deceased Shiv Kumar @ Shiv Ram Sunar was travelling in Truck No. UA-04-A-3369, which was proceeding from Bageshwar towards Haldwani. When the said truck reached near Kainchi Dham, within the jurisdiction of Police Station Bhawali, District Nainital, it became unbalanced and fell into a deep gorge, resulting in causing serious injuries to Shiv Kumar. He was taken for treatment to Soban Singh Jeena Base Hospital, Haldwani, where he succumbed to his injuries. The claimants, being the wife and minor children of the deceased, instituted Motor Accident Claim Petition No.213 of 2009 before the Motor Accident Claims Tribunal, Haldwani, claiming compensation of Rs.5,00,000/- on account of his death. In the said petition, the Tribunal awarded an amount of Rs.4.30 lakh with interest @7% p.a. from the date of presentation of petitioner i.e. 11.11.2009. Aggrieved by said order, appellant-Insurance Company has preferred this appeal.

The claimants pleaded that the deceased, Shiv Kumar @ Shiv Ram Sunar, was travelling in Truck No. UA-04-A-3369 on the intervening night of 27/28.01.2009, when, near Kainchi Dham, the truck became unbalanced and fell into a deep gorge, resulting in his death. It was pleaded that the accident occurred due to the negligent driving of the truck; deceased was a healthy and able-bodied person earning approximately Rs.3,000/- per month by undertaking loading and unloading work; on account of his untimely death, the claimants suffered mental as well as financial loss; and, accordingly, compensation of Rs.5,00,000/- was claimed.

The owner admitted the occurrence of accident but pleaded that it was caused by a stone suddenly falling from the hill, due to which the driver attempted to save the vehicle. It was further pleaded that the deceased was neither his employee nor authorised to travel in the truck. However, it was submitted and pleaded that deceased was labourer of owner of the goods (Kharia), who got injured seriously and later on died. The owner asserted that the vehicle was insured, the driver held a valid driving licence, and all requisite documents were valid, and therefore, it was the liability of the Insurance Company to pay compensation.

The driver of the offending vehicle, despite multiple service of notice, did not present himself before the Tribunal and hence, was proceeded ex parte against him.

The appellant-Insurance Company pleaded that the deceased was travelling in the goods vehicle as a gratuitous passenger and was not covered under the insurance policy. It further alleged breach of the policy conditions, including the requirement of a valid permit, and thus, denied its liability to indemnify the owner or to pay compensation.

On the basis of the pleadings of the parties, the Tribunal framed the following issues: -

While deciding Issue No.1, the Tribunal, upon consideration of oral and documentary evidence on record, found that the accident in question had occurred when Truck No.UA-04-A-3369, in which the deceased was travelling, became unbalanced and fell into a deep gorge near Kainchi Dham, resulting in the death of Shiv Kumar alias Shiv Ram Sunar. The Tribunal also noted that the claim petition had been instituted under Section 163-A of the Motor Vehicles Act, wherein proof of negligence on the part of the driver was not required. The issue was, accordingly, decided in favour of the claimants and against the contesting respondents.

While deciding Issue No. 2, the Tribunal considered the validity of permit and other documents of the offending vehicle as well as the driver's licence. It noted that although copies of permit, registration certificate, fitness certificate and insurance policy had been produced by the owner, however, the investigator could not verify the permit from the records of Transport Department. In respect of driving licence, the Tribunal observed that it was valid for light motor vehicles, whereas the offending vehicle was a heavy goods vehicle. However, relying upon the owner's testimony that he had seen the driver operating trucks on several occasions before employing him, and that no accident had occurred during the preceding period of employment, the Tribunal held that the owner could not be held guilty of breaching the insurance policy conditions. Accordingly, Issue No. 2 was decided in favour of the owner and against the Insurance Company.

While deciding issue No. 3 the Tribunal on the question of entitlement and quantum of compensation, the Tribunal assessed the income of the deceased and, applying the appropriate multiplier and deductions, determined the compensation payable to the claimants at Rs.4,30,000/-. The claim petition was accordingly allowed for the said amount, together with 7% per annum interest, and liability for payment was fastened upon the appellant-Insurance Company.

