Mansoor Ahmad Mir, C.J. (Oral)—All these five appeals are outcome of a motor vehicular accident, which was allegedly caused by the driver, namely Shri Baryam Singh, while driving a Haryana Roadways Bus, bearing registration No. HR-37-3920, rashly and negligently, on 21st February, 2001, at about 2.30 P.M., near Bhairon temple, Tehsil Nahan, in which the passengers sustained injuries. The claimants filed claim petitions before the Motor Accident Claims Tribunal-II, Sirmaur District at Nahan, H.P. (for short "the Tribunal").
2. All the claim petitions were determined and compensation was awarded in favour of the claimants vide common judgment and award, dated 31st March, 2004, which was subject matter of a batch of appeals, the lead case of which was FAO No. 373 of 2004, titled as NIC v. Smt. Balkish and ors., came to be decided vide judgment, dated 17th December, 2009, the findings returned by the Tribunal on issue No. 3 were set aside in all the cases and were remanded with a direction to the Tribunal to decide issue No. 3 afresh after giving an opportunity to the parties to lead further evidence, which reads as under:
"3. Whether the driver of the bus did not possess a valid and effective driving licence at the time of accident. If so, to what effect? OPR-3"
3. The Tribunal, after providing sufficient opportunities to the parties to lead evidence, determined the said issue vide judgment and award, dated 22nd June, 2010, and held that the driver of the offending vehicle was having a valid and effective driving licence, the owner-insured has not committed any wilful breach and accordingly, the insurer was saddled with liability in all the cases (for short "the impugned award), constraining the appellant-insurer to file these appeals.
4. The questions to be determined in these appeals are �
(i) whether the driver of the offending vehicle was having a valid and effective driving licence; and
(ii) whether the owner-insured has committed any wilful breach?
5. Both these questions go against the appellant insurer for the following reasons:
6. The Tribunal, after discussing the evidence of RW- 1, Kuldeep Chand; RW-2, Jaiveer Singh; RW-3, Surender Singh Rawat; RW-4, Parkash Chand and RW-5 Gurdeep Singh, held that the driving licence of the driver of the offending vehicle was duly renewed and valid one. It is apt to reproduce paras 13 and 14 of the impugned award herein:
"13. To rebut this evidence Baryam Singh has examined RW3 Surender Singh Rawat from the office of Registering & Licensing authority, Chandigarh. RW3 has proved document Ext.RW3/A, wherein it has been mentioned that record of the driving licence pertaining to 1975-76 has been weeded out. The stand of Baryam Singh respondent No. 2 driver is that he had firstly obtained driving licence for light motor vehicles No. CH-3011 dated 17-5- 1975 and after one year he had got heavy driving licence on 17-5-1976 and after three years he renewed the driving licence on 17-5-1989 and after that he had sought renewal from Haryana/Ambala/Panchkula. This detail was mentioned in the application mark-XY moved before licensing authority, Chandigarh. RW3 has admitted that the endorsement on the same has been made by incharge Bhupender Singh. He has also identified the signature of incharge Bhupender Singh on application mark-XY in red circle-B with whose signature he is stated to be conversant. The gist of the testimony of RW-3 is to the effect that record pertaining to the driving licence of Baryam Singh has been weeded out, though he has admitted moving of application mark-XY before the licensing authority. Learned counsel for respondent No. 3 has cross examined at length, however, he has not been able to dilute the testimony of this witness on the factum that record pertaining to licence has been weeded out.
14. Respondent No. 1 Haryana Roadways has examined Parkash Chand Assistant in the office of RTO Panchkula as RW4 who has stated that the driving licence of Baryam Singh is valid from 17-5-2002 to 17-5-2016, this driving licence is valid for driving heavy transport vehicle. On being cross-examined by the learned counsel for respondent No. 3 he has denied that due to Government pressure and to save the Haryana Govt. from liability he has deposed falsely about the licence."
7. I have examined the record. There is sufficient material on the file to hold that the driving licence of the driver of the offending vehicle was valid and duly renewed.
8. It was for the appellant-insurer to plead and prove that the driving licence of the driver of the offending vehicle was not valid and effective and the owner-insured has committed wilful breach, has failed to do so.
9. My this view is fortified by the judgment rendered by the Apex Court in the case titled as National Insurance Co. Ltd. v. Swaran Singh & others, reported in AIR 2004 Supreme Court 1531. It is apt to reproduce relevant portion of para 105 of the judgment herein:
"105. .....................
(i) .........................
(ii) ........................
(iii) The breach of policy condition e.g. disqualification of driver or invalid driving licence of the driver, as contained in sub-section (2) (a) (ii) of Section 149, have 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 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.
(iv) The insurance companies are, 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 wherefore would be on them.
(v).........................
(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 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 insured under Section 149 (2) of the Act."
10. The Apex Court in another case titled as Pepsu Road Transport Corporation v. National Insurance Company, reported in 2013 AIR SCW 6505, has laid down the same principle. It is profitable to reproduce para 10 of the judgment herein:
"10. 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."
11. The Apex Court in the case titled as Fahim Ahmad & Ors. v. United India Insurance Co. Ltd. & Ors., reported in 2014 AIR SCW 2045, held that the insurer has not only to plead the breach but has also to substantiate the same by adducing positive evidence. It is apt to reproduce para 6 of the judgment herein:
"6. Although the plea of breach of the conditions of policy was raised before the Tribunal, yet neither any issue was framed nor any evidence led to prove the same. In our opinion, it was mandatory for respondent No. 1-Insurance Company not only to plead the said breach, but also substantiate the same by adducing positive evidence in respect of the same. In the absence of any such evidence, it cannot be presumed that there was breach of the conditions of policy. Thus, there was no reason to fasten the said liability of payment of the amount of compensation awarded by the Tribunal on the appellants herein."
12. Having said so, the impugned award is well reasoned and legal one, needs no interference.
13. Registry is directed to release the awarded amount in favour of the claimants strictly as per the terms and conditions contained in the impugned award through payee''s account cheques or by depositing the same in their respective bank accounts.
14. Viewed thus, the impugned award is upheld and the appeals are dismissed.
15. Send down the record after placing copy of the judgment on each of the Tribunal''s file.