Learned counsel for the appellant-Insurance Company submitted that the Tribunal has erred in fastening liability upon the appellant despite there being a fundamental breach of the terms and conditions of the insurance policy. It was contended that the deceased was travelling in the goods vehicle as a gratuitous passenger, for whose risk, no premium had been paid, and the Tribunal failed to consider this aspect or the relevant terms of the insurance policy. It was further submitted that the offending vehicle was being plied without a valid permit and that the Tribunal itself had found deficiencies in the requisite documents, yet failed to appreciate their legal effect. Learned counsel further submitted that the finding regarding the validity of the driving licence was contrary to the evidence on record. It was also contended that the accident and negligence had not been established by reliable evidence and that the compensation awarded by the Tribunal was excessive. On these grounds, setting aside of the impugned judgment and award, or in the alternative, appropriate modification thereof, was sought.

The owner of the offending vehicle, in his written statement, admitted the occurrence of the accident but denied negligence on the part of the driver. It was pleaded that the accident occurred when a stone suddenly fell from the hill, due to which the driver attempted to save the vehicle and, in the process, the truck fell into the gorge. It was further pleaded that the deceased was neither an employee of the owner nor had been authorised by him to travel in the truck. The owner asserted that the vehicle was insured with the appellant-Insurance Company, the driver possessed a valid driving licence and all the requisite documents of the vehicle were valid on the date of the accident. It was, therefore, pleaded that the liability, if any, to pay compensation was upon the Insurance Company.

Having heard learned counsel for the parties and perused the record, this Court finds that the principal challenge raised by the Insurance Company concerns the validity of the driving licence of the driver of the offending vehicle and the validity of the vehicle's documents. The Tribunal, while deciding Issue No. 2, has considered the evidence adduced by the parties and recorded its findings on these aspects. So far as the permit is concerned, the permit produced on record indicates that it was valid from 18.06.2008 to 17.06.2013, covering the date of the accident. The Insurance Company has failed to establish, by cogent evidence, that the offending vehicle was being plied without a valid permit on the relevant date. Accordingly, no interference with the Tribunal's finding in this regard is warranted.

With respect to the driving licence, even if the licence was not valid for driving a heavy goods vehicle, the mere fact that the driver did not possess the requisite class of licence would not, by itself, absolve the Insurance Company of its liability. In National Insurance Co. Ltd. v. Swaran Singh, (2004) 3 SCC 297, the Hon'ble Supreme Court held that the insurer must establish a breach of the policy condition attributable to the insured; the mere absence or invalidity of a driving licence is not, by itself, sufficient to avoid liability. In the present case, the owner stated that he had seen the driver operating trucks on several occasions before employing him and had checked his driving licence. The evidence on record does not sufficiently establish that the owner had wilfully committed a breach of the policy conditions or failed to exercise reasonable care in employing the driver. Consequently, the Insurance Company has failed to establish a breach of the policy conditions sufficient to displace the Tribunal's finding.

The Insurance Company has further contended that the deceased was travelling in the offending goods vehicle as a gratuitous passenger and, therefore, was not covered under the insurance policy. However, the Insurance Company has failed to establish, on the basis of cogent evidence, that the deceased was travelling as an unauthorized gratuitous passenger in violation of the terms and conditions of the policy. In the absence of sufficient evidence to establish the alleged exclusion from coverage, the Insurance Company cannot avoid its liability on this ground. Accordingly, this contention also fails. Actually, as admitted by the owner, the deceased was labourer of the owner of goods (Kharia) who got injured and died in the hospital later on due to those injuries. The challenge raised by the Insurance Company is, therefore, without merit.

Accordingly, the appeal is dismissed. The impugned judgment and award passed by the learned Tribunal is affirmed. The amount of Rs.3,50,000/-deposited by the appellant-Insurance Company pursuant to the interim order dated 08.08.2012, inclusive of statutory deposit of Rs.25,000/- along with entire interest accrued thereon, shall be released to the claimants. The amount, if any, released in favour of claimants, shall be adjusted. The appellant-Insurance Company shall deposit the remaining amount of Rs.80,000/-, along with interest at the rate of 7% per annum as awarded by the learned Tribunal, before the learned Tribunal, within one month from the date of receipt of certified copy of this judgment.

Pending application, if any, stands disposed of.